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Back to: Sixth
Session of the Ad Hoc Committee
Summaries of the Sixth Session
Original
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Languages: French
A service brought to you by RI (Rehabilitation International)
The Secretary announced the publication
by the International Disability Caucus of a manual to orient new arrivals to
the AHC.
Article 15 bis – Women With Disabilities
The Chair advised that there is no specific provision in the
Working Group text with regard to women with disabilities. There is a specific
Article on children with disabilities. At AHC3 the Republic of Korea proposed
a new draft article (15 bis) for insertion before article 16 on women with disabilities.
There was no discussion of the substance of this article. However there was
discussion on the placement of issues specific to women with disabilities, whether
they should be placed in a separate article or incorporated into the text.
Republic of Korea highlighted the need for both a “focused
and extensive” mention on women with disabilities. During the subsequent 4th
and 5th sessions it held discussions with interested governmental and nongovernmental
delegations on the issue. The plight of women with disabilities is not the simple
sum of the barriers faced by people with disabilities and the barriers faced
by women. The combination of their disabilities and inferior status as women
goes beyond the mechanical doubling of discrimination to a situation of utter
social alienation and policy neglect. Women with disabilities have remained
invisible in legislative and policy efforts at both national and international
levels, without an anchor in disability discourse or women’s rights discourse.
The existing global norms, either on persons with disabilities or on women’s
rights, directly reflect this lack of attention and offer little in terms of
concrete or action orientated language addressing women with disabilities.
A separate article on the rights of women with disabilities is a vital element
of a convention on the rights of people with disabilities, in addition to references
to gender in the general provisions.
Korea acknowledges the concerns of other delegations with regard to “listing”
and emphasized that it would resist the drafting becoming such an exercise.
Women with disabilities comprise half the subject population of this convention
and gender is a cross cutting dimension of a different order than other defining
characteristics of vulnerability. It is for the same reason that Korea also
supports a separate article on children with disabilities. Delegations have
also noted that a separate article risks the danger of relegating the rights
of women with disabilities to the provisions of that article only. Korea however
is more concerned with the opposite danger - with gender equality mentioned
in the general provisions without a specific article on women with disabilities,
women with disabilities could slip through the fingers of the government ministries
in charge of implementation of the convention. Full implementation of the convention
for all PWD requires the active involvement and sense of shared ownership by
the national machineries in charge of promoting gender equality. A separate
article would ensure this. Gender mainstreaming alone in insufficient. A more
effective way is to have a separate article complemented by the incorporation
of gender in the most relevant provisions of the convention. This would produce
a convention that would truly be an efficacious tool in protecting and promoting
the rights and dignities of all persons with disabilities.
El Salvador supported the comments made by Korea and drew attention
to the plight of older people and particularly older women with disabilities.
Gender and gender mainstreaming in this convention is fundamental in order to
provide adequate protection from a social development perspective as well as
from a human rights perspective.
Morocco supported Korea and El Salvador, noting that the introduction
of this article is in harmony with the recommendations of the Casablanca Declaration
(June 2005).
EU strongly believes that this convention must apply equally
to all persons with disabilities. (http://www.un.org/esa/socdev/enable/rights/ahc6eu.htm)
The EU shares the concerns of Korea that the consequences of disabilities are
particularly severe for women, who are often subjected to discrimination on
the basis of disability but also to social, cultural and economic disadvantages
due to gender discrimination. In many countries, women are assigned a very low
status socially, economically and politically, which is accentuated by disability.
Girls and women with disabilities are often marginalized, neglected and considered
a burden on society. Women represent a majority of the population and an even
higher proportion of persons with disabilities.
It is a challenge to right the wrongs of the additional discrimination faced
by women with disabilities, while ensuring a very strong convention which will
apply equally to all persons with disabilities.
There are a number of sectors of society, including indigenous women with disabilities
and elderly women with disabilities, which face particular disadvantages but
it would do this convention a disservice to have a number of articles focusing
on specific groups, as it would then lack a strong statement on the rights of
all persons with disabilities. Hence the EU’s resistance to proposals that single
out PWD by severity or type of impairment. The convention would be stronger,
more authoritative and more beneficial to people with disabilities if its provisions
apply equally to all disabled people, and there was no “picking and choosing”
of rights and standards. Such a convention would then also be stronger and more
authoritative for women with disabilities.
There could be confusion between the interpretations of CEDAW or CRC and this
convention. There could be the suggestion that CEDAW and CRC are inadequate
for the protection of the rights of women and children with disabilities. There
have been inadequacies in the implementation of those conventions with respect
to women and children with disabilities, both by states and monitoring bodies;
however, this is not a reason to create legal uncertainty between 2 treaties
or an uneven comparison between disabled men and disabled women. Instead this
is a reason to examine CEDAW and its implementation, make it better and get
it right. An example of such legal uncertainty lies in the inclusion of violence
against women. While this may serve to provide further protection for women
with disabilities it detracts from a general article on abuse, leaving men with
disabilities in weaker position, when men are also very vulnerable to such abuse.
It is generally agreed that CEDAW and CRC provide a comprehensive framework
for the protection of the rights of women and children.
The EU would like to see a reference to the susceptibility of women with disabilities
to multiple forms of discrimination in the preamble and a reference in the general
obligations (Article 4) that would apply horizontally throughout the Convention
text and obligate states to bear in mind the equality between women and men
when interpreting other articles.
New Zealand supported the EU proposals.
Australia supported the position of the EU. Obligations under
this convention will apply to all people with disabilities. Australia does not
support mechanisms that compartmentalize women with disabilities; however, it
would support recognition of the particular vulnerabilities of women with disabilities
in the preamble.
Consideration needs to be given to the focus of the convention. Discrimination
against women is specifically addressed in CEDAW and it is not appropriate for
this new instrument to duplicate other major human rights treaties, particularly
outside the area of disability discrimination.
The potential duplication of rights will make monitoring mechanisms difficult.
The potential for different interpretations of existing human rights would make
the implementation of the range of human rights instruments difficult.
All articles should be interpreted considering the needs of specific population
groups. This view is reflected in the Australian proposal on the Convention
structure submitted at AHC5, and in the report of the Asia Pacific Forum of
national human rights institutions submitted at AHC4. These groups include:
women, children, people living in rural and remote areas, indigenous people,
and older people.
