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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
Canada
Chile
Costa Rica
European Union
India
Kenya
South Africa
National Human Rights Institutions
International Disability Caucus (IDC)
International Disability Convention Solidarity in Korea (IDCSK)
Japan Disability Forum
Mental Disability Rights International
People with Disability Australia
Article 4
1. States Parties undertake to ensure and to promote the full realization of all human rights and fundamental freedoms for persons with disabilities within their jurisdiction without discrimination of any kind on the basis of disability. To this end, States Parties undertake to :
(a) 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 traditions that are inconsistent with the present Convention;
(b) embody the rights of opportunity and non-discrimination on the basis 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) mainstream disability issues into all economic and social development policies and programmes;
(d) refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention;
(e) take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise;
(f) promote the research, the development, availability and provide accessible information to persons with disabilities on the use of:
(i) Universally designed goods, services, equipment and facilities, to meet the specific needs of persons with disabilities, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, and to promote universal design in the development of standards and guidelines;
(ii) New technologies, including information and communication technologies, mobility aids, devices, assistive technologies, suitable for persons with disabilities, giving priority to affordably priced technologies;
2. With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights, except where thus would result in discrimination on the basis of disability.
3. In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities and their representative organizations. Such issues shall include standards and guidelines for accessibility, the formulation of health, habilitation and rehabilitation legislation and the planning, the delivery and evaluation of health, habilitation and rehabilitation services and the design and implementation of data collection.
4. Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of persons with disabilities and which may be contained in the law of a State Party or international law in force for that State.
5. 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;
a) That any person claming such remedy shall have his or her right thereto determined by competent judicial, administrative or legislative authorities or any other competent authorities provided for by the legal system of the State
b) 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;
6. 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
1 (a) We propose to replace ‘rights of equality’ with ‘principles of equality’. Equality as a right simply means that people should be treated alike. Equality as a principle acknowledges barriers that may inhibit the equal participation of certain members of society.
We also propose deleting ‘and to ensure, through law and other appropriate means the practical realisation of these rights’ on the basis that it is repetitive, paragraph 4(1)(a) already refers to measures to be put in place to give effect to the rights in the Convention.
1(c) We propose to replace “to mainstream disability issues into all economic and social development policies and programmes” with ‘to promote the incorporation of the needs and concerns of persons with disabilities into economic and social development policies and programmes.’
1 (f) (i) Delete ‘which should require the minimum possible adaptation and least cost to meet the specific needs of a person with disabilities’ as this level of detail is inappropriate for a ‘general obligations’ provision and is partly repetitive when the definition of universal design is taken into account.
The delegation supports moving paragraph 4(f)(i) and (ii) to Article 9: Accessibility.
The delegation could propose that paragraph 4(f) be amended and renumbered 9(2)(i). It could read:
Promote the development, availability and use of:
(i) universally designed goods, services, facilities, assistive technologies, standards and guidelines.
(ii) new technologies, including information and communication technologies, mobility aids, devices, assistive technologies, suitable for persons with disabilities.
3. Australia is concerned with the current wording of article 4(3) as Governments may not be able to guarantee to ‘closely consult with and actively involve persons with disabilities’ before each and every law and policy is developed.
Australia proposes to replace ‘shall closely consult with and actively involve’ with a less prescriptive formulation, such as ‘shall take appropriate measures to ensure adequate consultation with’.
Australia
Australian alternative proposal for inclusion in Article 4 of recognition that the General obligations under the Convention apply to certain people
States Parties recognise that persons whose rights and dignity are to be protected from discrimination on the basis of disability by the provisions of this Convention include persons who experience:
(a) total or partial loss of the person's bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person's body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and that such experience:
(h) may presently exist; or
(i) may have previously existed but no longer exists; or
(j) may exist in the future; or
(k) may be imputed to a person.
Article 4
(1) Chapeau "States Parties undertake to ensure the full AND EQUAL realization of [DEL all] the human rights and fundamental freedoms [DEL for all persons with disabilities] OF ALL PERSONS without discrimination [DEL of any kind] ON THE BASIS OF DISABILITY, and, to this end, undertake: "
(2) With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realisation of these rights [DEL except where achieving progressively the full realisation of these rights would result in discrimination on the basis of disability]. SUCH RIGHTS SHALL BE REALIZED WITHOUT DISCRIMINATION ON THE BASIS OF DISABILITY.
