UN
Convention on the Human Rights of People with Disabilities
Sixth
Ad Hoc Committee Daily Summaries
A
service brought to you by RI (Rehabilitation International)
Volume 7, #2
August 2, 2005
MORNING SESSION
The Secretary announced the publication by the International Disability
Caucus of a manual to orient new arrivals to the AHC.
The Chair advised that there is no specific provision in the Working Group text with
regard to women with disabilities. There is a specific Article on children with
disabilities. At AHC3 the Republic
of Korea proposed a new draft article (15 bis) for insertion before article 16
on women with disabilities. There
was no discussion of the substance of this article. However there was
discussion on the placement of issues specific to women with disabilities,
whether they should be placed in a separate article or incorporated into the
text.
Republic of Korea highlighted the need for both a “focused
and extensive” mention on women with disabilities. During the subsequent
4th and 5th sessions it held discussions with interested
governmental and nongovernmental delegations on the issue. The plight of women
with disabilities is not the simple sum of the barriers faced by people with
disabilities and the barriers faced by women. The combination of their
disabilities and inferior status as women goes beyond the mechanical doubling
of discrimination to a situation of utter social alienation and policy
neglect. Women with disabilities
have remained invisible in legislative and policy efforts at both national and
international levels, without an anchor in disability discourse or
women’s rights discourse. The existing global norms, either on persons with
disabilities or on women’s rights, directly reflect this lack of
attention and offer little in terms of concrete or action orientated language
addressing women with disabilities.
A separate article on
the rights of women with disabilities is a vital element of a convention on the
rights of people with disabilities, in addition to references to gender in the
general provisions.
Korea acknowledges the
concerns of other delegations with regard to “listing” and
emphasized that it would resist the drafting becoming such an exercise. Women
with disabilities comprise half the subject population of this convention and
gender is a cross cutting dimension of a different order than other defining
characteristics of vulnerability. It is for the same reason that Korea also
supports a separate article on children with disabilities. Delegations have
also noted that a separate article risks the danger of relegating the rights of
women with disabilities to the provisions of that article only. Korea however is more concerned with the
opposite danger - with gender equality mentioned in the general provisions
without a specific article on women with disabilities, women with disabilities
could slip through the fingers of the government ministries in charge of
implementation of the convention. Full implementation of the convention for all
PWD requires the active involvement and sense of shared ownership by the
national machineries in charge of promoting gender equality. A separate article
would ensure this. Gender mainstreaming alone in insufficient. A more effective way is to have a
separate article complemented by the incorporation of gender in the most
relevant provisions of the convention. This would produce a convention that
would truly be an efficacious tool in protecting and promoting the rights and
dignities of all persons with disabilities.
El Salvador supported the comments made by Korea and drew attention to the plight
of older people and particularly older women with disabilities. Gender and gender mainstreaming in this
convention is fundamental in order to provide adequate protection from a social
development perspective as well as from a human rights perspective.
Morocco supported Korea and El Salvador, noting that the introduction of this
article is in harmony with the recommendations of the Casablanca Declaration
(June 2005).
EU strongly believes that this convention must apply equally to all
persons with disabilities. (http://www.un.org/esa/socdev/enable/rights/ahc6eu.htm) The EU shares the concerns of Korea that
the consequences of disabilities are particularly severe for women, who are
often subjected to discrimination on the basis of disability but also to
social, cultural and economic disadvantages due to gender discrimination. In many countries, women are assigned a
very low status socially, economically and politically, which is accentuated by
disability. Girls and women with
disabilities are often marginalized, neglected and considered a burden on
society. Women represent a majority
of the population and an even higher proportion of persons with
disabilities.
It is a challenge to
right the wrongs of the additional discrimination faced by women with
disabilities, while ensuring a very strong convention which will apply equally
to all persons with disabilities.
There are a number of
sectors of society, including indigenous women with disabilities and elderly
women with disabilities, which face particular disadvantages but it would do
this convention a disservice to have a number of articles focusing on specific
groups, as it would then lack a strong statement on the rights of all persons
with disabilities. Hence the EU’s resistance to proposals that single out
PWD by severity or type of impairment. The convention would be stronger, more
authoritative and more beneficial to people with disabilities if its provisions
apply equally to all disabled people, and there was no “picking and
choosing” of rights and standards.
Such a convention would then also be stronger and more authoritative for
women with disabilities.
There could be
confusion between the interpretations of CEDAW or CRC and this convention.
There could be the suggestion that CEDAW and CRC are inadequate for the protection
of the rights of women and children with disabilities. There have been inadequacies in the
implementation of those conventions with respect to women and children with
disabilities, both by states and monitoring bodies; however, this is not a reason
to create legal uncertainty between 2 treaties or an uneven comparison between
disabled men and disabled women. Instead this is a reason to examine CEDAW and
its implementation, make it better and get it right. An example of such legal
uncertainty lies in the inclusion of violence against women. While this may
serve to provide further protection for women with disabilities it detracts
from a general article on abuse, leaving men with disabilities in weaker
position, when men are also very vulnerable to such abuse. It is generally
agreed that CEDAW and CRC provide a comprehensive framework for the protection
of the rights of women and children.
The EU would like to
see a reference to the susceptibility of women with disabilities to multiple
forms of discrimination in the preamble and a reference in the general
obligations (Article 4) that would apply horizontally throughout the Convention
text and obligate states to bear in mind the equality between women and men
when interpreting other articles.
New Zealand supported the EU proposals.
Australia supported the position of the EU.
Obligations under this convention will apply to all people with
disabilities. Australia does not
support mechanisms that compartmentalize women with disabilities; however, it
would support recognition of the particular vulnerabilities of women with
disabilities in the preamble.
Consideration needs to
be given to the focus of the convention. Discrimination against women is
specifically addressed in CEDAW and it is not appropriate for this new
instrument to duplicate other major human rights treaties, particularly outside
the area of disability discrimination.
