RI Report on Comprehensive and Integral
International Convention on the Protection and Promotion of the Rights and
Dignity of Persons with Disabilities
6th Meeting of the Ad Hoc
Committee, New York 1-12 August 2005
By
Gidion
Kaino Mandesi
RI Vice
President for
This report comprises the
summary of the 2nd week, ended August 12, 2005.
This
report covers discussions and comments made by government delegations and
representative of international DPOs and other NGOs forming disability caucus
during the 2nd week started on 8 – 12 August 2005 during the 6th
session of the Ad Hoc Committee. Articles 21 to 25 together with the structure
of the Convention were covered as herein below.
ARTICLE 21 THE RIGHT TO HEALTH AND
REHABILITATION
The
majority of government delegations favored this article to be separated into 2
articles. One article to deal with specifically the right to health and health
related rehabilitation services and the other article to focus on
rehabilitation and rehabilitation issues. Disability caucus also favored a
separate article on rehabilitation from the article on the right to health.
Some government delegations commented that Rehabilitation is a cross cutting
issue and a means for realizing basic rights for persons with disabilities.
Hence, it must be referred to different articles of the convention.
Concerning
the right to habilitation and rehabilitation, the IDC has supported that State
parties recognizes that all persons with disabilities have the right to an
effective and appropriate habilitation and rehabilitation to enable them to
acquire the skills that are required to lead an inclusive life which shall
apply to all of them irrespective of gender, age, degree, duration and
complexity of needs and place of residence. State parties shall ensure that the
concept and strategy expressed in the policy of community based Rehabilitation
(CBR) is implemented where appropriate and flexible funding options are
available to allow individual choice and design off services. State parties
shall plans to ensure that the plans are gender and culture sensitive covering
all stages in life and all ages.
That
women and girls with disabilities have, without discrimination equal access to
all available habilitation and rehabilitation services and programmes.
With
regard to health care, it has been agreed during the discussions that, all
persons with disabilities have the right to the enjoyment of the highest
attainable standard of health care without discrimination on the basis of
disability. Thus, no person with a disability should be deprived of that right.
In this regard, each state part should take all appropriate steps in its
domestic jurisdiction to ensure that persons with disabilities have access to
health care. To achieve this, the following aspects should be considered.
Ø
To ensure the
same range and standard of health services are available to persons with
disabilities on equal basis with
others;
Ø
To make sure
those health services specifically needed by persons with disabilities
depending on their disabilities/impairments are available and accessible within
the communities where they live.
Ø
To ensure that
general health support services in society are extended all irrespective of
one’s disability.
Ø
To put in place
code of ethics for public and private health care and be effectively monitored
nation wide to promote
quality care, openness and respect for human rights, dignity and
autonomy of persons with disabilities.
Ø
Sharing personal
health information should occur only after the persons with a disability
concerned has given his / her free and informed consent and the health professionals
should inform persons with disabilities of such rights. Information of all health related provisions is provided in
a timely, meaningful and accessible formats, modes, means and language,
including sign language; education, training and continuing development of
health professionals, including staff with disabilities, incorporated
instruction on the needs of persons with disabilities, including gender
specific needs; Ensure that health
and rehabilitation services
provided to persons with disabilities and the sharing of their personal
health or rehabilitation, information occur only after the person concerned has
given their free and informed consent and that health and rehabilitation
professionals informed persons with disability of their relevant rights working group suggested a definition of
informed consent,
“In formed decisions can be made only with
knowledge of the purpose and nature, the consequences and the risks of
treatment and rehabilitation supplied in plain language and other accessible
formats”. This is right to health contains both freedoms and
entitlements.
Thus, health is not a public good to be pursued
independent of the will of each individual but requires respect for the will of
the individual persons with respect to his or her own well-being. This informed
concert should prohibit discrimination in the exercise and enjoyment of the
right to health, including on the ground of disability. (General comment no.
14)
Ø
Protect the
privacy of health records of persons with disabilities.
Ø
Prevent unwanted
medical and related services interventions and corrective surgery from being
imposed on persons with disabilities.
Lastly
it has been emphasized by disability caucus that legal capacity (capacity to
act) is a necessary prerequisite for exercise of the right of informed consent
by any individual without legal capacity a personal remain vulnerable to
individual and to a process of decision-making that disrespects self
determination and human dignity as provided under article of the convention.
Respect
for human rights in the health care setting leads to improved overall health
and well-being of the individual with disability. Adequate health leads to
greater mobility, improved quality of life and self empowerment.
