29 August 2006 - CRINMAIL 850
Special Edition on the 8th session of the Ad Hoc Committee on the Drafting of a Disability Convention
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- DISABILITY CONVENTION: Questions and Answers
- AD HOC COMMITTEE MEETING: Summary and outcomes of negotiations
- CHILDREN: What does the Convention do for children with disabilities
- RESOURCES: Background information , publications and links
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The Eight and final session of the Ad Hoc Committee in charge of drafting an International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities ended last Friday in New York. After two weeks of intense negotiations, the Committee agreed on a final draft text, which will be presented to the General Assembly for adoption at its 61st session this autumn.
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DISABILITY CONVENTION: Questions and Answers
1. Why do we need a Convention to protect the rights of persons with disabilities?
There are currently about 650 million people with disabilities in the world. Although their rights are protected by existing human rights treaties, which apply equally to non-disabled people and disabled people, they represent a particularly vulnerable group, whose rights are often violated. In practice, the civil, economic and social rights of people with disabilities are routinely violated. They are disproportionately vulnerable to discrimination, and both physical and sexual violence. They are often denied legal capacity, and thus prevented from making choices about their everyday life.
The problem therefore stems from a virtual lack of monitoring and implementation of existing human rights standards with regards to the lives of people with disabilities. Governments tend to disregard practical issues regarding the realisation of the rights of people with disabilities and treaty bodies - in charge of monitoring the implementation of existing human rights treaties – do not always have the resources and expertise to challenge governments on this. A recent review by the International Disability Caucus revealed that “competing priorities limit the ability of the treaty bodies to effectively address disability in their mandates”.
Therefore, in practice, the rights of people with disabilities often end up being ignored in building accessibility, transportation, education, employment, etc. Consequently, the aim of the new Convention is not to create new rights for disabled people, but to introduce obligations on governments to implement their existing rights fully, and on an equal basis with non-disabled people.
2. What is the role of the Ad Hoc Committee?
The Ad Hoc Committee was established by General Assembly Resolution 56/168 of 19 December 2001, with the aim of considering proposals for a Convention to protect and promote the rights and dignity of persons with disabilities. The Resolution also invited States, relevant UN bodies and concerned NGOs to make contributions to the work of the Ad Hoc Committee.
The Ad Hoc Committee of the General Assembly held its first session in July 2002. It mainly focused on procedural issues. At the 2nd session, in June 2003, the Committee recommended to the General Assembly that a Convention be elaborated, and established a Working Group to prepare a draft text which would be the basis for negotiation in the next sessions. The Committee started its negotiation on a Draft Convention at its 3rd Session in May 2004, and has been discussing the draft text since. The final text of the Convention was agreed at the 8th session, in August 2006.
3. When will the Convention come into force, and how will it be implemented?
The agreed text of the Convention will now be examined by a drafting committee whose role is to ensure clarity, consistency, and lack of duplication. Once this process is complete, it will be presented to the 192 members of the General Assembly for adoption at its 61st annual session. After it is approved, the text would then be opened for signature and ratification.
The Convention will only enter into force once it has been ratified by 20 governments. It is therefore likely to take effect in 2008 or 2009. The text also establishes a treaty body, i.e. a Committee of experts responsible for monitoring the implementation of the Convention, and to which governments will be required to report, initially after two years and subsequently every four years. It also establishes an Optional Protocol, which provides for individual complaints and inquiries.
[Source: UN News, Save the Children, CRIN]
Visit: http://www.crin.org/resources/infoDetail.asp?ID=9992
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AD HOC COMMITTEE MEETING: Summary and outcomes of negotiations
The 8th session of the Ad Hoc Committee in charge of drafting an International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities took place from 14-25 August in New York. Delegates from 192 UN Member States and over 90 NGO representatives participated in the final talks on the draft text of the disability Convention. Ambassador Don MacKay of New Zealand was chairing the talks.
With about 150 new proposals for amendments to the text, the Committee was under extreme time pressure to wrap up negotiations by the last day. Informal consultations were therefore taking place outside the plenary, at lunchtime and in the evening, in order to accelerate the reaching of consensus. In addition, many contentious topics remained to be discussed and provoked lengthy and heated talks, among them: the definition of disability, the establishment of an international monitoring mechanism, sexual and reproductive health issues, inclusive education, abortion rights and euthanasia, legal capacity, and the safety of persons with disabilities under foreign occupation.
After two weeks of fiercely fought debate between government delegations, during which time it often appeared that positions were polarising rather than merging, a consensus was able to be forged that allowed the meeting to agree on a text. In many ways, this final session of the process was more politicised than any previous meeting.
