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Article 4 - General Obligations
Background Documents | Article 4 Background
Seventh Session | Fourth Session | Third
Session
Working Group | References
African Group
Australia
Chile
European Union
India
Japan
Mexico
New Zealand
Republic of Korea
Thailand
National Human Rights Institutions
Children's Rights Alliance for England
European Disability Forum
International Disability Caucus
Landmines Survivors Network
People with Disability Australia
Working meeting of NGOs for People with Disabilities from Ukraine, Russia, Belarus & Moldova
World Federation of the Deaf
ARTICLE 4
GENERAL OBLIGATIONS
1. States parties undertake to adopt legislative, administrative and
other measures to ensure the full realization of all human rights and fundamental
freedoms for all individuals within their jurisdiction without discrimination
of any kind on the basis of disability. To this end States parties
undertake:
a) To take all necessary measures to the maximum extent of the available
resources to ensure the enjoyment of the economic, social and cultural rights
in this convention, and where needed within the framework of international co-operation;
b) to take effective measures to review
(governmental), national and local policies, and to amend,
rescind or nullify any laws or regulations which have the effect or purpose
of creating or perpetuating such discrimination wherever it exists;
c) To ensure that any
person or class of persons whose rights or freedoms as recognized in this convention
are violated shall have an effective and appropriate remedy whether the violation
has been committed by persons or entities acting in an official or private capacity
and in this regard to ensure;
i) that any person claiming such remedy shall have his or her right thereto determined by competent judicial, administrative or legislative authorities or any other competent authority provided for by the legal system of the State
ii)That the judicial, administrative and other structures in this regard are accessible in law, process and fact to any person with a disability seeking to make such a claim;
d)To embody the principles
of equality (of opportunity) and non-discrimination on the ground of disability
in their national constitutions or other appropriate legislation, if not yet
incorporated therein, and to ensure, through law and other appropriate means,
the practical realization of these rights;
e) To mainstream disability issues
into all economic and social development policies and programmes, including
specific allocation of resources to satisfy obligations towards persons with
disabilities;
f) To refrain from engaging in any
act or practice of discrimination against persons with disabilities
and to ensure that public bodies and institutions act in accordance
with this convention;
g) To take all appropriate measures
to eliminate discrimination on the ground of disability by any person, or organization;
h) To promote and where appropriate
undertake the research, development, production, application and dissemination
of new technologies in order to make available and affordable to persons with
disabilities goods, services, equipment and facilities acceptable to them and
aimed at their fullest inclusion in society, [and as appropriate based
on the principle of universal design];
i) To establish credible and
effective structures to oversee implementation and monitoring; to ensure a barrier
free society through the establishment of an effective enabling environment;
to provide particular protection and support for persons with disabilities who
are vulnerable on account of situations such as conflict and natural disasters
or because of their status as children, women and persons living with HIV/AIDS
j) To discourage customs and cultural
practices that are inconsistent with this convention.
k) When planning, developing,
implementing and evaluating policies and legislation to give effect to this
convention, to take appropriate measures to ensure adequate consultations with,
and involvement of, persons with disabilities, their families and representative
organizations.
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PROPOSAL FOR NEW ARTICLE 4 ter
Article 4 ter
No Diminution from Existing Human Rights
1. 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, and the International
Covenant on Economic, Social and Cultural Rights.
2. Nothing in this convention shall
be taken to derogate from any national law, policy, or program that provides
benefits in excess of those required by this convention.
3. States Parties to this convention
shall not use this convention as a pretext to derogate from national laws, policies
or programs that provide benefits in excess of those required by this convention.
Australian proposal - draft
article 4bis – recognition of specific population groups
Recognition of specific population groups
States Parties shall recognise the particular vulnerability and additional disadvantage of specific population groups of persons with disability, including:
a. women with disability
b. children and young persons with disability
c. elderly persons with disability
d. persons with severe and/or multiple disability
e. persons with disability from racial, ethnic, linguistic, and/or religious minority groups
f. indigenous persons with disability, and
g. persons living in rural, remote and small island communities.
State Parties shall take all appropriate
measures, including any special measures, to ensure for these groups the full
and equal enjoyment of the rights set out in this convention.
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ARTICLE 4 GENERAL OBLIGATIONS
We propose modifying item (a), integrating the input from Argentina and India
into the original proposal, in accordance with the alternative language which
we propose:
(a) To adopt legislative, administrative
and other measures to give effect to the present Convention and to amend, repeal
or nullify any laws and regulations and to discourage customs or practices that
are inconsistent with it. With regard to economic social and cultural rights,
States parties shall undertake such measures as can be implemented immediately,
deciding on the implementation of other measures to the maximum extent of their
available resources, including international cooperation
We propose modifying item
(c) as follows, to incorporate the input from various States (including Chile):
(c) Cross-cutting integration of the
various aspects relating to persons with disabilities into all economic and
social development policies and programmes, including those involving international
cooperation, avoiding their separate or isolated treatment.
We propose modifying item
(f) to incorporate certain observations proposed by States (including Chile).
The text would read as follows:
(f) To ensure the development, availability
and use of universally designed spaces, goods, services, equipment and facilities.
