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Summaries of the Fifth Session

Daily summary of discussion at the fifth session
28 January 2005

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UN Convention on the Human Rights of People with Disabilities
Ad Hoc Committee - Daily Summaries

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Volume 6, #5
January 28, 2005

MORNING SESSION

ARTICLE 11: FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (cont)

The Coordinator opened the discussion on Article 11. He asked colleagues to provide new, substantial and reasonably linked pieces of proposed text to the UN Secretariat and facilitator for this Article, so they can be made available to all on the website. Some delegations have expressed concern about the method and pace of work, because the complex legal issues of this Article must be discussed more thoroughly. However, it was reiterated that this is not a final text and there will be opportunity for everyone to come back and review the draft. Nobody will be precluded from returning to issues that were agreed upon earlier and reexamining the substance or wording of the draft text. In order to simplify the drafting procedure, a drafting committee might be designated for this purpose. All text is capable of drafting improvement. The Coordinator also emphasized the importance of being in regular contact with representatives from disability organizations to maintain a dialogue and exchange of experience and knowledge. Although States implement this Convention, it is very important to maximize the opportunity to draw on the experience of PWD and disability organizations’ representatives.

Norway stated it engaged in discussions with the Office of the High Commissioner for Human Rights (OHCHR) and other delegations yesterday. With regard to 11.2, Norway supported the EU proposal to move its second part starting with the words “and shall protect…” to Article12.

The Republic of Korea indicated its flexibility on the placement of 11.2, as the issue to situate it elsewhere has been raised by many states, though it believed that torture and institutionalization are sometimes correlated. Furthermore, it proposed to add “prior” after “free and informed consent”, so that it reads “free, informed and prior consent.”

Chile supported the comment made by Korea and preferred not to move11.2. Medical or scientific experimentation, institutionalization and forced medical interventions are forms of torture and there are flagrant examples of this throughout history. It is important to expressly prohibit these actions in the article. Upon enquiry from the Coordinator, Chile confirmed that it prefers to retain the references to medical and scientific experimentation, or forced institutionalization or interventions in their present form.

Russian Federation believed that the mention of medical and scientific experimentation is appropriate in this Article, as the concept is justified in the International Covenant on Civil and Political Rights (ICCPR). Adding “clearly expressed” to the wording regarding free and informed consent would be appropriate. With regard to the second part of 11.2, the understanding of torture is clear as defined in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). It is not necessary to develop any kind of new element with regards to PWD, which would introduce some uncertainty and lack of clarity. A brief and concise article of two paragraphs prohibiting torture and forced medical and scientific experimentation is preferable. In regard to institutionalization, PWD should be viewed as valuable members of society and thus shall not be segregated. In accordance with the underlining principles of law and order, however, there is a need for balancing interests. PWD should not present any kind of danger to themselves, others, or society. Therefore the deletion of the second part of 11.2 as proposed by the EU and China would be appropriate.

The Coordinator noted that the question relating to the second part of 11.2 about forced interventions and forced institutionalization links back with Articles 9 and 10. Article 10 is about not depriving PWD of liberty or placing them in institutions as a result of their disability, and this concept should be kept in mind. If someone presents a danger to someone else, for example engages in a threatening behavior, then societies take actions against such people regardless of whether a person has a disability or not. However, it is important that the action not be taken contingent on a disability, and that is the balancing of interests mentioned by the Russian Federation. This article requires careful balancing and conceptualization as we are involved in a forward-thinking and “revolutionary” convention.

New Zealand revised its previous position on Article 11 and supported the WG text on Articles 11 and 12. The part of 11.2 on the right to informed consent and other relevant aspects should become 12(bis).

United Arab Emirates expressed concerns about the lack of consistency between the content of the title of Article 11 and its second paragraph. The notion of forced intervention should be retained in this paragraph and the title should reference medical experimentation. A wise reformulation of this article is necessary to ensure that institutionalization and forced medical interventions are in the interest of the PWD and/or society.

The Coordinator noted that at this stage the titles are purely utilized to elucidate the topics of the articles. The practice in most human rights conventions is not to have titles, and it may well be decided at the end not to have titles in this convention.

Thailand supported the original structure and substance of the WG text, which is clear that forced intervention and institutionalization should not been allowed.

The Coordinator pointed out that 12.2 also prohibits, and protects PWD from, “forced interventions or forced institutionalization aimed at correcting, improving or alleviating any actual or perceived impairment.” This Article does not preclude situations when PWD might be a threat to others and thus justly would lose their liberty.

Costa Rica agreed with retaining 11.1 as it stands in the WG text. However, with regard to 11.2, the concept of institutionalization is an issue that bears a certain stigmatization for PWD, and it should therefore be moved to Article10 because of its inherent legal nature.

South Africa addressed structural issues and recommended merging Articles 11 and 12, as they overlap. The inclusion of elements in Article 11 is very important, because it addresses matters of security of PWD. The inclusion of forced institutionalization is also a very essential element to the convention and therefore should be maintained as a part of the article referring to freedom from torture and punishment.

Yemen supported the position of the Russian Federation and UAE points. The title is not logical as it refers only to a part of the article. Forced intervention and institutionalization need to be viewed very cautiously, because sometimes what is called a forced institutionalization, can in fact be a form of protection of PWD. The person’s desire may not always be expressed. It is appropriate to merge Articles 11 and 12, because forced institutionalization and torture are both forms of violence.

