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Update on the UN Convention on the Rights
of People with Disabilities National
Council on Disability
1331 F Street, NW, Suite 850
Washington, DC 20004
202-272-2004 Voice
202-272-2074 TTY
202-272-2022 Fax
Lex Frieden, Chairperson
July 1, 2004
Introduction
Over the past few years, the National Council
on Disability (NCD) has released several documents and reports related
to the development of a UN Convention on the rights of people with
disabilities. This briefing paper describes recent developments
regarding the drafting of the convention document, and includes
a discussion of the 3rd Session of the Ad Hoc Committee by a panel
of consumers and experts.
Recent Developments
In June 2003, the Ad Hoc Committee established a Working Group composed
of representatives from 27 governments, 12 non-governmental organizations
(NGOs) and one national human rights institution to prepare and
present a draft treaty text that would be the basis for negotiations
of a comprehensive and Integral International Convention on the
Protection and Promotion of the Rights and Dignity of Persons with
Disabilities. For additional information on the establishment of
the Working Group, please see the NCD website for the document,
UN Disability Convention – Topics at a Glance: History of
the Process (http://www.ncd.gov/newsroom/publications/2003/history_process.htm).
The Working Group convened January 5 - 16, 2004 to
prepare the draft text drawing from a wide variety of governmental
and civil society contributions. During this drafting process the
Working Group focused on the draft text of the Chairman of the Ad
Hoc Committee (Luis Gallegos, Ecuador), the Bangkok draft text,
and the Mexican draft text.
The text prepared did not represent the views of any
specific delegation to the Working Group, but instead represented
the work of the Group as a whole. It should also be noted that the
method of work was unusual for a General Assembly body, in that
NGO members enjoyed the same rights of participation as representatives
of Member States. The draft included 25 proposed articles on topics
concerning the promotion of positive attitudes to persons with disabilities;
statistics and data collection; equality and non-discrimination;
right to life; equal recognition before the law; liberty and security;
freedom from cruel, inhuman or degrading treatment; freedom from
violence and abuse; freedom of expression; respect for privacy;
independent living; children with disabilities; education; participation
in political and public life; accessibility; personal mobility;
right to health and rehabilitation; right to work; social security;
and participation in cultural life. The 25th article addressed monitoring,
but did not include draft text relating to monitoring at the international
level, and included only minimal text relevant to the creation of
a national monitoring framework.
The draft prepared by the Working Group was used at
the Third Ad Hoc Committee Meeting, which took place May 24 to June
4, 2004. A first reading of the proposed draft text during the meeting
addressed Articles 1-24, international cooperation, and the preamble.
In addition, discussions included a new article on women with disabilities,
proposed during the meeting by the Republic of Korea. Consideration
of the title, structure, sections of the preamble, definitions and
monitoring were deferred until the 4th session of the Ad Hoc Meeting
scheduled to take place from August 23 to September 4, 2004. Although
there was agreement that the implementation of the convention would
be a national responsibility, discussions also addressed additional
implementation mechanisms such as international cooperation.
The discussions of the Ad Hoc Committee during the
Third Meeting were held in open plenary, which facilitated the participation
of accredited NGOs. Towards the end of the meeting the Committee
considered the utility of proceeding on the last day with a second
reading of the draft text and proposed amendments in “informals.”
These “informals” would be facilitated by different
Member States, and would be “open” to enable the participation
of NGOs. Despite strong support from a number of delegations, Member
States could not reach agreement on whether NGOs should be permitted
to participate in such meetings, and the final day was instead completed
in formal plenary.
Panel Discussion
NCD invited a panel of consumers and experts to participate in a
discussion regarding the Third Ad Hoc Committee Meeting. The moderator
for the discussion was Kathleen Martinez, NCD Board Member and NCD
liaison to its International Watch Advisory Committee, who posed
four questions to each panel member. Panel members included Sheikha
Hissa, the Special Rapporteur on Disability at the United Nations;
Charlotte McClain, South African Human Rights Commission; Celia
Brown, National Association for Rights Protection and Advocacy;
and Janet Lord, Landmine Survivors Network. The panelists’
responses are provided below in their entirety.
