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Back to: Proposed Modifications by Governments
Seventh Session | Ad Hoc Committee Main

Contribution by Governments

India

Preamble

We appreciate the effort put in by you in bringing up a text of preamble, which reflects to large extent proposals, made during earlier meetings of the Committee. We support the Chair’s text on preamble of the convention. We however have some proposals on the chair’s text and on the proposals made by some delegations today.

(i) First, we propose deletion of reference to the Convention on Migrant workers and members of their families in paragraph (d). We suggest that a general reference may be made in this paragraph on International Covenants to encourage ratification of this Convention.

(ii) We support proposal made by US delegation regarding recognition of the role of family who play crucial role in full and equal enjoyment of the rights of persons with disabilities. The formulation provided by the US is acceptable to us.

(iii) We do not support reference to genetic testing in the preamble. Reference to the ethical principles embodied in the UNESCO International Declaration does not justify its inclusion in the preamble since that is not a legally binding document whereas this convention will be a legally binding instrument. Further, the issue raised is not of such significance that it should find place in the preamble of this convention.

(iv) We feel that the paragraph (o) of the preamble needs strengthening. We are aware that twin effect of poverty and disability on the family has a cumulative effect on the livelihood. We feel that this effect should be highlighted in preamble. Proposal made by Philippines in this regard is acceptable to us and possibly could be improved.

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On Title and Article 1: Purpose

We feel that the convention should have brief title for its easy reference. Thus the title “International Convention on Rights and Dignity of Persons with Disabilities” adequately captures the essence of the convention. We feel that there should be a separate article on purpose of the Convention clearly bringing out the objective of the convention. We support the Chair’s text on this article. We have listened to the debate where there have been suggestions that the word ‘dignity’ should not be in the title of the Convention. We are flexible on this issue. We, however, feel that there should be mention of word ‘dignity’ either in the title or in the article relating to the purpose.

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Intervention on Article 2: Definitions

We are comfortable with the Chair’s text on most of the definitions. We would however, like to make some suggestions.

(i) Regarding the definition of Communication, we support EU’s text, which provides for inclusion of Plain Language as one of the modes of Communication.
(ii) Regarding the definition of Discrimination on the basis of disability, we support the Chair’s text. The issue regarding indirect discrimination on the ground of disability has been discussed in earlier meetings of this Committee. We feel that the last sentence of this definition is not necessary and can be dropped with out any loss in content.
(iii) Regarding Reasonable accommodation definition, we support the chair’s text where to our understanding the words ‘disproportionate burden’ have been used in the context of financial and other burdens which may not be commensurate with the benefit to be achieved i.e. accommodation sought to be provided is not reasonable. We would like to support those delegations who have suggested that the concept of reasonable accommodation has to be seen as distinct from discrimination on the grounds of disability i.e. State party’s inability to provide reasonable accommodation in a situation need not amount to discrimination against person with disability. We are however, cognizant of the responsibility of the State party to provide reasonable accommodation.
(iv) The most important aspect in this article is definition of Disability and persons with disability. We support the Chair’s views expressed in his letter that there is no need to give a definition of both these terms. During the debate today, some delegations have referred to ICF of WHO or some general formulations like Inter-American Convention. The question is whether any such general definition would be of any help from the point of view of this convention since state parties will have to provide a very specific definition of each type of disability, which is scientifically measurable in their domestic laws. Further, scope of the definition would continue to change over a period time; therefore, any specific definition in this convention may not serve required purpose. We understand very clearly when we talk of persons with disabilities. Rest of the details should be left with state parties to take necessary precautions while defining the two terms in their domestic laws.

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On Article 4: General Obligations

We agree with the Chair’s formulation regarding progressive realization of economic, social and cultural rights, which is in accordance with our deliberations in earlier session of the Committee. However, inclusion of the words “except where achieving progressively the full realization of these rights would result in discrimination on the basis of disability” would need some clarification. A case in point may be making all the public buildings accessible to persons with disabilities. This would be a massive effort on our part given the geographic size of our country and would call for investment of massive resources. There may be instance where such facilities may become available in some cities immediately but may take some time for other areas. This could not be treated as discrimination in those areas. Thus, the formulation of para 2 under General Obligation has to take care of such situations.