ARTICLE 22 RIGHT TO WORK
Principally,
the right to work extends to all people. During the discussions of article 22
of the convention, all government delegations and the Disability caucus have
stated that women and men with disabilities have the right to work in all
sectors of employment.
Thus,
legislative and administrative measures should be undertaken by each state in
order to create the opportunity for them to gain a living by work that they
freely choose or accept, with a view to promoting equal opportunity and
treatment of them and promoting them from poverty. Both safeguarding and
advancing the realization of the right to work of persons with disabilities
should include measures to:
Ø
Promote a labour
market and work environment that are open, inclusive and accessible to all
persons with disabilities and enable them to have effective access to general
technical and vocational training initiatives. These initiatives include
guidance programmes, placement services, assistive devices and vocational and continuing
training.
Ø
Employment
opportunities promotion and career advancement for persons with disabilities in
the open labour marketing including opportunities in self- employment and
starting one’s own business to secure income through their efforts.
Ø
Provide
assistance to persons with disabilities in finding, obtaining and maintaining
employment.
Ø
Encourage all
employers in both public and private sectors of employment to hire persons with
disabilities as their right.
Ø
Exceptions to
the general rule as stated above, affirmative action programmes, incentives and
quotas should be applied to give employment opportunities for persons with
disabilities.
Ø
The workplace
and work environment should be safe and the reasonable accommodation be granted
to ensure better performance of work acquisition work experience of
persons with disabilities in
the open labour market.
Ø
Promote
vocational and professional rehabilitation job retention and return to work
programmes for those employees who have got disability in the course of
employment.
Ø
To combat
stereotypes and prejudices about persons with disabilities in the
workplace and the labour
market through promoting and recognizing their skills, merits, abilities and
contributions to the workplace and the labour market.
Lastly, it has widely accepted that protection of the
right to work for persons with disability through national legislation should
be ensured. Such national legislation should guarantee obtaining employment,
continuance of employment, career advancement, working conditions, including
equal remuneration for work of equal value and equal opportunities and the
redressing of grievances and to ensure that persons with disabilities are able
to exercise their labour and trade union rights.
ARTICLE 23: Social securing
and an adequate standard of living
There was general agreement between government
delegation and representative of International disability organizations and
other members of IDC that the order of paragraphs 1 and 2 should be reversed,
so that “adequate standard of living” (paragraph 2) would be addressed
ahead of “social security”. There was also a suggestion to create
two separate draft articles out of draft article 23, one on an “adequate
standard of living”, and the other on “social security”. The
Committee agreed to reflect further on this proposal. It was accepted that this proposal will
be further considered by the Ad Hoc Committee.
Paragraph 1
It
was agreed to replace or complement” social security” in order to
find a broader phrase to encapsulate the assistance provided by a state, and so
ensure that there was no discrimination against
persons with disabilities in the provision of that assistance. Suggestions
included “social insurance” (currently used in this draft article),
“social assistance”. “social support”. “social
safety nets”, and “social protection”. The dialogue on this
issue is still going on.
Now
the paragraph on social security reads as follows:
2. State
Parties recognize the right of all persons with disabilities to (social
security, including social insurance/social assistance/social
support/ social safety nets/ social protection), and to the enjoyment of that
right without discrimination
on the basis of disability and shall take appropriate
steps to safeguard and promote the realization of this right, including
measures to:
Sub-paragraph
(a)
proposal for this sub-paragraph included specifying
that the services, devices and other
assistance referred to in this provision should be offered “free
of charge”, a proposal that had also been made in the context of other
draft articles. There was resistance to this specific proposal, although it was
agreed that delegations were committed to the concept of
“affordability”.
There was general support to replace
“necessary” with “appropriate” in this sub-paragraph,
in order to ensure consistency
with the rest of the draft convention.
Sub-paragraph (a) currently reads:
(a)
Ensure access by
persons with disabilities to appropriate services, devices and other assistance
for disability-related needs;
Sub-paragraph
(b)
There was general support for the deletion of the
references in this sub-paragraph to particular groups of persons with
disabilities, and it was noted that the incorporation of “women”
and “girls” (children) in to the draft convention was being
examined by the facilitators on those issues. The difficult situation of many
aged persons with disabilities was also highlighted, but there was no agreement
as to how this issue should be handled.
It was further noted that taking into account the
needs and perspectives of persons with disabilities was addressed in paragraph
2 of draft article 4. it was agreed that the Committee needed to ensure that
the draft convention did not unduly duplicate coverage of specific issues, and
there was general support to delete this phrase.