(3) State Parties shall ensure that persons with disabilities be consulted and involved on an equal basis with others in all policy making exercises and decision-making processes to enable inter alia due appreciation of the disability dimension in such policies and be afforded an appropriate leading role on issues concerning persons with disabilities." (from IDC proposal for Art.29(c))
Canada makes the following proposals for amendment to the facilitator's text on children:
Article 4(3) "...States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities [delete: and] OR their representative organizations..."
Chilean Proposal
Interpretive Norm of the Convention
"The dispositions of this Convention should always be interpreted in the most favorable sense towards people with disabilities, avoiding any detriment of their rights"
Location: in general obligations (Art. 4) or in the Monitoring articles
Justification: The need to bestow the Convention this important element for its appropriate application
-- an interpretive norm will permit the authorities and judges (at the national level), as well as the monitoring mechanism to be established in the Convention, to close any possibility of detriment or weakening of the rights of people with disabilities.
-- a norm such as this provides consistency to the coordinated internal interpretation of the convention articles
-- the proposed norm is different than the disposition that promotes the application of more beneficial norms contemplated in other juridical instruments at both the national and international levels (Art. 4, last literal reference)
Article 4
On Behalf of Costa Rica, Chile, Argentina, Mexico, Guatemala, Colombia, Peru, Uruguay, Brazil, Trinidad and Tobago, Panama and El Salvador, we propose the following text to be either added as a general obligation in article 4 or a new article 12 bis.
To ensure legal protection of the rights of persons with disabilities on an equal basis with others and ensure an effective remedy by the competent national tribunals for acts violating their fundamental rights.
Article 4
1. States Parties undertake to ensure the full realization of all human rights and fundamental freedoms for persons with disabilities 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 traditions that are inconsistent with this Convention;
(b) to embody the rights of equality and non-discrimination on the basis 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;
EU Proposal (c): replace with “that the protection and promotion of the human rights of persons with disabilities should be taken into account in all policies and programmes.” (EDF proposal)
(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 basis of disability by any person, organization or private enterprise;
(f) to undertake or promote the development, availability and use of:
(i) universally designed goods, services, equipment and facilities, to meet the specific needs of persons with disabilities, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, and to promote universal design in the development of standards and guidelines;
(ii) new technologies, including information and communication technologies, mobility aids, devices, assistive technologies, suitable for persons with disabilities, giving priority to affordably priced technologies;
EU Proposal (f): Move “the development, availability and use of” from the chapeau to the beginning of sub-paragraph i). Delete the first reference “to meet the specific needs of persons with disabilities” because this is repetitive. Insert “be at” before “least cost” in i). Move the last part of i) to become a separate i) bis. The sub-paragraph would therefore read:
f) to undertake or promote:
i) the development, availability and use of universally designed goods, services, equipment and facilities, which should require the minimum possible adaptation and be at the least cost to meet the specific needs of a person with disabilities;
i) bis universal design in the development of standards and guidelines;
ii) new technologies, including information and communication technologies, mobility aids, devices, assistive technologies, suitable for persons with disabilities, giving priority to affordably priced technologies;
(g) to provide accessible information to persons with disabilities about mobility aids, devices, and assistive technologies including new technologies, as well as other forms of assistance, support services and facilities.
2. With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international co-operation, with a view to achieving progressively the full realisation of these rights, except where achieving progressively the full realisation of these rights would result in discrimination on the basis of disability.
EU Proposal (2): Replace “except where achieving progressively the full realisation of these rights would result in discrimination on the basis of disability” with “without prejudice to the immediately applicable obligations emanating from international human rights law”.
3. In the development and implementation of legislation and policies to implement this Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve, persons with disabilities and their representative organizations. Such issues shall include standards and guidelines for accessibility, the formulation of health, habilitation and rehabilitation legislation and the planning, delivery and evaluation of health, habilitation and rehabilitation services, and the design and implementation of data collection.
EU Proposal (3): Delete the second sentence.
EU Proposal (3bis): Insert a non-regression clause to strengthen the Convention, taken from ICCPR Article 5, as a new paragraph 3 bis:
There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.
4. Nothing in this Convention shall affect any provisions which are more conducive to the realisation of the rights of persons with disabilities and which may be contained in the law of a State Party or international law in force for that State.
EU Response to facilitator’s text
[EU does not agree to a stand-alone article, but would instead like to see a strong reference in Article 4, “General Obligations”, which would ensure that the issue of women is taken into consideration horizontally in every article of the Convention.]