Trinidad and Tobago supported Costa Rica’s proposal to move 11.2 to Article 10 in order to have one single article on all issues concerning liberty and deprivation of liberty. There could also be a cross reference to Article 10.

Australia supported reworking this group of clauses to avoid any duplication. It is important to assure that PWD are not forced into various medical, other interventions, or institutional environments. There is an unintended consequence of 11.2 as it concentrates on the prohibition of forced institutionalization which is aimed at correcting impairment. It’s highly risky, because there are many instances of forced institutionalization that are for other purposes and are not aimed at correcting anything at all. It would be adequate to argue against forced interventions and institutionalization of any kind, in the later drafting. However, there must be some circumstances, in which this Convention can allow interventions if they are done for the right purposes and in accordance with appropriate legal procedures and safeguards. A simple blanket ban on involuntary interventions or care of any kind, without the consideration that this may be necessary in some occasions with appropriate legal procedures and safeguards, is not acceptable.

Indonesia supported comments and observations made concerning forced interventions. There are times when people with mental disabilities present a danger to themselves and to society. A balance needs to be drawn between the interests of all persons concerned.

The Coordinator suggested breaking down 11.2 to its components as a result of comments on structural issues. He addressed the underlying philosophy of the draft convention. There will be circumstances where individuals represent a danger to others, and are usually imprisoned. There is no argument that it should not be possible to deprive the liberty of someone who threatened or is a threat to others. Imprisonment should not occur based solely on the existence of disability. There shall not be different standards for PWD in this respect. The reality and history shows that PWD have been deprived of their liberty not because they necessarily represent a threat to others, but because they have a disability. As the Russian Federation stated, this is a matter of balancing interests. A balance is very hard to achieve because states and governments have an obligation to their citizens as well as to PWD. Interests of PWD shall not be protected in a paternalistic way, but PWD should be allowed to operate on an equal basis with all others.

Serbia and Montenegro supported Costa Rica, Indonesia and other states that issues of forced institutionalization would be better placed in Article 10 because it pertains to liberty and security. Article 11 deals with freedom from torture and torture is absolutely prohibited in international human rights treaties. If forced institutionalization is viewed as a torture, this could have dangerous consequences. If PWD represent a threat to others or themselves, they could not be institutionalized as it would be viewed as a form of torture.

Thailand said there is no argument against forced institutionalization and intervention as such, but if it is aimed at correcting and improving any impairment, it should be viewed as a form of torture. This issue has become too generalized in this discussion.

Mexico supported Costa Rica’s proposal concerning 11.2, which should be moved to Article 10. It reiterated its proposal concerning 10.2 on specifying the types of deprivation of liberty. This paragraph may refer exclusively to the criminal ambit, but it can also include deprivation of liberty for civil, administrative or other reasons. It also reiterated its suggestion to insert a new potential 11.3, as it stands in the compilation (http://www.un.org/esa/socdev/enable/rights/ahc4mexico.htm) or (http://www.un.org/esa/socdev/enable/rights/ahc4da11.htm).

The Coordinator asked Mexico whether the new proposal of 11.3 relates only to situations where PWD are placed in facilities for PWD, or more generally to all institutions, such as prisons. Mexico stated it only refers to institutions for PWD.

Uganda supported the current formulation of Article 11. It is necessary to read 11.2 carefully, emphasizing that forced interventions and institutionalization are prohibited only when they are “aimed at” correcting any impairment. Therefore, the deletion of the second part of 11.2 would undermine the intention of this particular article, and it should be retained.

Bahrain stated that a reference to forced interventions and institutionalization aimed at treatment or care of PWD, especially within a time constraint for the person and the family, must be included in the text. 11.2 should therefore be maintained.

The Coordinator acknowledged that a review of the structure of the articles would be needed, but noted that the fundamental issues would not be dealt with by shifting the same language somewhere else. The language of the first part of 11.2 “In particular, (…) consent of the person concerned” follows Article 7 of the ICCPR, which says: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” The language is slightly different given the history in different countries of PWD being subjected to experimentation without their free and informed consent. The Republic of Korea proposed to insert the word “prior.” The Coordinator asked whether the first part of 11.2 amended by Korea receives general acceptance.

Russian Federation reiterated its earlier proposal to include the term “clearly expressed” in 11.2, which complements the proposal of the Republic of Korea to add “prior”.

The Coordinator summed up that 11.2. would read “without the “free, informed and clearly expressed prior consent.”

Thailand reiterated the need to include “other forms of experimentation,” which go beyond medical and scientific experimentation, as proposed in AHC4.

Jordan disagreed with the Korean and Russian Federation suggestions. There may be cases when something harmful or dangerous to the PWD is discovered during experimentation, and when a free and prior consent cannot be expressed. The WG text is more general and more valid. Free consent by definition is clearly expressed, so it is redundant to add this expression. A question was raised whether medical experimentation is scientific or not, and what it is meant by the “other form of experimentation.” It recommended avoiding a shopping list and only saying “experimentation.”

New Zealand stated that free and informed consent is a well understood concept used in many conventions, and any further words added will confuse rather than clarify.

Colombia proposed placing 11.2 under Article 12 which refers more to abuse in treatment.

