 |
 |
|
|
|
|
Contribution by Governments
12 January 2006
Israel Position Paper for the 7th Ad Hoc Committee
- First week
Introductory Remarks:
• Given the need, as explained in the Covering Letter from the Chairman, to progress towards conclusion of work on the Convention, our proposals at this stage are confined to amendments which we believe to be of crucial importance and which are capable of being widely supported, in relation to four articles which are tabled for discussion in the first week of the coming session – Articles 5 (Equality and Non-Discrimination), 9 (Accessibility), 13 (Access to Justice) and 19 (Living and Being Included in the Community).
• Our proposals below are largely based on amendments proposed by the International Disability Caucus, and for this reason alone, in our view, merit serious consideration on the part of the various delegations.
• Our contributions to the work on other articles will be made during the course of the session.
Chairman’s Text
Draft Comprehensive and Integral International Convention
on the Protection
and Promotion of the Rights and Dignity
of Persons with Disabilities
Article 5
EQUALITY AND NON-DISCRIMINATION
1. States Parties recognize that all persons are equal before and under the
law and are entitled without any discrimination to the equal protection and
equal benefit of the law.
2 States Parties shall prohibit any discrimination on the basis of disability
and guarantee to persons with disabilities equal and effective protection against
discrimination. States Parties shall also prohibit any discrimination and guarantee
to persons with disabilities equal and effective protection against discrimination
on any other grounds.
3. States Parties undertake to take all appropriate steps (ADD – to
promote the equal and active participation of persons in all areas of life,
including steps) to ensure that reasonable accommodation is provided.
JUSTIFICATION: The central Article on Equality and Non-Discrimination must
reflect worldwide recognition that genuine equality can only be achieved by
states taking active steps to promote equal and active participation by persons
with disabilities in all areas of life.
4. Measures which are necessary to accelerate or achieve de facto equality
of persons with disabilities shall not be considered discrimination on the
basis of disability.
Article 9
ACCESSIBILITY
1. States Parties to this Convention shall take appropriate measures to ensure
accessibility for persons with disabilities by identifying and eliminating
obstacles to the built environment, to transportation, to information and communications,
including information and communications technologies, and to other services,
in order to ensure the capacity of persons with disabilities to live independently
and to participate fully in all aspects of life. These measures shall apply
to, inter alia:
(a) the construction and renovation of public buildings, roads and other facilities
for public use, including schools, housing, medical facilities, in-door and
out-door facilities and publicly owned workplaces;
(b) the development and remodelling of public transportation facilities, communications
and other services, including electronic services.
2. States Parties shall also take appropriate measures to:
(a) provide in public buildings and facilities signage in Braille and easy
to read and understand forms;
(b) provide forms of live assistance and intermediaries, including guides,
readers and sign language interpreters, to facilitate accessibility to public
buildings and facilities;
(c) develop, promulgate and monitor implementation of minimum national standards
and guidelines for the accessibility of public facilities and services;
(d) ensure that private entities which provide public facilities and services
take into account all aspects of accessibility for persons with disabilities;
(e) provide training for all stakeholders on accessibility issues facing persons
with disabilities;
(f) promote access for persons with disabilities to the new communication technologies
and systems, including the Internet;
(g) promote the design, development, production and distribution of accessible
information and communication technologies at an early stage, so that the information
society becomes inclusive at minimum cost;
(h) promote other appropriate forms of assistance and support to persons with
disabilities to ensure their access to information.
Israel's proposal – REPLACE WITH THE FOLLOWING:
1. States Parties to this Convention shall require by way of legislation that
all entities open to the public or providing services or information to the
public, take appropriate measures to ensure accessibility consistent with the
principles of this Convention for persons with disabilities, by preventing
and eliminating new and existing barriers in the facilities and services concerned.
