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Background Documents | Article 1 Background
Seventh
Session | Fourth Session | Third
Session
Working Group | References
Chile
European Union
Mexico
Meeting convened by the Office of the Swedish Disability Ombudsman
International Disability Caucus
Landmines Survivors Network
People with Disability Australia
Working meeting of NGOs for People with Disabilities from Ukraine, Russia, Belarus & Moldova
ARTICLE 1 – PURPOSE:
This article should state the two structural aims of the Convention,
namely to promote and protect rights and to combat discrimination. We therefore
propose the following language, using simple terms and avoiding any elements
which will be stated in the rest of the text:
“The purpose of the present Convention shall be to promote and protect the
full enjoyment by persons with disabilities of their human rights and fundamental
freedoms, and to prevent any form of discrimination”.
Draft Article 1 – PURPOSE:
The purpose of this Convention shall
be to ensure the full, effective and equal enjoyment of all human rights and
fundamental freedoms by persons with disabilities.
EU proposal: “The purpose of the Convention shall be to
ensure the full and equal enjoyment of all human rights and fundamental freedoms
by persons with disabilities.”
Draft Article 1 – PURPOSE:
The purpose of the present convention is to promote the full and equal enjoyment of all human rights and fundamental freedoms and the dignity of persons with disabilities.
National Human Rights Institutions
MEETING CONVENED BY THE OFFICE OF THE SWEDISH DISABILITY OMBUDSMAN
Observations Regarding Draft
Article 1 on Purpose
1. The participants propose that the wording of Draft Article 1 not be subjected
to any of the proposed amendments.
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Non-governmental organizations
INTERNATIONAL DISABILITY CAUCUS
The purpose of this Convention shall be to [ensure, protect and promote] (promote, protect and fulfill) the full, effective and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities.
Draft Article 2 - GENERAL
PRINCIPLES
SYNTHESIS OF PROPOSALS
The purpose of this Convention shall be to respect and ensure the full, effective
and equal enjoyment of all human rights and fundamental freedoms by persons
with disabilities.
COMMENTS
Inclusion of an article explicitly articulating the purpose of the treaty
ensures that there is no ambiguity as to the objectives of the Convention
and what, in essence, States Parties have undertaken to achieve. Even where
the purpose of the Convention is implied in a preamble, it is not (as suggested
by Japan) redundant to include an article such as this, for unlike the preamble
this article is housed in the operative/legally binding section of the Convention.
Indeed, prevailing international law practice in treaty drafting is to more
explicitly articulate treaty objectives in a separate article, and so the
inclusion of Draft Article 1 is in keeping with that practice. (Cf. Framework
Convention on Climate Change, Article 2)
The draft language proposed here retains the formulation of the Working Group
Draft Text (as supported by Russian Federation, EU and Jordan) with the addition
of the word “respect,” as opposed to the formulation in FN 8 of the Working
Group Draft Text (supported in large part by Argentina, South Africa, Mexico,
China, Japan, El Salvador, Thailand, Mali, Eritrea, Uganda). FN 8 calls for
the use of “protect and promote,” rather than “respect and ensure.” The obligation
to “respect” has been interpreted as the duty of States to “refrain from restricting
the exercise of these rights where such is not expressly allowed.” (Cf. “UN
Covenant on Civil and Political Rights: CCPR Commentary,” Manfred Nowak, p.
36) The obligation to “ensure” has been interpreted as “a positive duty …
[meaning that] States Parties are obligated to take positive steps to give
effect to the rights.” (Cf. “UN Covenant on Civil and Political Rights: CCPR
Commentary,” Manfred Nowak, p. 36-37) Thus, “respect and ensure” requires
States not to violate or restrict the rights, as well as take positive steps
to give effect to the rights. An examination of the seven core human rights
instruments reveals that “respect and ensure” is the term utilized with regard
to state obligations as opposed to “protect and promote,” and it is thus appropriate
that Draft Article 1 retain consistency with such precedent.
The word “effective” has also been retained from the Working Group Draft Text
(contrary to the suggestion of the EU). As articulated (by the Asia Pacific
Forum) during the third Ad Hoc Committee meeting, the use of the term “effective”
further reinforces the need for creation of conditions for actual enjoyment
of human rights, rather than mere recognition of those rights.
Several proposals (India, Morocco and Sierra Leone) called for the inclusion
of references to combating discrimination as a purpose or means of achieving
the purposes of the Convention. Such references would be appropriate in the
context of a non-discrimination Convention (such as the CEDAW, or CERD), but
should not be included here. Although fighting discrimination against people
with disabilities is a necessary and intrinsic component of this Convention,
the scope of this Convention is broad and comprehensive, and such references
to discrimination in the purpose could misleadingly imply that the Convention
is limited in scope to a non-discrimination framework.
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PEOPLE WITH DISABILITY AUSTRALIA
We strongly support the Expert Working
Group’s formulation of this article. However, we urge the incorporation of
the additional concept of ‘dignity’ into the article. Rights and dignity are
independent concepts, and recognition of rights alone will not necessarily
ensure persons with disability will be treated with dignity. Apart from its
potential mention in the title of the convention, the concept of dignity will
not otherwise appear in this convention, unless it is included in this article
or under Article 2: General Principles.
The article might therefore read:
The purpose of this Convention shall be to ensure the dignity and the
full, effective and equal enjoyment of all human rights and fundamental freedoms
by persons with disability
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WORKING MEETING OF NGOs FOR PEOPLE WITH DISABILITIES FROM UKRAINE, RUSSIA, BELARUS & MOLDOVA
After: The purpose of this Convention shall be to ensure” to add: by States Parties guarantees and opportunities for equal enjoyment of all human rights and fundamental freedoms by persons with disabilities.