Daily Summary related to Draft Article 4
GENERAL OBLIGATIONS
Prepared by Landmine Survivors Network

Volume 3, #1
January 5, 2004

Afternoon Session
Commenced: 3:08 PM
Adjourned: 6:08 PM

GENERAL OBLIGATIONS

Ireland asked for guidance on how to look at some of the draft proposals under the general obligations heading due to the differing structures of each draft, particularly the EU version, and suggested that proposals dealing with issues such as monitoring should be considered in a much later stage.

The Coordinator concurred with the Ireland’s point on overlap and differing structures of the proposals and asked for flexibility in approaching this area. He said that discussion of domestic monitoring fit in at this point but discussion of international monitoring should come at a later stage.

Disability Australia Limited suggested that the small drafting group compress the EU and Bangkok drafts so that the WG could proceed faster, as both offered interesting views on discrimination.

Mexico drew attention to Article 3 of Mexican draft for text on the general obligations of states and indicated that Article 18 should be in a separate part of the text entitled “International Cooperation in the Convention.” Mexico indicated that the Mexican (Article IV) and EU texts coincide with regard to positive action/ compensatory measures and asked it this article should go in this part of the draft or in another part.

Japan supported the structure of the convention as proposed by the Coordinator in the program of work. He listed two elements of the obligations of the states in the Convention: condemning discrimination against PWD, and agreeing to a policy to pursue the elimination of discrimination. He proposed that the WG draw language on discrimination from Article 2 of the CEDAW convention in this regard. Japan also called for the inclusion of an article that would discuss the guaranteed legal and administrative measures available to PWD if in fact their HR were infringed upon or violated.

Sweden suggested that the whole Convention is a statement of state obligations and intervened that it did not agree with Japan’s statement on condemnation as the Convention should “concentrate on actual action” and not address the issue in a negative way. It concurred with Ireland on the relevance of discussing monitoring at a national level and pointed out that the UN monitoring mechanisms are limited. It surmised that collection of statistics and data on PWD was not a right and expressed hesitancy on whether the inclusion of this element fit in the Convention, as history has shown the danger of “registering” race etc. in central databases.

The World Network of Users and Survivors of Psychiatry pointed out that the Chair and Bangkok drafts took a more legal obligations approach while the Mexican and Chinese drafts included more programmatic elements for governments to adopt to promote the rights of PWD, such as census taking. It also emphasized the importance of a strong obligation, reinforcing, respecting, recognizing legal equality, and full participation of PWD in international monitoring and national disability decisions, like Venezuela pointed out in their document. She said that the Bangkok and Chair drafts had good national implementation discussion, particularly with regard to participation of PWD. She asked for the Coordinator to point out where the elimination of stereotyping in the EU Draft is located in the compilation text.

The Coordinator said that the EU relevant provisions were found on page 61 and said that it was inevitable to have these difficulties when working with more than one text. He also indicated that he was informed prior to the meeting that it was unlikely that there would be agreement on one text.

Colombia agreed on the importance of states to have legal, judicial, and administrative obligations and the need to include principles of equality and non- discrimination in national law and courts. It said states should be obligated to ensure autonomy and independence, and full participation and integration in social, political, economic life for PWD, and should promote the role of organizations of PWD in evaluating the establishment of programs and policies. It concurred with previous statements on the need to gather data on disability in the census, especially with regard to heath and education.

Morocco said that the majority of the proposals could be integrated into one text.

Serbia and Montenegro said it was encouraged by some common denominators in the proposals on non-discrimination and called for the inclusion of the concept of concrete actions to deal with the issue by states, such as a provision for legal remedies for those who are discriminated against.

China called for a paragraph on the general obligation of states and said that three major groups of elements on this are reflected in existing proposals: Obligation of legislation; obligation to take specific actions and administrative measures, and obligation to undertake judicial measures. The delegate pointed out that these obligations could be found in Article 3 of the Chinese text and should be put into the draft text.

Rehabilitation International highlighted the six common denominators in the text: 1-3 being juridical; 4 and 5 being policy-oriented; and 6 being the educational responsibility of states. He called for the mainstreaming of disability in policy decisions, and the inclusion of PWD in its conception, implementation, design, and review. He indicated the obligation of states to nurture public opinion on disability, including with regard to stereotypes.

The Republic of Korea indicated that the compilation of disability data could help in improving quality of life, but could conflict with the privacy of PWD. it surmised that the collection may be useful a few decades from now and there should be a right to amend this element later with regard to refusal of collection of data by PWD.

Lebanon concurred with Ireland’s statements and pointed out the obligation of states to prepare their budgets to allow for disability policy.

Ireland highlighted the wide agreement among members on many elements to be included under general obligations of states. He called for Article 5A of the EU proposal (page 61 of the compilation) to be reflected in final draft. It asked for attention to the Bangkok draft’s Article 5, on remedies for violations.

Canada expressed contentment with the content of the Chair and Bangkok drafts because it set out means to implement obligations. It suggested a provision of special measures, such as in Article 4 of the EU draft and highlighted the need to include the progressive realization of rights, as recognized in the Covenant on Economic, Social, and Cultural Rights (Article 2).