The Chair observed that the Convention on the Rights of the
Child (CRC) article 23 references disability, but there is no such reference
in CEDAW. This is a difference between the two conventions. However the CEDAW
Committee’s General Recommendation 18 (A/46/38) highlights the situation of
disabled women.
Mexico expressed concern with drafting separate articles on
specific groups. Women and children could be mentioned in the preamble laying
down the principles of equality and non-discrimination without undermining the
equal treatment of men and women with disabilities.
Serbia-Montenegro supported the position of the EU and other
delegations, as it had in AHC3, agreeing that there should be no specific articles
on marginalized groups. It is flexible on references to gender throughout the
text but would prefer enshrining the principle of gender equality to the preamble
and general obligations only.
Thailand supported the Korean delegation’s attempt to bring
attention to the barriers faced by women with disabilities, while understanding
the concerns raised by the EU.
This process should ensure that the rights of disabled women are taken care
of by this convention so they would be no longer left out either by mainstream
women’s communities or by mainstream disability communities.
Yemen supported the idea of a separate article while understanding
the concerns of the EU. The inclusion of a specific article on women in this
convention should not weaken CEDAW or any other convention. In some communities,
non-disabled women are struggling to achieve their rights, and so the situation
of disabled women in such communities is a particularly marginalized one.
Mali supported the proposal of a separate article because women
with disabilities are a marginalized group. The committee has already accepted
this principle previously.
Japan supported the position of EU, Australia, Mexico and others.
Women should be mentioned in the preamble rather than the operative part of
the text. Women with disabilities suffer double discrimination but they are
not the only group, as the elderly, racial minorities and indigenous people
with disabilities also face double discrimination. It is better to avoid listing
specific groups and include them in general obligations.
Norway supported the position of the EU. This convention is
about persons with disabilities, meaning both sexes, men and women. It has long
been recognized that there is a need for gender sensitivity and therefore it
is well justified that gender aspects and the situation and needs of women are
reflected in this convention text. The question is how.
Israel called for a separate article, emphasizing the “intrinsic
rightness” of the Korean position noting that women make up more than half the
population and suggesting that the concerns put forth by the EU on a separate
article do not reflect disagreements of principle and can be resolved with careful
and intelligent drafting. “If we disregard women in any way, it would be a grave
mistake.”
Costa Rica supported the systematic integration of gender throughout
the convention. The elements submitted by Korea are all important but, for the
reasons noted by the EU and other delegations, it would be too risky to couch
them in a specific article. This would run counter to what has been the practice
in drafting other legal instruments. Article 3 of CEDAW for example makes it
clear that all state parties have to address and mainstream gender issues in
all spheres in particular in the political, economic, social and cultural fields
and to take all appropriate measures, including legislative measures to ensure
the full development and advancement of women in order to guarantee their full
enjoyment of human rights and fundamental freedoms on an equal basis with men.
By drawing up a separate article in this Convention, it would suggest that our
commitment to Article 3 of CEDAW is no longer valid or that CEDAW does not apply
to women with disabilities.
Kenya supported a separate article noting the general agreement
of the practical realities facing women with disabilities especially in patriarchial
systems, and the need to make the rights of women with disabilities prominent.
(http://www.un.org/esa/socdev/enable/rights/ahc6kenya.htm)
Having a separate article will not take away from the rights of disabled men.
Women with disabilities are not a disability sector but cut across all sectors.
Women with disabilities should be accorded their rightful place within this
convention.
Sudan supported a separate article. There are different ways
of dealing with this specificity. A point can be arrived at whereby the article
does not contradict or contravene other conventions.
Jordan supported the idea in substance of enshrining gender
equality within the convention but had reservations regarding a separate article.
The convention will be stronger in language and structure if there are no articles
for specific populations.
Chile welcomed the principle of gender equality in the preamble
and general obligations with the possibility of consideration elsewhere. CEDAW
has not done enough to advance the situation of disabled women. The inclusion
of women in this convention would not undermine other conventions, but would
provide greater clarity.
Uganda supported the inclusion of an article on women with
disabilities. Disabled people are not visible in the other conventions where
their rights are protected; hence the need to draft this convention on the rights
of disabled people. Likewise the rights of disabled women cannot be ignored
because there is CEDAW, because the rights of disabled women are violated every
day. They suffer multiple forms of discrimination. They are often the poorest
of the poor. The content of the article can be worked out but in the interest
of consistency the principle of a separate article must be accepted.
Iran supported a separate article and inclusion in both the
preamble and general obligations but suggested the whole convention be gender
mainstreamed.
South Africa supported a separate article. Gender equality
is necessary for mainstreaming and the equalization of opportunities for disabled
women. Progressive realization of the rights of women within the convention
must be ensured. The principle of self-representation is critical to addressing
discrimination against women with disabilities. There must be self-executing
legislation that empowers women with disabilities at all levels of society.
If there is no separate article specifically for women with disabilities, problems
of exclusion and poverty, which affect women at all levels of society, remain.
Canada noted that women with disabilities have been recognized
as a particularly disadvantaged group in a number of international documents
including the Beijing Platform for Action (BPA). All delegations agree that
issues specific to women with disabilities should be included in this convention.
The issue before the committee is how best to achieve this goal. Canada supports
gender mainstreaming throughout the convention instead of a separate article.
The current preamble Paras (m) and (n) are not sufficient. Building on the ideas
reflected in proposals from the EU, Korea, other delegations and the Disabled
Peoples International discussion paper “Towards Visibility of Women with Disabilities
in the UN Convention” Canada proposed that there should in addition be: [1]
a clear principle in Article 2 guaranteeing the equal protection of the rights
of women along the lines of ICCPR Article 3; [2] a general obligation in Article
4 requiring states parties to mainstream a gender perspective in all policies
and programs relating to persons with disabilities; [3] specific references
in the key articles of particular concern to women, eg in 7, 12, 14(bis), 17,
21, and 22. Women and girls are already mentioned in 23.1(b).