The Coordinator repeated his preference not to discuss the placement of 11.2 at this stage, since there were several suggestions to move it to Article 10, 12 or 11(bis), or maintain it where it is. First it is necessary to look at the substance.

Trinidad and Tobago supported proposal made by Thailand, which broadens the article to sufficiently cover any form of experimentation that may not be specifically referenced. Regarding free and informed consent, this wording is clear and well understood to the international community, as NZ stated. However, the Russian proposal introduces a new element that would tailor this particular paragraph specifically to PWD. This may happen for example in situations where the consent of the PWD may be inferred and the person would not be in fact consenting. It preferred not to include the word “prior” because as Jordan had indicated the article could then be interpreted as applying to consent throughout the medical and scientific procedures.

Nigeria supported the substance of Article 11. It opposed including ”prior” because there could be a development in or alteration of the experimentation and therefore the consent has the potential to be misused. It is misleading to further qualify “free and informed consent,” as the WG text already covers any prior and any further development in the course of experimentation.

Australia supported the view that free and informed consent is an easily understood phrase and there is a broad jurisprudence around the concept. It referred to the ability to provide support to PWD in order for decisions to be made or actions to be taken. There is an overall approach of allowing support to be provided to enable consent to be obtained, and this concept should also apply to other articles including this one. There might be situations where it is most desirable that a particular medical procedure should be undertaken, even perhaps a clinical trial but where the person is unable to give consent without considerable support. Therefore, the wording “free and informed consent” should be maintained, and the existing jurisprudence and interpretation of that term should be applied to other articles.

Luxemburg, on behalf of the European Union (EU) supported NZ and Australia concerning the phrase “free and informed consent” as well as the WG text.

Yemen supported Jordan noting that PWD have to be continuously informed during the experimentation about their rights.

Nigeria asked for a clarification of the meaning of “prior” consent. PWD may give consent without being aware of the harmful consequences of the experimentation.

Uganda supported the “free, informed and clearly expressed“ wording, so that there is no doubt about the consent of a person concerned, whose behavior may be misunderstood. It is preferable to omit the expression of “prior“ because it works against the interest of PWD. Once prior consent is given, it cannot be withdrawn.

The Coordinator asked for the Korean position on “prior,” specifically whether it preferred to delete it or maintain it, since there have been a number of questions raised about this expression.

Republic of Korea indicated its flexibility on using “prior” and reiterated the intention of the suggestion, which was to strengthen PWD ability to consent. This term has received increasing attention in the area of biomedics.

New Zealand said a lot of time has been spent discussing the issue of free and informed consent. This term has a long and rich history and it should be considered with advice and assistance from the OHCHR.

The OHCHR representative explained that “free consent” is usually defined as consent obtained freely without threats or improper inducements. “Informed consent” is obtained after appropriate disclosure of adequate and understandable information in a form or language understood by the person. The phrase “prior consent” has been increasingly used but the general understanding is that “consent” includes prior consent as well as the ongoing maintenance or non-withdrawal of that consent at a later stage. The term “consent” may be also understood as including the need for consent to be obtained prior to the beginning of any experimentation or treatment.

The Coordinator asked for clarification of the term “clearly expressed.”

The OHCHR representative explained that “clearly expressed” is not normally used and should be understood as a component of the need for consent. However, it may be useful to explicitly refer to it in the context of an instrument trying to tailor the standards specifically to the circumstances of disability.

Russian Federation indicated its flexible position on the question of “prior consent” given the explanation from the OHCHR representative. Following other international human rights instruments, particularly the Universal Declaration of Human Rights, this Convention should take into account the objective particularities that are linked to PWD. As Trinidad and Tobago and Uganda have pointed out there are cases where PWD may face external pressures that prevent them from expressing their own free will.

The Coordinator asked the OHCHR to elaborate on relevant Human Rights Committee (HRC) jurisprudence.

The OHCHR explained that when the HRC adopted the General Comment 20/1992, which replaced its earlier Comment on Article 7 of ICCPR, it paid particular attention to this problem. Special protection in regard to scientific or medical experimentation is necessary in the case of persons not capable of giving “valid consent.” The HRC questioned the possibility of consent being valid under certain circumstances and concluded that such persons should not be subjected to any scientific or medical experimentation that may be detrimental to their health. The HRC’s position here is based on information received over a number of years in connection with human rights standards.

The Coordinator concluded the discussion on 11.2. There has been a clear support for the first part of 11.2. There have been additional proposals to the concept of “free and informed consent,” such as “prior” by Republic of Korea or “clearly expressed” by Russian Federation and both countries indicated flexibility. It has been repeatedly noted that the concept of clear and informed consent is used elsewhere. On the other hand, this convention is being tailored specifically to PWD, and the reality is that PWD have been subjected to medical and scientific experimentation without their consent. Therefore qualifications and additional language may give additional assurance to PWD. Thailand also raised the point to insert “or other” in addition to “medical and scientific experimentation.”

The Coordinator noted there has been less support for the second part of 11.2, which raises problematic issues. It prohibits “forced interventions and institutionalization aimed at correcting, improving or alleviating any actual or perceived impairment.” The clause does not prohibit institutionalization where an individual with or without a disability, is a threat to others. He asked whether there should be a prohibition in this Convention on forced intervention or institutionalization without consent aimed at correcting, improving or alleviating any actual or perceived impairment.