To this end, States Parties undertake: … to take all necessary including sex-specific and gender-sensitive measures to ensure the full and equal enjoyment of all human rights by women with disabilities on an equal basis with others, bearing in mind the general obligation to ensure equality between women and men;
EU Position on “Women” and “Children” in response to the joint facilitator’s proposal, 31 January 2006
[EU does not agree to a stand-alone article, but would instead like to see a strong reference in Article 4, “General Obligations”, which would ensure that the issue of children is taken into consideration horizontally in every article of the Convention. The EU proposal merges the text of paragraphs 1, 2 and 3 of Article 7 in the Facilitator’s proposal into one single paragraph.]
To this end, States Parties undertake: … to take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms and to ensure that the best interests of the child shall be a primary consideration in all actions concerning children, that children with disabilities are consulted in all matters affecting them on an equal basis with other children, and that the views of children with disabilities are given due weight in accordance with the age and maturity of the child.
3. In the development and implementation of legislation and policies to implement the present convention, and in other decision making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve, persons with disabilities, including children with disabilities, and their representative organisations. Such issues shall include standards and guidelines for accessibility, the formulation of health, habilitation and rehabilitation legislation and the planning, delivery and evaluation of health, habilitation and rehabilitation services, and the design and implementation of data collection.
Article 4
We agree with the Chair’s formulation regarding progressive realization of economic, social and cultural rights, which is in accordance with our deliberations in earlier session of the Committee. However, inclusion of the words “except where achieving progressively the full realization of these rights would result in discrimination on the basis of disability” would need some clarification. A case in point may be making all the public buildings accessible to persons with disabilities. This would be a massive effort on our part given the geographic size of our country and would call for investment of massive resources. There may be instance where such facilities may become available in some cities immediately but may take some time for other areas. This could not be treated as discrimination in those areas. Thus, the formulation of para 2 under General Obligation has to take care of such situations.
31.1.2006
Article 4: General Obligations
We are very glad that in paragraph 3 of this Article, our request to provide representation of families of persons with disabilities through their organizations in the process of consultation for decision-making purposes has been taken care by use of words “representative organizations”. We feel that such formulation should be kept in the article.
We support the Russian Federation on the suggestion made regarding the first sentence in paragraph 2 for replacement of words “measures to the maximum of its available resources” with “effective and appropriate measures” since it may not always be possible to provide maximum resources due to competing demands on limited resources.
Some delegations have suggested that there should be a paragraph on legal remedies for enforcement of convention. We feel that this aspect has been taken care by paragraph 1(a), where State parties are under obligation to adopt legislative measures for the purpose of implementation of the Convention. We are, however, flexible on this issue and would look forward to the formulation of this paragraph
Proposals on articles relating to Women and Children with disabilities and other relevant articles
(i) Regarding article on General Obligation, we feel that consultation with children with disabilities as envisaged is desirable but may not always practical. We therefore, suggest that such consultation has to be through their representative organizations. The text therefore needs modification.
Article 4
1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for persons with disabilities 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 traditions that are inconsistent with this Convention;
(b) to embody the rights of equality and non-discrimination on the basis 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 basis of disability by any person, organization or private enterprise;
(f) to undertake or and promote the development, availability and use of:
(i) universally designed goods, services, equipment and facilities, to meet the specific needs of persons with disabilities, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, and to promote universal design in the development of standards and guidelines;
(ii) new technologies, including information and communication technologies, mobility aids, devices, assistive technologies, suitable for persons with disabilities, giving priority to affordably priced technologies;
(g) to provide accessible information to persons with disabilities about mobility aids, devices, and assistive technologies including new technologies, as well as other forms of assistance, support services and facilities.
2. With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international co-operation, with a view to achieving progressively the full realisation of these rights, except where achieving progressively the full realisation of these rights would result in discrimination on the basis of disability.
3. In the development and implementation of legislation and policies to implement this Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve, persons with disabilities and their representative organizations. Such issues shall include standards and guidelines for accessibility, the formulation of health, habilitation and rehabilitation legislation and the planning, delivery and evaluation of health, habilitation and rehabilitation services, and the design and implementation of data collection.
4. Nothing in this Convention shall affect any provisions which are more conducive to the realisation of the rights of persons with disabilities and which may be contained in the law of a State Party or international law in force for that State
Article 4
Response to the first Facilitator’s text discussed during the first two weeks of the 7th Session on Articles 6 & 7
Specific inputs to facilitator’s text.