The potential
duplication of rights will make monitoring mechanisms difficult. The potential for different interpretations
of existing human rights would make the implementation of the range of human
rights instruments difficult.
All articles should be
interpreted considering the needs of specific population groups. This view is reflected in the Australian
proposal on the Convention structure submitted at AHC5, and in the report of
the Asia Pacific Forum of national human rights institutions submitted at
AHC4. These groups include: women,
children, people living in rural and remote areas, indigenous people, and older
people.
The Chair observed that the Convention on the Rights of the Child (CRC) article
23 references disability, but there is no such reference in CEDAW. This is a difference between the two
conventions. However the CEDAW Committee’s General Recommendation 18
(A/46/38) highlights the situation of disabled women.
Mexico expressed concern with drafting separate articles on specific
groups. Women and children could be
mentioned in the preamble laying down the principles of equality and non-discrimination
without undermining the equal treatment of men and women with
disabilities.
Serbia-Montenegro supported the position of the EU and other delegations, as it had in AHC3, agreeing that there should be no specific articles on marginalized groups. It is flexible on references to gender throughout the text but would prefer enshrining the principle of gender equality to the preamble and general obligations only.
Thailand supported the Korean delegation’s attempt to bring attention to
the barriers faced by women with disabilities, while understanding the concerns
raised by the EU.
This process should
ensure that the rights of disabled women are taken care of by this convention
so they would be no longer left out either by mainstream women’s communities
or by mainstream disability communities.
Yemen supported the idea of a separate article while understanding the
concerns of the EU. The inclusion
of a specific article on women in this convention should not weaken CEDAW or
any other convention. In some
communities, non-disabled women are struggling to achieve their rights, and so
the situation of disabled women in such communities is a particularly
marginalized one.
Mali supported the proposal of a separate article because women with
disabilities are a marginalized group. The committee has already accepted this
principle previously.
Japan supported the position of EU, Australia, Mexico and others. Women should be mentioned in the
preamble rather than the operative part of the text. Women with disabilities suffer double
discrimination but they are not the only group, as the elderly, racial
minorities and indigenous people with disabilities also face double
discrimination. It is better to
avoid listing specific groups and include them in general obligations.
Norway supported the position of the EU.
This convention is about persons with disabilities, meaning both sexes,
men and women. It has long been
recognized that there is a need for gender sensitivity and therefore it is well
justified that gender aspects and the situation and needs of women are
reflected in this convention text. The question is how.
Israel called for a separate article, emphasizing the “intrinsic
rightness” of the Korean position noting that women make up more than
half the population and suggesting that the concerns put forth by the EU on a
separate article do not reflect disagreements of principle and can be resolved
with careful and intelligent drafting.
“If we disregard women in any way, it would be a grave mistake.”
Costa Rica supported the systematic integration of gender throughout the
convention. The elements submitted
by Korea are all important but, for the reasons noted by the EU and other
delegations, it would be too risky to couch them in a specific article. This
would run counter to what has been the practice in drafting other legal
instruments. Article 3 of CEDAW for example makes it clear that all state
parties have to address and mainstream gender issues in all spheres in
particular in the political, economic, social and cultural fields and to take
all appropriate measures, including legislative measures to ensure the full
development and advancement of women in order to guarantee their full enjoyment
of human rights and fundamental freedoms on an equal basis with men. By drawing up a separate article in this
Convention, it would suggest that our commitment to Article 3 of CEDAW is no
longer valid or that CEDAW does not apply to women with disabilities.
Kenya supported a separate article noting the general agreement of the
practical realities facing women with disabilities especially in patriarchal
systems, and the need to make the rights of women with disabilities prominent. (http://www.un.org/esa/socdev/enable/rights/ahc6kenya.htm)
Having a separate
article will not take away from the rights of disabled men. Women with
disabilities are not a disability sector but cut across all sectors. Women with disabilities should be
accorded their rightful place within this convention.
Sudan supported a separate article.
There are different ways of dealing with this specificity. A point can be arrived at whereby the
article does not contradict or contravene other conventions.
Jordan supported the idea in substance of enshrining gender equality within
the convention but had reservations regarding a separate article. The convention will be stronger in
language and structure if there are no articles for specific populations.
Chile welcomed the principle of gender equality in the preamble and general
obligations with the possibility of consideration elsewhere. CEDAW has not done
enough to advance the situation of disabled women. The inclusion of women in this
convention would not undermine other conventions, but would provide greater
clarity.
Uganda supported the inclusion of an article on women with disabilities. Disabled people are not visible in the
other conventions where their rights are protected; hence the need to draft
this convention on the rights of disabled people. Likewise the rights of disabled women
cannot be ignored because there is CEDAW, because the rights of disabled women
are violated every day. They suffer multiple forms of discrimination. They are
often the poorest of the poor. The content of the article can be worked out but
in the interest of consistency the principle of a separate article must be
accepted.
Iran supported a separate article and inclusion in both the preamble and
general obligations but suggested the whole convention be gender
mainstreamed.
South Africa supported a separate article.
Gender equality is necessary for mainstreaming and the equalization of
opportunities for disabled women. Progressive
realization of the rights of women within the convention must be ensured. The principle of self-representation is
critical to addressing discrimination against women with disabilities. There
must be self-executing legislation that empowers women with disabilities at all
levels of society. If there is no separate article specifically for women with
disabilities, problems of exclusion and poverty, which affects women at all
levels of society, remain.
Canada noted that women with disabilities have been recognized as a
particularly disadvantaged group in a number of international documents
including the Beijing Platform for Action (BPA). All delegations agree that issues
specific to women with disabilities should be included in this convention. The
issue before the committee is how best to achieve this goal. Canada supports gender mainstreaming
throughout the convention instead of a separate article.