These measures shall apply to, inter alia:
(a) existing and new buildings and other facilities providing services to
the public, including schools, workplaces, medical facilities, roads, indoor
and outdoor facilities;
(b) existing and new transportation facilities;
(c) all forms of information, communications and other services, including information and communications technologies and electronic services;
(d) mass media, including providers of information on the Internet;
(e) places, services and facilities owned or operated by public authorities
and private entities alike.
2. States Parties shall require by way of legislation that reasonable accommodations are made to new and existing housing and residential buildings.
3. States Parties shall develop, implement and monitor accessibility standards which will be compulsory for all entities open to the public or providing services or information to the public and ensure that
(a) non compliance with these standards will be considered discrimination;
(b) standards are comprehensive, including health and safety requirements taking into account persons with disabilities;
(c) standards require the production and provision of all types of public materials, information and documents in comprehensible and usable formats, languages and scripts, including Braille, in a timely manner, and without additional cost to persons with disabilities;
(d) standards require appropriate forms of assistance, support and service to persons with disabilities to ensure access to, and understanding of, information and services, including professional sign language interpreters, guides and readers
4. States Parties shall also take appropriate measures to:
(a) provide training to all appropriate persons on accessibility issues, including
service providers, building owners, designers and managers;
(b) ensure that professionals who consult, design and implement services in
matters related to accessibility are appropriately qualified.
JUSTIFICATION: Whilst mindful of the need, at this stage, to keep changes to the Chair's text to the bare minimum, a number of key points in the context of accessibility, which we believe are a matter of general consensus, need to be clarified and reinforced, as follows:
• It is primarily entities open to, or servicing, the public which should be the subject of accessibility obligations (compare the chapeau of sub-Article 1 above with the chapeau of sub-Article 1 of the Chair's text);
• accessibility obligations also apply to existing as well as new, buildings open to the public (compare sub-Article 1(a) above with the chapeau of sub-Article 1 of the Chair's text) ;
• accessibility obligations also apply to existing as well as new, buildings open to the public (compare sub-Article 1(a) above with the chapeau of sub-Article 1 of the Chair's text);
• accessibility obligations apply to all entities providing services
to the public, whether owned or operated by public authorities or private bodies
(compare sub-Article 1(e) above with sub-Article 2(d) of the Chair's text).
• the obligation of States Parties, by way of legislation to
set compulsory accessibility standards, non-compliance which shall be regarded
as discrimination (compare the chapeau of sub-Article 3 and 3(a) above with
sub-Article 2(c) of the Chair's text);
• accessibility obligations include making information and documentation
available in comprehensible and usable formats (see sub-Article 3(c) above)
;
• in addition to the need for training
of stakeholders on accessibility issues facing persons with disabilities
(as provided for in sub-Article 4(a) above and sub-Article 2(e) of the
Chair's text), professionals who consult, design and implement services
in matters related to accessibility must be appropriately qualified (see
sub-Article 4(b) above).
Article 13
ACCESS TO JUSTICE
States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, facilitating their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including the investigative and other preliminary stages.
Israel's proposal – ADD THE FOLLOWING:
(a) “State Parties shall ensure such access through, inter-alia,
legislative measures, and the provision of accommodations by all justice and
law enforcement agencies and related agencies serving or assisting persons
in the legal process.
(b) Accommodations include, but are not limited to making the language
accessible according to the individual’s needs through the use of sign language
interpreters and communication assistants and devices, utilizing experts to
enhance communication and advise on the implication of the disability on the
process, accommodations to evidentiary procedures, and age appropriate accommodations
for children.”)
JUSTIFICATION:
• It is crucial to make specific mention of accommodations in relation to access to justice, with generic examples unique to this issue, given the key role of accommodations in making access to justice a reality for people with disabilities, on the one hand and the relatively low level of awareness in many countries of the tremendous need for accommodations in this area
• Without specific mention of accommodations, the right to access of justice is in danger of remaining vague and without practical results.
• The main barrier preventing access to the justice system, which should be addressed by the Convention, is not necessarily a physical one, but first and foremost lack of accommodations at the process level.
