 |
 |
|
|
|
|
|
Back to: Third Session | Draft Preamble Comments on the draft text Download complete compilation of comments: MS Word
National Human Rights Institutions Ontario Human Rights Commission paragraph (h) This has been the experience of the Ontario Human Rights Commission. Despite the ground of disability being introduced into Ontario’s Human Rights Code more than 20 years ago, today disability continues to be the highest single ground cited in complaints to the Commission, averaging above 50% over the last few years. A 2001 national survey of persons with disabilities in Canada continues to indicate that persons with disabilities do not enjoy full and equal participation in society, particularly with respect to economic and social rights, including lower rates of higher education, total income, and labour force participation. 1 paragraph (m) There is legal jurisprudence in Canada that supports the notion that individuals can face multiple or “intersecting” forms of discrimination. In its majority decision in Law v. Canada,2 the Supreme Court of Canada recognized that a discrimination claim can present an intersection of grounds that are a synthesis of those listed in s. 15(1) of the Canadian Charter of Rights and Freedoms or are analogous to them. The Commission has dealt with a number of cases where the ground of disability intersects with other enumerated grounds of discrimination as well as other factors such as language. The Commission has published a discussion paper on the broader topic: An intersectional Approach to Discrimination Addressing Multiple Grounds in Human Rights Claims. paragraph (r) It is the Commission’s own experience that laws and policies that specifically address the human rights of persons with disabilities can make a significant impact. The Commission’s first version of its Policy and Guidelines on Disability and the Duty to Accommodate was released in 1989 and was substantially revised and re-released in 2001. It has been the Commission’s most sought after publication. The Disability Policy provides a comprehensive interpretation and understanding of the rights of persons with disabilities set out under Ontario’s Human Rights Code. It has helped give focus to the work of the Commission as well as assisting other organizations and individuals involved in promoting and protecting disability rights. The Disability Policy has been referenced in case law3 and has been the catalyst of other activities and reports of the Commission including its public consultations on accessible education for students with disabilities, the rights of older persons, access to public transit, shortcomings of the Building Code, and barriers in the restaurant and hospitality industry. A reference to international cooperation should be added, in line with what is mentioned in the previous section. The preamble should include a paragraph which reminds that this Convention covers girls and boys with disabilities, young women and men with disabilities, adult women and men with disabilities, as well as older women and men with disabilities. Paragraph p) should also include terrorism and natural disasters. Paragraph m) should be reworded to make clear that the groups referred in this paragraph have additional problems to other disabled people and therefore require even more attention. The listing should also include disabled people from indigenous minorities, as well as those living in rural and remote areas. Indian NGO Consultative Meeting The participants are of the view that points a) to r), preceding Article 1 of the Draft text by the Working Group (WG), should be organised under the Title ‘Preamble’. Modifications recommended to points- g), k), n) and p) of the Preamble. With reference to point g), the diversity of persons with disabilities needs to be qualified by the types, nature, degree, socio-economic status, gender and other factors. The modified point- g) should read “Recognising the diversity of persons with disabilities on grounds of the types, nature, degree, socio-economic status, gender and other factors. In point k), additional text suggested after “freedom to make their own choice” as- “which should include freedom of assisted / informed choice for those who encounter difficulties in expressing free choice”. Therefore the modified text of point k) should read as “Recognising the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices, which should include freedom of assisted / informed choice for those who encounter difficulties in expressing free choice.” In point n), the group suggested to replace the expression- “persons with disabilities” with “men, women, boys and girls with disabilities” as expressed in UN Standard Rules. The modified text for point n) should read as “Emphasising the need to incorporate a gender perspective in all efforts to promote the full enjoyment of human rights and fundamental freedoms by men, women, boys and girls with disabilities”, The scope of Point-p) of Preamble is suggested to be widened by incorporating “consequences arising due to acts of terrorism and natural disasters” apart from armed and civil conflicts. Therefore the Modified text for point –p) should read as “Concerned that situations of armed conflict, acts of terrorism and natural disasters have especially devastating consequences for the human rights of persons with disabilities”. An additional clause should also incorporate the reference to the Vienna Declaration, Declaration On Right to Development and World Programme of Action. A special mention is recommended for the work done by Special Rapporteur in the UN Standard rules on equalisation of opportunities for persons with Disabilities 1993 would be valuable in the Preamble. The Preamble could include a statement expressing diversity in economic development to justify progressive realisation of certain rights whereas no compromise is recommended in the immediate realisation of civil and political rights. The preamble is intended in part to explain the relationship between the Convention and prior developments in international law. This Convention focuses on the achievement of full and equal human rights of people with disabilities. In order to more comprehensively describe the fundamental shift in attitudes that are necessary for this Convention to be effective, the Preamble should contain language expressing the shift in the perception of disability from one focusing on the individual impairment, to one focusing on the barriers associated with any form of impairment, which result in deprivation of human rights of people with disabilities. For a thorough example of the exploration of such concepts, the Ad Hoc Committee should reference New Zealand’s description of “disablement”. (Cf. New Zealand’s view on the Convention on the Rights of Disabled People) Even though the preamble of a treaty is not an operative part of the