The current preamble
Paras (m) and (n) are not sufficient. Building on the ideas reflected in proposals
from the EU, Korea, other delegations and the Disabled Peoples International
discussion paper “Towards Visibility of Women with Disabilities in the UN
Convention” Canada proposed that there should in addition be: [1] a clear
principle in Article 2 guaranteeing the equal protection of the rights of women
along the lines of ICCPR Article 3; [2] a general obligation in Article 4
requiring states parties to mainstream a gender perspective in all policies and
programs relating to persons with disabilities; [3] specific references in the key
articles of particular concern to women, eg in 7, 12, 14(bis), 17, 21, and 22.
Women and girls are already mentioned in 23.1(b).
Peru preferred to have a separate article because, in many cases, the rights of women and girls have not been fully guaranteed. “We need to go further than CEDAW to guarantee, promote and protect the rights of women and girls with disabilities”.
India noted the specific challenges faced by women with disabilities, and
that they should be addressed in this convention. Having a separate article may
not be the only option; the issue can be addressed by making a reference to
women specific aspects in all the generic provisions of the convention wherever
such a reference is required. This
would avoid the danger of lowering the standards of protections, which have
already been agreed in other women specific conventions.
Statements from
NGOs and NHRI
The Korean Women’s
nongovernmental organisations as the International Disability
Caucus coordinator for Article 15(bis), noted that mainstream women’s organizations are not interested
in disabled women’s issues since disability is too specific and not of
political benefit or interest. The UN Commission on the Status of Women
considers these issues a burden on the already heavy workloads of women’s
organizations. There is a need for a separate article on the rights of women
with disabilities for the same reason that there was a need for a new
convention on the rights of people with disabilities. Disabled women experience intersecting
discrimination because of their gender, disability, traditional, religious, and
cultural backgrounds, as well as their economic and political situations and
their needs must be expressed in a clear and explicit way. In addition to a
separate article, gender should be included in the general obligations under
Article 4 and the preamble.
Disabled Peoples’ International emphasized that women are not a group but
comprise more than half of disabled people. To date, there are no legally binding
documents that protect women with disabilities, so it is essential that this
issue be included in this convention.
A single article alone on women’s issues is insufficient and may
be counter productive as CRC indicates.
Women’s issues need to be covered throughout the convention. The principles of [1] gender
mainstreaming, [2] equality between women and men and [3] the need for
particular actions to eliminate the discriminations faced by women with
disabilities must be enshrined in a separate article or integrated in articles
2 and 4. All articles must be
complemented by a gender perspective and mainstreamed to identify and address
the needs of disabled women. The
convention must include the gender aspect as intended under UN resolution
52/100, 1997/1998. It is the only
way to motivate states parties to take action on gender and disability
issues. Disabled women’s
rights are human rights.
European Disability Forum Women’s
Committee highlighted the fact
that CEDAW does not mention disabled women. Instead they are mentioned in the
Beijing Platform for Action, which, however is not a legally binding
document. Due to the absence of
disabled women in CEDAW, a medical model, oppressive approach to their
situation persists. Yemen made a
link to the cultural and historic inequalities between women and men in
society. The societal conditions for non-disabled women are only slowly
changing. If disabled women are not specifically mentioned in this Convention
their situation will similarly reflect this slow pace of change. There is a
North/ South, East/ West divide with respect to including or excluding the
gender approach. The representative pointed out some examples that help explain
the specificities of disabled women. Disabled men may have better access to
employment because they are seen as breadwinners. Disabled women are more often
deprived of medical care. Disabled men have better access to mobility devices
because they are seen as more important contributors to society. The EDF calls on delegates to accept the
Canadian proposal.
The Chair noted
that states positions on this issue did not in his view reflect a breakdown
along North – South, East – West relations. He hoped that future negotiations would
not reflect such a breakdown.
Council of Canadians with Disabilities was encouraged by the support for enshrining
the rights of women with disabilities in this convention. Women with disabilities face
discrimination on a daily basis, being treated inferior to men, to men with
disabilities and to non-disabled women.
The council urges the all delegations to make a strong statement against
these inequities by enshrining the rights of women with disabilities both in a
stand-alone article as well as mainstreaming throughout the convention. Unless such a twin-track approach is
used, disabled women will continue to face denial of our rights.
Dr. Sigrid Arnade spoke in an independent expert capacity to highlight the following: [1] Women are not a “group” but make up more than 50% of disabled people. Disabled women’s issues are gender issues, not those of a group. [2] There are no legally binding UN documents referring to disabled women. [3] The EU published a report in the 1990s entitled “Invisible citizens” about disabled people. While people with disabilities are becoming more visible, however, disabled women remain invisible even within this convention. [4] All states must adhere to the principle of gender mainstreaming but the gender perspective has not been included. [5] The efforts of the government of Korea have been crucial to highlighting this issue. [6] A single article referring to women’s issues is not sufficient and may be counterproductive. [7] There should be a twin track approach, which consists of a separate article with gender mainstreamed throughout the convention. Such a twin-track approach would eliminate the invisibility of disabled women.
World Blind Union asserted that it is time for the fundamental
human rights of these women to be enshrined in a legally binding document. If
this cannot be done because there are other human rights treaties guaranteeing
the rights of women, then by the same logic a convention on the rights of PWD
would not be justified either. The use of gender-neutral language would be
dangerous. There must be a twin
track approach.
National Human Rights Institutions recognized the general support among delegations for the inclusion of a
gender perspective. The NHRIs
support the Canadian position.
Gender should be mainstreamed throughout the convention whether in
addition to a separate article or not. The NHRIs are neutral on 15(bis) but
would like to avoid the mistake of Article 23 of the CRC, perceived as locking
children with disabilities into one article and creating the impression that
they are only entitled to the rights within that article. Should there be a
separate article, then it should be a precise statement of principles, without
going into specifics. General
obligations should have a clear reference to the positive obligation on states
to remove all obstacles in the enjoyment of rights for women with
disabilities. This would set the
tone for a program to undo the disadvantages caused by inequality and
discrimination faced by women across all sectors and cultures. There should be
a specific reference to gender-segregated data in Article 6. Article 24 should
reflect the need for states to produce reports in a gender-segregated fashion
should that be a requirement to a new treaty body.