For example, in cases in which persons with communication disabilities
are victims of crime, the police do not know how to question these
persons, evidence is not collected adequately, and the courts do not
know how to enable these persons to testify. The end result is that cases
are closed, most offenders of persons with disabilities go free, and the victims
do not receive the protection of the justice system accorded to others.
• Mention of legislative measures is proposed, since access to justice touches on legal and evidentiary procedures, necessitating employment of legislation.
• As part of mainstreaming the issues of
children with disabilities, we propose to add the aspect of accommodations
derived from the age perspective.
Article 19
LIVING (Israel's proposal: DELETE: INDEPENDENTLY) AND BEING INCLUDED IN THE
COMMUNITY
States Parties to this Convention (Israel's proposal: ADD: recognize the right of all persons with disabilities to live in the community, with choices equal to those of others and) shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of (Israel's proposal: ADD: this right) (Israel's proposal: DELETE: their freedom of choice, living independently and ADD: and their) full inclusion and participation in the community), including by ensuring that:
(In accordance with Israel's proposal, the Chapeau would read as follows:
States Parties to this Convention recognize the right of all persons with disabilities
to live in the community, with choices equal to those of others and shall
take effective and appropriate measures to facilitate full enjoyment by persons
with disabilities of this right and their full inclusion and participation
in the community, including by ensuring that):
JUSTIFICATION:
As the Chair stated in his report concluding the Sixth Session "the key
to this draft article … [is] the right of every person with disabilities
to live in the community". Given the high number of persons with disabilities
still living in institutions, it is not sufficient for the right to live in
the community to be implicit. On the contrary, it is essential to affirm this
right, explicitly.
We also propose to delete the word “independently” both from the
caption and the text of Article 19 as this term is capable of being misinterpreted
as applying primarily to those persons with disabilities who are capable of
living in the community independently without support and assistance.
(a) persons with disabilities have the opportunity to choose their place of
residence and where and with whom they live on an equal basis with others and
are not obliged to live in a particular living arrangement;
(b) persons with disabilities have access to a range of in-home, residential
and other community support services, including personal assistance necessary
to support living and inclusion in the community, and to prevent isolation
or segregation from the community;
(c) community services and facilities for the general population are available
on an equal basis to persons with disabilities and are responsive to their
needs.
________________________________________________________________________________________
Article 23
RESPECT FOR THE HOME AND THE FAMILY
1. States Parties to this Convention shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family and personal relations, and in particular shall ensure, on an equal basis with others:
(a) that persons with disabilities are not denied the equal opportunity to
[experience their sexuality,] have sexual and other intimate relationships
and experience parenthood (DELETE:[in accordance with national laws, customs
and traditions of general application]);
(b) that the right of all [men and women] [persons] with disabilities who
are of marriageable age to marry and to found a family on the basis of
free and full consent of the intending spouses is recognized (REQUIRES
CLARIFICATION:[and that spouses should be equal partners]);
(c) the rights of persons with disabilities to decide freely and responsibly
on the number and spacing of their children (RETAIN:[and to have access to
information, reproductive and family planning education, the means necessary
to enable them to exercise these rights and the equal opportunity to retain
their fertility to the extent that these are permitted by national laws of
general application]).
2. States Parties to this Convention shall ensure the rights and responsibilities of persons with disabilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount. States Parties shall render appropriate assistance to disabled persons in the performance of their child-rearing responsibilities.
3. States Parties shall ensure that a child is not separated from his or her parents against their will (ADD on the basis of a disability of either the child or one or both of the parents), except when competent authorities determine, in accordance with national laws and procedures of general application and subject to judicial review or other forms of administrative review as established by law, (ADD: provided) that such separation is (ADD vitally) necessary in the best interests of the child. (ADD: and on an equal basis with others. DELETE: In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents).
Add new para 4 of IDC.