treaty, the preamble provides a useful historical context and the rationale
for introducing a new instrument into the body of international law. The
Draft Preamble contains, in many instances, resolution-like language,
with words such as “concerned”, and the Ad Hoc Committee may wish to consider
the appropriateness of such language. Draft Preamble (d) is consistent with principal human rights conventions in force. In addition, similar language can be found in the preamble to the Vienna Declaration (1993) and in the preamble to the UN Standard Rules. Footnote 2 mentions the discussion during the Working Group meeting regarding the inclusion of the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families in the reference to relevant human rights documents. Taking into consideration that this is one of the core human rights treaties and has entered into force, it is unclear why this specific treaty would not be mentioned. Paragraph (e) references the UN Standard Rules. Given that the Standard Rules summarize the message of the UN World Programme of Action, the Ad Hoc Committee may find it appropriate to include reference to the UN World Programme of Action as well. Draft Preamble paragraph (f) refers to the principle of non-discrimination. The Committee may find it appropriate to discuss the need for this paragraph. Paragraphs (c) and (d) refer to discrimination, thus this separate paragraph would seem redundant, especially given the fact that this is a comprehensive, not only an anti-discrimination Convention. The operative word in the paragraph (h), “concerned” is an example of the resolution-like language that is present throughout the Draft Preamble. The European Union’s proposal for the Convention contains similar language: “Concerned that despite these various instruments and undertakings persons with disabilities continue to face barriers to the effective enjoyment of human rights and fundamental freedoms”. It would be helpful for the Committee to consider changing this word to “recognizing” for the sake of consistency with other human rights Conventions. Paragraph (i) is especially important, because it affirms the principle of international cooperation. Footnote 4 considers alternative language, which places an emphasis on developing countries in the context of international cooperation. Even though this language stems from the Convention on the Rights of the Child, it is important to realize the comprehensive nature of international cooperation necessary for the effective implementation of the Convention (ie. not only north to south based cooperation). Thus, reference to global cooperation is sufficient for the purposes of this Convention. (Cf. Vienna Declaration Paragraph 20 and 25) Paragraph (j) emphasizes the ongoing efforts of people with disabilities and their organizations, as well as linking the promotion of human rights of people with disabilities with other objectives, notably development. The Vienna Declaration contains reference to language of human rights and development. The reference is to past and potential future contributions of persons with disabilities and their organizations to the cause. However, because of language implying future efforts, the paragraph should read “of persons with disabilities,” not “made by.” One of the functions of the preamble is to preliminarily identify principles and objectives of the Convention. The language in the paragraph (k) fulfills that function by referring to the “individual autonomy” and “independence” of people with disabilities. The Committee may also wish to consider including language of self-determination/autonomy expressed in the Vienna Declaration. Paragraph (l) contains language referring to the importance of participation of people with disabilities in decision-making processes. It is noteworthy that this is a weaker formulation than that used in the Vienna Declaration, which uses the word “essential.” Footnote 5, which cites to Footnotes 101, 102, and 103, expresses the debate in the Working Group regarding the importance and feasibility of including this language, as some members were concerned with the difficulties of defining terms included. However, this language is important as it recognizes the existence of aggravated discrimination facing these disadvantaged groups in society. Again, the Committee may wish to reconsider usage of the word “concerned,” as it is more resolution, rather than Convention language. The Draft paragraph (n) invokes a gender perspective. This is a very important reference to women and is consistent with the resolutions of the Committee on Human Rights. In addition to gender, the Committee may also consider including reference to ethnic and racial minorities. Draft paragraph (o) refers to poverty. This is also very important language, though it may be adequately covered in paragraph (j), as it appears repetitive. Draft paragraph (q) reflects the major target areas for equal participation set forth in the UN Standard Rules, Rules 5-12. The Committee may consider using a stronger phrase than “important,” because the concept of accessibility is one of the fundamental principles of the paradigmatic shift in the perception of disability in society. Draft paragraph (r) fulfills one of the functions of the preamble, which is to reaffirm the need for the Convention, and in this case, it emphasizes the comprehensive nature of the Convention. (Cf. Convention on the Rights of the Child; Convention on the Protection of the Rights of Migrant Workers and Members of Their Families). Physical Disability Council of Australia Ltd PDCA is pleased to note that the preamble does make reference to diversity
in g) and also specifically to race, colour, language, religion, national
or social origin .m) The first paragraph in the preamble could be: Include in the Preamble that PWD's are men and women, boys and girls, young persons, grown ups, and elderly people. International cooperation could be mentioned in the Preamble as it appears
in the CRC (Convention on the Right of the Child). Footnotes Footnote 1: Disability in Canada: A 2001 Profile. Office for Disability Issues, Human Resources Development Canada (December 2003), an analysis of data from the 2001 Participation and Activity Limitation Survey (PALS), Statistics Canada. Source: www.sdc.gc.ca. Footnote 2: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 Footnote 3: Quesnel v. London Educational Health Centre (1995), 28 C.H.R.R.
D/474 (Ont. Bd. Inq.). Also see Entrop v. Imperial Oil (2000), 50 O.R.
3d 18 (C.A.). |