Those spaces, goods, services, equipment and facilities shall meet the specific
needs of persons with disabilities with the necessary adaptations, according
to the disability involved and at the lowest possible cost.
We support the initial idea of Kenya to incorporate into this item, with input from Chile, the following references:
- To establish efficient and effective structures to monitor the application
and implementation of the provisions of the Convention;
- To provide special protection and
support to persons with multideficit and to persons with disabilities whose
vulnerability is greater owing to armed conflicts, natural disasters or their
status as minors, older persons, women or those living with HIV/AIDS, inter
alia.
We support the idea of modifying
item 2 to incorporate input from various States including Chile. The text would
read as follows:
In the design, formulation, implementation
and assessment of policies and legislation to give effect to the present Convention,
States shall adopt the appropriate measures to ensure sufficient consultation
with persons with disabilities, their families, care-givers and organizations
representing them, guaranteeing their full participation in this process and
recognizing the expertise and leadership that such persons can provide in this
field.
We recommend including a new
item into article 4, as follows:
(new item) To include
in their national budgets the provision of specific resources enabling broad
and comprehensive treatment of issues relating to persons with disabilities
in their respective national jurisdictions, including the financing of mechanisms
to monitor and assess compliance with the rules and to ensure the implementation
of the provisions of this Convention.
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Draft Article 4
GENERAL OBLIGATIONS
EU position: EU can accept a separate article on General Obligations.
1. States Parties undertake to ensure
the full realisation of all rights and fundamental freedoms for all individuals
within their jurisdiction without discrimination of any kind on the basis of
disability. To this end, States Parties undertake:
(a) to adopt legislative, administrative
and other measures to give effect to this Convention, and to amend, repeal or
nullify any laws and regulations and to discourage customs or practices that
are inconsistent with this convention;
EU Proposal:
EU suggests following rewording: “to take effective measures to review governmental,
national and local policies, and to amend, rescind or nullify any laws or regulations
which have the effect or purpose of creating or perpetuating such discrimination
wherever it exists; “
(b) to embody the rights of equality
and non discrimination on the ground of disability in their national constitutions
or other appropriate legislation, if not yet incorporated therein, and to ensure,
through law and other appropriate means, the practical realisation of these
rights;
EU Proposal: EU suggests replacing “rights” with “principles” on the first line and the last line, and suggests the addition of “of opportunity” after “equality”on the first line.
(c) to mainstream disability issues into all economic and social development
policies and programmes;
EU proposal: “to ensure that the needs and concerns of persons with disabilities are incorporated into economic and social development plans and policies”
(d) to refrain from engaging in any act or practice that is inconsistent with
this convention and to ensure that public authorities and institutions act in
conformity with this Convention;
EU proposal: EU
suggests replacing “that is inconsistent with this convention” with “of discrimination
against persons with disabilities”, and replacing the word “Convention” with
“obligation”.
(e) to take all appropriate measures
to eliminate discrimination on the ground of disability by any person, organisation
or private enterprise;
EU proposal: EU
suggests deleting “private” before “enterprise”.
(f) to promote the development, availability
and use of universally designed goods, services, equipment and facilities. Such
goods, services, equipment and facilities should require the minimum possible
adaptation and the least cost to meet the specific needs of a person with disabilities.
EU proposal: Move
(f) to Article 19.
2. In the development and implementation
of policies and legislation to implement this Convention, States Parties shall
do so in close consultation with, and include the active involvement of, persons
with disabilities and their representative organisations.
EU proposal: Move paragraph 2 to Article 25 and reword.
EU proposes the insertion of a new article 4(2):
“States Parties shall undertake all appropriate legislative, administrative
and other measures 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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Proposed additions to Article 4:
2. It will also be necessary to introduce the concept of families in Article
4(2).
Here we would support the EU formulation with the addition of the words “and their families where appropriate”, at the end.
Interventions made in the 4th session:
No. 8
25.08.2004
Article 4: General Obligations
In the Chapeau we would favour the EU proposal but instead of “guaranteeing’
we would like to retain “ensure”. My delegation also feels that the principle
of progressive realization should form part of general obligations. We would
also lend support to the proposal to include the principle of “international
cooperation” in this article.
We support Canada on the inclusion of Art 2(i) of the International Covenent
on Economic, Social and Cultural Rights.
No. 15
30.8.2004
Article 4 : General Obligations
Mr. Chairman my delegation feels that article 2(1) of ICESCR should
be added as para3 of General Obligations. It reads “Each state Party to the
present Covenant undertakes to take steps, individually and through international
assistance and co-operation especially economic and technical, to the maximum
of its available resources, with a view to achieving progressively the full
realization of the rights recognized in the present Covenant by all appropriate
means, including particularly the adoption of legislative measures.” We would
like to retain our earlier formulation of (e) on discrimination which stated
“Discrimination does not include provisions, criteria or practices that are
objectively and demonstratively justified by the State Parties by a legitimate
aim and where the means of achieving that aim are reasonable and justified.
Mr Chairman, there has been a lot of discussion and debate around the inclusion
of the concept of families, caregivers and other representatives. My delegation
and that of many others from developing countries feel strongly about this concept.