________________________________________________________________________________________
Article 24
EDUCATION
1. States Parties recognise the right of persons with disabilities to education.
With a view to achieving this right without discrimination and on the basis
of equal opportunity, States Parties shall ensure an inclusive education
at all levels and life-long learning, directed to:
(a) the full development of the human potential and sense of dignity and self worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity;
(b) the development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential;
(c) enabling persons with disabilities to participate effectively in a free society.
2. In realising this right, States Parties shall ensure:
(a) that persons with disabilities are not excluded from the general education system on the basis of their disability (ADD: except where the needs of the person with a disability, after having giving the support required for that person, cannot be met by the general education system) and (MOVE TO THE COMMENCEMENT OF THE ARTICLE, AS A SEPARATE SUB-PARAGRAPH: that children with disabilities are not excluded from free and compulsory primary and secondary education on the basis of their disability);
(b) that persons with disabilities can access inclusive, quality, free primary and secondary education to the extent possible in the communities in which they live;
(c) reasonable accommodation of the individual’s requirements;
(d) that persons with disabilities receive the support required, within the
general education system, to facilitate their effective education. (MOVE
to (a), after "general education system" In exceptional those circumstances
where the general education system can not adequately meet the support needs
of persons with disabilities, States Parties shall ensure that effective alternative
(ADD: education support measures are provided, consistent with the goal of
full inclusion and the principles of this Article);
(e) the development of initial and continuing training, which incorporates disability awareness, the use of appropriate communication means and modes, educational techniques (ADD: technologies) and materials to support persons with disabilities, for all professionals and staff who work at all levels of education.
3. States Parties shall enable persons with disabilities to (ADD:
acquire learn learning and daily life (DELETE: and social development) skills to facilitate
their full and equal participation in education and as members of the community.
To this end, States Parties shall:
(a) facilitate the learning of Braille, alternative script, orientation and mobility skills, (ADD: “augmentative and alternative communication modes and means, techniques and strategies”) and facilitate peer support and mentoring;
(b) facilitate the learning of sign language and the promotion of the linguistic identity of the Deaf community;
(d) ensure that the education of children who are blind, deaf, and deaf/blind is delivered in the most appropriate languages and modes of communication for the individual, and in environments which maximise academic and social development.
ADD:
(d) ensure that the education of children with communication needs and in
need of special teaching methods and means, receive education which maximises
academic and social development.
4. States Parties shall take appropriate measures to ensure quality education to students with sensory disabilities through the employment of teachers who are fluent in sign language or Braille, including teachers with disabilities.
ADD:
4bis. States Parties shall take appropriate measures to ensure quality education
to students with cognitive or physical disabilities through the employment
of teachers who are adequately trained in adapted educational techniques and
technologies, and assistive and augmentative technologies.
5. States Parties shall ensure that persons with disabilities may access
general tertiary education, vocational training, adult education and lifelong
learning without discrimination and on the basis of equality of opportunity.
To that end, States Parties shall render appropriate support to persons with
disabilities.
________________________________________________________________________________________
Article 28
ADEQUATE STANDARD OF LIVING AND SOCIAL PROTECTION
1. States Parties recognise the right of persons with disabilities to an adequate
standard of living for themselves and their families, including adequate food,
clothing, housing, and to the continuous improvement of living conditions including
access to clean water, and shall take appropriate steps to safeguard and promote
the realisation of this right without discrimination on the basis of disability.
2. States Parties recognise the right of persons with disabilities to social
protection, including the right to an appropriate response
to their special needs and to the enjoyment of that right without discrimination on the basis
of disability, and shall take appropriate steps to safeguard and promote the
realisation of this right, including measures to:
JUSTIFICATION: It is necessary to enshrine the guiding principle of the right
to an appropriate response which is the basis for the provisions of the ensuing
paragraph (a).