Peru preferred to have a separate article because, in many
cases, the rights of women and girls have not been fully guaranteed. “We need
to go further than CEDAW to guarantee, promote and protect the rights of women
and girls with disabilities”.
India noted the specific challenges faced by women with disabilities, and that
they should be addressed in this convention. Having a separate article may not
be the only option; the issue can be addressed by making a reference to women
specific aspects in all the generic provisions of the convention wherever such
a reference is required. This would avoid the danger of lowering the standards
of protections, which have already been agreed in other women specific conventions.
Statements from NGOs and NHRI
The Korean Women’s nongovernmental organisations as the International
Disability Caucus coordinator for Article 15(bis), noted that mainstream women’s
organizations are not interested in disabled women’s issues since disability
is too specific and not of political benefit or interest. The UN Commission
on the Status of Women considers these issues a burden on the already heavy
workloads of women’s organizations. There is a need for a separate article on
the rights of women with disabilities for the same reason that there was a need
for a new convention on the rights of people with disabilities. Disabled women
experience intersecting discrimination because of their gender, disability,
traditional, religious, and cultural backgrounds, as well as their economic
and political situations and their needs must be expressed in a clear and explicit
way. In addition to a separate article, gender should be included in the general
obligations under Article 4 and the preamble.
Disabled Peoples’ International emphasized that women are not
a group but comprise more than half of disabled people. To date, there are no
legally binding documents that protect women with disabilities, so it is essential
that this issue be included in this convention. A single article alone on women’s
issues is insufficient and may be counter productive as CRC indicates. Women’s
issues need to be covered throughout the convention. The principles of [1] gender
mainstreaming, [2] equality between women and men and [3] the need for particular
actions to eliminate the discriminations faced by women with disabilities must
be enshrined in a separate article or integrated in articles 2 and 4. All articles
must be complemented by a gender perspective and mainstreamed to identify and
address the needs of disabled women. The convention must include the gender
aspect as intended under UN resolution 52/100, 1997/1998. It is the only way
to motivate states parties to take action on gender and disability issues. Disabled
women’s rights are human rights.
European Disability Forum Women’s Committee
highlighted the fact that CEDAW does not mention disabled women. Instead they
are mentioned in the Beijing Platform for Action, which, however is not a legally
binding document. Due to the absence of disabled women in CEDAW, a medical model,
oppressive approach to their situation persists. Yemen made a link to the cultural
and historic inequalities between women and men in society. The societal conditions
for non-disabled women are only slowly changing. If disabled women are not specifically
mentioned in this Convention their situation will similarly reflect this slow
pace of change. There is a North/ South, East/ West divide with respect to including
or excluding the gender approach. The representative pointed out some examples
that help explain the specificities of disabled women. Disabled men may have
better access to employment because they are seen as breadwinners. Disabled
women are more often deprived of medical care. Disabled men have better access
to mobility devices because they are seen as more important contributors to
society. The EDF calls on delegates to accept the Canadian proposal.
The Chair noted that states positions on this issue did not
in his view reflect a breakdown along North – South, East – West relations.
He hoped that future negotiations would not reflect such a breakdown.
Council of Canadians with Disabilities was encouraged by the
support for enshrining the rights of women with disabilities in this convention.
Women with disabilities face discrimination on a daily basis, being treated
inferior to men, to men with disabilities and to non-disabled women. The council
urges the all delegations to make a strong statement against these inequities
by enshrining the rights of women with disabilities both in a stand-alone article
as well as mainstreaming throughout the convention. Unless such a twin-track
approach is used, disabled women will continue to face denial of our rights.
Dr. Sigrid Arnade spoke in an independent expert capacity to
highlight the following: [1] Women are not a “group” but make up more than 50%
of disabled people. Disabled women’s issues are gender issues, not those of
a group. [2] There are no legally binding UN documents referring to disabled
women. [3] The EU published a report in the 1990s entitled “Invisible citizens”
about disabled people. While people with disabilities are becoming more visible,
however, disabled women remain invisible even within this convention. [4] All
states must adhere to the principle of gender mainstreaming but the gender perspective
has not been included. [5] The efforts of the government of Korea have been
crucial to highlighting this issue. [6] A single article referring to women’s
issues is not sufficient and may be counterproductive. [7] There should be a
twin track approach, which consists of a separate article with gender mainstreamed
throughout the convention. Such a twin-track approach would eliminate the invisibility
of disabled women.
World Blind Union asserted that it is time for the fundamental
human rights of these women to be enshrined in a legally binding document. If
this cannot be done because there are other human rights treaties guaranteeing
the rights of women, then by the same logic a convention on the rights of PWD
would not be justified either. The use of gender-neutral language would be dangerous.
There must be a twin track approach.
National Human Rights Institutions recognized the general support
among delegations for the inclusion of a gender perspective. The NHRIs support
the Canadian position. Gender should be mainstreamed throughout the convention
whether in addition to a separate article or not. The NHRIs are neutral on 15(bis)
but would like to avoid the mistake of Article 23 of the CRC, perceived as locking
children with disabilities into one article and creating the impression that
they are only entitled to the rights within that article. Should there be a
separate article, then it should be a precise statement of principles, without
going into specifics. General obligations should have a clear reference to the
positive obligation on states to remove all obstacles in the enjoyment of rights
for women with disabilities. This would set the tone for a program to undo the
disadvantages caused by inequality and discrimination faced by women across
all sectors and cultures. There should be a specific reference to gender-segregated
data in Article 6. Article 24 should reflect the need for states to produce
reports in a gender-segregated fashion should that be a requirement to a new
treaty body.
The Chair highlighted the expressions of deep appreciation
from all delegations to Korea for the importance its delegation attached to
this issue, in raising its profile, and in allocating the resources to do so.
He introduced several national parliamentarians from Korea present at the meeting.
The Korean efforts have generated a significant response.
He noted general agreement that the situation faced by disabled women is more
than just the combined disadvantage of disability and gender. Women are at particular
risk of sexual exploitation, poverty, and many other factors. There should be
a systematic and comprehensive approach to the inclusion of disabled women.
