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Article 15 - Freedom from torture or cruel,

inhuman or degrading treatment or punishment

Background Documents | Article 15 Background

Seventh Session | Fifth Session | Fourth Session | Third Session
Working Group | References

Fifth Session

Report of the Coordinator to the Fifth Session

Draft article 11


New paragraph 1

36. Several delegations pointed out that draft article 11 lacked mention of the important and absolute prohibition of the use of torture, as contained in other human rights treaties. Some delegations suggested that this omission could be rectified by the inclusion of a new paragraph 1, borrowing from the first sentence of article 7 of the International Covenant on Civil and Political Rights, which reads: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. There was general agreement to that proposal, with the use of the phrase “no person with disabilities”. It was also agreed to add the first phrase from paragraph 2 of the Working Group’s text, so that the paragraph accurately mirrored article 7 of the Covenant. New paragraph 1 of draft article 11 currently reads:

“1. No person with disabilities shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, States parties shall prohibit, and protect persons with disabilities from, medical or scientific experimentation without the free and informed consent of the person concerned.”


Existing paragraph 1

37. There was broad agreement on paragraph 1 of the text prepared by the Working Group, which would be renumbered as paragraph 2 and read:

“2. States parties shall take all effective legislative, administrative, judicial, educational [medical] [sanitary] or other measures to prevent persons with disabilities from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”


Existing paragraph 2

38. There was broad agreement on the substance of paragraph 2 of the Working Group’s text, which read:

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

There was, however, a divergence of views in regard to two issues.

39. First, during the discussion of the phrase “free and informed consent” two amendments were suggested, so that the phrase would read “free, informed and clearly expressed prior consent”. Some delegations were of the view that the existing phrase was well understood in international human rights law, and the requirement that consent be clearly expressed and prior were implicit. It was noted that the Human Rights Committee had adopted that view in its general comment No. 20 (1992), on article 7 of the International Covenant on Civil and Political Rights. Other delegations considered that because there was need to tailor the present convention to persons with disabilities, a specific requirement that consent be “clearly expressed” could be necessary. The issue was referred to the facilitator (Carina Mårtensson, Sweden) for further discussion.

40. Second, it was proposed that the words “or other form of” be added to the phrase “medical or scientific experimentation”, which would then read “medical, scientific or other form of experimentation”. The proposed wording was referred to the facilitator.

41. Finally, while there was general agreement on the paragraph as a whole, some delegations proposed amending its structure. All delegations agreed on the wording “States parties shall prohibit, and protect persons with disabilities from, medical or scientific experimentation without the free and informed consent of the person concerned”. There was general agreement on the issue and principle of protecting persons with disabilities from “forced interventions or forced institutionalization aimed at correcting, improving or alleviating any actual or perceived impairment”, but also agreement that the precise wording (including the meaning of the words “institutionalization” and “perceived”) would need to be further considered, as would the placement of such a provision. There was broad support, however, during subsequent discussion that draft article 12 bis was the appropriate place for such issues to be resolved (see paras. 60-62 below).

42. A proposal was made to include in draft article 11 a provision on monitoring of the institutions in which persons with disabilities are placed. Discussion of the proposal was deferred to a subsequent stage.