There are millions of persons with intellectual, severe and multiple disabilities
who are as yet, unable to exercise their autonomy and choice. In the cultural
context of many countries, coupled with the severity of these conditions, family
members are a natural first choice rather than organizations of disabled persons
especially where the latter has not become an accepted norm and if the nurturing
role of the family is not recognized, the persons with disabilities themselves
would view it as abandonment of a kind, in our context. Naturally, there will
be a progression towards formation of self-advocacy groups, but there are likely
to be interstate and intrastate variations of the developments of the disabled
rights movement towards full autonomy. It is unlikely to become uniform overnight
with developed countries. We submit therefore, the inclusion of the phrase “inclusion
of family members, where appropriate” be given due weight. My delegation would
like to support the EU in its alternative formulation to para 2, with the addition
of “their families” after the word disabilities and the words “where appropriate”
at the end.
No. 16
Article 4: General Obligations
Mr Chairman, I apologize for taking the floor for second time as there
are differences in support for article 4 of CRC and article 2 of ICESCR, a number
of delegates has suggested the need for introducing the concept of progressive
realization of rights. My delegation suggests that we adopt an amalgam of the
two, which would cater to the legitimate concerns of developing countries. Mr
Chairman, our population is 1 billion and 2% of the population is disabled-
a very large number of 20 million. Our resources do not permit anything but
progressive realization of the economic, social and cultural rights. Many other
developing countries would also find themselves in the same position. We would,
therefore, add a reference to progressive realization in article 4. After the
words “State Parties shall undertake such measures” we could add “ with a view
to achieving progressively the full realization of these rights.” We are not
speaking out of conceptual preferences or language preferences but from the
hard reality of economic facts. We would also support inclusion of the wording
“adequate planning and resource allocation” as in ILO formulation.
No.17
Article 4: General Obligations
We are in agreement with the Chair to club articles 5(d), 6(c), 18(c),
19.2(g) and 21(m) and place them under General Obligations. We would also like
that the words “and their families, when appropriate” be incorporated in the
reworded clause.
No.18
Article 4: General Obligations
Mr Chairman, I am sorry for taking the floor for the second time but
I would like to amplify our stand. We agree that the focus of the Convention
is on the persons with disability. We are in full agreement that disabled persons
should also be consulted; organizations for the disabled should be consulted.
In fact before we came to this meeting, we ourselves had a number of consultations
with the representatives of disabled groups and NGOs on the articles of Convention.
And when we speak of families, we do not speak of concerns which families have
for themselves. We are not shifting the focus. A number of delegations have
mentioned that families are not to be excluded. Then, why should we fight shy
of mentioning them.
No.19
Article 4: General Obligations
On a query by the Chairman on whether we would be flexible if the concept
of families, was mentioned article by article where relevant instead of in para
4 , our response was “we would like to see the texts of the articles. And if
an article by article approach meets our purpose than we could be flexible on
it and accept it.”
No. 20
31.8.2004
Article 4: Para 1
We support the amendment proposed by N.Z. to delete the words “within
their jurisdiction.” This is because some countries may face problems of illegal
immigrants and there can not be any obligations under the convention for illegal
immigrants.
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Art.4-1(a)
-same as retained in the round / square brackets on the draft text, which read
s as follows:
"to respect and ensure the rights set forth in the present Convention,
and to adopt appropriate legislative and other measures to amend..."
(rationale) The wording of the original
text is different from that of existin g human rights instruments which could
be interpreted as generating different legal effects, as this article 4 is dealing
with State Parties' general obliga tions. To avoid such misunderstanding, it
should be tailored by using the wor ding of principal human rights conventions.
The proposed text is based on CRC Art.2-1, and CEDAW Art.2(b).
Art.4-1(g)
-same as retained in the round brackets on the draft text.
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Article 4: General Obligations
• Para 1(e): supports deletion of “private” in second line
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Article 4: General Obligations
(Chapeau)
In order to achieve the purpose of the present Convention, States Parties undertake:
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Article 4: General Obligations: Amendments Proposed by New Zealand
1. State parties shall respect and ensure the rights and freedoms set forth
in this convention for all persons with disabilities [within their jurisdiction]
without discrimination of any kind on the basis of disability. (Rationale:
to be consistent with the second paragraph below we propose drawing on the language
ofthe Convention on the Rights of the Child, Article 2. We wish however to consider
the phrase in square brackets further.)
2. State parties undertake to adopt
appropriate legislative, administrative and other measures for the implementation
of the rights recognised in the present Convention. With regards to economic,
social and cultural rights, state parties shall undertake such measures to the
maximum extent of their available resources and, where needed, within the framework
of international cooperation. (Rationale for proposed addition: the
need to distinguish between civil and political rights on the one hand and economic,
social and cultural rights on the other when delineating the states’ obligations
in each case – copied from the Convention on the Rights of the Child, Article
4).