Thailand called upon delegates to understand that this paragraph does not refer to all forms of forced interventions or any form of forced institutionalization. It refers to action specifically aimed at correcting, improving or alleviating an impairment.

United Arab Emirates noted that scientific evidence could be used to prove that the experimentation or intervention would not harm PWD or their families. The Coordinator clarified that forced interventions and institutionalization “aimed at correcting ….” would be permitted if it is proved scientifically and if it does not harm the PWD or the family.

Australia believed that the question of forced institutionalization is one of deprivation of liberty, which is adequately covered elsewhere. In this article, the need is to protect PWD from medical interventions.

The Coordinator again enquired as to whether the current wording is generally acceptable adding that the question of placement will be discussed subsequently.

Australia stated it is difficult to see that forced institutionalization in itself could be aimed at correcting, improving or alleviating impairments. There are certainly other interventions that have a bad intent.

The Coordinator received assurances from Australia that it accepts the provision on forced interventions “aimed at ….”, but not that of forced institutionalization.

Chile agreed that forced institutionalization would be unacceptable unless the prior consent of the PWD has been given. There also might be a representative designated in situations when the PWD is unable to express his or her consent. There is also a proposal from India, which would further clarify the procedure of expressing consent of PWD under these circumstances and determine whether it is in the best interest of the PWD.

Costa Rica supported the Australian proposal endorsed by Chile. It highlighted that forced institutionalization is an issue intimately linked to the concept of liberty and to a legal point, and therefore it should be treated distinctly from the content of Article 11. It must be clear that forced institutionalization is not a legal option within the framework of this Convention.

The Coordinator asked Costa Rica for clarification of the statement that forced institutionalization is not a legal option.

Costa Rica replied that forced institutionalization should be legally prohibited within the context of this convention. The other issues in Articles 11 and 12 are issues that may rise not only in an institutional context, but in others as well.

Uganda explained that the need for correcting, improving or alleviating a impairment must originate from the person’s consent. PWD should be protected against any forced interventions or institutionalization aimed at correcting any impairment.

The Coordinator stated there have been a number of countries that have supported the proposition that there should not be forced interventions aimed at correcting, improving or alleviating an impairment. Leaving the issue of institutionalization to one side and referring only to interventions, the Coordinator asked if anyone is in opposition to this proposition.

New Zealand supported the Costa Rican position that forced institutionalization should be prohibited under this convention.

Russian Federation agreed that the issues addressed in the second part of 11.2 shall be placed elsewhere in the Convention, for example in Article 10. These issues are closely related to the protection of liberty and rights of PWD. It supported Thailand’s interventions and institutionalization are not solely aimed at isolating that person in many cases, but rather are aimed at correcting, improving or alleviating an impairment. This article deals with a different concept, in which institutionalization and intervention are not the same as torture. There must be a clear distinction drawn between the violence and viable interventions concerning PWD.

Yemen stated that the expression “forced institutionalization” raises concern, perhaps because it denotes oppression or torture. An illustration of a non-disabled person who falls ill was used. In this case, it may be necessary to keep the person under direct and continuous supervision because the illness can harm another person or he or she may harm themselves. This is usually not considered to be a form of institutionalization. This rule can also apply to PWD when an intervention is in their interests and is based on the desire to keep him or her away from danger to themselves or others. It is necessary to replace the term “institutionalization” by a different expression. This article is not about violence intended to oppress, cause pain, or torture. Such violence must be dealt with in a different article or different section of this article. However, elimination of this provision may be more harmful to PWD.

Thailand explained that the concept of torture may be viewed differently by PWD. Intervention may not be acted violently at all. “Forced” means against the will of the individual, regardless of whether the person who conducted the intervention had good intentions or not. Action taken against the will of the PWD can cause torture to the PWD. Although torture may not be seen as a violent act, the consequence which PWD have to bear is no less a violent act. Often a perceived act of kindness can be a form of torture from the point of view of PWD.

Jordan emphasized that forced or unforced institutionalization works against the “very thing of being human” and should only be permitted as an exception to the general rule. There are only few PWD or sick persons who truly need to be institutionalized.

The Coordinator concluded the discussion on 11.2. There was a general consensus that PWD shall be protected from forced intervention aimed at correcting and alleviating an impairment. With respect to forced institutionalization however, it is hard to see how it could, in and of itself, be aimed at correcting (…). The Coordinator suggested moving on to Article 12 as there is a link between Articles 10, 11 and 12. After concluding the discussion on Article 12, the structure and placement of 11.2 may be addressed, as many delegations have already commented on it. Breaking down to small groups may help solve the issue of placement and substance. There is also the Mexican proposal, which relates generally to the concept of institutionalization and Article 10, which may be addressed after finishing discussion on Article 12.

Mexico clarified that its proposal was raised in AHC 3 and AHC 4 and presented as Article 11.3. Once the issues on placement are solved, this proposal may be dealt with.

ARTICLE 12: FREEDOM FROM VIOLENCE AND ABUSE

The Coordinator invited comments on placement and structure of Article 12, which can clarify how to deal with issues raised in this and Articles 10 and 11. These are: [1] whether the terms “violence” or “abuse” should be elaborated further. There is a comprehensive list of examples, but there were suggestions for additional examples. [2] whether the scope of this article should be extended to include families of PWD. [3] whether monitoring and judicial procedures should be included here, noting that there will be a generic article on this later in this Convention. [4] forced intervention and institutionalization, again dealt with in 12.2. [5] whether there should be separate article on free and informed choice in relation to treatment and other interventions. [6] whether there should be a notion of educating PWD, their families and caregivers so that they can recognize and report abuse of PWD. There were also a number of specific textual proposals made with regard to each individual paragraph.