The establishment of an international monitoring mechanism (Preamble)
Some delegations expressed reservations on establishing a monitoring Committee (or treaty body), stating that the issue of disability could be covered by the existing human rights treaty bodies, that a new monitoring body would lead to duplication and overlapping, that international monitoring should be the object of an Optional Protocol, and that the whole treaty body system was undergoing a review that could lead to a single treaty body for all seven core human rights conventions.
But, most countries argued for a treaty-monitoring body. Lichtenstein said that “if there is no treaty body, the perception will be that this Convention is seen as les important by the international community”. The European Union said the Convention could not wait for the reform of the current treaty body system. Yemen called for “giving force to the Convention” with a legally binding provision on international monitoring, and Costa Rica said that “not having a treaty monitoring body would be like running the marathon and stopping 50 metres before the finishing line”.
The International Disability Caucus, which represents more than 70 regional and international disability organisations, said it wanted an effective monitoring body. Duplication should be avoided, but disability rights were not currently protected by existing human rights bodies, which did not have the expertise, and had addressed disability only marginally.
In the end, consensus was reached on the establishment of a Committee of experts responsible for monitoring the implementation of the Convention, and to which governments will be required to report.
Sexual and reproductive health issues (Article 25)
There was disagreement on the proposal to include a reference to the right of access to sexual and reproductive health services in Article 25 (Health). Several countries maintained that the provision could be open to various interpretations, including abortion. Opponents of the provision said the right to adequate health services was fully covered by the rest of the article and, there was no need for a specific reference to sexual and reproductive health services. Others favoured replacing “health services” with “health care”. Egypt said the text was too controversial and would, for the first time, introduce the right to sexual and reproductive health services in a legally binding United Nations treaty.
On the other side of the divide, Brazil stressed this was an area where persons with disabilities have experienced wide discrimination. The European Union said, “What the proposed text would do is to extend to women with disabilities services available to other women,” not introducing any language that was not already agreed upon at the United Nations.
Various delegations that favoured keeping the reference said they would, nevertheless, be flexible. Yemen suggested a way out by adding a reference to the need to comply with national legislation, and Jamaica made linguistic suggestions that could lead to a compromise.
In the end, the provision was dropped without a vote in the face of strong opposition from anti-abortion delegates.
Inclusive education (Article 24)
All participants agreed on the need to integrate pupils with disabilities in the general education system. But, various countries argued that when the educational system cannot meet the individual needs of pupils with disabilities, special education should be provided.
Other countries and the International Disability Caucus objected to what they called “segregated education”: “If this is adopted,” the Caucus representative said, “40 million children with disabilities around the world would be excluded from general education.”
“This would represent a huge hole in the Convention”, said the representative of Mental Disability Rights International. “It would permit segregated education and defeat the purpose of the Convention, which is to achieve the full realisation of human rights of persons with disabilities. Barriers should instead be struck down, to allow the full benefits of education to disabled children.”
In the end a consensus was reached on including an obligation to ensure an inclusive education system at all levels, with appropriate individualised support measures as necessary.
Safety of persons with disabilities under foreign occupation
In the debate on the article dealing with situations of risk for persons with disabilities, Sudan, on behalf of the Arab group, argued for including a specific reference to the need to protect the safety of persons with disabilities under foreign occupation. Several delegations supported the addition, arguing that persons with disabilities are particularly vulnerable in such situations, and proper steps should be taken to protect them.
But various other delegations opposed the addition, which might open the door to a “shopping list of situations of risk” while leaving out items that should be included. For its part, the International Disability Caucus called on countries not to politicise the Convention and focus on the protection of persons with disabilities.
By Friday evening, however, the US forced a vote which they lost by an overwhelming majority, and a reference to the need to protect the safety of persons with disabilities under foreign occupation will be made in the Preamble of the Convention.
List of provisions of the final text
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Awareness raising
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Accessibility
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The right to life
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Protection in situations of risk
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Equal recognition before the law
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Access to justice
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Liberty and security of the person
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Freedom from torture or cruel, inhuman or degrading treatment
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Freedom from exploitation, violence and abuse
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Protection of integrity
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Liberty of movement
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Independent living in the community
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Personal mobility
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Freedom of expression
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Respect for privacy
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Respect for the home and family
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Education
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Health
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Habilitation and rehabilitation
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Work and employment
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Adequate standard of living
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Participation in political and public life
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Participation in cultural life, recreation, leisure and sport
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Statistics and data collection
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International co-operation
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National implementation and monitoring
The final text of the Convention will be available shortly, please keep checking the links below. Alternatively, refer to the Draft text of the Convention before the start of the 8th session.