3. In ensuring and protecting the
rights of persons with disabilities, State Parties undertake:
a. to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that are inconsistent with this convention; (Rationale for this amendment: there is a general statement of states’ obligations to give effect to the rights in the Convention in paragraph 1, so we have deleted the first part of this sub-paragraph. We have strengthened the reference to “customs and practices” by making them subject to the verbs “modify and abolish” as in CEDAW 2(f))
b. to embody the principles of equality of opportunity and non-discrimination on the ground of disability in their national constitutions or other appropriate legislation, if not yet incorporated therein, and to ensure, through law and other appropriate means, the practical realisation of these rights; (Follows the formulation in the General Principles: proposed EU amendment.)
c. to incorporate the needs and concerns of persons with disabilities into economic and social development plans and policies; (Broader scope, proposed EU amendment)
d. to refrain from engaging in any act or practice that is inconsistent with this convention and to ensure that public authorities and institutions act in conformity with this Convention;
e. to take all appropriate measures to eliminate discrimination on the ground of disability by any person, organisation or enterprise; (Deletion of word “private” before “enterprise”, as in the EU’s proposed amendment, makes the scope broader.)
f. to promote the development, availability and use of universally designed goods, services, equipment and facilities. Such goods, services, equipment and facilities should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities.
g. Promote and where appropriate undertake the research, development, production, application and dissemination of new technologies in order to make available to persons with disabilities goods, services, equipment and facilities acceptable to them and aimed at their fullest inclusion in society. (This formulation, which takes into account material drawn from Articles 13 (d), 19.2 (e), 20 (c) and 21 (f).) will permit their deletion and so remove repetition and redundancy from the text of these later Articles.)
4 In the planning, development,
implementation and evaluation of legislation, policies, standards and guidelines
to give effect to the provisions of the Convention, States Parties shall do
so in partnership with persons with disabilities, recognising their expertise
and the leadership they can provide in all affairs concerning them.
(This formulation drawn from Articles 5 (d), 6 (c); 18 (c); 19.2 (g) and 21
(m).) will permit their deletion and so remove repetition and redundancy from
the text of these later Articles.)
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Proposed changes to article 4
By Thai delegation
To the chairman of the Ad Hoc Committee
Para. 1
(F) Promote and, where appropriate, undertake the research, development, production,
application and dissemination of new technologies, including assistive technologies,
in order to make available to persons with disabilities goods, services, equipment
and facilities accessible to them and aimed at their fullest inclusion in society,
based on the principle of universal design
New para. 4
Obligations in relation to remedies
1. Each State Party to this Convention undertakes:
a. To ensure that any person or class
of persons whose rights or freedoms recognized in the Convention are violated
shall have an effective and appropriate remedy, whether the violation has been
committed by persons or entities acting in an official capacity or by private
persons or entities;
b. To ensure that any person claiming
such a remedy shall have his or her right thereto determined by competent judicial,
administrative or legislative authorities, or by any other competent authority
provided for by the legal system of the State, as well as the right to seek
from such tribunals just and adequate reparation or satisfaction for any damage
suffered as a result of such discrimination; and
c. To ensure that the competent authorities
shall enforce such remedies when granted.
Proposed text to be added in article
4
By Thai delegation
1. (G) To ensure that any use of public
funds and public procurement should be consistent with the purpose and obligations
of this Convention
Rationale:
One of the best ways for public authorities to ensure that private entities
comply with the objectives of the Convention is by making accessibility requirements
a condition for access to public funding.
Some examples could be:
- private organisations which provide
employment services, vocational training services which are partly or totally
funded by public money, should be obliged to provide these services in an accesible
way for persons with disabilities.
- public authorities launching a public
tender for the purchase of hard and software should include accessibility requirements
as a compulslory requirement for any company intending to bid for these tenders.
Examples of this can be found in many
countries, including the US (Section 508) and the European Union (new public
procurement legislation) This basically means that public funding should not
be used to continue establishing barriers for persons with disabilities.
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Article 4
Intervention Tuesday, 31 January 2006.
Chair,
National Human Rights Institutions wish to stress two issues in the context of draft Article 4. We consider Article 4 as fundamental to ensuring that this Convention becomes an effective instrument for ensuring that persons with disabilities enjoy their human rights in practice.
These issues are, first, the need to include a provision on remedies, and secondly, the need to amend para 2 in order to adopt an understanding of the nature of economic, social rights and cultural rights that is more in keeping with modern international and comparative jurisprudence on the subject.
We have spoken to these issues at earlier sessions of the Committee, so will comment only briefly on them.
First, with respect to remedies, on the basis of their extensive national experience in responding to allegations of violations of human rights, National Institutions consider that it is critical to include a provision which will require States parties to ensure that persons with disabilities who suffer violations of their rights obtain remedies for those violations.
Remedies may take various forms – judicial, administrative, and legislative, among others. It is true that, unlike the ICCPR, the ICESCR does not contain an explicit provision on remedies. Yet the Committee on Economic, Social and Cultural Rights operates under a presumption in favour of some form of domestic remedies for such rights. In the language of General Comment 9 of the ICESCR, such remedies – whatever shape they take - must be ‘accessible, affordable, timely and effective’.
Whatever form they may take, there must be remedies if the guarantees of rights set out in this Convention are not to remain empty words.