The World Federation of the Deaf highlighted the need for both general obligations and specific measures regarding state obligations. It affirmed the EU Draft Article 4 because 80% of PWD live in developing countries and we need to see their needs are met and formulate a way so that the governments can undertake responsibility in this regard.

Inclusion International wanted a statement that the government will allow a PWD to live a full life and pointed out that there is a need to allow for everyone to understand the text so they can exercise this right, which is an important part for PWD. it called for a HR infrastructure to allow the intellectually disabled to exercise this.

Disability Australia repeated Canada’s view and highlighted the sixth element that India stated (progressive realization of economic, social, cultural rights) which is outlined in Article 4 of Bangkok draft.

LSN emphasised the participation of PWD as both an important principle and objective in the Convention. The delegate noted that participation should not end when states move to implement provisions at the national level. LSN supported paragraph 28 of the New Zealand draft as it explicitly recognizes those general obligations provisions calling for the participation PWD in the process of developing the legislative, administrative and other measures needed to implement the Convention at the national level.

India highlighted the legislative obligations of affirmative action of states with regard to employment, social security, and education and called for a legal remedy provision that would provide for compensation in case of violations. It highlighted the specific rights of those with severe and/or multiple disabilities in this regard.

DPI said it would like to see removal of barriers and stumbling blocks for full participation in society. It highlighted the New Zealand document with regard to participation of PWD in administrative and legislative processes, and national decisions. It called for states to be responsive to the needs and experiences of PWD.

The South Africa Human Rights Commission called for the inclusion of human dignity, and equal opportunity principles and said that monitoring is an obligation of state, and should therefore be in that section. It concurred with Sweden on replacing the word condemn with “eliminate”, which is a more positive word. It emphasized the obligation of states to a barrier free society. It asked for clarification on public authorities provision in 2c of the Chair Draft text.

Germany reiterated the obligation of states in legislative, judicial, policy, and legal measures. It called for states to take measures to combat discrimination by working with the media. It concurred with Canada that it should not limit other conventions. It said that progressive realization of rights should apply to economic, social, and cultural rights, and not civil or political rights.

The Coordinator said that the issue of application to public authorities vs. the private sector is a drafting issue in the Chair text and needs to be looked at.

Sweden called for a distinction between public authority/ state actions and what can be required by the private sector or individual. It highlighted the issue of whether there should be reference to progressive implementation of economic, social, and cultural rights and endorsed the EU Draft in this regard because it made clear that the basis is existing conventions. It should, in this regard, endorse principles in the Covenant on Economic, Social, and Cultural Rights and not undermine other rights.

Ireland expressed concerns about inclusion of the title “General Obligations of State Parties” because that in effect covers the whole Convention.

Venezuela called for state obligations in data collection because of the importance of knowing the condition of PWD with regard to work, health, recreation, legal time, but cautioned against any violation of privacy.

The World Network of Users and Survivors of Psychiatry referred to general principles outlined in the Covenant on Economic, Social, and Cultural Rights in relation to the prohibition on discrimination. It argued for PWD participation and the mainstreaming of this perspective in all areas of national policy, including with regard to poverty, because of the high incidence of poverty among PWD. It highlighted the obligations of states with regard to non-discrimination and policy making on a national level, not just with regard to international human rights.

Japan discussed the need to address violations of non-discrimination in the private sector (i.e. Access to a private apartment for PWD) and agreed with Sweden’s previous statement. It referred the members to Article 4 paragraph 2d of Chair text. Similar mention is made in EU text.

Disability Australia Limited recognized that a lot of discrimination already addressed has not been by state authorities and referred to issues of accessibility and transportation in the EU Draft. It referenced how CEDAW too, has addressed violence against women in the home by individuals and surmised that the elimination of discrimination by private entities has already been addressed regionally and in programmatic measures. It called for building on existing standards and not undermining them and the inclusion of clearly stated provisions that appropriately address private entities.

The Coordinator clarified that there was no assertion being made that private discrimination should not be addressed in this convention.

Rehabilitation International made three observations. As per Article 12 of the European Convention, it is not unheard of for a human rights treaty to detach the issue of non-discrimination. Also, the state has the responsibility to delegate to the private sector with regard to this issue. It also expressed concern that the WG not cross contaminate civil and political rights with economic and social rights and highlighted the need to take positive note of progressive achievement.

The European Disability Forum (EDF) said that a basic obligation of the state is the right of partnership in formulating processes and policy with PWD. In this regard, there needs to be strong involvement of organizations of PWD in the implementation of the Convention. The state has a fundamental obligation to fully support those organizations in doing this work. The EDF said that both the private and public sector should be covered with regard to non-discrimination and that the state has an obligation to ensure the non-violation of rights.

Slovenia supported the Coordinator’s statement on non-discrimination and surmised that Article 6 of CERD might be helpful in this regard. It indicated support for the principle of partnership as an obligation for states with regard organizations of PWD and indicated support for the EU paper on the issue of combating prejudice, promoting awareness, and progressive and positive action.

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