To add to general obligations article 4
To take all appropriate measures to:
3. promote equality and eliminate all forms of discrimination pertaining to persons with disabilities across the full human development cycle (childhood, youth, adulthood, old-age) who may be subject to any form of discrimination (and/or in particular vulnerable circumstances)
4. Identify and remove all obstacles/barriers that prevent persons with disabilities across the full human development cycle to benefit from mainstream implementation processes on an equal basis with others.
Justification
(Multiple or aggravated forms of discrimination on the basis of (e.g. race, sex, religion, birth, age, gender, etc) as well as various or particular vulnerable circumstances, (e.g. poverty, pandemics, wars, ethnic & cultural intolerance, minorities, refugees, etc.) affect persons with disabilities across the full human development cycle namely childhood, youth, adulthood and old age. One could also expand the use of the phrase “across the full human development cycle” as well as “aggravated forms of discrimination” and “particular vulnerable circumstances” in all articles. Furthermore the removal of obstacles and barriers must be achieved and maintained across the full human development cycle for this convention to ensure that all persons with disabilities benefit from mainstream provisions and for the convention to stand the test of time as we move to inclusive/holistic/unified provisions. Also mainstreaming as a strategy or “the mainstream” in the context of this convention must be geared to achieve equality of opportunity and benefit across the full human development cycle and in all fields for persons with disabilities)
Response to the first Facilitator’s text
Should women and children be considered generally, instead separately, in Article 4 (General Obligations), we propose the following text.
To add to general obligations article 4
To take all appropriate measures to:
3. promote equality and eliminate all forms of discrimination pertaining to persons with disabilities across the full human development cycle (childhood, youth, adulthood, old-age) who may be subject to any form of discrimination (and/or in particular vulnerable circumstances)
4. identify and remove all obstacles/barriers that prevent persons with disabilities across the full human development cycle to benefit from mainstream implementation processes on an equal basis with others.
3. Ensure that this convention and other applicable conventions (such as CEDAW and the CRC) are implemented and monitored fully with respect to women and children.
Justification for points 1 and 2
Multiple or aggravated forms of discrimination on the basis of (e.g. race, sex, religion, birth, age, gender, etc) as well as various or particular vulnerable circumstances, (e.g. poverty, pandemics, wars, ethnic & cultural intolerance, minorities, refugees, etc.) affect persons with disabilities across the full human development cycle namely childhood, youth, adulthood and old age. One could also expand the use of the phrase “across the full human development cycle” as well as “aggravated forms of discrimination” and “particular vulnerable circumstances” in all articles. Furthermore the removal of obstacles and barriers must be achieved and maintained across the full human development cycle for this convention to ensure that all persons with disabilities benefit from mainstream provisions and for the convention to stand the test of time as we move to inclusive/holistic/unified provisions. Also mainstreaming as a strategy or “the mainstream” in the context of this convention must be geared to achieve equality of opportunity and benefit across the full human development cycle and in all fields for persons with disabilities)
Justification for point 3
This convention must fix what other conventions failed to achieve for persons with disabilities in general but more specifically ensuring that states do take the issues of women and girls with disabilities in consideration in relation to the implementation and monitoring of CEDAW and similarly for children with disabilities in relation to the implementation and monitoring of the CRC.
Response to the facilitator’s text on Children
General obligations:
We can live with the inclusion of the words ‘including children with disabilities’ in sub par 3
NATIONAL HUMAN RIGHTS INSTITUTIONS
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.
INTERNATIONAL DISABILITY CAUCUS (IDC)
Article 4
Chairman’s text as amended by the IDC
1. States Parties undertake to ensure the full realization of all human rights and fundamental freedoms for persons with disabilities 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 traditions that are inconsistent with this Convention;
(b) to embody the rights of equality and non-discrimination on the basis 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) (REPLACE “to mainstream disability issues into all economic and social development policies and programmes” BY “to integrate the rights of persons with disabilities in all policies and programmes;”)
(JUSTIFICATION: The IDC supports paragraph 1 c), but would suggest to find a wording which promotes the mainstreaming of disability in all policy areas. Moreover, the word “mainstream” might not be understood everywhere and might prove difficult to be translated. The IDC would also like to suggest an alternative wording to “disability issues”.)