Indeed, the principle of remedies for human rights violations is part of customary international law binding on all member States.
And, a guarantee of a remedy for a violation is included in many human rights treaties, including universal treaties such as the ICCPR, CAT and CEDAW and various regional human rights treaties.
We see no reason why, if only for consistency, it should not be included in this one. And we see every reason in principle for such an addition to ensure that the law in action matches the law in the books.
Secondly, and with respect to States Parties obligations with respect to progressive implementation, while appreciating the efforts made in the draft text, National Human Rights Institutions remain uneasy with the language proposed in draft Article 4.2.
Fifty years ago the separation of different categories of rights into the two Covenants introduced a false distinction between two categories of human rights which has taken the last five decades to overcome. The caricature that only civil and political rights are immediately implementable and that economic, social and cultural rights can only be progressively implemented, was discredited a long time ago.
We appreciate the effort made in the Chair’s text to reflect a more nuanced and modern perspective based on contemporary human rights law. It is now well accepted that the obligation of non-discrimination in relation to ESCRts is in general capable of immediate implementation. But the immediate applicability of ESCRts goes well beyond the obligation of non-discrimination. Most, if not all, ESCRts have aspects which are capable of immediate implementation, just as they have aspects which require to be implemented progressively.
Our own experience with both categories of rights at the national level confirms this, but we feel that the draft Article 4.2 does not yet adequately reflect it.
A further difficulty arises from how one characterises some of the rights in this Convention. While some might clearly be ESCRts or CPRts, other rights – such as the right of accessibility – are hybrid rights, some aspects of which can be given effect to immediately, others only progressively. It would be unfortunate if the effect of the current draft were to make the entirety of this right subject only to an obligation of progressive implementation.
National Human Rights Institutions respectfully request that the text should be amended along the lines of the Bangkok draft1 (which is largely reflected in the IDC text) to provide that States Parties undertake to give immediate effect to the aspects of those rights which are capable of immediate implementation (including, but not limited to obligations of non-discrimination in the enjoyment of those rights); and in relation to other
aspects of those rights, to implement them in a progressive manner.
This would ensure that this Convention does not simply reproduce the mistakes of the past but will be an instrument that embodies 21st century human rights thinking.
We are happy to support the EU proposal as an acceptable way forward.
Thank you.
CHILDREN'S RIGHTS ALLIANCE FOR ENGLAND
Article 4
General obligations 1,2
1. States Parties undertake to ensure the full realization of all human rights
and fundamental freedoms for all individuals within their jurisdiction3
without discrimination of any kind on the basis of disability. To this end,
States Parties undertake:
(a) To adopt legislative, administrative and other measures to give effect to this Convention, and to amend, repeal or nullify any laws and regulations and to discourage customs or practices that are inconsistent with this Convention;
(b) To embody the rights of equality and non-discrimination on the ground of disability in their national constitutions or other appropriate legislation, if not yet incorporated therein, and to ensure, through law and other appropriate means, the practical realization of these rights;
(c) To mainstream disability issues into all economic and social development policies and programmes;
(d) To refrain from engaging in any act or practice that is inconsistent with this Convention and to ensure that public authorities and institutions act in conformity with this Convention;
(e) To take all appropriate measures to eliminate discrimination on the ground of disability by any person, organization or private enterprise;
(f) To promote4 the development, availability and use of universally designed goods, services, equipment and facilities. Such goods, services, equipment and facilities should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities. 5
2. In the development and implementation
of policies and legislation to implement this Convention, States Parties shall
do so in close consultation with, and include the active involvement of, persons
with disabilities and their representative organizations.
Footnotes:
1. Both
the Bangkok draft and the Chair’s draft included in this section a paragraph
on remedies. Some members of the Working Group noted that while the International
Covenant on Civil and Political Rights included such a provision, the International
Covenant on Economic, Social and Cultural rights did not. It may be difficult,
therefore, to include such an article in a convention that elaborates the rights
contained in both Covenants. The Ad Hoc Committee may wish to consider this
issue further.
2.
The issue of the progressive realization of economic, social and cultural rights
was raised by several delegations during the Working Group’s discussion. The
Working Group noted that, consistent with existing international human rights
law, the concept would apply to some of the rights in the Convention (the economic,
social and cultural rights), but not to others (the civil and political rights).
The Ad Hoc Committee will need to consider how best to incorporate this issue
into the Convention, and may wish to note the precedent set in the Convention
on the Rights of the Child. The debate was raised in relation to other articles
also.
3.
The phrase “within their jurisdiction” will need closer examination by the Ad
Hoc Committee. It is taken from article 2 of the Convention on the Rights of
the Child. It may be too inclusive and imply, for example, that rights that
are not guaranteed for non-citizens could be extended to non-citizens with disabilities.
Article 1 (2) of the International Convention on the Elimination of All Forms
of Racial Discrimination may offer an alternative approach, but that may be
too exclusive and imply that non-citizens with disabilities do not enjoy any
of the protections of the present Convention.
4.
The Ad Hoc Committee may wish to consider whether a term that places stronger
obligations on States Parties should replace “promote”.
5.