The Chair highlighted the expressions of deep appreciation from all delegations
to Korea for the importance its delegation attached to this issue, in raising
its profile, and in allocating the resources to do so. He introduced several
national parliamentarians from Korea present at the meeting. The Korean efforts have generated a
significant response.
He noted general
agreement that the situation faced by disabled women is more than just the
combined disadvantage of disability and gender. Women are at particular risk of sexual
exploitation, poverty, and many other factors. There should be a systematic and
comprehensive approach to the inclusion of disabled women. As stressed by the WBU, legally binding
obligations are required. CEDAW
focuses on the elimination of discrimination whereas CRC focuses on
comprehensive rights and therefore the two cannot be compared. Taking into
account that divergence among states on this issue was mainly with respect to
placement rather than substance, the Chair appointed a Facilitator to hold
consultations on the systematic coverage of the rights of disabled women within
the text. This exercise will
highlight the gaps and outline what issues have yet to be addressed. He noted
the NHRI call for a precise and principled statement should there be a separate
article. Language for the general
obligations can be decided on at a later stage, along with the need for a
separate article after gender mainstreaming throughout the text.
Korea
appreciated the arguments both in favour of and against
a separate article. It agreed that a single article is not sufficient to cover
all the issues faced by disabled women but after gender mainstreaming
throughout the text there will still be issues that require a separate article. This issue needs to be included in the
preamble and general obligations. There are separate conventions on women and
children and therefore there should be a logical progression to separate
articles. Women and children are
not sub groups but are crosscutting sections of society. There is no intention to weaken CEDAW in
any way. In language, CEDAW is a
very comprehensive convention that should be addressed to all women with or
without disabilities. However, in
reporting and implementation, women with disabilities have been sidelined and
not mentioned in the implementation process, reporting process, or the
monitoring process.
With careful and intelligent crafting of language, it is possible to
make the two reinforce and complement each other.
Article 16 –
Children With Disabilities
The Chair introduced the Facilitator from Kenya for this article and drew
attention to Footnote 54, which notes that Paras 2, 3 and 4, are based on
Article 23 of CRC. CRC Article 23
has been seen by some as counterproductive on the rights of children with
disabilities. When States Parties
report on compliance they normally do so article by article; due to the
specific article on children with disabilities there has been a tendency not to
mainstream disability throughout the CRC.
At the same time there is agreement that inclusion of Article 23 has
been influential and useful in highlighting and identifying issues faced by
disabled children. The Chair called for comments to address the issue of having
a specific article on children as well as any substantive issues within the
article.
The EU put forward the same reservations they had with regard to a separate article on women with disabilities while acknowledging the difference between women and children. It would be logical to apply the same principles in regards of the rights contained in this convention to rights in general. There is a danger of listing in order to try to be inclusive. There is also the danger that the rights in a single article may not apply horizontally throughout the convention.
The CRC sets out the general principle that children enjoy the same rights as adults and looks to identify where those rights need to be enhanced. Article 23 of CRC may not have been entirely counterproductive but in hindsight it has been inadequate. It relates to the care of children with disabilities, and the provision of some services. Yet in their reporting to the CRC Committee States have focused on article 23 in relation to children with disabilities. They have not mainstreamed the problems faced by children with disabilities as regard the rights contained in CRC more generally.
Article 23 has done little to promote the general position of children with disabilities in society. For the same reason separating out children in one article of this convention would not adequately meet their needs.
The language in Article 16 is based on but not identical to that of CRC Article 23. This risks a lack of clarity in rights, competing obligations, and a confusion of the language and legal standing of the rights contained therein. Listing, as reflected in the footnote on groups of children with disabilities, should be avoided.
Para 1 and 2 is the core issue, of states ensuring that children with disabilities have the same fundamental rights as other children. To eliminate the problem of a draft article being concentrated at the expense of other articles, this language should be moved to a more general, horizontal provision like Article 4. The rest of the article, from Para 3 onwards are dealt with elsewhere in the convention. To have different wording on the provision of care for children, although it is a special circumstance, as regards the provision of care in other articles for the general population of PWD risks confusion in the level of rights or new rights or different rights for certain sectors of society.
There should be a
reference to the rights of children in the Preamble: (http://www.un.org/esa/socdev/enable/rights/ahc6eu.htm). “Children with disabilities should
have full enjoyment of all human rights on an equal basis with others, without
discrimination on the basis of disability, and recalling obligations to that
end undertaken by states parties to CRC.” This would be a sufficiently strong
statement aiding in the interpretation of this treaty, setting the rights of
children with disabilities in the context of the rest of the articles that
follow. There should also be a
general reference under article 4 similar to that for women with disabilities:
“Urging or requiring states to take all necessary measures to ensure the
full enjoyment by children with disabilities of all human rights without
discrimination of any kind based on disability”. This would address the
issues in the second half of Article 16 on the provision of care and services.
New Zealand noted the lack of time faced by the Working Group in drafting this article, and the inadequacy of an approach where language is “cut and pasted” from one convention to another. This is a “weak link” in an otherwise strong WG text. Firstly, as this is essentially a copy of CRC Article 23, it does not add to the body of international human rights law or to the obligations on states parties. Secondly, the few amendments to Article 23 that are incorporated into Article 16 create inconsistencies and the possibility of competing obligations, eg. in Article 23, children with disabilities “should enjoy a full and decent life”, while in Article 16 they have “a right to enjoy a full and inclusive life”. Thirdly and most importantly, there are a number of issues that are not raised in this article that should be covered. This includes, for example, the situations of orphaned and abandoned children with disabilities; the need for disabled children under the protection of the State to live in family rather than institutional settings (best dealt with in Article 14); early intervention in relation to identification of impairments and adequate support at the appropriate developmental time, such as access to language and communication so babies with disabilities especially can thrive and survive (best dealt with in the article on the right to health).