As stressed by the WBU, legally binding obligations are required. CEDAW focuses
on the elimination of discrimination whereas CRC focuses on comprehensive rights
and therefore the two cannot be compared. Taking into account that divergence
among states on this issue was mainly with respect to placement rather than
substance, the Chair appointed a Facilitator to hold consultations on the systematic
coverage of the rights of disabled women within the text. This exercise will
highlight the gaps and outline what issues have yet to be addressed. He noted
the NHRI call for a precise and principled statement should there be a separate
article. Language for the general obligations can be decided on at a later stage,
along with the need for a separate article after gender mainstreaming throughout
the text.
Korea appreciated the arguments both in favour of and against
a separate article. It agreed that a single article is not sufficient to cover
all the issues faced by disabled women but after gender mainstreaming throughout
the text there will still be issues that require a separate article. This issue
needs to be included in the preamble and general obligations. There are separate
conventions on women and children and therefore there should be a logical progression
to separate articles. Women and children are not sub groups but are crosscutting
sections of society. There is no intention to weaken CEDAW in any way. In language,
CEDAW is a very comprehensive convention that should be addressed to all women
with or without disabilities. However, in reporting and implementation, women
with disabilities have been sidelined and not mentioned in the implementation
process, reporting process, or the monitoring process. With careful and intelligent
crafting of language, it is possible to make the two reinforce and complement
each other.
Article 16 – Children With Disabilities
The Chair introduced the Facilitator from Kenya for this article
and drew attention to Footnote 54, which notes that Paras 2, 3 and 4, are based
on Article 23 of CRC. CRC Article 23 has been seen by some as counterproductive
on the rights of children with disabilities. When States Parties report on compliance
they normally do so article by article; due to the specific article on children
with disabilities there has been a tendency not to mainstream disability throughout
the CRC. At the same time there is agreement that inclusion of Article 23 has
been influential and useful in highlighting and identifying issues faced by
disabled children. The Chair called for comments to address the issue of having
a specific article on children as well as any substantive issues within the
article.
The EU put forward the same reservations they had with regard
to a separate article on women with disabilities while acknowledging the difference
between women and children. It would be logical to apply the same principles
in regards of the rights contained in this convention to rights in general.
There is a danger of listing in order to try to be inclusive. There is also
the danger that the rights in a single article may not apply horizontally throughout
the convention.
The CRC sets out the general principle that children enjoy the same rights as
adults and looks to identify where those rights need to be enhanced. Article
23 of CRC may not have been entirely counterproductive but in hindsight it has
been inadequate. It relates to the care of children with disabilities, and the
provision of some services. Yet in their reporting to the CRC Committee States
have focused on article 23 in relation to children with disabilities. They have
not mainstreamed the problems faced by children with disabilities as regard
the rights contained in CRC more generally.
Article 23 has done little to promote the general position of children with
disabilities in society. For the same reason separating out children in one
article of this convention would not adequately meet their needs.
The language in Article 16 is based on but not identical to that of CRC Article
23. This risks a lack of clarity in rights, competing obligations, and a confusion
of the language and legal standing of the rights contained therein. Listing,
as reflected in the footnote on groups of children with disabilities, should
be avoided.
Para 1 and 2 is the core issue, of states ensuring that children with disabilities
have the same fundamental rights as other children. To eliminate the problem
of a draft article being concentrated at the expense of other articles, this
language should be moved to a more general, horizontal provision like Article
4. The rest of the article, from Para 3 onwards are dealt with elsewhere in
the convention. To have different wording on the provision of care for children,
although it is a special circumstance, as regards the provision of care in other
articles for the general population of PWD risks confusion in the level of rights
or new rights or different rights for certain sectors of society.
There should be a reference to the rights of children in the Preamble: (http://www.un.org/esa/socdev/enable/rights/ahc6eu.htm).
“Children with disabilities should have full enjoyment of all human rights on
an equal basis with others, without discrimination on the basis of disability,
and recalling obligations to that end undertaken by states parties to CRC.”
This would be a sufficiently strong statement aiding in the interpretation of
this treaty, setting the rights of children with disabilities in the context
of the rest of the articles that follow. There should also be a general reference
under article 4 similar to that for women with disabilities: “Urging or requiring
states to take all necessary measures to ensure the full enjoyment by children
with disabilities of all human rights without discrimination of any kind based
on disability”. This would address the issues in the second half of Article
16 on the provision of care and services.
New Zealand noted the lack of time faced by the Working Group
in drafting this article, and the inadequacy of an approach where language is
“cut and pasted” from one convention to another. This is a “weak link” in an
otherwise strong WG text. Firstly, as this is essentially a copy of CRC Article
23, it does not add to the body of international human rights law or to the
obligations on states parties. Secondly, the few amendments to Article 23 that
are incorporated into Article 16 create inconsistencies and the possibility
of competing obligations, eg. in Article 23, children with disabilities “should
enjoy a full and decent life”, while in Article 16 they have “a right to enjoy
a full and inclusive life”. Thirdly and most importantly, there are a number
of issues that are not raised in this article that should be covered. This includes,
for example, the situations of orphaned and abandoned children with disabilities;
the need for disabled children under the protection of the State to live in
family rather than institutional settings (best dealt with in Article 14); early
intervention in relation to identification of impairments and adequate support
at the appropriate developmental time, such as access to language and communication
so babies with disabilities especially can thrive and survive (best dealt with
in the article on the right to health).
There are a number of other important issues as outlined in the IDC proposal
(www.un.org/esa/socdev/enable/rights/ahc6contngos.htm).
It would be appropriate to have a shorter thematic statement, either in Article
4 as suggested by the EU or as a separate article on children, that all existing
rights in the CRC, in this convention and in other human rights treaties apply
to children with disabilities. A good formulation of that is either the EU proposed
article 4 or the IDC Para 7. The specific issues raised above and in the IDC
proposal could be included in the thematic articles throughout the convention.
NZ suggests that the facilitator for this article adopt a similar role as that
for 15(bis) on women with disabilities, to ensure that the convention as a whole
applies to the rights of children with disabilities, with a statement that all
rights under the CRC apply to children with disabilities.
Article 16 - Children with Disabilities (cont)
Jordan supported the NZ proposals which were in accordance
with Jordan’s proposals for 15 bis.