Kathleen Martinez: What were some of the main points of
discussion in the Third Ad Hoc Committee Meeting?
Sheikha Hissa
The purpose of the Third Ad Hoc Committee Meeting, which took place
in New York from 23 May to 4 June, 2004, was to discuss the draft
of the Integral International Convention on the Protection and Promotion
of the Rights and Dignity of Persons with Disabilities.
In that respect, therefore, all the Articles of the
Convention were discussed to a greater or larger extent. Some took
far more time than anticipated, some were more contentious, and
others went quite smoothly with almost unanimous agreement on all
changes.
Whatever the case, the discussions were always rich
and reflected the international community's commitment to the rights
of people with disabilities and the serious efforts being made by
all to come up with the best possible document.
All articles of the Convention were discussed at the
Third Ad Hoc Meeting. However, it was agreed to defer the following
articles to the Fourth Ad Hoc meeting, which will take place in
August 2004: Article 1, Purpose; Article 2, General Principles;
Article 3, Definitions; Article 4, General Obligations; and Article
25, Monitoring. Additionally, the need for an article to cover International
Cooperation had almost unanimous support.
The major issues that generated a great deal of discussion
and differing views were the following:
- The inclusion of a specific article dealing with
women. It was generally the view of NGOs and most delegations
of developing countries that an article on women is needed in
the Convention in the same way that there is an article on children.
The reason for that being that both groups require special attention,
have special needs and need to be responded to in a specific way.
It has also been documented, especially in developing countries
and in more conservative societies and communities where women,
who suffer discrimination, women with disabilities end up suffering
double the discrimination, as well as exclusion and at times ostracism
by their community. To date there has been no agreement on adding
an article dealing specifically with women.
- Article 9 on equality before the law also generated
energetic discussion particularly the segment dealing with the
right of people with disability to manage and take full responsibility
of their financial affairs and legal affairs.
- Article 6 on data collection and statistics brought
out the point, particularly from developing countries, of the
need to ensure that data and statistics on people with disabilities
are not misused. The purpose of data collection and statistics
is to help decision/policy makers make informed decisions and
set appropriate policies for the benefit of people with disabilities.
- Article 21 on the right to health and rehabilitation.
It was agreed almost unanimously that this Article should be split
into two; one dealing with Rehabilitation & Habilitation and
the other with Health Care, with the clear understanding that
rehabilitation is not strictly a medical issue. The trend towards
rethinking rehabilitation as addressing all the needs of people
with disabilities, as well as their families and communities should
be clearly reflected in the Convention.
- Article 19 on accessibility reflected the wide
gap between developing and industrialized countries about the
understanding of accessibility. For many developing countries,
accessibility means changing the physical environment and has
not yet extended to all aspects of life.
Charlotte McClain
Some of the main points were establishing separate articles on vulnerable
groups within the disability sector. These include but are not limited
to children and women. In terms of the substantive articles there
was a lot of discussion on Article 23, Social security and adequate
standard of living. Education was also a main point. Another point
was the discussion on international cooperation. The issues of mobility,
accessibility and universal design all received a considerable amount
of time.
Celia Brown
The main points of discussion are on individual self-determination
and autonomy. Some
member states have different opinions when it comes to forced intervention
and
forced institutionalization. The disability community has strongly
stated that people
with disabilities have the right to make their own decisions and
there should be
a prohibition of forced interventions to correct or improve a perceived
impairment.
Janet Lord
The 3d session of the Ad Hoc Committee marked the first time that
a convention text was put before the Ad Hoc Committee for a “first
reading.” The vast majority of the session was spent reviewing,
article-by-article, a draft convention text consisting of a preamble
and 25 articles drafted by the Working Group of the Ad Hoc Committee
in January 2004. States as well as NGOs were afforded the opportunity
to submit proposed modifications to the Working Group text on nearly
every article, with the exception of the articles on definitions
and monitoring which were deferred for future discussions.