Sub –paragraph (b) currently reads:
(b)
Ensure (equal)
access by persons with disabilities, (particularly women and girls with
disabilities and the aged with disabilities,) to (social security / social
assistance /social support/social safety net/social protection) programmes and
poverty reduction strategies;
Sub-paragraph
(c)
Many delegations suggested that the defining element
of this sub-paragraph was the situations of persons with disabilities living in
poverty.
There was general agreement for “severe and
multiple” to be deleted from this sub-paragraph, largely because of the
difficulty in defining “severe” and “multiple” and of
identifying which categories of persons with disabilities they encompassed. The
provision would then simply refer to “persons with disabilities”.
This was not an unopposed view however, and other proposal included referring
“in particular” to severe and multiple disabilities.
There was general support to retain the reference to
“families” in this sub-paragraph, as families were particularly relevant
in the context of this draft article.
Sub-paragraph (c) currently reads:
( c) Ensure
access by persons with disabilities, and their families, living in situations
of poverty to assistance from the state to cover disability-related expenses
(including adequate training, counseling, financial assistance and respite
care), which should not become a disincentive to develop themselves;
Sub-paragraph (d)
There was general support to replace
“governmental” with “public”. It was also agreed that
the rest of this sub-paragraph, from “including would be deleted.
Sub-paragraph (d) currently reads:
(d) Ensure access by persons with
disabilities to public housing
programs.
Sub-paragraph
(e)
There was general support to delete this
sub-paragraph on the basis that it had the potential to be unduly prescriptive.
Some delegations, however, wanted to retain it, and there was a suggestion that
this sub-paragraph should be limited to “disability related
expenses”.
Sub-paragraph
(f)
It was emphasized that in some countries, and under
some religions, life insurance was not looked on favorably. If this
sub-paragraph was to be retained, there was a need to ensure that it did not in
any way imply or create a “right to life insurance” in those
countries where it was not permitted.
Some delegations suggested that the reference to
“health insurance” under this sub-paragraph properly belonged under
draft article 21. This issue needed to be considered further by the Committee
in order to ensure an integrated text.
Paragraph 2
In relation to paragraph 2, some delegations
suggested that the “listing” of elements of an adequate standard of
living was not necessarily helpful, and could thus be deleted. Other
delegations, however, supported such a list, and in particular supported the
reference to access to clean water.
The paragraph, now paragraph 1, currently reads:
1. State
parties recognize the right of all persons with disabilities to an adequate
standard of living for
themselves and their families, ( Including adequate food, clothing, housing and
access to clean water) and to the continuous improvement of living conditions
and shall take appropriate steps to safeguard and promote the realization of
this right ( without discrimination on the basis of disability) (State parties
shall ensure that persons with disabilities have access to clean water on an
equal basis with others).
Draft
article 24: Participation in
cultural life, recreation, leisure and sports
There
was unanimous support for this article and many valuable proposals to
strengthen it need to be reflected on further.
There was general support to deal with the issues of
participation in leisure, sport and recreation and participation in cultural
life separately, but both in the same article.
There was general support to include a number of
proposals to broaden the scope of the article. These included tourism and the
right of children with disabilities to
play as well as the right to freedom of religion as proposed by Kenyan delegation.
With regard to Kenyan delegation proposal regarding
an inclusion on participation in religious life in draft article 24. However,
the majority have not supported to include such a provision.
There
was general support to include the phrase “on an equal basis with
others” within the chapeau of paragraph I, so that it now reads:
1. States
Parties recognize the right of all persons with disabilities to take part on an
equal basis with others in cultural life, and shall take all appropriate
measures to ensure that persons with disabilities:
Sub-paragraph (a)
There
was general support to replace the word “community” with
“society” in the paragraph. There was general agreement that this
sub-paragraph is about enjoyment of right, rather than being a measure to
implement a right. There was general agreement, therefore, to a proposal to
make the paragraph 1 bis rather than 1 (a).
It
now reads:
I bis. States Parties shall also take appropriate to
enable persons with disabilities so have the opportunity to develop and utilize
their creative, artistic and intellectual potential, not only for their
benefit, but also for the enrichment of society.
Sub-paragraphs (b), (c) and (d)
There was general support to shorten these sub
paragraphs and to include text related to tourism. They now read:
(b)
Enjoy access to
cultural materials in all accessible formats;
( c) Enjoy
access to television programmes, films, theatre, and other cultural activities,
in all accessible formats;
(d) Enjoy
access to places for cultural performances or services, such as theatres,
museums, cinemas, libraries and the tourism services and as far as possible,
enjoy access to monuments and sites of national cultural importance;
Paragraph 2
A proposal to replace “intellectual property
rights” with “copyright” received strong support, but there
was no general agreement.