The Holy See called for further strengthening Paras 2, 3, and
4 of the WG text with language agreed upon in the CRC. It proposed replacing
16.1 with: “States Parties recognize that children, especially children with
disabilities, by reason of their physical and mental immaturity, need special
safeguards and care, including appropriate legal protection, before as well
as after birth… “ at www.un.org/esa/socdev/enable/rights/ahc6holysee.htm.
In 16.2 it proposed inserting the words “inherent” before “dignity and worth…”
Serbia-Montenegro supported the position of the EU and New
Zealand for the deletion of Paras 2, 3, and 4. They duplicate the subject matter
of the CRC, and the slight amendments from the CRC may lead to problems in implementation.
There is a need instead for an introductory, more generalized paragraph, similar
to either WG text 16.1 or as proposed by the EU. It is flexible on placement
but would prefer this language to be in a more generalized article. Para 2 (bis)
of the text proposed by Canada in AHC3 (A/AC/265/2004/5 pp 36) has added value,
and, regardless of placement, should be maintained. It supports the concept
of the provision of mainstream services to children with disabilities under
equal conditions as covered in IDC proposal Para 5, though its wording is too
specific. There is merit in the New Zealand proposal to include language on
abandonment and abuse etc, appropriate in Article 12, and the preference for
children in family settings over institutions, more appropriate in Article 14(bis).
Chile pointed out that the main purpose of the article is protection
for those PWD who require it most: disabled infants and children. It supported
NZ position on abandoned children with disabilities, and the need to provide
support to parents who adopt them so that they are not placed in non-segregated
environments. Legislation should address the problems of children and the broad
range of rights covered by CRC.
Mexico supported the New Zealand proposal and called for language
that would address the specific circumstances faced infants and children with
disabilities, that would not simply reproduce what was already established in
other international instruments. This language should have added value and be
in both a separate paragraph and integrated throughout the convention.
Korea welcomed the inclusion of article 16 as it addresses
the specific needs of a particularly vulnerable group. This article can be strengthened
to alleviate the fears of other delegates of the inadequacy of the current language
copying CRC Article 23. In this regard Korea agrees with other delegations on
the need to mention forced institutionalization, abuse, abandonment and sexual
exploitation in relation to children with disabilities, is flexible on placement,
and is ready to assist in drafting such language.
Liechtenstein emphasized that this convention should provide
the best protection for children with disabilities. A separate article does
not necessarily achieve that goal best. There are legally binding standards
in CRC and there are many issues that are dealt with in other articles covering
issues and rights that children are entitled to as much as others. There is
some risk of creating double standards if specific issues are mentioned here
in relation to children that other persons with disabilities are equally entitled.
If a separate article is necessary, it cannot provide double standards. In Para
1, “within their jurisdiction” should be deleted because the population to whom
these rights apply and questions of the scope of the convention are dealt with
in Article 4.
Israel supported the inclusion of this article, just as they
had supported the separate article on women with disabilities. Children become
adults and states should invest as much as possible in them. It also supported
the position of the IDC, and that of NZ. It suggested including a new paragraph
(www.un.org/esa/socdev/enable/rights/ahc6israel.htm).
A child should be regarded as a human being with feelings and emotions. An eloquently
formulated article cannot be implemented if it is not accessible. If the right
is stated but there are no special facilities to enable these rights to be realised,
then the goals have not been reached. Each human rights instrument should be
seen as part of the range of instruments as a whole, so referencing them is
needed.
Russian Federation supported the inclusion of a separate article
on children, modeled on the CRC, as children are a most vulnerable part of society,
especially disabled children. Disabled adults make their own decisions with
regard to their health, education and professional activities; children are
restricted in making these kinds of decisions. States should ensure that regardless
of any failure on the part of parents and caregivers to provide full care, children
need to have adapted to life by the time they reach adulthood. So states should
ensure children with disabilities have the necessary care, education and professional
training.
Kenya strongly supported a separate article. If the rights
of disabled children are not respected, then the rights they should enjoy in
their adulthood, such as employment or inclusion in political life, will not
be realized. Children are different from adults with their own unique situations,
both legally and in other respects. Therefore, mainstreaming each article will
not necessarily address the issues of children. Mainstreaming rights is necessary,
but there should also be a separate article that deals with the issues that
are unique to children. The right to participation should be included as this
is often not addressed in the context of CRC, because states parties are not
required to report on the inclusion of children with disabilities. State parties
should be required to support families in the care of children with disabilities
to ensure their capacities properly evolve.
A cross reference to CRC should also be included, so that children with disabilities
avail of all the rights under that convention.
Argentina supported a separate article on children. The CRC
should be referred to as a general framework by including, at the end of Para
1, for example; “in keeping with the provisions established in CRC.” The second
para could be deleted, as it would be redundant. The wording of para 3 is confusing
and Argentina has proposed alternative text: www.un.org/esa/socdev/enable/rights/ahc6arg.htm.
Article 4 could be dispensed with.
Norway agrees with delegations that children and women with
disabilities are not simply a subgroup, and this is reflected in their recognition
in separate conventions. Their situation however is best dealt with through
strong references in the preamble and under article 4 on general obligations,
as proposed by the EU. This will ensure that the concerns of children with disabilities
are applied systematically throughout the convention. A cross cutting review
of children’s rights and situations should be ensured so that all the rights
apply to children. Accordingly article 25 should require states to report on
the situation of children with disabilities as well.
The Chair noted that the idea of including a reference under
the monitoring section to children could also be applied to women and other
PWD faced with multiple discriminations.
Yemen supported a separate article. However it should not be
a duplication of Article 23 of the CRC. All the rights of disabled children
should be stressed to enable them to emerge from childhood with the necessary
skills for life.
EU noted with concern the approach of some delegations suggesting
that issues dealt with either in the CRC or in other articles of this convention
be added to Article 16, eg. the proposal from Israel, about expressing views
freely on all matters affecting children with disability, has been drawn from
Article 12. “If we take this approach, then why would we limit it to Article
12, and not to other Articles of the CRC which are also directly relevant, like
Article 18 on the responsibility of parents towards children?” This approach
replicates the relevant parts of the CRC into Article 16 in this convention.