31.1.2006
Article 4: General Obligations

We are very glad that in paragraph 3 of this Article, our request to provide representation of families of persons with disabilities through their organizations in the process of consultation for decision-making purposes has been taken care by use of words “representative organizations”. We feel that such formulation should be kept in the article.

We support the Russian Federation on the suggestion made regarding the first sentence in paragraph 2 for replacement of words “measures to the maximum of its available resources” with “effective and appropriate measures” since it may not always be possible to provide maximum resources due to competing demands on limited resources.

Some delegations have suggested that there should be a paragraph on legal remedies for enforcement of convention. We feel that this aspect has been taken care by paragraph 1(a), where State parties are under obligation to adopt legislative measures for the purpose of implementation of the Convention. We are, however, flexible on this issue and would look forward to the formulation of this paragraph.

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Intervention on Article 5
16.1.2006 (Morning)

We generally support the text on equality and non-discrimination.  We, however, would like a clarification about the use of the term ‘on any other ground’ used in the second sentence of Para 2. Specifically our constitution prohibits discrimination on the basis of race, religion, sex, language. Normally such discriminations are prohibited by the constitutions of States Parties. We are not sure about the kind of discrimination which is meant to be covered by the ‘language in Para 2. Would it not be preferable to add the words ‘prohibited by the constitution of the States Parties’ after the words’ ‘on any other grounds’? Alternatively, the second sentence could be deleted.

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Proposals on articles relating to Women and Children with disabilities and other relevant articles

First of all, we join other delegations in recording our appreciation of the work done by the Facilitators in coming up with a very useful text on women and children with disabilities for inclusion in various articles of the convention. We agree with the concerns of all other delegations that women and children with disabilities are more vulnerable to neglect, abuse and discrimination and therefore there is a need to have specific provisions to protect their rights and fundamental freedoms. We, however, hold a view that there may not be a need to have a separate article for each of these groups since this may raise the requirement to have separate articles on Aged, each type of disability or even for persons with severe disabilities. However, considering the debate on this issue so far, we are ready to take a flexible position.

We have specific comments to make on some of the formulations suggested by the Facilitators and other delegates. We would first like to present our suggestions on articles relating to women with disabilities.

(i) We agree with the Facilitator’s text regarding preamble.

(ii) We suggest that paragraph 2 of Article 6 could be made consistent with the language adopted in CEDAW.

(iii) Regarding paragraph 1 of article 16, the text could be better worded by adding “specially women and girls with disabilities” before “both” and after “disabilities”. We may end the sentence with the word “abuse”.

(iv) We feel that paragraph (b) bis of article 25 should use the language of CEDAW.

We make the following suggestions regarding provisions relating to Children with disabilities.

(i) Regarding article on General Obligation, we feel that consultation with children with disabilities as envisaged is desirable but may not always practical. We therefore, suggest that such consultation has to be through their representative organizations. The text therefore needs modification.

(ii) Para 2 of Article 7 has to replace word “paramount” with “primary” as has been suggested by China and Newzeland to make it consistent with CRC.

(iii) We feel that article 2 bis is not necessary and can be deleted since this concern has already been taken care.

(iv) Regarding 2 ter of Article 23, the responsibility of state parties should be of a facilitator and hence needs drafting changes.

Regarding common provisions, we have the following suggestions to make:

(i) We feel that para 1(0) under Article 31, being added is repetitive and hence could be deleted. Consultation with organizations of persons with disabilities has already been taken into account in General Obligations. Persons with disabilities through their organizations would be taking up development of indicators and collection and analysis of data to provide inputs to policy formulations.

(ii) Paragraph 1(0.1) of Article 31 needs minor modification by deletion of word ‘all’ since collection of various types of data are not necessarily relevant from the point of view of persons with disabilities.

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Intervention on Article 8
16.1.06 (Afternoon)

My delegation would support the retention of the Article as the attitude of society towards persons with Disabilities is very important to the realisation of their rights.