(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 basis of disability by any person, organization or private enterprise;
(f) to undertake or promote the development, availability and use of universally designed goods, services, equipment and facilities, to meet the specific needs of persons with disabilities, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, and to promote universal design in the development of standards and guidelines; new technologies, including information and communication technologies, mobility aids, devices, assistive technologies, suitable for persons with disabilities, giving priority to affordably priced technologies;
(g) to provide accessible information to persons with disabilities about mobility aids, devices, and assistive technologies including new technologies, as well as other forms of assistance, support services and facilities;
(COMMENT: IDC suggests to move paragraphs f) and g) to article 9 Accessibility)
(h) (NEW (h): “to ensure that any use of public funds and public procurement should be consistent with the purpose and obligations of this Convention;”)
(JUSTIFICATION: The IDC proposes to include a reference to the use of public funds and public procurement in this article 4 as means to contribute to the Convention’s purpose.)
(NEW (i) States Parties undertake to ensure that the rights and provisions previously enjoyed by persons with disabilities are maintained when their responsibilities for services and activities are delegated to private entities. )
(JUSTIFICATION- IDC is concerned about the loss of rights experienced by
persons with disabilities when governments hand over their responsibilities
to private entities. This can occur, for example, when public services are
privatized.)
2. (REPLACE: “With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international co-operation, with a view to achieving progressively the full realisation of these rights, except where achieving progressively the full realisation of these rights would result in discrimination on the basis of disability.” BY “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 with a view to achieving progressively the full realization of those rights by all appropriate means.)
(JUSTIFICATION: IDC questions if the reference to international cooperation (which has been taken from the Convention of the Rights of Child) is not in contradiction with what is stated in the covering letter in the section related to article 32 – International Cooperation, which is that international cooperation (or the lack of it) might be used as an excuse by states for not implementing the Convention. In terms of the wording relating to non discrimination, we agree with the objective, but consider that the IDC wording achieves this in a clearer way.)
3. In the development and implementation of legislation and policies to implement this Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve, persons with disabilities (ADD: “including children with disabilities.”) and their representative organizations.
(JUSTIFICATION: It is a fundamental demand in this Convention that, in the development of policies and legislation in its implementation, persons with disabilities and their representative organisations are consulted. However, adults cannot always represent the perspectives of children. It is for this reason that A12 of the CRC was established. Children have the right to express their views and have them taken seriously in all matters affecting them. There is no doubt whatever, that unless children are expressly mentioned here, governments will fail to address them directly. Children with disabilities will fall between the two Conventions on the exercise of this right. When governments do consult with children on issues relating to the CRC, they almost always exclude children with disabilities. When governments consult on this Convention they will almost certainly only consult adults. Children with disabilities, and their concerns, views and experiences will yet again be rendered invisible.)
(DELETE: “Such issues shall include standards and guidelines for accessibility, the formulation of health, habilitation and rehabilitation legislation and the planning, delivery and evaluation of health, habilitation and rehabilitation services, and the design and implementation of data collection.”)
(ADD: “States Parties should encourage and support economically and in other ways the formation and strengthening of representative organizations of persons with disabilities
(JUSTIFICATION: The IDC supports the inclusion of paragraph 3 of the Chair’s text, but considers unnecessary the second line in this paragraph. IDC considers that consultation and involvement has to happen in all areas and to include a list might not be helpful in this respect.
On the other hand, the IDC proposes a reference to the obligation of States to support economically and in other ways these organisations, as foreseen in Standard Rule 18
(NEW 3 bis: “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.
NEW 3 ter: 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, the provision of information in Braille and other means and modes of communication and the modification or flexible application of existing laws and practice regulating matters of procedure and evidence.”
(JUSTIFICATION: The IDC and many States had proposed to include a reference to remedies in this article.)
(NEW 3 quater: “in all actions concerning persons with disabilities, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies that the rights and interests of indigenous peoples with disabilities will be upheld equally with the rights and interests of all people with disabilities”)
(JUSTIFICATION: The IDC supports the inclusion of a reference in this article to indigenous people with disabilities.)
Nothing in this Convention shall affect any provisions which are more conducive to the realisation of the rights of persons with disabilities and which may be contained in the law of a State Party or international law in force for that State.
IDC Response on Children 30 January
Facilitator’s text
3. In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve, persons with disabilities, including children with disabilities, and their representative organizations. Such issues shall include standards and guidelines for accessibility, the formulation of health, habilitation and rehabilitation legislation and the planning, delivery and evaluation of health, habilitation and rehabilitation services, and the design and implementation of data collection.