Just a few highlights from this highly technical
and detailed deliberation include:
- Debates around the degree of specificity to be
provided by the articles in the convention (some States favor
specificity of the type provided in the UN Standard Rules, others
favor more generalized obligations and assert that greater specificity
will jeopardize universal ratification).
- Whether and how to split the article on
health and rehabilitation into two separate articles. The notion
of splitting the article received support by many governments
as well as NGOs.
How to address specific groups of people with disabilities
within the convention: Should there be a separate article on children
with disabilities (the Working Group did include a separate article)?
Should there be a separate article on women with disabilities (as
proposed by South Korea)? Should there be a separate article addressing
groups at risk, such as people with disabilities in armed conflict
or other emergency situations? Are some of these issues better addressed
in an integrated manner throughout the convention?
Kathleen Martinez: What has been the role of disability oriented
non-governmental organizations (NGOs) in the drafting process?
To what extent are NGOs being utilized or excluded in drafting
the convention?
Sheikha Hissa
NGOs played a great and important role which did not start with
the Ad Hoc Committee discussions but from the very inception of
the idea of a Convention. They were active contributors to the work
of the Working Group and their influence was clear and felt in all
the discussions. They were extremely visible and vocal throughout
the process and enriched the document considerably. Many government
delegations turned to their national or to the international NGOs
for advice and interventions were sometimes drafted by NGO and government
representatives together.
Charlotte McClain
The NGOs have been very instrumental in providing expert and experimental
information on the needs and contextualizing the lives of people
with disabilities. In the 3rd session at least 12 NGOs contributed
from the floor. They have also been very successful in ensuring
that cross disability issues are considered in the development of
the Convention. Many of the NGOs are supporting government delegations.
However, on the last day of the ad hoc meeting there was an intervention
from the representative of the Africa group to review the participation
of NGOs in the forthcoming session of the Committee; in my view
this exclusion would be unfortunate.
In addition to the participation of NGOs it is also
important to point out that National Human Rights Institutions have
for the first time in the history of developing conventions been
accorded recognition as national human rights institutions and contributed
to the process of developing the Convention.
Celia Brown
The disability oriented non-governmental organizations had a role
in being a part of
a working group made up of disability non-governmental organizations
and member states drafting the convention. Their working group came
together to draft a text of the
convention in January 2004. The Chairman of the Ad Hoc Committee
requested the
participation of the disability non-governmental organizations and
select member states
to work together on a draft text of the convention for the Third
Ad Hoc Committee meeting.
Janet Lord
NGOs generally, and organizations concerned with the human rights
of people with disabilities specifically, have played very active
roles in the Ad Hoc Committee process to date. The majority of NGOs
actively participating in the process are either disabled peoples’
organizations or organizations with strong disability rights programming.
At the outset of the process, NGOs lobbied hard to secure access
to the process. Decisions taken by the Ad Hoc Committee during its
first year of operation relating to NGO participation were generally
favorable, though subject to the broad discretion of the Chair of
the Ad Hoc Committee. In practice, the Chair (Ambassador Gallegos
from Ecuador) has given great latitude to NGOs in facilitating their
participation (e.g., he has been very generous in not imposing strict
time limits on NGO oral interventions, always ensures that NGOs
have the chance to speak in plenary on every issue, has been very
open in meeting regularly with NGOs).
Subsequent meetings of the Ad Hoc Committee and its
Working Group have continued to build on NGO participation in the
process. NGOs continue, in increasing numbers, to serve as delegates
on Member State delegations to the Ad Hoc Committee, thereby achieving
the highest level of access, including participation in closed or
informal sessions where non-delegation NGO representatives are excluded.