The language of the Article is also acceptable to us with one exception. We would support the delegations suggesting deletion of Para 2a(ii). However, we could be flexible on the retention but would urge the deletion of the word ‘sexuality’ on cultural consideration.

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Intervention on Article 9
17.1.2006 (Morning)

My delegation would agree with the previous speakers who have held that we should not move too far away from the Chairman’s text and work with this text as the basis. As regards, the chapeau to Para 1, the emphasis of the Article is on accessibility and therefore the first sentence rightly stresses on accessibility.  In the proposal of the EU the first reference is on enabling persons with disabilities ‘to live independently’ but that is not what this Article is all about. Also full participation is the thread which runs through he Convention. Therefore, we feel that the  Chairman’s text places emphasis in the first sentence on where it should be placed – on accessibility and we should stay with it. We should stay with Para 1 in its entirety. That is to say that we are not in favour of introducing the concept of reasonable accommodation in the Chapeau to Article 1. Here we would support the delegation of Australia.

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Intervention on Para 9(2)
17.1.2006 (Afternoon)

For Para 2a and 2b my delegation feels that the use of the word ‘provide’ in the Chairman’s text is preferable to the word ‘ensure’ as suggested by one delegation, as progressive realisation would apply to Para 2.

We also support the EU’s proposal to subsume paras f, g and h in a new 2(b) bis.

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Intervention on Para 10

We presume that the addition of the words suggested by the International Disability Convention refer to the termination of life as a fetus. This would open up a very protracted debate, which could go on endlessly. It would therefore be in the interest of the Convention to accept the text of the Chair.

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Intervention on Para 12
18.1.2006 (Morning)

We support the Chair’s text in both para 1 and the Chapeau to Para 2. However, the proposal made by Yemen to split the Para in 2 sentences is also acceptable to us. We would support the retention of the phrase ‘to the extent possible’ keeping in view the fact that the number of disabled in our country is over 20 million.

The idea that the assistance provided is proportional to the degree of support required indicates that the state has an important duty to assess the status of health of the person with disability most particularly the intellectually challenged. This requires regular review of decisions on the basis of medical status of the disabled. It is the obligation of the State to address both the concerns of society and at the same time the implementation of the rights of an individual. An important periodic review in our view would satisfy the societal and individual needs and obligations. We therefore support 2b.

My delegation would also support the view expressed by delegation of Kenya in that we have to recognise that at times persons with disabilities do not in fact have the legal capacity to act independently. We feel that we have to provide for this because it is the obligation of the State to protect all parties involved.

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Intervention on Article 17
19.1.2006 (Afternoon)

My delegation supports the central idea contained in this Article and would support the retention of Para 4 by removing square brackets. As one delegation said safeguards are also important. In Para 2 there has been some concern about the use of the word ‘institutionalisation’. This could be dealt with by adding, after the words ‘forced intervention’ the words ‘of any kind’ and removing the words ‘on forced institutionalisation’ Para 2 would then read “States Parties shall protect persons with disabilities from forced interventions ‘of any kind’ aimed at correcting, improving or alleviating any actual or perceived impairment”. We also have sympathy for those delegations which have suggested removing the word ‘perceived’. In this context the language proposed by New Zealand for Para 1 would also be acceptable, with the same modification i.e. deletion of words ‘or institutionalisation’ after the words ‘of any kind’. I understand this proposal also involves removal of Para 2.

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Intervention on Article 21
20.1.2006 (Morning)

We support the text of the Chair on Article 20. Initially we had one suggestion regarding the substitution of the words ‘liberty of movement’ by ‘personal mobility’. Since some other delegations have made this suggestion we would like to state our support. Listening to this debate about whether we should have three articles, Article 9, Article 18 and Article 20, these should be retained as such. The focus of Article 20 is on the mobility of the individual and Article 9 relates to the enabling environment in which he moves. For e.g. a wheelchair provided in accordance with Article 20 ensures personal mobility but whether a building has a ramp on which he can move is dealt with in Article 9. There are some areas of overlap i.e. 2(b) of Article 9 and ‘b’ of Article 20. These could be looked into at the drafting stage. In Article 18 the focus is on international mobility. Therefore the three articles focus on different aspects and should remain separate.