[Source: UN News, Save the Children, CRIN]
Visit: http://www.crin.org/resources/infoDetail.asp?ID=9993
Further information
Press releases
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CHILDREN: What does the Convention do for children with disabilities
By Gerison Lansdown, Save the Children
Children with disabilities experience profound and widespread violations of their rights. And, unfortunately, despite the explicit provisions of the Convention on the Rights of the Child (Article 23), these abuses have continued, largely unrecognised by the international community. This new treaty spells out clear obligations for governments on the actions they need to take to achieve greater protection of the rights of children with disabilities.
At the beginning of the process of the negotiations, most delegations were extremely resistant to the need to make explicit reference to children. They argued that children were subsumed under the general provisions. It was only after lengthy argument and negotiation that it was accepted that children have a different legal status from adults, that they are entitled to additional protection as children and that while many of the rights violations they experience are the same as for adults, this is not true for all, and the remedies needed are not always the same.
At the outcome of the 8th and final session of the Ad Hoc Committee, the Convention includes the following specific provisions for children:
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A preambular paragraph stating that children with disabilities should have full enjoyment of all human rights
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Inclusion of respect for their evolving capacities in the general principles (Article 3: General Principles)
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Recognition of the obligation for governments, when developing laws and policies, to consult with people with disabilities, including children with disabilities (Article 4: General Obligations)
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Specific article on children with disabilities (Article 7: Children with Disabilities) which requires governments to take all necessary measures to ensure the equal rights of children with disabilities to enjoyment of all human rights and fundamental freedoms, emphasises the requirement to ensure the best interests of children, and requires that government ensure the right to express views and have them taken seriously with due weight to their age and maturity and to provide disability and age appropriate assistance to realise that right.
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Provision of age appropriate accommodations to ensure that children with disabilities can get access to justice through the courts
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Provision of age appropriate assistance and support in preventing all forms of exploitation, violence and abuse, provisions for recovery and reintegration for victims of abuse which take into account age specific needs, and the introduction of child focused legislation and policies to enable violence and abuse to be identified, investigated and where appropriate prosecuted.
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An obligation to ensure the birth registration of children with disabilities – currently many children with disabilities are not registered which means they often cannot get into school, access health care and they are invisible in government statistics. It can even mean they can be killed with relative impunity as there is no record of their birth.
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The right of children to retain their fertility – in other words, a prohibition on sterilisation of children on grounds of disability, a practice widespread in many countries
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A requirement that in case of guardianship, wardship or adoption, the best interests of the child must be the paramount consideration
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Recognition of the equal right of children with disabilities to family life and the obligation for governments to provide information, services and support to families to prevent concealment, abandonment, neglect and segregation
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Recognition that children with disabilities must never be separated from their parents on the basis of disability of either the child or the parents – this should end the practice of institutionalising so many children with disabilities.
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The equal right of children with disabilities to education and an obligation to ensure an inclusive education system at all levels, with appropriate individualised support measures as necessary.
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An obligation to ensure that children with disabilities have equal access to participation in play, recreation, leisure and sporting activities, including in the school system
Overall, these changes should significantly strengthen the protection of children with disabilities. Indeed, most of the changes that child rights organisations were advocating for within the International Disability Caucus were taken into account: retention of Article 7 as a separate article, inclusive education, prohibition of sterilisation. However, the proposed amendments to Article 23 on the prevention of the institutionalisation of a child on the basis of disability (of the child or of the parent/s) was dropped due to total lack of support.
General Comment
The Committee on the Rights of the Child is currently drafting a General Comment on children with disabilities, which elaborates the obligations of governments when implementing the Convention on the Rights of the Child. A consultative meeting was held in New York with a member of the Committee on the Rights of the Child during the Ad Hoc Session, in order to ensure that the developments taking place in the drafting of the new disability Convention can be adequately reflected in the General Comment.
Next steps
The completion of the drafting of the Convention is an important first step. But it is only the beginning. Save the Children organised a meeting during the session to bring together interested organisations to share ideas of the action now necessary to make the Convention a reality for children with disabilities. They identified the need for:
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advocacy tools for civil society to promote implementation
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capacity building materials for governments and other service providers
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translation of the Convention into child-friendly language
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tools or kits for teachers both in respect of including the Convention into human rights curricula, but also on its implications for schools
There is significant commitment from many organisations to contribute to this process, and Save the Children plan to play a key part in building capacity for advocacy to ensure that this new treaty is both ratified and implemented.
Visit: http://www.crin.org/resources/infoDetail.asp?ID=9995
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RESOURCES: Background information , publications and links
Legal documents
General information
- CRIN
- OHCHR
- Disabled Persons International
- Inclusion International
- Rehabilitation International
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