IDC response
The IDC supports the inclusion of the additional text
Rationale
Over the years since the adoption of the Convention on the Rights of the Child, which included in Article 12 the right of children to express their views and have them taken seriously, many opportunities for children to be consulted have evolved at local, national and international levels. That experience has highlighted two important lessons. First, that children have a unique perpsective to contribute towards understanding both of the violations of their rights and the solutions for addressing them. Second, throughout the many thousands of initiatives that have taken place, children with disabilities are disproportionately likely to be excluded. It is not enough to talk about persons with disabilities here. Unless it is explicitly spelled out, governments will tend to continue the traditional practice of assuming it is only necessary to consult with adults. This small amendment would introduce a clear obligation to recognise and respect children as having a legitimate contribution to make towards the strategies developed to protect their rights .
INTERNATIONAL DISABILITY CONVENTION SOLIDARITY IN KOREA (IDCSK)
IDCSK fully supports the proposals made by the IDC except only the below.
Article 4
1 States Parties undertake to ensure the full realization of all human rights and fundamental freedoms for persons with disabilities (ADD: inter alia by mainstreaming a gender perspective in all policies and program relating to persons with disabilities) without discrimination of any kind on the basis of disability. To this end, States Parties undertake:
3 In the development and implementation (ADD:, evaluation) of legislation and policies to implement this Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve, persons with disabilities
(ADD: “including children with disabilities.”) and their representative organizations.
Article 4
Comments:
1. We can basically accept the current draft article 4. The principle of progressive realization of economic, social and cultural rights has been accepted in the negotiations thus far. Also, the understanding that the elements such as civil and political rights, economic, social and cultural rights and non-discrimination are implied in many of the articles of the Convention has been accepted. In light of this, the Chairman’s text does not include the principle of progressive realization in the individual articles, and instead includes it in Article 4 (General Obligations), which applies to the whole Convention. The principle that progressive development does not apply to non-discrimination was also accepted, so this principle is included in Article 4 as well. Moreover, Article 4 has come to include the principle of non-derogation from existing rights, such as those included in Article 41 of the Convention on the Rights of the Child and Article 23 of the Convention on the Elimination of All Forms of Discrimination against Women.
2. However, there is one matter that is indispensable, and needs to be added to Article 4. What is missing is reference to local governments. This is because it is of particular importance to explicitly provide for the duty of local governments, as well as States (national governments). In addition, Article 4 should also include a clause on remedies. This is because there is an understanding and a reality that even in the sphere formerly categorized as social rights, there exist certain rights that are to be subject to judicial remedy. In this connection, it should be noted that the Preamble to the Chairman’s text recognizes the indivisibility and interdependence of human rights. Moreover, it must be noted that there has been a consensus in the Ad Hoc Committee that immediate realization applies to non-discrimination, even when concerning social rights.
MENTAL DISABILITY RIGHTS INTERNATIONAL (MDRI)
Article 4
Intervention
Thank you, Mr. Chairman.
MDRI listened to the debate on general obligations yesterday with great concern. We would like to respond on three major issues, which we hope delegates will consider intersessionally and, upon consultation with their capitals, return to in August.
First, we are highly concerned by the language in ¶1 which refers to State obligations with respect to “all human rights and fundamental freedoms.” All other comprehensive human rights treaties—the ICCPR, ICESCR, CRC, African Charter, American Convention, European Convention—refer to general obligations with respect to “the rights set forth in the present Convention.” There is a technical reason for this. A human rights treaty is a legally-binding instrument, under which States Parties undertake certain obligations with respect to the rights recognized therein. As a matter of treaty interpretation, they cannot be held accountable, under the treaty, for rights that are not recognized in the treaty. Therefore, it is largely meaningless—from a legal perspective—to refer to “all human rights and fundamental freedoms” when only some of those rights and freedoms are in fact recognized in the treaty. We, therefore, urge that Article 4 refer directly to the “rights set forth” or “recognized in the Convention.”
We also urge that the reference to “on the basis with disability” be removed at the end of ¶1 and that the obligation to “respect” be added to the central undertaking to “ensure” the full realization of rights. Both of these changes are for effectiveness and consistency with the CRC. In this regard, we recall that an important initial decision was taken at the earliest stages of the Ad Hoc Committee that this Convention was to be a comprehensive and integral treaty—one which addressed all the human rights of PWD comprehensively and integrally and was not narrowly limited to the elimination of discrimination, like CEDAW or CERD. Thus, a decision was made early on that the model for this treaty would be the CRC, and not the CEDAW or CERD. Distinguished delegates seemed to recall this in their discussion yesterday of the Convention’s Title—a “Comprehensive and Integral Convention”—but then forgot it when talking about general obligations.