Jordan stressed the importance of adding the term “exploitation” to the title. The Article should be abbreviated to remove redundancies: 12.1 should start with the last sentence; 12.2 is already mentioned in Article 11; 12.3 and 12.5 could be merged. 12.6 could be removed to the Article 25 on monitoring. 12.4. should remain. The Article should articulate a general rule against violence in 2 to 3 paragraphs.

Chile supported the wording of the Article, but insisted upon the inclusion of two concepts: abandonment, which is one of the most entrenched and violent forms of abuse; and economic exploitation which is a subtle but strong form of abuse.

Syrian Arab Republic noted the importance of considering the question of violence as it occurs both outside and within the home, including in the context of war and armed conflict.

The EU stated that when there is a forced intervention, people who cannot express their consent should be entitled to a legal representative or a system of safeguards to be protected against violence and abuse. There should be a provision included which would require States Parties to develop policies and legislation establishing a mechanism to combat violence and abuse.

Canada proposed inserting a reference to the particular vulnerability of women and girls with respect to violence and abuse. This has been raised by some delegations in the past, however the appropriate placement for this provision is not yet clear.

Yemen supported the Syrian position regarding the right of PWD to be free from violence and abuse in wars or conflicts, because they are especially vulnerable in these situations. It also supported Canadian proposal to include a reference to women and girls. With regard to the relationship between the family and PWD, it is necessary to explain that PWD are not “shameful for the family” and are not stigmatized.

AFTERNOON SESSION

ARTICLE 9(bis): ACCESS TO JUSTICE

A legal expert from Chile introduced a new proposed Article 9(bis) on Access to Justice, which a number of delegations had supported during ongoing Facilitator discussions on Articles 10 and 11.

Chile in cooperation with Australia, Bosnia and Herzegovina, Canada, Costa Rica, the Russian Federation, Mexico and some NGOs recalled that this proposal was raised in AHC3, discussed in AHC4, and a drafting group was set up in AHC5. There are different legal and philosophical bases for this article. Legally, equality means giving everyone what he or she deserves with respect to justice. Different concepts of equality are identified, such as [1] equality before the law, which is dealt with in Article 7, and [2] equal protection of the law in the exercise of one’s rights, which refers to Article 9. It is this second concept that provides the legal, philosophical basis for a specific rule on access justice. Under this rule PWD can exercise the access to justice in different roles: as plaintiffs making a claim against discrimination, as witnesses or defendants. Principles grounded in political theory, of governance of a democratic society and the rule of law, provide the second basis for a specific rule on equal access to justice. The third basis lies in practice - the ability of PWD to use courts or tribunals in the practical sense. A UN human rights report on human development in 2000 has concluded that citizens have experienced inefficiency in the legal system and therefore refrain from accessing this system even when they need to do so. The scope of the issue of access to justice was examined with these three bases in mind. The group concluded that: [1] a separate rule, independent of other concepts of equality such as equality before the law or legal capacity should be established. There is a need for access to justice to be made concrete and given due weight; [2] a broad and general statement, adaptable to different legal systems and without specific lists or guidelines, is preferable. This is because there are formal and substantive / informal ways in which access to justice can be guaranteed, which vary across different legal systems. Furthermore, the norms of an international treaty should be analysed in a systematic way to coordinate with each other. Thus language on access to justice should be consistent with related issues of accessibility to physical space, the right to information, human rights education and others. The new draft language (http://www.un.org/esa/socdev/enable/rights/ahc5chile.htm) obligates states parties in an imperative and prescriptive way “to ensure effective access to justice for PWD” that has to be “on an equal basis with others.” “All legal proceedings” ensures the applicability of the article in different legal systems have separate jurisdictions. The intervention of the PWD is ensured by facilitating their role “as direct and indirect participants”. Finally, including “investigative and other preliminary stages” ensures PWD participation in, for example, pre-trial police proceedings as well.

The Coordinator suggested this text be included in draft Article 9 for further consideration as nothing has been agreed to at this stage. Consideration of Article 12 resumed from the previous session.

ARTICLE 12: FREEDOM FROM VIOLENCE AND ABUSE (cont)

Liechtenstein noted that the descriptive language of this Article, which might in substance be true, is not appropriate for international conventions. There is a substantial overlap with Article 11, and it is only a question of degree to move from torture to violence and abuse. Likewise, violence can be classified as degrading or inhuman treatment. It questioned why safeguards in Article 12 aimed at promoting recovery and reintegration (12.5) and monitoring of facilities (12.4) would only apply with respect to violence and abuse but not with respect to torture, cruel and inhuman behaviour and punishment. A proposal by the facilitator would help to shorten this article, and then delegations can discuss it in depth. General references that apply to many specific issues should be more appropriately placed in Article 4 on “General obligations”, like natural disasters or armed conflict as they affect a variety of articles, such as right to life, the right to help, the right to information, the right to freedom from violence. If such crosscutting issues were placed in the beginning of the Convention it would save time discussing subsequent articles.