In addition, those NGOs who are not represented on government delegations
continue to wield influence in various ways, giving oral interventions
on the floor of the Ad Hoc Committee, organizing briefings on various
issues for governmental and other participants, issuing written
statements and position papers, and “working the corridors”
to influence government positions. The high watermark of NGO participation
in the process thus far was the representation of 12 NGOs on the
Working Group (along with 27 governments and 1 national human rights
institution) during the January 2004 session. No differentiation
was made at all between governments and NGOs during the course of
the Working Group. Some countries, however, continue to press for
a reversion to more closed, informal sessions where NGOs would not
be allowed to participate, even as observers without the right to
speak. While a number of states favor continued participation at
high levels (Mexico, EU, Canada, New Zealand), the opposition among
a few (some African countries, some Asian countries) can serve to
block consensus and therefore may still result in a roll back of
NGO participation. For that reason, NGOs are closely monitoring
the situation and preparing lobbying strategies.
Kathleen Martinez: What are your views regarding
the involvement of the U.S. in the treaty drafting process?
Sheikha Hissa
The type of involvement seems the same as the US's involvement in
all other rights treaties of this kind, very reserved. In fact the
US delegation was more vocal at the 2nd Ad Hoc meeting, however,
in the last one I did not feel the presence of a US delegation in
any meaningful way.
Charlotte McClain
The U.S. delegation in the first and second session raised some
objections around the development of the Convention. Since then
the U.S has not participated actively in either the working group
or the last 3rd ad hoc session. I think this is a concern because
I do believe that there are lessons learned from domestic legislation
that we could learn from. There are also some best practices that
reside in the U.S. that could have been instrumental. Some of these
would include mainstreaming people with disabilities, accessibility
and providing the relevant services. Fortunately, there has been
a strong U.S. NGO lobby and they have shared some very useful information
with delegates.
Celia Brown
The US has already announced that they will not be a party to the
treaty. However, the
US delegation held an outreach session to discuss the treaty at
the Third Ad Hoc
Committee.
Janet Lord
The United States has taken what can only be described as an altogether
extraordinary position in relation to its participation in the Ad
Hoc Committee process, namely, a stance which American officials
at the Ad Hoc Committee have repeatedly characterized as one of
“neutrality.” Contrary to its typical role with respect
to multilateral treaty negotiations - one of active engagement regardless
of support for or opposition to the process in question - the United
States has indicated that it has no plans to sign or indeed ratify
any resulting convention. At the same time, it will not oppose the
convention and believes that it may indeed be useful for other countries
without a comprehensive disability legislative framework such as
that provided under US laws. Accordingly, the US has indicated that
it would like to provide technical assistance to the process in
terms of sharing from the US experience. This is the role played
by US officials in the Working Group which was, by and large, constructive.
Given the stance of the United States in opposing some of the major
treaties of the last ten years, the position taken in relation to
this particular convention must be seen as something of a success
in that the US will not play the role of the spoiler as the rest
of the world attempts to construct a useful piece of international
law for the rest of the community of states. What remains very disappointing,
however, is the complete absence of members of the American disability
community on the US delegation. Even given the position of neutrality,
there is no rational basis for this continued exclusion. It is indeed
an embarrassment to the American people and an affront to the American
disability community.
Kathleen Martinez: What do you think will be the major points
of discussion at the Fourth Ad Hoc Committee meeting in August?
Sheikha Hissa
Naturally the issues deferred from the last Ad Hoc Meeting will
be the major points of discussion at the next Ad Hoc meeting. In
particular, I believe that Article 25, Monitoring, will be one of
the most extensively discussed. The issue in front of us is whether
there should be a new monitoring mechanism, person, or committee
created for this Convention or whether existing mechanisms and bodies
can be used to monitor implementation. The other issue is whether
implementation will be at the international level or whether it
will be left to countries to monitor nationally the implementation
of the Convention. In the end, I believe the decision will be up
to the United Nations as they will be ultimately responsible both
administratively and financially for the monitoring.
Another issue that will be further discussed is that
of International Cooperation. A clear understanding should be reflected
in the Convention that International Cooperation is not only about
aid and financial support—which are important—but about
the exchange of information, expertise, ideas and experiences as
well, and that the flow is not always North-South, but South-North
as well and South-South. There are many innovative and inventive
experiences and success stories achieved with little resources by
countries of the South that are worth transmitting to the rest of
the world.
