UN Enable - Article 19 | Third Session - Comments, proposals and amendments submitted electronically

Comments, proposals and amendments submitted electronically

Governments

EUROPEAN UNION

Draft Article 15
LIVING INDEPENDENTLY AND BEING INCLUDED IN THE COMMUNITY

1. States Parties to this Convention shall take effective and appropriate measures to enable persons with disabilities to live independently and be fully included in the community, including by ensuring that:

EU Proposal:The EU suggests the following rewording: “States Parties shall take appropriate measures to facilitate persons with disabilities to live independently and be fully included in the community, including measures aimed at ensuring that:”.

(a) persons with disabilities have the equal opportunity to choose their place of residence and living arrangements;

(b) persons with disabilities are not obliged to live in an institution or in a particular living arrangement

EU Proposal: Insert "Save as provided in Article 10" at end of (b)

(c) that 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;

EU Proposal: Delete (c) and replace by new paragraph 2 as below

(d) community services for the general population are available on an equal basis to persons with disabilities and are responsive to their needs;

EU Proposal: The EU suggests replacing “on an equal basis” with “without discrimination”.

(e) persons with disabilities have access to information about available support services;

EU Proposal: EU suggests the inclusion of a new Article 15 (2) as follows:

“States Parties shall also take appropriate measures to promote the provision of life assistance in order to enable persons with disabilities to live independently”.

NEW ZEALAND

New Zealand revision to Draft Article 15 (27 May 2004)

LIVING ~~INDEPENDENTLY~~ AND BEING INCLUDED IN THE COMMUNITY

1. States Parties to this Convention shall take effective and appropriate measures to enable persons with disabilities to live in, ~~independently~~ and to be fully included as members of, in the community. States Parties shall, ~~including~~ by ensure~~ing~~ that:

a. persons with disabilities have the equal opportunity to determine how, where, and with whom they live ~~choose their place of residence and living arrangements;~~

b. persons with disabilities are not obliged to live in an institution or in a particular living arrangement;

b.biz. children with disabilities live with their own family or, where that is not possible, live in another family situation;

c. ~~that~~ persons with disabilities have access to a range of in-home, ~~residential~~ and other community support services, including personal assistance, necessary to support them to live where they choose, to participate ~~living and inclusion~~ in the community, and to prevent isolation or segregation from the community;

d. community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs;

d biz. community support services are provided in a manner that recognizes the autonomy, individuality and dignity of persons with disabilities.

e. persons with disabilities have access to information about ~~available~~ community services, including support services.

In addition, New Zealand wishes to express a concern about the proposals recently put to the Ad Hoc Committee to include families and caregivers each time persons with disability are mentioned. It is our view that this convention needs to remain firmly focused on promoting and protecting the rights of persons with disabilities. To do so will benefit all involved in the lives of persons with disabilities. To not do so will distract States Parties’ from their efforts in this regard. This is not to diminish the importance of families and caregivers

UN System organizations

OHCHR

See references to international human rights conventions and jurisprudence.

National Human Rights Institutions

ASIA PACIFIC FORUM

Living Independently and being included in the Community - Draft Article 15

The core principle behind this treaty is to articulate rights and apply them within a disability context.

• A structure whereby you state the right based within the principles of equality, non-discrimination, dignity & personal autonomy then you apply that right in a disability context.

• The article is really about housing & accommodation and that the disability context is about appropriate housing & accommodation that is reflective of cultural norms and standards, provides choice, facilitates participation in community life etc, etc.

• It's not about independence per se but about opportunities to 'live’ in the community on an equal basis and hence the notion of 'independence' is context specific.

NATIONAL HUMAN RIGHTS INSTITUTIONS

Interventions made at the Third Session:

Article 15

National Human Rights Institutions strongly support the provisions of Article 15 and does not want it weakened. We support the proposals of New Zealand on this Article as it makes the Article much clearer and stronger in protecting the principles of living independently within the community.

Article 16

Mr. Chair, Thank you for the opportunity. The National Human Rights Institutions would like to highlight the importance of having a strong Article that promotes and protects the rights of all children with disabilities. We would also like to see the concepts of nurturing, protecting and empowering families and or care-givers more prominent.

Chair, as National Human Rights Institutions, we are collectively of the view that Article 23 in the Convention on the Rights of the Child (CRC) has not effectively addressed the rights of children with disabilities and neither has the broader text of the CRC.
We therefore seek an Article that will address the shortcomings of the CRC in this respect and ensure that children with disabilities access their rights.

