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Article 3 - General principles
Background Documents | Article 3 Background
Seventh Session | Fourth
Session | Third Session
Working Group
Costa Rica
European Union
Kenya
ILO
Asia Pacific Forum
Australian NGOs
Indian NGO Consultative Meeting
International Save the Children Alliance
Japan Disability Forum
Landmines Survivors Network
Physical Disability Council of Australia
World Blind Union
The fundamental principles of this Convention shall be:
a. Intrinsic dignity of persons, individual autonomy, including the freedom
to make one's own choices, and independent life;
b. non-discrimination;
c. full inclusion of persons with
disabilities as equal citizens and participants in all aspects of life;
d. respect for difference and acceptance
of disability as part of human diversity and humanity;
e. equality of opportunity.
f. Personal development and enjoyment
of all stages of life
Note: The issue of gender should
be explicitly addressed in this Convention. The Preamble might be a good place
to do so. There is no mention or comment to other proposals because there is
no available text reflecting them and enabling us to make any further reference.
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Draft Article 2
GENERAL PRINCIPLES
The fundamental principles of this Convention shall be:
(a) dignity, individual autonomy including the freedom to make one’s own choices,
and independence of persons;
(b) non-discrimination;
(c) full inclusion of persons with
disabilities as equal citizens and participants in all aspects of life,
EU proposal: Redraft c) as
follows: “c) full and effective participation and inclusion in society on an
equal basis for persons with disabilities,”
(d) respect for difference and acceptance
of disability as part of human diversity and humanity;
(e) equality of opportunity.
EU Proposal: EU proposes the
insertion of a new article 2 bis.
Insert new paragraph “States
Parties shall undertake all appropriate legislative, administrative and other
means for the implememtation of the present Convention. With regard to economic,
social and cultural rights, States Parties shall undertake such measures to
the maximum extent of their available resources and, where needed, within the
framework of international cooperation” ( based on Article 4 of CRC)
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Draft Article 2
GENERAL PRINCIPLES
Insert the following paragraphs:
affirmative action to correct disadvantage occasioned by disability.
the indivisibility and interdependence of rights as they relate to persons with
disabilities
the progressive realisation of economic, social and cultural rights
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Draft Article 2
General Principles
The ILO welcomes the underlying principles of dignity, individual autonomy,
non-discrimination, inclusion, respect for difference and equality of opportunity
underlying the draft text.
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General Principles
37. This section begins by discussing the General Principles contained in the
WG draft. These Principles, although not part of the definitions section of
the draft Convention, are discussed here since they similarly have or could
have significance flowing across a number of other provisions of the Convention.
38. The WG text includes draft Article 2 which states:
The fundamental principles of this Convention shall be:
• dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
• non-discrimination;
• full inclusion of persons with disabilities as equal citizens and participants in all aspects of life;
• respect for difference and acceptance of disability as part of human diversity and humanity;
• equality of opportunity.
39. This section recommends the draft
Principles as appropriate to support for inclusion in a Convention, while also
recommending that in the drafting process from this point on attention be given
to ensuring that the Principles are reflected more directly in operative provisions.
40. The principles may perform an important role in ensuring that some specific
concepts from the disability context are included in and applied within this
Convention. The identification of specific principles to aid in the interpretation
and implementation of a treaty and establish its overall aims is a well-recognised
practice.
41. Principles are more commonly contained in the Preamble to an instrument
rather than in an article within the body of a Convention. The inclusion of
the General Principles as an article is a welcome innovation noting that in
practice preambular material may often be overlooked, or regarded as formulaic
recitals having little connection with the substantive text, indicating what
negotiating parties wish to be seen as having done rather than reflecting what
the agreement between them has actually done, or at best regarded as purely
aspirational.
42. In particular, one of the major benefits of an international Convention
in many countries may be to serve as a template for national legislation and
policy. Principles placed as they are in the working group draft may be more
likely to be picked up in this manner than if left within the more normal preamble
structure.
43. There could, however, be clearer linkages provided between the rest of the
body of the draft Convention and the Principles, to make it clearer which of
the principles is to be applied within the context of a specific article and
to provide clear guidelines in the application and implementation of rights
and obligations specified. Optimally, operative articles would be drafted throughout
to articulate the principles as they apply to a particular right – with text
stating a right based on the principles of equality, non-discrimination and
dignity and then applying that concept to the right concerned within a disability
context.