Thus, everything in ¶1 of the Working text of Article 4 comes directly from Article 2 of CEDAW—a treaty narrowly focused on the elimination of discrimination against women—rather than the CRC, a comprehensive treaty that is the conceptual predecessor to this instrument. Thus, for consistency with other major HR treaties of a comprehensive nature, we urge that Article 4 incorporate the first sentence of CRC Article 2, followed by the first sentence of CRC Article 4. Thus, it would read: “SP shall respect and ensure the rights set forth in the present Convention to all PWD within their jurisdiction without discrimination of any kind. To this end, States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in this Convention” or perhaps more appropriately “to give effect to the rights recognized in this Convention.”
If this change were made, then subparagraphs a-e could be deleted, as these are clearly included within the legal understanding of the obligations to “respect and ensure . . . through the taking of appropriate measures.” Subparagraphs f) and g) can then be moved to Article 9 on Accessibility, as proposed by several delegations and the IDC. Removal of these subparagraphs from the general obligations clause is also consistent with other comprehensive human rights treaties—which balance concise and flexible general obligations (which then have room to grow with technological and social change) with specific obligations in the text of the substantive treaty provisions, as this draft Convention does. It also prevents the serious danger of underinclusiveness, from which Article 4.1 currently suffers, and avoids some of the legal difficulties that language such as “embodying rights in national constitutions” will present to many States, both as a practical matter and as a separation-of-powers issue. If subparas a-g are not removed, it is important that an “inter alia” be placed at the end of the chapeau to ¶1 to indicate clearly that they are not exhaustive.
Second, MDRI is struck by the hostility received in the room to a provision in Article 4 on the duty to provide an effective domestic remedy. MDRI, like the IDC and some state delegations, strongly supports inclusion of a subparagraph in line with Article 2.3 of the ICCPR—although it may usefully be streamlined to a short phrase. We note the two grounds of rejection expressed by delegates: First, that no other treaty includes such a provision in the general obligations clause and, second, that there is no consensus that effective remedies are required for ESCR. While the first may be true as a formal matter, with the exception of CEDAW art. 2.c., it has been read into the duty to “take all appropriate measures . . . to give effect” (domestic legal effect) to recognized rights, which is included in the general obligations clause of effectively every major human rights treaty. This interpretation is based on general principles of international law, such as Article 27 of the Vienna Convention on the Law of Treaties which requires modification of the domestic legal order to give effect to treaty obligations. It is also reflected in Article 8 of the UDHR. At the same time, the U.N. Committee on ESCR has made clear that effective legal remedies must be provided for violations of ESCR. Thus, it has stated in General Comment No. 9 that:
1. . . . The central obligation in relation to the Covenant is for States parties to give effect to the rights recognized therein . . . .“by all appropriate means”
2. . . . Thus the Covenant norms must be recognized in appropriate ways within the domestic legal order, appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place.
3. . . . a State party seeking to justify its failure to provide any domestic legal remedies for violations of economic, social and cultural rights would need to show either that such remedies are not “appropriate means” within the terms of article 2, paragraph 1, of the [ICESCR] or that, in view of the other means used, they are unnecessary. It will be difficult to show this and the Committee considers that, in many cases, the other means used could be rendered ineffective if they are not reinforced or complemented by judicial remedies.
In this sense, while judicial remedies need not always be provided—either under the ICCPR or ICESCR—(especially in the first instance) “effective remedies” do. That is what Article 4 should enshrine expressly, as underscored by Liechtenstein.
Third, MDRI was equally struck, in relation to ¶2, by statements made by delegates on perceived inherent differences between ESCR and CPR—distinguishing rights by the outdated and unuseful dichotomy of “immediate” verses “progressive” implementation. That distinction reflects and perpetuates an historic myth that only survives in the rarified atmosphere of abstract discussions divorced from real-world realities. In MDRI’s view, ¶2 has no place in this treaty and does not reflect evolving international human rights law on this subject—as reflected in the rapidly growing national and international jurisprudence in the area.