(a) ensure access by persons with disabilities to appropriate and affordable
services, devices and other assistance for provide
persons with disabilities
the necessary services, devices and other assistance in order to meet their disability-related needs;
JUSTIFICATION: It is necessary to clarify the right to
assistance of various forms to meet disability-related needs – we believe that the word "access
is not sufficiently clear.
(b) ensure entitlement of access by persons with disabilities, [particularly
women and girls with disabilities and the aged with disabilities,] to social
protection programmes and poverty reduction strategies;
(c) ensure access by persons with disabilities and their families living
in situations of poverty to assistance from the State to cover disability-related
expenses (including adequate training, counselling, financial assistance and
respite care), which should not become a disincentive to develop themselves that autonomy is preserved in the implementation of social protection schemes
and that such schemes contribute to the full participation of people with disabilities
in the community;
JUSTIFICATION: The present paragraph (c) is largely covered by paragraph (a)
and thus we propose covering other relevant issues in paragraph (c), similar
to the IDC proposal in this regard.
(d) ensure entitlement of access by persons with disabilities to public housing
programmes.
________________________________________________________________________________________
Article 27
WORK AND EMPLOYMENT
States Parties recognise the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall set an example through employment of persons with disabilities in the public sector, and shall take other appropriate steps including by way of legislation to safeguard and promote the realisation of the right to work, including measures to:
(a) prohibit discrimination on the basis of disability
by way of protect through legislation persons with disabilities with regard to all
matters concerning employment, including conditions of recruitment, hiring and employment, continuance
of employment, career advancement, working conditions, including equal opportunities
and equal remuneration for work of equal value, safe and healthy working conditions,
and the redressing of grievances;
(a) bis – protect the right of persons with disabilities in all forms of employment, to equal application of employment protection laws and standards, in particular in relation to equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, and the redressing of grievances;
JUSTIFICATION: We believe that the language of the Convention should reflect
the clear distinction between:
• the prohibition of discrimination in employment on the basis of disability – in
which case the legislation in question protects only persons with disabilities
(see sub-paragraph (a) above);
and
• the need to ensure that employment protection laws and standards which
are of general application are equally applied to persons with disabilities (see
sub-paragraph (a) bis as above)..
We therefore propose two sub-Articles related to each of these two aspects
separately.
(b) ensure that persons with disabilities are able to exercise their labour and trade union rights in accordance with generally applicable national legislation;
(c) enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services, and vocational and continuing training;
(d) promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining and maintaining and returning to employment;
(e) promote opportunities for self-employment, entrepreneurship and starting one's own business;
(f) encourage employers to hire persons with disabilities through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures;
(g) ensure require that reasonable accommodation is provided to persons with
disabilities in the workplace;
(h) promote the acquisition by persons with disabilities of work experience in the open labour market;
(i) promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities.
(j) take all possible measures to facilitate the move of persons with disabilities from alternative forms of employment into the open labour market, and to ensure that in relation to such forms of employment that they are adequately resourced, in conditions that provide opportunities for vocational advancement and that employment protection laws and standards apply .
JUSTIFICATION:
• We follow the consistent position of the International Labour Organization,
which is the relevant authoritative UN body in all matters concerning employment,
in the firm view that it would be contrary to the spirit of the Convention to
ignore the situation of millions of persons with disabilities the world over
who, as repeatedly made clear in statistics presented by the ILO, work in alternative
forms of employment outside the open labour market.
• The millions of persons with disabilities who work in alternative forms of employment are a substantial sector in the constituency population of the Convention.
• If the aim is to strongly encourage the move of persons with disabilities from alternative forms of employment to the open labour market, the language of the Convention can reflect this - see the opening words of sub-para (j) of our proposal.
• Omission of any reference to alternative forms of employment is liable to leave all those persons with disabilities employed in alternative forms of employment unprotected: Their basic rights in the workplace - appropriate remuneration, appropriate working conditions, work benefits etc. - would be in danger of being violated, with no provisions relating to supporting transition to the open labour market.