Another approach has been to include in Article 16 issues that are already addressed
in provisions elsewhere in this convention, like family and home life, right
to participation. These approaches compromise the clarity both of this convention
and the CRC and should be replaced with a strong reference in a general obligation
“up front” to apply the whole of the CRC to this convention. Norway’s suggestion
about adding a reference under Article 25 on Monitoring is very interesting;
it would be another way forward to ensure a horizontal application and would
have the strength and authority across this convention. If there are issues
that could not be covered either through a horizontal reference to the CRC or
language from the general obligations, then the EU will work with the facilitator
on this.
Canada reaffirmed its strong commitment to CRC and the promotion
and protection to every child, and agreed with many delegations about the particular
vulnerability of children with disabilities. Many disability organizations have
expressed the view that Article 23 of CRC is not sufficient to fully address
all the issues relating to children with disabilities. Confining the issues
of disability to one article in that convention has had the effect of limiting
attention and reporting on children with disabilities to that article. Canada
therefore supports adding strong language to this convention. However Article
16 of the WG text repeats obligations that almost every state is already under
and is not a useful addition. Limiting the focus on children to one article
should be avoided.
Instead of Article 16, there should be strong, general provisions in Article
2, and/or Article 4, to ensure the full and equal enjoyment of human rights
by all children with disabilities without discrimination. Such an initial position
in the convention would help raise awareness and apply across the convention.
Issues specific to children with disabilities should be mainstreamed and addressed
in detail where necessary in specific articles that address relevant subjects,
eg Article 6, 12, 14(bis), 17, 21, 24. Canada would be open to a separate article
if there are issues specific to children with disabilities that are not addressed
elsewhere and would not be better addressed as more comprehensive existing articles.
Such an article should not repeat provisions contained in other instruments.
Thailand supported retaining a separate article with the addition
of text from the IDC of issues not addressed under CRC Article 23. It also supported
the EU proposal on language in the General Obligations.
Philippines supported the inclusion of this article and agreed
with the Holy See that the phrase “before and after birth” be included in Para
16.1 as the rights of the child start at conception. The terms “detection” and
“identification” be inserted in Para 3(a) to read: “early detection, identification,
and provision of appropriate comprehensive services.”
The Chair sought clarification from the Philippines of the
context in which the language of “early detection” would apply. The Philippines
clarified that it was referring to the early detection of the disability and
subsequently of the services.
Costa Rica supported the Canadian position highlighting the
need to go beyond CRC Article 23. Yemen’s intervention implied that only Article
23 applies to children with disability when in fact it is simply a reminder
that the whole CRC applies to all children, including children with disabilities.
To avoid the same mistake, there is a need to determine the scope of the CRC
and note its gaps or omissions. The IDC text accomplishes this. There is no
specific article that could assure the rights of children with disabilities
either in this convention or in the future.
Morocco supported a separate article. As agreed upon at the
Casablanca meeting of June 2005, it proposed adding a description of complete,
appropriate and comprehensive services to Para 3(a) as this is key to early
detection, intervention and prevention. There should also be mention of the
prevention of sexual exploitation of children with disabilities.
Uganda supported a separate article. Disabled children are
sometimes excluded from, for example, birth registration, access to the legal
system and opportunities to express their views. Uganda supports the twin-track
approach suggested by Canada; issues that cannot be mainstreamed should be placed
in a stand-alone article, eg, child protection, respect for child’s evolving
capacities, care for children within families.
South Africa supported the position of Kenya. There should
be no limitation on the allocation of resources. There should be assistance
provided to both the caregiver and to the child. The rights of children should
be looked at in the context of non-discrimination legislation, but must be included
in policy objectives and constitutional principles of state parties.
NGO Statements
International Disability Caucus
“Nothing about us, without us” is not being fulfilled for children with disabilities
at this forum. There are no children or young people here able to advocate for
themselves. Furthermore, there is no single international organization here
dedicated to the rights of children with disabilities. It is imperative that
the absence of children or a powerful lobby on their behalf does not lead to
the neglect of their rights in this convention.
Two contradictory arguments have been made. On the one hand, that CRC already
adequately addresses the rights of disabled children and therefore there is
no need for additional provisions to strengthen those rights. On the other hand,
that having a dedicated article in CRC has been counterproductive to the rights
of disabled children.
It is true that in practice, States have restricted their focus in reporting
to CRC to Article 23. Monitoring of reports to the committee reveals that the
rights of disabled children are rarely addressed except in respect of education,
rehabilitation and health. Yet if Article 23 had not existed, it is likely that
there would have been even less attention given to children with disabilities.
Its presence in the text of the CRC has resulted in the Committee on the Rights
of the Child engaging in dialogue with states on a far wider range of rights
issues than would have otherwise been the case. There is no doubt that children
with disabilities have had a higher profile as a consequence of article 23.
Yet the article is not sufficient as it stands. The emphasis in CRC provides
for special services to promote the social integration of children with disabilities.
An end to social exclusion and discrimination will only take place when governments
take responsibility for providing inclusive mainstream services for all children,
inclusive provision for play, inclusive early years services, inclusive, appropriate
and accessible child protection services. The drafting of this convention provides
a unique opportunity to address these issues. Failure to do so would be to deny
for children the very commitment to inclusion and equality that the convention
is seeking to achieve.
In the context of this convention, it is also important to acknowledge that
children, with or without disabilities have a different status from adults.
They do not have autonomy and are not recognized as having legal capacity. They
are entitled to additional protections associated with their youth and vulnerability.
These protections are not and cannot be fully addressed in the main body of
a text that is primarily directed towards rights of adults with disabilities.
There are issues specific to children that can only be addressed in an article
specific to the rights of disabled children.
Children with disabilities are particularly vulnerable to violations of their
rights, they’re vulnerable to physical and sexual violence, they are less likely
to be registered birth, they are often denied the right to family life, widely
placed in institutions, denied their right to express their views and have them
taken seriously, denied the opportunities to develop their optimum capacities,
excluded from opportunities for play, and commonly excluded from opportunities
to seek justice when they experience violence and abuse.