44. A short discussion of each of the draft principles is provided below for
reference, drawing on the Discussion Paper on Founding Principles of Convention
on Rights of Persons with Disabilities submitted to the 2nd Meeting of the Ad
Hoc Committee on a Comprehensive and Integral International Convention on Protection
and Promotion of the Rights and Dignity of Persons with Disabilities New York,
16-27 June 2003 by the Danish Institute for Human Rights.
Dignity, individual autonomy and independence
45. Human dignity is a crucial concept
with regard to human rights in general and in the context of people with disability
specifically. The human rights model focuses on the inherent value of human
beings and subsequently, only if necessary, on the person’s medical characteristics.
The limitation or disablement is not to be found within the person with a disability,
but in the response of society to impairment or disability.
46. The principle of autonomy has clear relevance to the situation of people
with disabilities. People with disabilities continue to have less than equal
opportunities in seeking self-realisation and inclusion in community and political
life. Issues of privacy are important in the context of disability as dependence
on technical and personal aids may lead to situations of vulnerability. The
rights to integrity and liberty are also highly relevant with regard to people
with disabilities, for example in the context of treatment or incarceration.
The principle of autonomy bridges both civil/political rights and socio-economic
rights. Civil and political rights derived from the principle of autonomy are
e.g. the right to privacy and freedom of thought. Socio-economic rights derived
from the same principle are e.g. the right to accessibility and support services
enabling an independent life.
47. 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.
Non-discrimination
48. Where equality is the positively
formulated principle and ideal, non-discrimination is the corresponding legal
standard as it has been commonly formulated in national legislation.
49. Non-discrimination and equality before the law is sometimes taken to imply
that the role of the state should be reduced to prohibiting less favourable
treatment of individuals who are similarly situated and to bestowing individuals
with identical rights.
50. Even within the context of national discrimination laws however, this formal
understanding of non-discrimination fails to reflect the widespread recognition
of the concept of indirect discrimination which recognises that uniform treatment,
rules, practices or features of physical or other environments can be (and in
the context of disability often are) discriminatory in effect, and should be
modified so far as this can reasonably be done. While anti-discrimination legal
measures are clearly not the only measures necessary for achieving or promoting
equal enjoyment of human rights (in particular for people with a disability)
neither should they be approached as necessarily confined to addressing issues
of purely formal equality.
51. An important clarification, or translation for the disability context, of
non-discrimination models in this respect is the concept of Reasonable Accommodation.
A duty to provide reasonable accommodation is imposed within a range of national
laws on social institutions with regard to physical and social environments,
which unchanged would constitute a discriminatory barrier preventing persons
with disability from full participation. As discussed below in relation to definitions
of discrimination it is appropriate for the Convention to reflect this principle.
Whether this is done within the definition of discrimination or as a distinct
provision appears to be of secondary importance.
Full inclusion of persons
with disabilities as equal citizens and participants in all aspects of life
52. The notion of human rights elaborated in international and regional instruments is one of inclusion. Inclusion describes the ideal situation in which equality and respect for the inherent dignity of all human beings has been realised. This incorporates the concept of participation that is directed both towards the majority who should allow for participation and the minority wanting to participate actively. Full inclusion is not just based on passive acceptance by the majority but requires social structures that ensure active participation of people with disabilities. An ideal of equal partners living side by side in an integrated, inclusive society where all are equally entitled and enabled to the exercise of rights and obligations.
Respect for difference and acceptance of disability as part of human
diversity and humanity
53. This principle is based on, and
states quite effectively, the concept that disability is a universal feature
of the human condition and that legislation, social policies and environments
should accordingly reflect the full range of diversity of abilities that exist
in society.
Equality of Opportunity
54. This concept gives appropriate
acknowledgement to the importance of ‘difference’ and takes account of both
personal and environmental barriers, which may restrict participation. According
to this understanding of equality, ignoring differences may result in invalid
differentiation. Thus positive actions may be required to accommodate differences.
Implicitly, the end goal is understood to be a society that is genuinely inclusive,
a society that values difference and respects the equality of all human beings
regardless of difference.
55. Unlike other common grounds of discrimination such as race or gender, equality
of opportunity for people with disabilities may necessarily only be achieved
through continuous accommodation, technical and personal assistance services.
Disability does not become irrelevant once past discrimination has been remedied.
Even after a person has, for example, been employed, he or she may continue
to require technical and personal assistance. This point is discussed further
below in relation to special measures but is also relevant more broadly to concepts
of equality for the purposes of this Convention.