Charlotte McClain
I think the issue of monitoring both at a national and international
level will be discussed. There are various initiatives taking place
between sessions to develop some thinking on monitoring. The issue
of a definition of disability has yet to be discussed. The next
meeting will also have to apply its mind to the role of NGOs given
the concerns raised in the 3rd session-namely will they be able
to participate in the informals. The title, the preamble and structure
are outstanding issues and probably will be discussed at the next
session.
Celia Brown
I think the major points will be self-determination and autonomy,
legal safeguards with
some member states supporting forced medical intervention and forced
institutionalization with appropriate legal procedures. Also I think
there will be discussion on Advance Directives, a way of supported
decision making for people with disabilities
Janet Lord
While the agenda for the fourth Ad Hoc Committee meeting is not
yet out in its specific detail, the report generated by the Ad Hoc
Committee at the third session outlined the following topics that
would be the subject of discussion at the next session: (i) Convention
title; (ii) Convention structure; (iii) parts of the Preamble requiring
further discussion; (iv) definitions (Article 3 of the Working Group
text); and (v) Monitoring. It is also likely that a further review
or “second reading” of the articles discussed at the
third Ad Hoc Committee meeting will take place.
Of these, the structure of the convention and monitoring
are likely to be central to the discussions at the next session.
The structure of the convention is still at issue given the position
taken by the European Union. The proposals put forward by the European
Union at the third session of the Ad Hoc Committee require, in part,
some structural changes to the Working Group text. Among these,
several provisions were proposed to be moved up front in the treaty
structure (participation and accessibility) to reflect their overall
implications. Other changes put forward by the EU (most notably
changes in relation to Article 4 on general obligations) signify
a shift in approach to that taken in the draft Working Group text.
The EU position is reflective of a narrower, non-discrimination
approach to the convention that resembles treaties negotiated earlier
in time, namely, the Convention on the Elimination of All Forms
of Discrimination against Women and the Convention on the Elimination
of All Forms of Racial Discrimination. The vast majority of States
spoke out against changes that would fundamentally alter the structure
and content of the convention, in effect favoring a comprehensive
convention along the lines of the Convention on the Rights of the
Child. It remains to be seen how the Ad Hoc Committee will be able
to resolve the divide between the EU and those States favoring a
broader, more comprehensive convention.
Monitoring is the other topic of central importance
and likely to generate considerable debate among States. One dimension
of the discussion will revolve around Working Group draft Article
25 which is the only provision on monitoring, but relates only to
monitoring at the national level. The other, much more contentious
side of the discussions, concerns international monitoring. Some
States favor the establishment of a fairly standard treaty monitoring
body to oversee the international monitoring of the convention.
Other States have indicated their reluctance to see the creation
of another treaty body, especially given discussions currently underway
in the UN human rights system concerning the need to streamline
and make more efficient the existing treaty monitoring body system.
The process to develop a convention on the rights of people with
disabilities is caught in the cross-fire of this on-going debate.
The outcome of an expert meeting convened by the Office of the High
Commissioner for Human Rights in Geneva in July will review options
for the establishment of a monitoring mechanism and will no doubt
figure prominently in discussions at the Ad Hoc Committee in August.
Future developments
The Fourth Ad Hoc Committee meeting, which will convene from August
23 to September 4, 2004 will consider the proposed revisions and
amendments to the draft text. A draft of the proposed revisions
and amendments is available as Annex II: Compilation of the revisions
and amendments made by the members of the Ad Hoc Committee to the
draft text (http://www.un.org/esa/socdev/enable/rights/ahc3modfinal.htm).
The Chairman of the Ad Hoc Committee, Luis Gallegos
(Ecuador) said he hoped to have the Convention ready for signature
by September 2005.
Prepared on July 1, 2004
The National Council on Disability wishes to
acknowledge Kerry Lida for her work in the preparation of this document.
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