Chair, we are mindful of the fact that it is not desirable to have a mini-CRC in this convention but there are specific issues we think pertain to children with disabilities and should be articulated in this Article.

Chair, with your indulgence, we make these few comments:

- The current formulation of this Article is quite negative and projects children with disabilities as liabilities and not as children with rights. We therefore would propose a more positive thrust to this Article.

- This Article is full of qualifiers, which weaken the rights of children with disability. We believe that the “escape clauses” such as subject to available resources and introducing eligibility criteria should be deleted.

ONTARIO HUMAN RIGHTS COMMISSION

Article 15 – Living independently and being included in the community

States Parties to this Convention shall take effective and appropriate measures to enable persons with disabilities to live independently and be fully included in the community, …

Footnote 51: Some members of the Working Group expressed the concern that the words “living independently” in the title and the chapeau of this draft article did not reflect the cultural norm in many countries, and that the words might suggest that persons with disabilities should be separated from their families.

The Commission is supportive of this Article. With respect to the concerns raised at footnote 51, the Commission would caution that the notion of independence not be lost in any revision. For example, the title of the Article might simply read “Living independently in the community”, and that the Article might be revised to read “… enable persons with disabilities to live independently of an institution and be fully included in the community… “.

(b) Persons with disabilities are not obliged to live in an institution or in a particular living arrangement;

(c) That 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;

The Commission is supportive of these subparagraphs.

In the Submission of the Ontario Human Rights Commission to the Ministry of Citizenship and Immigration Regarding the Consultations to Strengthen the Ontarians with Disabilities Act, the Commission raised the importance of measuring and monitoring the rate of unnecessary or “undue” institutionalization of persons with disabilities in order to safeguard the principle of integration over segregation.

The concept of “undue institutionalization” was comprehensively addressed by the United States Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999). By a clear majority, the Court held that under the Americans with Disabilities Act, undue institutionalization qualifies as discrimination by reason of disability and that a person with a mental disability is “qualified” for community living when the state’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the individual, and the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with mental disabilities.

Non-governmental organizations

AUSTRALIAN NGOs

Draft Article 15

Intervention by (Australian) National Association of Community Legal Centres, People with Disability Australia Incorporated, Australian Federation of Disability Organisations

Mr Chairman:

Thank you for the opportunity to address the Ad Hoc Committee.

We intervene briefly to strongly support the terms of this article. The ability to live independently in the community with the support services necessary for this to occur is fundamental to the realization of many human rights.

The continued institutionalization of people with disability remains one of the greatest abuses of our human rights. It is essential that this convention place an unequivocal obligation of State and non-State actors to cease institutionalizing people with disability, in disability specific institutions, as well as other institutional settings, such as residential aged care facilities (which is a major concern in the Australian context).
In this respect it is important that sub-paragraph (b) is strengthened to require States to eliminate institutional care, rather then merely “not oblige” people with disability to live in institutions. If institutional care is the only form of residential of accommodation available, people with disability will have no choice but to accept this form of assistance. Institutions must therefore be removed entirely from the spectrum of State provided or supported residential services. We also believe the article ought to require States to develop and implement plans to relocate people with disability who are currently institutionalised to the community along with the supports they require for successful community living.

It is also important that sub-paragraph (c) is particularized to the circumstances of families and children with disability. Children with disability must be enabled, wherever possible, to grow up in the context of a family, preferably with their birth family, but where this is not possible, in a substitute family, with the support services necessary to enable this to occur.

BIZCHUT

Draft Article 15 – Living Independently and Being Included in the Community

(a) “Equality” instead of “independence”

We are concerned that the term “living independently in the community” which appears in the title and the chapeau of this Article suggests that life in the community is conditional upon independence. This interpretation contradicts the principle of equality: The right to life in the community belongs to every person and derives from the right to equality. It is not dependent on the level of independence of a person with a disability.

(See also the comment in footnote 51 to this Article in the Convention, about the concern that the term “independence” may suggest that persons with disabilities should be separated from their families.)

Thus we suggest that the word “independently” in the title and chapeau be replaced by terms derived from the concept of equality: living a life involving full inclusion in the community on an equal basis, etc.