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Interventions at the Third
Session:
In relation to Article 2, National
Human Rights Institutions propose the following amendments:
a). Insert the words “respect for human” before the word dignity
b). Add “non – sexism” after “non-discrimination”
c). Add “participation” after the word “full”
e). Add “affirmative action” after “Equality of opportunities”
f). Add “Accessibility”. We also propose that the article should include
the principle of reasonable accommodation, and the principle of indivisibility
and interdependence of human rights
See the EU proposals that seek to delete Article 4 (1).
Article 2 – General principles
The Commission is supportive of all the fundamental principles set out in this
Article. In addition, the Commission would suggest adding what it believes to
be another fundamental principle: the “duty to accommodate” persons with disabilities.
Also see the Commission’s comments under draft Article 7 below.
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ARTICLE 2
General Principles
Amend sub-paragraphs (b) and (e) to refer to
“(b) equality of opportunity and non-discrimination”
A number of State and ngo delegations have called for a reference to ‘equality
of opportunity’ in this article. Equality of opportunity is an ethical standard,
while non-discrimination is one means of achieving it. They should therefore
be linked in the text.
Add an additional sub-paragraph:
“(x) recognition and respect for the ability and potential of all persons
with disability”
This proposed new general principle would capture a key concept raised by many State and ngo delegations in the course of the first reading of the article.
Add an additional sub-paragraph:
“(x) recognition and respect for the specific needs and concerns of
women, children and young people and minority groups, including:
(i) indigenous persons with disability
(ii) people with severe and multiple disability
(iii) ageing and elderly persons with disability
(iv) persons with disability living in rural and remote, and small island communities.”
This proposed new general principle would address the concerns raised throughout
the first reading debate that this convention provide recognition of specific
population group needs and concerns, without replicating substantive provisions
set out in other human rights documents. Reference to children and women in
the general principles would not detract from specific substantive articles
on the rights of children and women with disability. Indeed, it may overcome
the concern that the inclusion of specific population group based articles will
erode from the general applicability of the convention to these groups.
Add an additional paragraph
“In interpreting the human rights of people with disability, in no case
shall rights set out in this convention derogate from rights set out in the
Universal Declaration of Human Rights, the International Covenant on Civil and
Political Rights, the International Covenant on Economic, Social and Cultural
Rights, or any other human rights treaty.
Should there be any conflict between a right provided in this and any other
human rights treaty, the interpretation most favourable to persons with disability
is to be preferred.
This proposed new paragraph will address any potential for the rights set out
in this convention to derogate from rights set out in other international human
rights instruments.
Statement:
Mr Chairman:
Thank you for this opportunity to address the Ad Hoc Committee.
We strongly support the terms of this article as currently drafted, but seek
the inclusion of the following additional paragraphs:
(f) protection from exploitation, violence, victimisation, abuse, harassment
and neglect
(g) the right of survival, and to realise full potential
People with disability are subject to significantly higher levels of exploitation,
violence, victimisation, abuse, harassment and neglect than other members of
the community. All people with disability are at increased risk, but particular
groups, including women and children with disability and people with multiple
and severe impairments, are at particular risk.
The lives of people with disability are often regarded as inferior to those
without disability. As a result, medical and social interventions are often
denied people with disability, or given secondary priority. In the absence of
these interventions people with disability sometimes cannot survive, and if
they do, they are unable to reach their full potential. The impact of impairment
is frequently exaggerated by the failure to provide appropriate medical and
social service interventions.
It is essential that State parties accept, as a general principle, the responsibility
to protect people with disability from exploitation, violence, victimisation,
abuse, harassment and neglect. State parties must also, as a general principle,
ensure the survival of people with disability, and the opportunity for us to
realise our full potential.
Thank you for the opportunity to address the Ad Hoc Committee.
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EUROPEAN DISABILITY FORUM
Draft Article 2 General Principles
Whichever word is finally used (individual autonomy or self-determination) it
has to be made clear that its meaning includes the right to make one’s own choices
and decisions, which is a key principle.
EDF proposes to add the principle of effective and substantial equality as a
guiding principle, which is stronger than equality of opportunity.
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INDIAN NGO CONSULTATIVE MEETING
Draft Article 2
General Principles
11. The Articles arranged under the Title of general principles are comprehensive
but the participants felt that principle of social justice and equity to ensure
de facto equality should be reflected. To this effect suitable text may be evolved.