Although the rights embodied in CRC extend equally to children with disabilities,
without strengthening the obligations to implement those rights for children
with disabilities, they will continue to be disregarded, in the same way that
the rights embodied in the international covenants are disregarded for adults
with disabilities. Unless explicit recognition is given to this group, they
will fall into a black hole between the two conventions - not adequately acknowledged
in the CRC because of a failure to address measures needed to realize those
rights, and not recognized here due to their childhood status. The strongest
possible measures should be introduced to address their rights violations faced
all over the world. The retention of a dedicated article in this text will emphasize
their presence as rights holders in the same way it has in the CRC.
The current working group draft fails to fulfill these objectives. It largely
replicates the text embodied in CRC Article 23. As such, it does little to strengthen
the rights of disabled children. By contrast, the IDC amended text provides
strengthened protections with an emphasis on inclusion and mainstreaming, and
should be seriously considered as an alternate text. Some of its provisions
could and should be incorporated into other articles, but some cannot as they
apply exclusively to children.
Inclusion International, represented by a member from Panama,
emphasized in a personal testimony the importance of parents and family life
in supporting the development of children with disabilities. Unfortunately,
many children have no parental support and need help.
World Blind Union explained the importance of allowing children
with disabilities to develop their own skills and potential by allowing them
to make their own mistakes. Everyone learns from making mistakes and finds their
limitations. Often, children with disabilities are over protected not just by
their parents but also by society. This denies children with disabilities the
right to speak for themselves. Parents and teachers are not educated to give
children with disabilities the opportunities to make these mistakes, to correct
themselves and to make decisions. The only way to change attitudes towards children
with disabilities is to recognize their own capacity. Their self-determination
should be honored in accordance with age and maturity. Disabled children must
be allowed to make their own lives through their own experiences. This can only
be achieved through a strong reference to disabled children that does not regard
them as a homogenous group.
World Federation of the Deaf supported the IDC intervention.
Children with disabilities should have their own article and also be included
in the preamble and other relevant articles. Deaf children in particular are
often the targets of medical interventions and various forms of training, and
they do not have the opportunity to just be children. It is important that children
be around people who are skilful in sign language. Without access to communication
skills, either on the part of the deaf child or the person with whom they are
trying to communicate, their issues will not be heard. Articles 11, 12, 13,
19, 24, 25 would most benefit from integrating this issue.
Children with disabilities need peer support, additionally they also need to
observe adults with similar disabilities, to learn how to interact with the
world around them and to grow up and become productive members of society.
Children’s Fund added their voice, as a mainstream children’s
organisation, in support of other NGOs. Children with disabilities are experiencing
the most rapid life developmental stage and thus have particular needs and responsibilities.
They have the greatest potential to go far given the rights of this convention.
British Council of Disabled People supported the IDC position.
Disabled children are the most disenfranchised from this convention as well
as from the CRC. A separate article must address the issues of equality of treatment
so as to ensure that such an article would not be addressed to the exclusion
of the other parts of the convention. Far too many disabled children continue
to be forcibly institutionalized, or left to die. Those disabled children who
have survived, who are witness to or are heard at these meetings, have been
able to do so because of the efforts of their parents rather than that of the
medical profession. There is a history of “disableism” around the world, which
impacts on the lives of disabled children. A majority of their parents do not
have experience of living with an impairment and find it difficult to adjust
to the negativity that is still out there in society in everything we do – on
television, in the cinema, in comic books and playgrounds, in the way that nondisabled
peers react because they have not been taught any other way. That is why a stand-alone
article is necessary, so that all who have responsibility for the lives of children
take this responsibility seriously, and change their daily working practice.
Empowering young disabled people, as addressed in para 2 of the IDC text, is
essential. This cannot be achieved by gathering them together to inquire into
their views, the method of the current UK government called “focus groups.”
This produces the answers one expects. Instead disabled children need to be
educated to have a view, because their views have been ignored for so long.
The best method is to expose children to disabled adults who have gone through
the process of living with an impairment and living with disableism. It is also
essential to educate the professionals who are the gatekeepers of the lives
of children so that there is a “parity of esteem” for disabled children. There
is a big agenda to be taken on, and there is a need for a stand-alone article
that will infuse this agenda into every part of the convention.
Korean Solidarity for Disability Convention suggested the addition
of a sentence at the end of Para 2 to ensure that children with disabilities
shall not be forcibly institutionalized. It also proposed language in a new
paragraph 6 recognising that children with disabilities suffer from violence,
abuse, detention, excessive rehabilitation training and violations of their
rights, by caregivers and guardians. Such language would also obligate states
to take appropriate preventative measures.
Society of Catholic Social Scientists supported the retention
of Article 16 because children are doubly vulnerable. It commended Uganda for
its position to protect children with disabilities from sterilization. It also
commended the positions of Philippines and the Holy See to ensure that children
with disabilities are not targeted before birth for discriminatory and life
threatening treatment because of their disability.
Disabled Peoples International Latin America supported a separate article.
Disabled children in many developing countries have limited access to educational
and health services, experience a great deal of family violence, sexual abuse,
exploitation of labor, and are often reduced to beggary.
Language making states obligations contingent upon resources should be eliminated
from paras 3 and 4. If society cannot protect its disabled children, then who
can it protect? Disabled children should have access to healthcare, education
and preparation for work. These should be grounded in government policy. Children
in rural areas, from indigenous groups, are exposed to the greatest vulnerability
and should be covered.
In developed countries institutionalization should be eliminated. But for families
living in remote areas of developing countries like the rain forest or the Andes,
their economic situation is such that children with disabilities will be abandoned
or cannot survive, and institutionalization may be the only option for a better
standard of living.
The Chair noted a sizable proportion of the delegations and all disability
organizations are in favor of a separate article. There seems to be general
agreement that paras 2, 3 and 4 are not adequate, though the language of “early
provision” of services, for example, does add value from CRC, as does paras
1 and 5. Additionally, particular situations where children with disabilities
face a particular disadvantage have also been raised both by NGOs and States,
and language reflecting this needs to be incorporated. As noted by Mexico however,
such language needs to add value to existing texts.