The text now reads:
2. State
Parties shall take all appropriate steps to ensure that laws protecting (intellectual
property rights) (copyright) do not constitute an unreasonable or
discriminatory barrier to access by persons with disabilities to cultural
materials, while respecting the provisions of international law.
Paragraph 3
There was no agreement on this paragraph, with some
delegations proposing to delete it, and others proposing to retain it.
A compromise formula was proposed that gained support
from those who supported retention of the paragraph. That proposal reads:
3. Persons
with disabilities shall be entitled, on an equal basis with others, to
recognition and support of their specific cultural and linguistic identity,
including sign languages and deaf culture.
Paragraph 4
chapeau
There was general support to amend the chapeau to
make it clear that the paragraph does not refer to an existing right to
participate in sport and leisure activities. It now reads:
4. With
a view to enabling persons with disabilities to participate on an equal basis
as others in recreational, leisure and sporting activities, State Parties shall
take appropriate measures to:
Sub-paragraphs
(a),(b),( c) and (d)
Some delegations proposed to remove the word
(mainstream” from sub paragraph (a) so that disability specific
activities would not be ruled out. Others thought, however, that because an
overall aim of the convention is the inclusion of persons with disabilities in
the mainstream, the deletion would not be appropriate. An alternative approach
was suggested to include a reference to these disability specific activities in
sub-paragraph (b).
There was general support for inclusion of the
concept of participation at local municipal levels.
The paragraphs currently read:
(a)
Encourage and
promote the participation, to the fullest extent possible, of persons with
disabilities in mainstream sporting activities at all levels;
(b)
Ensure that
persons with disabilities have an opportunity to organize develop and
participate in disability specific sporting and recreational activities and
encourage the provision of appropriate instruction, training and resources in
support that is available to other participants;
(c)
Ensure that
persons with disabilities have access to sporting and recreational and tourism
venues, and that persons with disabilities have equal access to participating in
sporting activities within the education
system;
(cbis) Children
with disabilities have equal access to participation
in play recreation and leisure and sporting activities including those in the
school system
(d)
Ensure that
persons with disabilities have access to services from those involved in the
organization of recreational, services from those involved in the organization
of recreational, tourism, leisure and sporting activities.
Draft
Article 25 on Monitoring mechanisms
There was general agreement that the Convention
needed to include an article on both national and international monitoring.
There was general agreement that monitoring
mechanisms needed to be effective. This was particularly important because of
the lack of effective implementation of the existing rights for persons with
disabilities.
Secondly, there was agreement that the monitoring
provision of this convention should be at least as good, and preferably better,
than those of other treaties. Being the most recent human rights convention its
monitoring provisions will be the most up-to date and will have the potential
to serve as an example for the others.
It was noted the work being done to reform the
existing treaty bodies, and the report being prepared by the Office of the High
Commissioner on Human Rights for 7th session of the Ad Hoc
Committee. While there was agreement that these would usefully inform the
Committee’s discussion on monitoring provisions, many delegations also
noted that the Committee should not be held hostage by timeframes imposed by
the reforms (this work had
been going on for many years and might go on for some time yet.) The Committee
may have to decide on the monitoring provisions of this convention while still
waiting for the outcomes of the reform work. It will be important, therefore,
to ensure the provisions are flexible enough to take account of later reforms
and to come up with language that preserves that approach emphasis added.
Thirdly, there was general support for the
involvement and full participation of civil society, both persons with
disabilities and their representative organizations, in all levels of the
monitoring process.
Most delegations were only able to express a
preliminary view, and look forward to further discussions next session when
they will have had an opportunity to consider the report from the Office of the
High Commissioner on Human Rights to this Committee, and other proposal.
STRUCTURE
OF THE CONVENTION
Before concluding the 6th session of the
Ad Hoc Committee, both government delegation and IDC members have got
opportunity under the guidance of the chairman to discuss the structure of the
convention. Principally, it has
been accepted that the convention should look like having the preamble to the
beginning followed by part one comprises of purpose, principles state
obligation, equality and non discrimination and accessibility. Part two should comprise list of all
rights and freedoms that is to say civil and political rights, as well as
economic, social and cultural rights.
Monitoring mechanism and other measures to ensure effective
implementation of the Convention should be in the last part of the Convention.
All in all, several proposals on the structure of the convention will be one of the key issues to be discussed and finalized in the next sessions of the Ad Hoc Committee. There will be not less than two sessions of the Ad Hoc Committee next year. The Chairman informed the participants of the committee in the last day before concluding the 6th Session.