There are a number of other important issues as outlined in the IDC proposal (www.un.org/esa/socdev/enable/rights/ahc6contngos.htm). It would be appropriate to have a shorter thematic statement, either in Article 4 as suggested by the EU or as a separate article on children that all existing rights in the CRC, in this convention and in other human rights treaties apply to children with disabilities. A good formulation of that is either the EU proposed article 4 or the IDC Para 7. The specific issues raised above and in the IDC proposal could be included in the thematic articles throughout the convention.
AFTERNOON SESSION
Article 16 -
Children with Disabilities (cont)
Jordan supported the NZ proposals which were in accordance with Jordan’s
proposals for 15 bis.
The Holy See called for further strengthening Paras 2, 3, and 4 of the WG text with
language agreed upon in the CRC. It proposed replacing 16.1 with: “States
Parties recognize that children, especially children with disabilities, by
reason of their physical and mental immaturity, need special safeguards and
care, including appropriate legal protection, before as well as after
birth… “ at www.un.org/esa/socdev/enable/rights/ahc6holysee.htm. In 16.2 it proposed inserting the
words “inherent” before “dignity and worth…”
Serbia-Montenegro supported the position of the EU and New Zealand for the
deletion of Paras 2, 3, and 4. They duplicate the subject matter of the CRC,
and the slight amendments from the CRC may lead to problems in
implementation. There is a need
instead for an introductory, more generalized paragraph, similar to either WG text
16.1 or as proposed by the EU. It
is flexible on placement but would prefer this language to be in a more
generalized article. Para 2 (bis)
of the text proposed by Canada in AHC3 (A/AC/265/2004/5 pp 36) has added value,
and, regardless of placement, should be maintained. It supports the concept of
the provision of mainstream services to children with disabilities under equal
conditions as covered in IDC proposal Para 5, though its wording is too
specific. There is merit in the New Zealand proposal to include language on
abandonment and abuse etc, appropriate in Article 12, and the preference for
children in family settings over institutions, more appropriate in Article
14(bis).
Chile pointed out that the main purpose of the article is protection for those
PWD who require it most: disabled infants and children. It supported NZ position on abandoned
children with disabilities, and the need to provide support to parents who
adopt them so that they are not placed in non-segregated environments. Legislation should address the problems
of children and the broad range of rights covered by CRC.
Mexico supported the New Zealand proposal and called for language that would
address the specific circumstances faced infants and children with
disabilities, that would not simply reproduce what was already established in
other international instruments.
This language should have added value and be in both a separate
paragraph and integrated throughout the convention.
Korea welcomed the inclusion of article 16 as it addresses the specific needs
of a particularly vulnerable group.
This article can be strengthened to alleviate the fears of other
delegates of the inadequacy of the current language copying CRC Article 23. In this regard Korea agrees with other
delegations on the need to mention forced institutionalization, abuse,
abandonment and sexual exploitation in relation to children with disabilities,
is flexible on placement, and is ready to assist in drafting such language.
Liechtenstein emphasized that this convention should provide the best protection for children with disabilities. A separate article does not necessarily achieve that goal best. There are legally binding standards in CRC and there are many issues that are dealt with in other articles covering issues and rights that children are entitled to as much as others. There is some risk of creating double standards if specific issues are mentioned here in relation to children that other persons with disabilities are equally entitled. If a separate article is necessary, it cannot provide double standards. In Para 1, “within their jurisdiction” should be deleted because the population to whom these rights apply and questions of the scope of the convention are dealt with in Article 4.
Israel supported the inclusion of this article, just
as they had supported the separate article on women with disabilities. Children become adults and states should
invest as much as possible in them. It also supported the position of the IDC,
and that of NZ. It suggested
including a new paragraph (www.un.org/esa/socdev/enable/rights/ahc6israel.htm). A child should be regarded as a human
being with feelings and emotions.
An eloquently formulated article cannot be implemented if it is not
accessible. If the right is stated but there are no special facilities to
enable these rights to be realised, then the goals have not been reached. Each human rights instrument should be
seen as part of the range of instruments as a whole, so referencing them is
needed.
Russian Federation supported the inclusion of a separate article
on children, modeled on the CRC, as children are a most vulnerable part of
society, especially disabled children.
Disabled adults make their own decisions with regard to their health,
education and professional activities; children are restricted in making these
kinds of decisions. States should
ensure that regardless of any failure on the part of parents and caregivers to
provide full care, children need to have adapted to life by the time they reach
adulthood. So states should ensure children with disabilities have the
necessary care, education and professional training.
Kenya strongly supported a separate article. If the rights of disabled children are
not respected, then the rights they should enjoy in their adulthood, such as
employment or inclusion in political life, will not be realized. Children are different from adults with
their own unique situations, both legally and in other respects. Therefore, mainstreaming each article
will not necessarily address the issues of children. Mainstreaming rights is necessary, but
there should also be a separate article that deals with the issues that are
unique to children. The right to
participation should be included as this is often not addressed in the context
of CRC, because states parties are not required to report on the inclusion of
children with disabilities. State
parties should be required to support families in the care of children with
disabilities to ensure their capacities properly evolve.
A cross reference to
CRC should also be included, so that children with disabilities avail of all
the rights under that convention.
Argentina supported a separate article on children. The CRC should be referred to as a
general framework by including, at the end of Para 1, for example; “in
keeping with the provisions established in CRC.” The second para could be
deleted, as it would be redundant.
The wording of para 3 is confusing and Argentina has proposed
alternative text: www.un.org/esa/socdev/enable/rights/ahc6arg.htm.
Article 4 could be dispensed with.
Norway agrees with delegations that children and women with disabilities are
not simply a subgroup, and this is reflected in their recognition in separate
conventions. Their situation however is best dealt with through strong
references in the preamble and under article 4 on general obligations, as
proposed by the EU. This will
ensure that the concerns of children with disabilities are applied
systematically throughout the convention.