The Ad Hoc Committee may wish to consider whether the term “universal design”
or its near synonym “inclusive design” should be used here and throughout the
Convention. The Ad Hoc Committee may also wish to consider whether this paragraph
should remain as part of draft article 4, be incorporated into draft article
19 or be a separate article in its own right.
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Draft Article 4 General Obligations
The initial paragraph should state, as in the ICCPR, that States “shall respect
and ensure the full realisation of all human rights and fundamental freedoms.”
Paragraph a) should also include by-laws,
rules and we suggest to replace the word “discourage customs” by “counter customs”.
EDF proposes to add to paragraph c)
a reference to international cooperation, which would oblige both the donor
and the recipient of development cooperation funds to take into account persons
with disabilities.
EDF also considers it very important
that a paragraph on remedies is included in this article.
EDF also suggests to add a reference
to positive action measures to paragraph e) of this article.
EDF suggests a reference to the use
of public procurement and public funds in paragraph f) as a way of promoting
Universal Design in goods, services, equipment and facilities.
When implementing the General State
Obligations, special attention should be given to those disabled people more
in danger of exclusion and discrimination, including women with disabilities,
disabled people from ethnic minorities, disabled people living in rural and
remote areas.
Paragraph 2 of this article is considered
of vital importance. It could be strengthened through a reference to the concept
of partnership and to the provision of measures which would strengthen the role
and capacity of representative organisations of persons with disabilities to
play an active role in the implementation of the Convention.
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INTERNATIONAL DISABILITY CAUCUS
Draft Article 4: General State Obligations
1. States Parties undertake to ensure the full realisation of all human rights
and fundamental freedoms for all individuals within their jurisdiction without
discrimination of any kind on the basis of disability. To this end, States Parties
undertake:
a) to adopt legislative, administrative and other measures to give effect to this Convention, and to amend, repeal or nullify any laws and regulations and to discourage customs or practices that are inconsistent with this convention;
b) to embody the principles of equality and non-discrimination on the ground of disability in their national constitutions or other appropriate legislation, if not yet incorporated therein, and to ensure, through law and other appropriate means, the practical realisation of these rights;
c) the inclusion of disability issues into all economic and social development policies and programmes, including those related to development cooperation;
d) to refrain from engaging in any act or practice that is inconsistent with this convention and to ensure that public authorities and institutions act in conformity with this Convention;
e) to take all appropriate measures to eliminate discrimination on the ground of disability by any person, organisation or enterprise;
f) to promote and, where appropriate, undertake the research, development, production, application and dissemination of new technologies, including assistive technologies, in order to make available to persons with disabilities goods, services, equipment and facilities accessible to them and aimed at their fullest inclusion in society, based on the principle of universal design
g) to ensure that any use of public funds and public procurement should be consistent with the purpose and obligations of this Convention;
2. In relation to economic, social
and cultural rights, States Parties undertake:
a) to give immediate effect to the aspects of those rights which are capable of immediate implementation including, but not limited to obligations of non-discrimination in the enjoyment of those rights; and
b) in relation to other aspects of those rights, to take steps to the maximum of their available resources, when needed within the framework of international cooperation, with a view to achieving progressively the full realization of those rights by all appropriate means.
3. Each State Party to this Convention
undertakes:
a) To ensure that any person or class of persons whose rights or freedoms recognized in the Convention are violated shall have, individually or with the support of representative organizations, an effective and appropriate remedy, whether the violation has been committed by persons or entities acting in an official capacity or by private persons or entities;
b) To ensure that any person claiming such a remedy shall have his or her right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State; and
c) To ensure that the competent authorities shall enforce such remedies when granted.
4. States Parties recognize that access
to effective remedies may require the provision of free legal assistance to
persons with disabilities, including sign language interpreters and communication
assistance, and the modification or flexible application of existing laws and
practice regulating matters of procedure and evidence.
5. In the planning, development, implementation
and evaluation of policies, standards, guidelines and legislation to implement
this convention, States Parties shall do so in partnership with persons with
disabilities through their representative organisations, recognising the expertise
of persons with disabilities and the leadership they can provide in all affairs
concerning them.
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DRAFT ARTICLE 4 - GENERAL OBLIGATIONS
SYNTHESIS OF FINDINGS
1. States Parties undertake to ensure the full realisation of all human rights
and fundamental freedoms for all individuals within their territory and subject
to their jurisdiction, without discrimination of any kind on the basis of disability.
To this end, States Parties shall respect and ensure the rights set forth in
the present Convention and undertake:
(a) to adopt legislative, administrative and other measures to give effect to
this Convention, and to amend, repeal or nullify any laws and regulations and
to discourage customs or practices that are inconsistent with this Convention;
(b) to embody the principles of equality and non discrimination on the ground
of disability in their national constitutions or other appropriate legislation,
if not yet incorporated therein, and to ensure, through law and other appropriate
means, the practical realisation of these rights;
(c) inclusion of disability issues into all economic and social development
policies and programmes, including international cooperation;
(d) to refrain from engaging in any act or practice that is inconsistent with
this Convention and to ensure that public authorities and institutions act in
conformity with this Convention; and
(e) to take all appropriate measures to eliminate discrimination on the ground
of disability by any person, organisation or enterprise.