The Coordinator clarified that although Liechtenstein made a point that there is a reasonably short transition from torture to violence and abuse, there is a conceptual difference between them in international human rights law. The representative of OHCHR was invited to comment.

The OHCHR explained that international human rights law and the Convention against Torture (CAT) are seen to reflect what is intrinsic to the definition of torture, which is the idea that “pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” This has been referred to as the doctrine that that torture requires the intervention of an agent of the state. The Human Rights Committee (HRC) when interpreting Article 7 of ICCPR on torture went out of its way to indicate that the aim of the article was to provide protection from such acts whether committed by an agent of a state or a person acting in official or private capacity. The reason was that there was no article in ICCPR, which is the equivalent of Article 12 that is now being discussed, prohibiting violence committed by private individuals. However, there is still a distinction between violence and abuse when committed by an official or an agent of the state and by a private individual. The distinction is reflected in the terms the treaties use to establish the level of obligations of states with regard to prevention, punishment and compensation. In the 1960s, the article on torture was interpreted as potentially providing such protection. However the more recent trend has been to separate both issues and explicitly address the need for human rights standards concerning both issues: torture as committed by an agent of a state, and violence and abuse committed by anyone, whether acting in official or private capacity.

The Coordinator repeated that having two Articles dealing with torture (11) and violence and abuse (12) is based on international human rights concepts.

Uganda proposed including abortion and sterilization as these are cases of abuse that PWD are often forced to undergo.

Kenya supported Liechtenstein’s proposal and recommended avoiding lists. Instead the Article should identify key elements in encompassing language, eg: “violence, abuse and exploitation.”

New Zealand reiterated its proposals to: [1] move the first part of 12.1 to the preamble and delete 12.3, which repeats 12.1; [2] add additional descriptors of abuse, such as abduction, harassment, economic abuse. Involuntary treatment should not be dealt with in this Article, but in a separate article.

The EU asserted the need in this article to protect PWD from abusive violence [remainder of intervention not recorded].

The Coordinator proposed going through the provisions in the WG and Facilitator text to streamline Article 12. As noted by the OHCHR Articles 11 and 12 deal with two different concepts and this is reflected in the structure of the WG text. Article 11 deals with actions by the state, including torture and cruel inhuman treatment or punishment, medical and scientific experimentation, forced interventions and institutionalization. Article 12 deals with actions by third parties and requires states to take actions to ensure that PWD are not the subject to violence and abuse from third parties.

The facilitator’s text for paragraph 1 reads: “1. States Parties shall take all appropriate legislative, administrative, social and educational and other measures to protect persons with disabilities (and their families) both within and outside the home, from all forms of exploitation, violence and abuse, including abandonment, violence, injury or mental or physical abuse, abduction, harassment, neglect or negligent treatment, maltreatment or exploitation, including economic and sexual exploitation and abuse.”

Canada proposed removing the reference to families of PWD, as this convention is aimed at protecting PWD themselves against violence and abuse, and inserting instead “to protect PWD, especially women and girls…...”

The Coordinator noted that a reference to families was considered in the WG text, and it was decided not to include it as Article 12 is specifically aimed at PWD. There is a separate Article 14 relating to the respect for privacy, the home and the family. However, it was also recognized that families of PWD are also quite vulnerable.

Costa Rica supported Canada and preferred not to include families in 12.1. There is no doubt that families are important for PWD however and there could be a reference in 12.2, in connection to caregivers. The language should encompass the whole family and its children and referring to “women and girls” would exclude boys. Therefore, a reference to “woman and children” is preferable.

Yemen asserted the Convention must be coherent and refer only to PWD, not all members of their families, as there are other conventions protecting human rights of children and families. However, in regard to women and particularly girls, they face a double problem in certain countries, because they are discriminated against as girls and for being disabled. Therefore, the Canadian proposal is strongly supported.

The Coordinator noted that the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) has no explicit provision on protection from violence or abuse for women.

United Arab Emirates highlighted the need to include another vulnerable category of people, the elderly.

Jamaica supported Costa Rica that the placement of the reference to families in 12.1 may not be appropriate. It should instead be made in the context of support, and not protection, of PWD. Article 12.2 is aimed particularly at support. Special mention should be made for women and girls with disability, as they are vulnerable particularly to sexual exploitation. However this qualifier should not be in 12.1, because 12.1 speaks generally to legislative and other measures to protect PWD and it would then appear as if boys and men are less important. Thus there should be a separate paragraph, which will address and recognize the vulnerability of women and girls to certain forms of exploitation.

Kenya supported Jamaica’s language and recalled there is already an article covering issues related to children in the WG text. This article, whereas recognizing that women are in a great danger of violence, should not proclaim that boys are in less danger.

The Coordinator cautioned that if women and girls are specified in this context it may imply the need to specify them elsewhere as well.

Australia echoed the need to leave out “and their family” in 12.1. The various forms of abuse and mistreatment should not be listed as this cannot be inclusive. Alternate wording could be “protection from all forms of harm, including“ followed by, if desired, the main issues of the list in 12.1.

The EU preferred deleting the term “and their families”, as this is a convention on PWD, and also the term “economic” in order not to minimize the importance of sexual exploitation.

Yemen asserted that the addition of “women and girls” does not diminish the importance of men. Any implication of the exclusion of men may be avoided by adding ”including women and girls”. It reiterated that there are other conventions and also other articles within this Convention that refer to families.