A cross cutting review of children’s rights and situations should
be ensured so that all the rights apply to children. Accordingly article 25
should require states to report on the situation of children with disabilities
as well.
The Chair noted that the idea of including a reference under the monitoring
section to children could also be applied to women and other PWD faced with
multiple discriminations.
Yemen supported a separate article. However it should not be a duplication of
Article 23 of the CRC. All the
rights of disabled children should be stressed to enable them to emerge from
childhood with the necessary skills for life.
EU noted with concern the approach of some
delegations suggesting that issues dealt with either in the CRC or in other
articles of this convention be added to Article 16, eg. the proposal from
Israel, about expressing views freely on all matters affecting children with
disability, has been drawn from Article 12. “If we take this approach, then
why would we limit it to Article 12, and not to other Articles of the CRC which
are also directly relevant, like Article 18 on the responsibility of parents
towards children?” This approach replicates the relevant parts of the CRC
into Article 16 in this convention. Another approach has been to include in
Article 16 issues that are already addressed in provisions elsewhere in this
convention, like family and home life, right to participation. These approaches compromise the clarity
both of this convention and the CRC and should be replaced with a strong
reference in a general obligation “up front” to apply the whole of
the CRC to this convention.
Norway’s suggestion about adding a reference under Article 25 on
Monitoring is very interesting; it would be another way forward to ensure a
horizontal application and would have the strength and authority across this
convention. If there are issues
that could not be covered either through a horizontal reference to the CRC or
language from the general obligations, then the EU will work with the
facilitator on this.
Canada reaffirmed its strong commitment to CRC and the promotion and
protection to every child, and agreed with many delegations about the
particular vulnerability of children with disabilities. Many disability
organizations have expressed the view that Article 23 of CRC is not sufficient
to fully address all the issues relating to children with disabilities. Confining the issues of disability to
one article in that convention has had the effect of limiting attention and
reporting on children with disabilities to that article. Canada therefore
supports adding strong language to this convention. However Article 16 of the
WG text repeats obligations that almost every state is already under and is not
a useful addition. Limiting the
focus on children to one article should be avoided.
Instead of Article 16,
there should be strong, general provisions in Article 2, and/or Article 4, to
ensure the full and equal enjoyment of human rights by all children with
disabilities without discrimination.
Such an initial position in the convention would help raise awareness
and apply across the convention.
Issues specific to
children with disabilities should be mainstreamed and addressed in detail where
necessary in specific articles that address relevant subjects, eg Article 6,
12, 14(bis), 17, 21, 24. Canada would
be open to a separate article if there are issues specific to children with
disabilities that are not addressed elsewhere and would not be better addressed
as more comprehensive existing articles.
Such an article should not repeat provisions contained in other
instruments.
Thailand supported retaining a separate article with the addition of text from
the IDC of issues not addressed under CRC Article 23. It also supported the EU
proposal on language in the General Obligations.
Philippines supported the inclusion of this article and agreed with the Holy See
that the phrase “before and after birth” be included in Para 16.1
as the rights of the child start at conception. The terms “detection” and
“identification” be inserted in Para 3(a) to read: “early detection,
identification, and provision of appropriate comprehensive
services.”
The Chair sought clarification from the Philippines of
the context in which the language of “early detection” would apply.
The Philippines clarified that it was referring to the early detection of the
disability and subsequently of the services.
Costa Rica supported the Canadian position highlighting the need to go beyond CRC Article 23. Yemen’s intervention implied that only Article 23 applies to children with disability when in fact it is simply a reminder that the whole CRC applies to all children, including children with disabilities. To avoid the same mistake, there is a need to determine the scope of the CRC and note its gaps or omissions. The IDC text accomplishes this. There is no specific article that could assure the rights of children with disabilities either in this convention or in the future.
Morocco supported a separate article. As agreed upon at the Casablanca meeting
of June 2005, it proposed adding a description of complete, appropriate and
comprehensive services to Para 3(a) as this is key to early detection,
intervention and prevention. There
should also be mention of the prevention of sexual exploitation of children
with disabilities.
Uganda supported a separate article.
Disabled children are sometimes excluded from, for example, birth
registration, access to the legal system and opportunities to express their
views. Uganda supports the twin-track approach suggested by Canada; issues that
cannot be mainstreamed should be placed in a stand-alone article, eg, child
protection, respect for child’s evolving capacities, care for children
within families.
South Africa supported the position of Kenya.
There should be no limitation on the allocation of resources. There should be assistance provided to
both the caregiver and to the child.
The rights of children should be looked at in the context of
non-discrimination legislation, but must be included in policy objectives and
constitutional principles of state parties.
NGO Statements
“Nothing about
us, without us” is not being fulfilled for children with disabilities at
this forum. There are no children
or young people here able to advocate for themselves. Furthermore, there is no single
international organization here dedicated to the rights of children with
disabilities. It is imperative that
the absence of children or a powerful lobby on their behalf does not lead to
the neglect of their rights in this convention.
Two contradictory
arguments have been made. On the one hand, that CRC already adequately
addresses the rights of disabled children and therefore there is no need for
additional provisions to strengthen those rights. On the other hand, that having
a dedicated article in CRC has been counterproductive to the rights of disabled
children.
It is true that in
practice, States have restricted their focus in reporting to CRC to Article
23. Monitoring of reports to the
committee reveals that the rights of disabled children are rarely addressed
except in respect of education, rehabilitation and health. Yet if Article 23 had not existed, it is
likely that there would have been even less attention given to children with
disabilities. Its presence in the
text of the CRC has resulted in the Committee on the Rights of the Child
engaging in dialogue with states on a far wider range of rights issues than
would have otherwise been the case.
There is no doubt that children with disabilities have had a higher
profile as a consequence of article 23.