(b) A person must not be obliged to live in an institution – a separate provision

The chapeau of Article 15 determines the framework of the Article: the steps that the State must take in order to enable and ensure persons with disabilities equality and full inclusion in the community. For example, the State must ensure persons with disabilities equal opportunity to choose their place of residence and living arrangements, including personal assistance to support living and inclusion in the community. Protecting persons with disabilities from being obliged to live in an institution is of supreme importance, and should be explicitly stated (in response to the comment in footnote 52 in the Convention Draft). But the essence of the idea does not belong under the umbrella of steps that enable and ensure life in the community. Life in an institution, even if not under duress, contradicts the principle of equal life in the community.

Thus our opinion is that clause (b) should not be included in the opening comments of Article 15, but should appear in an additional clause in this article, as a separate and independent provision.

EUROPEAN DISABILITY FORUM

Draft Article 15 Living independently and being included in the community

EDF supports the reference to living independently. This makes clear that disabled people have the right, as all other citizens, to choose the way in which they want to live, choice which will include to live with their family or not.

The situation of so many disabled persons confined and secluded against their will in large residential institutions is one of the key issues this Convention should solve. It is therefore very important to maintain paragraph b) of this article.

For those disabled people that freely choose to live in an institution, provisions need to be set in place to ensure that they have full saying in the way their institution is managed, as well as specific protection of their rights.

INTERNATIONAL SAVE THE CHILDREN ALLIANCE

Draft article 15 – living independently

This article deals with the right to autonomy and inclusion. However we recommend an emphasis on the right to be self-reliant as well as the right to play a constructive role in society at all levels so as to enable participation to the fullest. The concept of independent living as such is not aimed for in many countries and particularly not for children and youth with disabilities. This article needs to embed the concept of family and peers wherein children and adults with disabilities participate.

Last but not least we emphasise the right to live in the community and importance of support services which make this possible.

Suggested changes

States Parties to this Convention shall take effective and appropriate measures to enable children and adults with disabilities to become self-reliant and be fully included in the community, including by ensuring that:

15.c that persons with disabilities have access to home based, community based support services necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community.

JAPAN DISABILITY FORUM

<Article 15>Living independently and being included in the community

Original Text of the Draft

(b) Persons with disabilities are not obliged to live in an institution or in a particular living arrangement.

JDF’s Comment to this part

This provision should be retained.

LANDMINE SURVIVORS NETWORK

DRAFT ARTICLE 15 COMMENTS

It has been stated that, the “right to independence or an independent life embodies one (very important) aspect of the principle of autonomy. It underlines the right to live a life outside of institutions, where barriers for full social inclusion are removed and the necessary technical aids and personal assistance are provided.” (Cf. “Discussion Paper on Founding Principles of a Convention on Rights of Persons with Disabilities,” Danish Institute for Human Rights, A/AC.265/2003/CRP/9, available at: http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_crp9.htm) Thus, the concepts of living independently and being included in the community are related concepts of great importance for inclusion in a human rights treaty for people with disabilities.

Footnote 51 references the confusion by some Working Group members over the meaning of the term “living independently.” The Ad Hoc Committee may wish to explicitly define the term as used in this article or, as the footnote suggests, consider alternative terms, so that it is clear that the fundamental concepts encompassed are choice and autonomy, not separation from families.

Footnote 52 highlights the objections of some members of the Working Group to paragraph (b). Should this paragraph be removed (an option unlikely to be supported by most disability activists), it will be of critical importance for the Ad Hoc Committee to thoroughly review due process and other legal protections throughout the draft treaty text, in order to ensure the rights of those subject to institutionalization by their States Parties.

Footnote 53 expresses the concern of some Working Group members about the ability of some States Parties to provide the support services referenced in paragraphs (c) and (d). The concerns of these States Parties could be alleviated through the understanding that these provisions could be subject to progressive realization.

WORLD BLIND UNION

LIVING INDEPENDENTLY AND BEING INCLUDED IN THE COMMUNITY
Article 15:

An independent living and inclusion in the society, is a better title.

Para (b), should not be undermined and is fine as it now stands. ”…persons with disabilities are not obliged to live in an institution or in a particular living arrangement”.

Right not to be institutionalised against ones own will, is important.

WORLD NETWORK OF USERS AND SURVIVORS OF PSYCHIATRY

Draft Article 15

WNUSP COMMENT: WNUSP questions the use of the term “residential” in paragraph c. Residential services, as contrasted with in-home services, suggest facilities that may actually be a type of institution depriving people with disabilities of their autonomy. Such facilities should not be promoted in the name of “living independently and in the community.”