2. Each State Party to this Convention undertakes:
(a) to ensure that any person or class of persons whose rights or freedoms recognised
in the Convention are violated shall have an effective remedy, whether the violation
has been committed by persons or entities acting in an official capacity or
by private persons or entities;
(b) to ensure that any person claiming such a remedy shall have his or her right
thereto determined by competent judicial, administrative or legislative authorities,
or by any other competent authority provided for by the legal system of the
State, including as well as the right to seek from such tribunals just and adequate
reparation or satisfaction for any damage suffered as a result of such discrimination;
and
(c) to ensure that the competent authorities shall enforce such remedies when
granted.
3. States Parties recognise that access to effective remedies may require the
provision of free legal assistance to persons with disabilities and shall ensure
accessibility of relevant legal proceedings to persons with disabilities, including
through the removal of physical and communication barriers and the provision
of reasonable accommodation.
4. In the development and implementation of policies and legislation to implement
this Convention, States Parties shall do so in partnership with persons with
disabilities and their representative organizations, recognising the expertise
of persons with disabilities and the leadership they can provide in all affairs
concerning them.
5. States Parties shall undertake all appropriate legislative, administrative
and other means for the implementation 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.
COMMENTS
Draft Article 4 retains language expressly obliging States to give effect to
the full range of rights contained in the Convention, in keeping with the views
of many Ad Hoc Committee members (eg. Lebanon, Mexico, Lichtenstein, Africa
Group, Kuwait, Jordan, Bahrain, Costa Rica, Trinidad and Tobago, Yemen, Uganda)
who objected to proposals (EU) seeking to limit the scope of this provision
to a non-discrimination framework. It is critical that the general obligations
provisions not be limited to non-discrimination, for as important as this concept
is to furthering the objectives of the Convention it does not capture the overall
scope of the rights that are the subject of the Convention.
Draft Article 4 has been strengthened here in a number of key areas. The chapeau
of Article 4(1) has been altered to correspond more closely with prevailing
treaty language. For example, the word “jurisdiction” was considered unclear
by some members (Canada) who suggested that it be deleted, whilst others (NHRI)
cautioned that its exclusion could potentially discriminate against some people
with disabilities, such as non-citizens or asylum seekers. Although no proposal
to accommodate these concerns was suggested during the meeting, “jurisdiction”
has here been replaced with “within their territory and subject to their jurisdiction,”
as a suggested approach in keeping with that adopted in the ICCPR, Article 2(1).
In addition, the proposal (Japan) has been adopted to incorporate the now standard
obligations to respect and ensure the rights in the Convention. (Cf. CRC, Article
2(1))
To retain consistency with Draft Article 2, equality and non-discrimination
have been characterized as “principles” rather than rights where applicable
in Draft Article 4(1)(b). (EU, Mexico)
Draft Article 4(1)(c) adopts the proposal to delete the potentially confusing
and difficult to translate word “mainstream,” (EU, Mexico, Serbia, Lichtenstein,
New Zealand, Thailand), and replaces it with “inclusion of.” Although there
was a proposal to replace “mainstream” with “integrate” (Thailand), in many
development contexts “integration” is considered an interim stage between “segregation”
and “inclusion.” Thus, the more complete “inclusion” has been utilized here.
In addition, the concept of international cooperation has been added (Thailand),
to ensure that disability is not omitted from this important realm of economic
and social development programming.
Draft Article 4(1)(e) reflects the proposal of several Ad Hoc Committee members
(EU, New Zealand, Kenya) to delete the word “private.” This proposal has been
adopted in keeping with the formulation found in the CEDAW, Article 2(e), and
with the understanding that the draft language still captures the concept of
private actors. Given increasing privatization in the provision of goods and
services once provided by public entities, it is essential that States be obliged
to combat disability discrimination by private actors. As noted by several Ad
Hoc Committee members (EU, Mexico, New Zealand), Draft Article 4(1)(f) addresses
important issues related to accessibility, and therefore has been moved to Draft
Article 19 where Accessibility is more fully elaborated.
Draft Article 4(2) and (3) are new provisions on remedies not found in the Working
Group Draft Text, but included here to avoid a serious departure from existing
human rights law. Given that the ICCPR, Article 2(3) includes a provision on
remedies, and given that the Committee on Economic, Social and Cultural Rights
has spoken to the appropriateness of “judicial or other effective remedies”
as a means of combating discrimination in the enjoyment of economic, social
and cultural rights (Cf. Committee on Economic, Social and Cultural Rights,
General Comment 3, para. 5), it is essential that the Convention contain a provision
addressing remedies. Several interventions in the third session of the Ad Hoc
Committee expressed concern that a paragraph on remedies had not been included,
and the language chosen here is reflective of the proposal (Asia Pacific Forum,
Thailand, India, Costa Rica) that the Bangkok Draft, Article 5, be used as a
model.