Yet the article is not sufficient as it stands. The emphasis in CRC provides for special
services to promote the social integration of children with disabilities. An end to social exclusion and
discrimination will only take place when governments take responsibility for
providing inclusive mainstream services for all children, inclusive provision
for play, inclusive early years services, inclusive, appropriate and accessible
child protection services. The
drafting of this convention provides a unique opportunity to address these
issues. Failure to do so would be
to deny for children the very commitment to inclusion and equality that the
convention is seeking to achieve.
In the context of this
convention, it is also important to acknowledge that children, with or without
disabilities have a different status from adults. They do not have autonomy and are not
recognized as having legal capacity.
They are entitled to additional protections associated with their youth
and vulnerability. These
protections are not and cannot be fully addressed in the main body of a text
that is primarily directed towards rights of adults with disabilities. There are issues specific to children
that can only be addressed in an article specific to the rights of disabled
children.
Children with
disabilities are particularly vulnerable to violations of their rights,
they’re vulnerable to physical and sexual violence, they are less likely
to be registered birth, they are often denied the right to family life, widely
placed in institutions, denied their right to express their views and have them
taken seriously, denied the opportunities to develop their optimum capacities,
excluded from opportunities for play, and commonly excluded from opportunities
to seek justice when they experience violence and abuse.
Although the rights
embodied in CRC extend equally to children with disabilities, without
strengthening the obligations to implement those rights for children with
disabilities, they will continue to be disregarded, in the same way that the
rights embodied in the international covenants are disregarded for adults with
disabilities. Unless explicit
recognition is given to this group, they will fall into a black hole between
the two conventions - not adequately acknowledged in the CRC because of a
failure to address measures needed to realize those rights, and not recognized
here due to their childhood status.
The strongest possible measures should be introduced to address their
rights violations faced all over the world. The retention of a dedicated article in
this text will emphasize their presence as rights holders in the same way it
has in the CRC.
The current working
group draft fails to fulfill these objectives. It largely replicates the text embodied
in CRC Article 23. As such, it does
little to strengthen the rights of disabled children. By contrast, the IDC amended text
provides strengthened protections with an emphasis on inclusion and
mainstreaming, and should be seriously considered as an alternate text. Some of its provisions could and should
be incorporated into other articles, but some cannot as they apply exclusively
to children.
World Federation of the Deaf supported the IDC intervention. Children with disabilities should have their own article and also be included in the preamble and other relevant articles. Deaf children in particular are often the targets of medical interventions and various forms of training, and they do not have the opportunity to just be children. It is important that children be around people who are skilful in sign language. Without access to communication skills, either on the part of the deaf child or the person with whom they are trying to communicate, their issues will not be heard. Articles 11, 12, 13, 19, 24, 25 would most benefit from integrating this issue.
Children with disabilities need peer support, additionally they also need to observe adults with similar disabilities, to learn how to interact with the world around them and to grow up and become productive members of society.
Children’s Fund added their voice, as a mainstream
children’s organisation, in support of other NGOs. Children with
disabilities are experiencing the most rapid life developmental stage and thus
have particular needs and responsibilities. They have the greatest potential to
go far given the rights of this convention.
British Council of Disabled People supported the IDC position. Disabled children are the most
disenfranchised from this convention as well as from the CRC. A separate article must address the
issues of equality of treatment so as to ensure that such an article would not
be addressed to the exclusion of the other parts of the convention. Far too many disabled children continue
to be forcibly institutionalized, or left to die. Those disabled children who
have survived, who are witness to or are heard at these meetings, have been
able to do so because of the efforts of their parents rather than that of the
medical profession. There is a
history of “disableism” around the world, which impacts on the
lives of disabled children. A
majority of their parents do not have experience of living with an impairment
and find it difficult to adjust to the negativity that is still out there in
society in everything we do – on television, in the cinema, in comic
books and playgrounds, in the way that nondisabled peers react because they
have not been taught any other way.
That is why a stand-alone article is necessary, so that all who have
responsibility for the lives of children take this responsibility seriously,
and change their daily working practice.
Empowering young
disabled people, as addressed in para 2 of the IDC text, is essential. This
cannot be achieved by gathering them together to inquire into their views, the
method of the current UK government called “focus groups.” This
produces the answers one expects. Instead disabled children need to be educated
to have a view, because their views have been ignored for so long. The best method is to expose children to
disabled adults who have gone through the process of living with an impairment
and living with disableism. It is also essential to educate the professionals
who are the gatekeepers of the lives of children so that there is a
“parity of esteem” for disabled children. There is a big agenda to
be taken on, and there is a need for a stand-alone article that will infuse
this agenda into every part of the convention.
Korean Solidarity for Disability Convention suggested the addition of a sentence at the end
of Para 2 to ensure that children with disabilities shall not be forcibly
institutionalized. It also proposed language in a new paragraph 6 recognising
that children with disabilities suffer from violence, abuse, detention,
excessive rehabilitation training and violations of their rights, by caregivers
and guardians. Such language would also obligate states to take appropriate
preventative measures.
Disabled Peoples International Latin America supported a separate article. Disabled children
in many developing countries have limited access to educational and health
services, experience a great deal of family violence, sexual abuse,
exploitation of labor, and are often reduced to beggary.
Language making states
obligations contingent upon resources should be eliminated from paras 3 and 4.
If society cannot protect its disabled children, then who can it protect? Disabled children should have access to
healthcare, education and preparation for work. These should be grounded in government
policy. Children in rural areas, from indigenous groups, are exposed to the
greatest vulnerability and should be covered.
In developed countries
institutionalization should be eliminated. But for families living in remote
areas of developing countries like the rain forest or the Andes, their economic
situation is such that children with disabilities will be abandoned or cannot
survive, and institutionalization may be the only option for a better standard
of living.