South Africa endorsed the inclusion of women and children, as they are particularly vulnerable. Although there is a special article on children in the WG text, it is critical to include reference to women and children in this article noting their particular circumstances in relation to sexual exploitation and violence of many forms. The reference to families in 12.1 should be included, as it would widen the scope of the Convention to include other family members who may not necessarily have a disability. For brevity, the list of the various form of abuse should be deleted and 12.1 should be amended to read: “States Parties shall take all appropriate legislative, administrative (…) measures to protect PWD from all forms of exploitation, violence and abuse.” It looked forward to a particular article on women as proposed by the Republic of Korea.

Serbia and Montenegro echoed proposals that reference to “families” should be placed in 12.2. It supported the inclusion of a reference to the special vulnerability of women and girls, and was flexible on its placement within Article 12.

The Coordinator noted strong opposition to including the reference to families in 12.1, and support for inclusion in 12.2. There was a general sense of agreement that women and girls are particularly vulnerable, and interested delegations should meet with the facilitator to draft a separate paragraph addressing this issue. The Coordinator recommended against referencing “including women and girls” as this may give the impression that they are not included elsewhere. Options with regard to the listing of types of abuse are: [1] to maintain the existing form of listing; [2] not to include any listing; [3] to change the wording to say “all forms of harm, including…” but to make clear that this is not, as is the case in the current language, an exclusive list, as proposed by Australia; [4] to have a broad generic statement which would read “protect PWD from all forms of exploitation, violence and abuse”, which covers the field, as proposed by South Africa. The EU is opposed to citing “economic and sexual exploitation” together; however, if there is no listing, this issue will not need to be addressed.

Russian Federation expressed concern that the reference to the family in 12.1 would be a problem across countries and legal systems since the term does not always have the same meaning. As for the reference to women and children, this is clearly a vulnerable category of PWD, but this is a de facto question and not a question of law. This idea should be incorporated into the preamble instead. The RF agrees on a more general list of mistreatment. The term “exploitation” is not clear enough, because “sexual and economic exploitation” creates conceptual problems. The term “economic exploitation” is vague and may lead to fruitless debate.

New Zealand supported the Australian proposal not to create an exclusive list, but highlighted the need for a list of those issues of particular concern to PWD. Adding “economic exploitation” is therefore important as many PWD are subjected to this form of abuse. It supports the Russian proposal to include the first sentence of 12.1 of the WG text in the preamble and also to mention the most vulnerable groups like women and children in the preamble. NZ supported South Africa’s proposed text: “all forms of exploitation, violence and abuse, including…”, which would enable an open list of examples.

Uganda expressed concerns that all PWD need protection and preferred to keep the expression as it stands. It supports a separate paragraph or separate article to cover women and girls. It supports the NZ and South African proposals as they both end with “including”, so that the list does not appear to be exhaustive.

Trinidad and Tobago agreed there is no need to specify categories in 12.1 as this is a general paragraph. There is a need for a separate paragraph dealing with the most vulnerable groups. The reference to families is better placed in 12.2 in relation to the question of support. With regard to the listing, it is very important to spell out some of the major forms of abuse and violation, and the South African and NZ language proposals are therefore supported.

Holy See supported proposals by Costa Rica and others that suggested moving the reference to “and their families” to 12.2 rather than deleting it entirely from the article. Depending on one’s disability, the family may be crucial to the life and protection of PWD. The decision not to explicitly protect the family may directly subject the PWD to that violence and abuse this Convention is seeking to protect them from.

Thailand supported the South African language on “all forms of exploitation, violence and abuse”, and was flexible on the word “including…”. The reference to family should be moved elsewhere as it may confuse the scope of this Convention. It is flexible on special references to woman and girls; however, formulating a para specific to such circumstances might be more helpful.

The Coordinator reminded colleagues of the question raised regarding the use of term “sexual and economic exploitation”. The Convention on the Rights of the Child, Article 34 uses the term “sexual exploitation” and Article 32 refers to “economic exploitation” and Article 36 refers to “all other forms of exploitation”.
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Syrian Arab Republic supported the South African proposal with regard to the listing of all forms of abuse. It is also important to include the mention of economic exploitation, and it is preferred to move the reference to family to 12.2. A new paragraph exclusively on women and children was also supported.

Costa Rica supported the South African proposal and was flexible on using “including” followed by a list. Lists often cause problems, it noted, but if other delegations agree, then either the SA or NZ proposals are acceptable.

Norway emphasized the need to have a strong and encompassing wording. This can be done by keeping the formulation short and succinct, as proposed in the SA wording “all forms of exploitation, violence and abuse” which covers all other forms of violence. Norway had strongly supported and proposed a reference to equality between men and women in Article 2 on General Principles, as this is a crosscutting issue in this Convention that should trickle down to each article. However it acknowledges the particular vulnerability of women and girls, and believes that a specific reference to them is of relevance in this Article.

Mexico expressed doubt in regard to the reference to “abduction” and families. The Mexican legal system is different in the context of criminal law dealing with abduction. If there is not a reference to other family members, Mexico cannot agree to this Article.

Panama supported the Costa Rican and NZ proposals to list examples of abuse.