In the real world, “progressive realization” serves a particular function and, as a practical matter, applies to all rights. It is only textually referenced in the ICESCR—a treaty drafted almost fifty years ago—but it applies equally to the ICCPR, the CRC, CERD, CEDAW and the regional human rights instruments. This reality is reflected in the fact that all of these treaties have periodic reporting requirements. Indeed, the whole idea of periodic reporting—and the setting of indicators and benchmarks to move toward through progressive measures—is that rights cannot be fully ensured or implemented immediately over the totality of the population. There are too many resource and other constraints in the way. This is as true for non-discrimination, the right to vote, freedom from torture, liberty and association as it is for traditional ESCR, as High Commissioner on HR Louise Arbour reminded us on Friday in emphasizing that “ensuring respect for HR always has resource implications,” and hence always have a progressive element to them. For this reason, we require States to measure their progress. Judicial remedies, also, tend to incorporate a progressive element to them, such as the requirement that a plan of action be established to prevent torture, improve prison conditions, provide access ramps, etc, or that such action be taken within a “reasonable” time-frame or with “all deliberate speed.”
As such, it does not make sense to refer to “all available resources” or “progressive realization” with respect to only ESCR. Neither does it make sense to try to qualify this phrase either by removing “discrimination” from its ambit, as the Working text does, or, as the EU has proposed, excepting “immediately enforceable” aspects of ESCR. Those formulations misunderstand the dynamic interaction between the “immediate” and “progressive” dimensions of human rights obligations. Thus, for example, in clarifying the meaning of Article 2.1 of the ICESCR, the Committee on ESCR has underscored in its General Comment No. 3 that the obligation to “take steps….by all appropriate means” to give effect to rights—what it considers the “central obligation” under art. 2.1 of that Covenant—is an obligation of “immediate effect” and is not, in itself, “qualified or limited by other considerations.” That is, the obligation to take all appropriate measures is absolutely immediate. A State can never use progressive realization or resource constraints as a justification for not immediately taking “all appropriate measures” to respect and ensure human rights. However, the concept of “appropriateness” takes into account resource constraints on the part of the State and States can only be required to do what is reasonable, or appropriate under the circumstances. This same standard applies in the area of ESCR and CPR, as Louise Arbour underscored to this Committee on Friday.
Perhaps the best example of the immediacy of the obligation to take all “appropriate measures” is the concept of “reasonable accommodation.” The obligation to provide reasonable accommodation is an immediate obligation. However, emphatically, this is not because it is an aspect of non-discrimination nor because it might be characterized as a “CPR.” It is because resource constraints are taken into account in the very concept of “reasonableness.” States are only required to do what is “reasonable” under the circumstances. That is, they are only required to take “appropriate measures.”
Thus, in response to India’s concern about the duty to make all buildings accessible immediately, the obligation that is immediate is to “take all appropriate measures” to give effect to the right of equal access of all persons. That does not mean that all buildings must be immediately accessible. It means the obligation to take steps is immediate. An immediate plan of action needs to be put together, and then concerted efforts would need to be made to progressively fulfill that plan according to determined goals and benchmarks. That is the way all legal obligations and all human rights obligations work. Human rights, no matter how they are characterized, will not be interpreted to arrive at absurd results.
Thus, we come back to Costa Rica’s query: what is the value-added in referencing “progressive realization” in this treaty. Nothing. It serves no purpose, except to take us backwards. The standards in the treaty are clear: as referenced in every article, the obligation is to “take all appropriate measures to ensure” the rights recognized in this Convention. “Appropriate” is going to take contextual factors, the nature of the right and severity of the injury, levels of development, and resource constraints into account—whether the right is characterized as a traditional CPR or a traditional ESCR. The CRC protects ESCR and does not refer to progressive realization, CEDAW and CERD protect ESCR and do not refer to progressive realization. The African Charter and the European Convention protect ESCR and don’t refer to “progressive realization.” In overseeing these instruments, the European Court of HR, the African Commission on HR, and the U.N. treaty bodies all apply the exact same standards to them all—the obligation to take “all appropriate measures” under the circumstances.
Differentiating between rights makes no sense. It only leads to perverse results and absurd outcomes. Let us avoid it—as the vast majority of human rights treaties have done—and delete ¶2.
Thank you, Mr. Chair.
PEOPLE WITH DISABILITY AUSTRALIA (PWDA)
Report on National Consultations
Article 4
There was general support for this article. No amendments or revisions to the Chair’s Text are proposed.