Draft Article 4(4) (formerly 4(2) in the Working Group Draft Text) has been
amended through the adoption of the proposal (New Zealand, Serbia) to incorporate
the concept of “partnership” with disabled people and their representative organizations,
with an important emphasis on recognition of the expertise and leadership that
people with disabilities can and should bring to the implementation of this
Convention. However, the proposal (India, Trinidad and Tobago) to include “families”
in this provision has not been adopted here. Although families, caregivers and
others certainly have an important role to play regarding implementation of
the Convention, this Convention is intended to address the enjoyment of human
rights by people with disabilities – not other actors. It would therefore be
inappropriate for this Convention to prescribe rights of participation for others,
particularly when there is a danger that some families may not be supportive
of the objectives and principles of the Convention, and may not respect the
wishes of the disabled family members for whom they claim to speak.
Draft Article 4(5) (originally 2bis, proposed by the EU and supported by India,
Mexico and Thailand) should be retained, as it provides an important clarification
of the applicability of the principle of progressive realization to the Convention.
It also highlights the utility of international cooperation as a mechanism for
enhancing implementation of the Convention. (Cf. CRC, Article 4; ICESCR, Article
2(1))
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PEOPLE WITH DISABILITY AUSTRALIA
Article 4: General Obligations
We generally support the Expert Working
Group’s formulation this article. However, we are strongly of the view that
the human rights set out in the convention must be enforceable at the domestic
level, and therefore that the convention must oblige States to provide domestic
remedies for the breach of these rights. In this respect, many people with disability
will require legal assistance in order to assert their rights under this convention.
Some people with disability (especially those with cognitive disability and
severe sensory disability) will also require modified and flexible procedure
and rules of evidence if they are to have effective remedies under this convention.
Current legal processes and rules are in many respects very ‘disabling’ of people
with impairments and result in the denial of our claims to justice.
To address this issue, we propose incorporation into this article an amended
version of the proposed text concerning remedies from the Bangkok draft: 6
3. States Parties to this convention
undertake:
(a) To ensure that any person, or class of persons, whose human rights under this convention are violated shall have an effective remedy, whether the violation has been committed by persons or entities acting in an official capacity or by private persons or entities;
(b) To ensure that any person claiming such a remedy shall have his or her right thereto determined by a competent judicial, administrative, or legislative authority, or by any other competent authority provided for by the legal system of the State;
(c) To ensure that any person claiming such a remedy shall have the right to seek from such competent authorities just and adequate reparation or satisfaction for any damage suffered as a result of the breach of his or her human rights;
(d) To ensure that the competent authorities shall enforce such remedies when granted.
4. States Parties to this convention
shall recognise that access to effective remedies may require the provision
of free legal assistance to persons with disability and the modification or
flexible application of existing laws and practice regulating matters of procedure
and evidence.
Many delegations, non-government organisations and independent experts have
called for this convention to incorporate a framework for international cooperation.
In light of the central role of international cooperation in achieving the rights
set out in this convention, we suggest the incorporation of an additional paragraph
into this article imposing an obligation on States to cooperate in order to
achieve the objectives of the convention. It will also be helpful to define
what is meant by international cooperation. This should include bilateral and
multilateral action, including through international intergovernmental organisations
and civil society. It should involve information exchange; technical and scientific
cooperation, exchange and advise; harmonisation of laws with cross-jurisdictional
impact; and the incorporation of disability perspectives into international
efforts to promote development and eradicate poverty. This additional paragraph
might be in the following terms:
5. States Parties to this convention undertake to engage in international
cooperation to ensure the progressive realisation of all human rights set out
in this convention for all the world’s people with disability. International
cooperation means bilateral and multilateral action, including through international
intergovernmental organisations and civil society, and shall include: information
exchange; technical and scientific cooperation, exchange and advise; harmonisation
of laws with cross-jurisdictional impact; and the incorporation of disability
perspectives into international efforts to promote development and eradicate
poverty.
Footnotes:
6. Bangkok Draft: Proposed Elements of a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights of Persons with Disabilities, United Nations Economic and Social Council for Asia and the Pacific, October 2003, at page 17; Article 5: Obligations in Relation to Remedies.
WORKING MEETING OF NGOs FOR PEOPLE WITH DISABILITIES FROM UKRAINE, RUSSIA, BELARUS & MOLDOVA
Article 4
General obligations
1. (e) After: “To take all appropriate
measures to eliminate discrimination on the ground of disability by any person,”
to continue: “organizations or enterprises of any form of ownership”,
instead of “organization or [private - EU] enterprise”;
(f) After the words “Such goods, services,
equipment and facilities should” instead of the w ords “require the minimum
possible adaptation” to state: “should meet the quality standards and be maximum
accessible as for their price to fully satisfy special needs of people with
disabilities”
To add a new item to issue 1 Article
4:
“(g) To ensure support to a person
with disability on the part of the state aimed at realization of equal rights,
support to inclusion into the normal life of the community, professional support
in the cases they need help to identify and realize their rights and cope with
violations”
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Draft Article 4: General State
Obligations
4. States Parties recognize that access
to effective remedies may require the provision of free legal assistance to
persons with disabilities, including sign language interpreters
and communication assistance, and the modification or flexible application of
existing laws and practice regulating matters of procedure and evidence
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