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Draft Article 2 – Principles
This article describes the principles in the convention. We emphasise that all
persons with disabilities are rights holders
Suggested changes
f. Diversity and equal opportunity of women and men, girls and boys with disabilities
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<Article 2> General Principles
Original Text of the Draft
(a) Dignity, individual autonomy
including the freedom to make one’s own choices, and independence of persons
JDF’s Comment to this part:
It should be noted that the Working Group has pointed out that the term “self-determination” may be confusedly understood as the one for national “self-determination” when used in the context of international convention. While “self-determination” is an essential concept for human rights of persons with disabilities, we consider it necessary to examine again the inclusion of this concept in the general principles of the Convention.
If the term “self-determination” is to be included in Article 2, it could be
formulated as “individual autonomy and self-determination including…” or “individual
autonomy including the freedom to make one’s own choices and self-determination.”
On the other hand, it could also be a possible argument whether the term “autonomy”
is replaced with the term “self-determination.” Or, the term “autonomy” could
implicitly include the concept of “self-determination,” thus no need to add
the term “self-determination.”
In relation to this, it could be possible to interpret that the term “individual
autonomy including the freedom to make one’s own choices” already includes the
concept of “self-determination.” Further, it will be necessary to consider whether
actors who practice “individual autonomy” and “self-determination” may include
not only individuals with disabilities but also groups of persons with disabilities.
In addition, it will be also necessary to consider whether the terms “self-realization”
and “self-governing or self-governance” should be added.
Original Text of the Draft
(c) Full inclusion of persons with disabilities as equal citizens and
participants in all aspects of life
JDF’s Comment to this part:
For Article 2-(c), it needs to be considered whether the term “citizens” may
or may not lead to a possible exclusion of non-national persons with disabilities.
Also, it needs to be clarified what the phrase “in all aspect of life” means.
In case that these two words have negative implications, they must be deleted
and replaced with new words.
JDF’s Comment:
Other than the above, regarding draft Article 2, it needs to be considered whether
“international cooperation” should be included in draft Article 2, and whether
the term “equality of opportunity” should be replaced with the term “substantial
equality” or “substantial equality of opportunity.”
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The identification of specific principles
to aid in the interpretation and implementation of a treaty is a well-recognized
practice in international law. In the context of international human rights
law for example, the Committee on the Rights of the Child identified four main
principles (non-discrimination, best interests of the child, survival and development,
and participation) through its analysis of the text of the Convention on the
Rights of the Child. (Cf. Committee on the Rights of the Child, General Comment
No. 5, CRC/GC/2003/5), drawing on Articles 2, 3, 6 and 12 respectively) The
approach of the Working Group here is to expressly articulate the principles
towards the beginning of the draft treaty text, after the section on objectives/purpose.
This is an approach commonly utilized in international environmental treaties
which leaves no ambiguity as to the principles to be applied. (Cf. Convention
to Combat Desertification, Article 3; Framework Convention on Climate Change,
Article 3)
The principles selected for inclusion in the draft text by the Working Group,
are found in numerous existing human rights instruments, including the six core
international human rights conventions, the UN Standard Rules on the Equalization
of Opportunities for Persons with Disabilities, and the ILO Convention concerning
Vocational Rehabilitation and Employment (of Disabled Persons). It was also
suggested that international cooperation be included as a general principle
for the Convention. (Cf. Summary of the discussions held regarding the issue
of international cooperation to be considered by the Ad Hoc Committee, ANNEX
II A/AC.265/WG_)
The Ad Hoc Committee may wish to consider referring to “inherent dignity” in
paragraph (a) instead of “dignity” (Cf. International Covenant on Civil and
Political Rights and International Covenant on Economic, Social and Cultural
Rights, preambles), and in paragraph (c) the use of the term “participation,”
which is broader than “participants.” (Cf. Convention on the Rights of the Child,
Article 23(1); and UN Standard Rules para. 14) The Committee may also wish to
consider whether reference to “citizens” in (c) may be too limiting, as it could
have the effect of excluding coverage of people with disabilities who are resident
non-citizens.
In contemplating Article 2, the Ad Hoc Committee may find it helpful to revisit
the contribution of the Danish Human Rights Institute to the Second Session
of the Ad Hoc Committee, which provides a “Discussion Paper on Founding Principles
of a Convention on Rights of Persons with Disabilities.” (A/AC.265/2003/CRP/9,
available at: http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_crp9.htm)
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PHYSICAL DISABILITY COUNCIL OF AUSTRALIA
General Principles: Draft Article 2
PDCA supports principle d) in its reference to difference and diversity however
we do believe that it may be useful to specifically state what this difference
is i.e. gender, culture, age etc.
Article 2:
The Article is important since it underlines some very fundamental universal
principles.
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