The Chair clarified the concerns raised by several delegations with respect
to the relationship between this convention and others that may, for example,
deal with the rights of children. It should not be the objective of this meeting
to duplicate obligations found elsewhere. States parties are already bound by
the obligations of those other conventions, which stand on their own. However
this does not prevent states at this meeting from increasing obligations already
found in other conventions. There is no problem of inconsistency here. If a
state is party to 2 conventions and one of them has a higher standard, then
the state is obligated to uphold the higher standard. With respect to children,
for any state party to the CRC that is also party to this convention, should
this convention have a higher standard, that state is bound to observe the higher
standard in this convention. This is stated in CRC Article 41. It is important
to ensure however that obligations do not contradict each other. It is worth
noting that most of the obligations found in other conventions already apply
to PWD, yet PWD have not been able to realize these rights. So the task at hand
is to understand the particular problems that, for example, children with disabilities
face, and then address those issues specifically in this convention. This convention
provides an opportunity to be more specific with respect to rights that are
already covered in existing conventions, as in for example, the early provision
of appropriate and comprehensive services, which builds in an additional ingredient.
There is also the need to formulate general language, similar to what could
be added to Article 4.
To address the underlying disagreement about the need for a separate article,
the Chair requested the facilitator to proceed in the same fashion as that for
women with disabilities, and to meet with interested delegations to identify
gaps in the text where mainstreaming of issues related to children with disabilities
is required. Following that the drafting a stand-alone provision, that is in
fact value added, can be explored.
Article 17 - Education
The Chair introduced the Facilitator from Australia for this
article. He called for comments on the WG text paragraph by paragraph while
drawing attention to the many footnotes to this article.
Jamaica called for this article to deal with both education
and training and this should be reflected in the title. Many disabled want to
resume their education when they are beyond the age of their nondisabled peers.
Education is the catalyst that will improve the lives of disabled people.
Australia put forward its proposed text www.un.org/esa/socdev/enable/rights/ahc6aus.htm
which recognizes education as a whole from primary to lifelong learning, and
is not age specific. The text has been structured towards inclusive education
as an aspirational right. This document should not just be a mere human rights
document but there are life skills that people with disabilities need to acquire
to interact both with other similarly disabled persons and with the community
as a whole. Braille, sign language and orientation and mobility skills are included.
These skills may be acquired through a formal education system but also at any
stage of life. Australia sees the need for Article 17 bis which recognises that
these activities are fundamental but relevant more broadly than just in the
context of education. The term “recognise the right of” should be replaced with
“enable.”
South Africa was flexible with regard to the text used - that
of the working group Australia. It subscribes to the principle of education
for all. It emphasized several issues within the WG text: [1] The provision
of education to children and young people must encompass development of skills
and of individual potential to be a full member of society. [2] In order to
provide education to a large scale there has to be a removal of all barriers
including social, cultural and physical barriers. [3] Access to education has
to be promoted and made affordable within reasonable means of state parties.
Kenya considered the WG text comprehensive and useful. In the
chapeau of Para 1 the phrase “on an equal basis with others” should be added
at the end of the first sentence; the reference to progressive realization removed
from the second sentence and “and adults” should be inserted after “children”.
Education for people with disabilities should be approached in the same way
it is done for others.
The Chair enquired whether adding “and adults” would mean that
the text then reverted to apply to “people with disabilities”. Kenya clarified
that it would prefer to specify “children and adults” to emphasise applicability
to both given the fact that other parts of the article seem to only apply to
one or the other.
Thailand agreed with the WG text as the basis for discussion.
[1] There should be a right to education on an equal basis with others. Such
a right supersedes any particular model of education and any type of service
delivery. This right should not be compromised. [2] All educational settings
should be made inclusive to persons with disabilities, in line with the idea
of inclusive education. Such inclusiveness does not mean only one model but
that the whole educational system must be inclusive. [3] Freedom of choice applies
to the concept of education as well and must be maintained. The right to choose
is a solution to the problems that in reality disabled people must face when
entering any particular educational system. Whether in the past, present and
future, there will always be “the idea of the alternative”, to meet the needs
of diverse groups of people. Therefore Thailand supports Para 3 of the working
group text and Para 2 (d) of the IDC text. The idea of specialized training
skills in para 4 of the WG text and 2(c) of the IDC text should also be maintained.
(www.un.org/esa/socdev/enable/rights/ahc6thai.htm)
New Zealand supported the basic content of the working group
draft, while also supporting improvements in the emphasis of the article, which
are achieved through the Australian redraft and are included in a number of
NGO proposals. The emphasis of the article should be on disabled children and
adults’ ability to participate in the general education system complemented
or enabled by adequate provision of support and/or special services. It should
not be to present a choice for states between providing inclusive or segregated
services. General education should be seen as incorporating a range of supports
to meet the diverse needs of all students, rather than as two alternatives;
special versus mainstream. It therefore supports the deletion of WG para 3 as
in the Australian text, or its modification. It supports the new 17(bis) because
it deals with issues covered in other parts of the convention that are not specifically
about the right to education, like Articles 13, 24, and 21.
Jordan called for a greater emphasis on learning, because it
implies the interactive aspect of education and the principle of self learning
that is now becoming more important given distance learning possibilities in
the internet age. There is also a need for teachers to be trained to teach persons
with disabilities, particularly around areas such as assistive technology. It
suggested the following structure for the WG text of this article. Para 1 should
establish the right to education and training for all PWD. Para 2 should identify
all the means and facilities to achieve the goal of education for all. Para
3 should be a safeguard for children who need special considerations.
Israel supported the WG text. It also supported the position
of Kenya to broaden the article to include all learners regardless of age and
enquired whether the reference to children in Paras 1(c) and 1(d) should be
changed accordingly. There are lecturers, architects and other professionals
who are involved in the education of disabled persons, they are not as well
informed on disability issues, and they should also be referred to in 2(b).
The obligation for inclusive education should apply to all institutions of learning,
not just schools. Israel supports the IDC para 2(e), as disabled people and
those who work with disabled people should be included in educational plans.
Costa Rica supported the Australian text which resembles a
proposal from Costa Rica at AHC3. The scope of this article is the education
of all disabled persons throughout their lives, not only formal or children’s
education. Human rights education, on disability and human rights should be
incorporated into study plans for all educational curricula.
The session was adjourned.
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