The Coordinator noted overwhelming support to delete the reference to families, and remove “women and children” into a separate paragraph. He asked delegates to meet with the facilitator if they have reservations about singling out some groups. There was a wide range of proposals with regard to the listing in 12.1: [1] a specific listing; [2] abbreviated wording; [3] a combination of the two; [4] incorporating the listing as well as the language of the first sentence of the WG text into the preamble. The Preamble has not yet been discussed. A compromise approach would be to combine the SA proposal with the list. It would read: “from all forms of exploitation, violence and abuse, including…” It should be highlighted in a footnote that this list may be shifted into the preamble. With regard to the list itself, Mexico raised a point whether to include “abduction,” and the EU had difficulty using “economic and sexual exploitation” together. The following language was proposed by the Coordinator as a solution to the EU’s concerns: “including economic exploitation, and sexual exploitation and abuse” thereby separating both concepts and not diluting the issue of “sexual exploitation.”

The EU supported deleting “economic and”, but including the idea of “sexual exploitation”.

The Coordinator questioned whether the concept of “economic exploitation” is used elsewhere and whether separating these two issues would retain the concept.

The EU opposed any reference to “economic exploitation.”

Jordan considered economic exploitation important to retain, as there are cases where PWD are institutionalized and their property is confiscated.

The Coordinator reiterated that the term “economic exploitation” is found in Article 32 of the Convention on the Rights of the Child, and asked Jordan and the EU to confer.

Trinidad and Tobago supported the inclusion of economic exploitation and asked the EU for reasons for its opposition to the term.

The Coordinator explained that, initially, the EU wanted to delete the reference to sexual exploitation, and therefore it was proposed to separate these two issues. The EU then expressed difficulty with the reference to economic exploitation.

The EU preferred not to include the idea of economic exploitation in this article, but indicated flexibility to deal with this issue in another article.

Yemen reiterated Jordan’s point that there are many problems that lead to economic exploitation of PWD and prevent them from exercising economic activities. Therefore it is important to stress the economic exploitation, and also sexual exploitation. It called for a definition of family within the Convention given the different definitions of family elsewhere.

The Coordinator explained that “families and caregivers” will be discussed in 12.2. The EU and others were asked to meet together to discuss the issue of economic exploitation. Mexico was asked to amplify on the point of “abduction” and whether it should be included in 12.1.

Mexico explained that the “abduction” has a different meaning in the Mexican legal system. Historically, there is no reference to abduction in terms of violent acts in the appeal system.

The Coordinator noted that caveats will be incorporated into the Report. He invited comments on 12.2 of the Facilitator’s text: “States Parties shall also take all appropriate measures to prevent violence and abuse by ensuring, inter alia, appropriate forms of assistance and support for persons with disabilities and their caregivers, including through the provision of information and education on how to avoid, recognize and report instances of (violence and abuse) above.” A number of delegations have suggested that the reference to families should be included in this paragraph, and the WG had also had much discussion whether to refer to families or caregivers.

Trinidad and Tobago reiterated its proposal to refer to caregivers. Caregivers is a broader category of people who support PWD and it encompasses families.

Jordan expressed concerns that families are more important than caregivers, as the latter imply a passive reference and do not encompass families, and families are more of a natural institution.

United Arab Emirates stressed the importance of indicating “support groups” with regard to education.

The Coordinator asked UAE whether the term “support groups” should go beyond families and caregivers.

United Arab Emirates clarified the language should read “PWD and their families, and support groups.”

Brazil preferred the term caregivers, because it is more encompassing.

Islamic Republic of Iran suggested using both families and caregivers, because families play an important role in our societies.

Thailand indicated flexibility with respect to families and caregivers, but these two terms may not necessarily mean the same thing. It drew attention to the word “information”, which is often not given to PWD in an accessible format.

Vanuatu believed that “families” could replace “caregivers.”

Jamaica explained that caregivers is a broad term that is being used as including a number of groups. This paragraph can benefit from the inclusion of both terms. There might be support for “PWD, their families and other caregivers.”

Trinidad and Tobago preferred the original proposal because families are not always caregivers to PWD, and as a matter of fact they may neglect them. It suggested to say ”families or caregivers”.

The Coordinator clarified from Trinidad and Tobago that its proposal seeks to cover families only when families are actually caregivers.

Australia made clear that this Convention should be specifically about PWD, and it is redundant to include families or caregivers in this Article.

Jordan echoed Jamaica’s proposal to include families and caregivers, as families are indispensable.

The Coordinator noted the split on this issue and requested those who spoke on this subject to meet with the facilitator and resolve it. At this moment, a note will be included in the report to reflect that there was an outstanding discussion whether to refer to families, caregivers or both.

The session was adjourned.

The Fifth Ad Hoc Committee Daily Summaries is a public service by RI*, a global network promoting the Rights and Inclusion of people with disabilities. RI extends its sincere gratitude to the Kessler Foundation (http://www.hhkfdn.org/Accessible_site/foundation.htm), the Government of New Zealand, and the UN Secretariat’s Department of Economic and Social Affairs for their generous support.

The Daily Summaries are translated into French by Handicap-International and into Spanish by the Inter-American Institute on Disability.

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Reporters for the 5th Session are Michele Magar, Robin Stephens, Bethany Stevens and Jitka Senecka. Editors are Laura Hershey and Zahabia Adamaly. For comments and feedback please write to: Zahabia_a@hotmail.com.

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