The Chair clarified
the concerns raised by several delegations with respect to the relationship
between this convention and others that may, for example, deal with the rights
of children. It should not be the
objective of this meeting to duplicate obligations found elsewhere. States
parties are already bound by the obligations of those other conventions, which
stand on their own. However this does not prevent states at this meeting from
increasing obligations already found in other conventions. There is no problem of inconsistency
here. If a state is party to 2 conventions and one of them has a higher
standard, then the state is obligated to uphold the higher standard. With
respect to children, for any state party to the CRC that is also party to this
convention, should this convention have a higher standard, that state is bound
to observe the higher standard in this convention. This is stated in CRC
Article 41. It is important to ensure however that obligations do not
contradict each other. It is worth noting that most of the obligations found in
other conventions already apply to PWD, yet PWD have not been able to realize
these rights. So the task at hand is to understand the particular problems
that, for example, children with disabilities face, and then address those
issues specifically in this convention. This convention provides an opportunity
to be more specific with respect to rights that are already covered in existing
conventions, as in for example, the early provision of appropriate and
comprehensive services, which builds in an additional ingredient. There is also
the need to formulate general language, similar to what could be added to
Article 4.
To address the
underlying disagreement about the need for a separate article, the Chair
requested the facilitator to proceed in the same fashion as that for women with
disabilities, and to meet with interested delegations to identify gaps in the
text where mainstreaming of issues related to children with disabilities is
required. Following that the drafting a stand-alone provision, that is in fact
value added, can be explored.
Article 17 -
Education
The Chair introduced
the Facilitator from Australia for this article. He called for comments on the
WG text paragraph by paragraph while drawing attention to the many footnotes to
this article.
Jamaica called for this article to deal with both education and training and this should be reflected in the title. Many disabled want to resume their education when they are beyond the age of their nondisabled peers. Education is the catalyst that will improve the lives of disabled people.
Australia put forward its proposed text www.un.org/esa/socdev/enable/rights/ahc6aus.htm
which recognizes education as a whole from primary to lifelong learning, and is
not age specific. The text has been
structured towards inclusive education as an aspirational right. This document should not just be a
mere human rights document but there are life skills
that people with disabilities need to acquire to interact both with other
similarly disabled persons and with the community as a whole. Braille, sign language and orientation
and mobility skills are included.
These skills may be acquired through a formal education system but also
at any stage of life. Australia
sees the need for Article 17 bis which recognises that these activities are
fundamental but relevant more broadly than just in the context of education.
The term “recognise the right of” should be replaced with
“enable.”
South Africa was flexible with regard to the text used - that of the working group Australia. It subscribes to the principle of education for all. It emphasized several issues within the WG text: [1] The provision of education to children and young people must encompass development of skills and of individual potential to be a full member of society. [2] In order to provide education to a large scale there has to be a removal of all barriers including social, cultural and physical barriers. [3] Access to education has to be promoted and made affordable within reasonable means of state parties.
Kenya considered the WG text comprehensive and useful. In the chapeau of Para 1 the phrase “on an equal basis with others” should be added at the end of the first sentence; the reference to progressive realization removed from the second sentence and “and adults” should be inserted after “children”. Education for people with disabilities should be approached in the same way it is done for others.
The Chair enquired whether adding “and adults” would mean that the
text then reverted to apply to “people with disabilities”. Kenya
clarified that it would prefer to specify “children and adults” to
emphasize applicability to both given the fact that other parts of the article
seem to only apply to one or the other.
Thailand agreed with the WG text as the basis for discussion. [1] There should be a right to education
on an equal basis with others. Such
a right supersedes any particular model of education and any type of service
delivery. This right should not be compromised. [2] All educational settings should be
made inclusive to persons with disabilities, in line with the idea of inclusive
education. Such inclusiveness does
not mean only one model but that the whole educational system must be
inclusive. [3] Freedom of choice
applies to the concept of education as well and must be maintained. The right
to choose is a solution to the problems that in reality disabled people must
face when entering any particular educational system. Whether in the past,
present and future, there will always be “the idea of the
alternative”, to meet the needs of diverse groups of people. Therefore Thailand supports Para 3 of
the working group text and Para 2 (d) of the IDC text. The idea of specialized training skills
in para 4 of the WG text and 2(c) of the IDC text should also be
maintained. (www.un.org/esa/socdev/enable/rights/ahc6thai.htm)
New Zealand supported the basic content of the working group draft, while also supporting improvements in the emphasis of the article, which are achieved through the Australian redraft and are included in a number of NGO proposals. The emphasis of the article should be on disabled children and adults’ ability to participate in the general education system complemented or enabled by adequate provision of support and/or special services. It should not be to present a choice for states between providing inclusive or segregated services. General education should be seen as incorporating a range of supports to meet the diverse needs of all students, rather than as two alternatives; special versus mainstream. It therefore supports the deletion of WG para 3 as in the Australian text, or its modification. It supports the new 17(bis) because it deals with issues covered in other parts of the convention that are not specifically about the right to education, like Articles 13, 24, and 21.
Jordan
called for a
greater emphasis on learning, because it implies the interactive aspect of
education and the principle of self learning that is now becoming more
important given distance learning possibilities in the internet age. There is also a need for teachers to be trained
to teach persons with disabilities, particularly around areas such as assistive
technology. It suggested the
following structure for the WG text of this article. Para 1 should establish the right to
education and training for all PWD.
Para 2 should identify all the means and facilities to achieve the goal
of education for all. Para 3 should
be a safeguard for children who need special considerations.
Israel supported the WG text. It also supported the position of Kenya to broaden the article to include all learners regardless of age and enquired whether the reference to children in Paras 1(c) and 1(d) should be changed accordingly. There are lecturers, architects and other professionals who are involved in the education of disabled persons, they are not as well informed on disability issues, and they should also be referred to in 2(b). The obligation for inclusive education should apply to all institutions of learning, not just schools. Israel supports the IDC para 2(e), as disabled people and those who work with disabled people should be included in educational plans.
Costa Rica supported the Australian text which resembles a proposal from Costa Rica at AHC3. The scope of this article is the education of all disabled persons throughout their lives, not only formal or children’s education. Human rights education, on disability and human rights should be incorporated into study plans for all educational curricula.
The session was adjourned.
The Sixth Ad Hoc Committee Daily Summaries
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