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2nd 17 June 2003

Disability Negotiations Daily Summary Volume 2, #2 June 17, 2003

Morning Session

Commenced: 10:08

Recessed: 13:04

The theme of the morning session was The Principle of Non-discrimination and Equality from a Disability Perspective: Critical Issues Concerning Special Measures and Disability. Chairperson Luis Gallegos (Ecuador) introduced the distinguished panel of experts consisting of Ambassador Leandro Despouy (Argentina), Ambassador Rangita De Silva De Alwis (Sri Lanka), Ms. Charlotte McClain (South Africa) and Ms. Cynthia Waddell (United States).

Ms. Waddell discussed the importance of addressing accessibility in a wide-ranging manner in order to ensure effective participation of PWD in all spheres of life and promote opportunities, particularly in the employment sector. She demonstrated various examples of PWD working in an accessible environment such as people using wheel chairs, reading Braille, use of real-time captioning, screen reading software, etc. She emphasized that the definition of accessibility needs to be broad enough to include not only the access to transportation, building etc. but, technical devices, like cell phones, ATM and voting machines as well as software, websites and hardware.
She urged all governments to mandate that official documents be made available in alternate formats upon request, including documents issued for the Convention process, and for communication needs to be provided for in governmental meetings. Sign language should be recognized as an official language. States should be obligated to procure items that fulfill accessibility requirements. Waddell summarized that by incorporating the right to access, the Convention will entail business benefits and increase employment opportunities for PWD. It is essential to ensure accessible design at the initial stages in order to avoid the extra cost of making the environment accessible at a later stage. She emphatically argued that if the digital divide and communication barriers are not addressed, the barriers will continue to emerge and concluded by saying, "technology changes, but civil rights do not."

Ms, McClain highlighted the importance of disability rights under the South African Constitution, which includes not only the provisions regarding non-discrimination, but affirmative action for PWD as well as the other vulnerable populations. Through these provisions it honors the constitutional principles of equality, human dignity and social justice. These principles will build an equal society for everyone with or without disabilities and mark a paradigmatic shift from a charity or benevolence- based approach to a rights-based approach for by ensuring the equal opportunities and rights for the PWD. This Convention will encourage a similar approach by creating the legal basis for the equalization of opportunities and rights of PWD internationally.

Quoting a statement from the Nobel laureate Amartya Sen, Ambassador Rangita De Alwis highlighted the multiple forms of discrimination and marginalization that women with disabilities face in their vulnerable position in the society, even though they also happen to be the greatest caregivers to the PWD. Though men and women are equal victims of violence in war, women are much greater victims of domestic violence, leading to various types of disabilities. Until the 1970s, there was no recognition of wife-beating as a crime in the United States and this is still the case in many countries. Marital rape is also still not considered as a crime in many countries. Violence against women should be considered a cause of disability. Shattering the distinction between private and public life in this regard is a great challenge but a treaty can provide for minimum levels of protection. Due to multiple forms of discrimination and marginalization, women with disabilities often remain invisible and are deprived of effective participation in various spheres of life. Therefore, special efforts need to be made through networking between government and non-governmental organizations (NGOs) to mainstream this group. The use of international law as an aid to national law has been very effective in implementing women's rights and can be utilized for implementing the rights of the women with disabilities.

Ambassador Despouy emphasized the need to establish the linkages between human rights and rights of PWD, a need which was not recognized 20 years ago. It is heartening to note that now the UN is clearly accepting the co-relationship between human rights and the rights of the PWD, and emphasized the need to look at the rights of the PWD in a holistic manner. He drew attention to the fact that it is not enough to merely legislate provisions for the rights of PWD as laws are often not implemented. He recommended a strong monitoring mechanism to ensure implementation of the rights of the PWD to be drafted through this Convention.

Panel Question and Answer Session

Uganda asked for the panel's suggestions on addressing the diversity of needs of PWD, and the disparate levels of development and wealth of the countries in which they live, in developing the proposed Convention. De Alwis replied that the most helpful parallels could be found in the CEDAW concept which requires state parties to exercise due diligence, not equal application in implementing the Convention. Greece and the European Union (EU) asked how a broad perspective can best be approached with regard to rights of PWDs; with non-discrimination and equal opportunity, and to what extent should states be made responsible in fields such as housing and employment? McClain answered by advocating the need to place a positive obligation on states to respect the rights of PWD by inclusion of substantive equality, economic and social rights, since none exist in isolation. Despouy emphasized in his answer the importance of strict adherence to legal norms, accompanied by public policies that will transform these norms and principles into reality. He stressed the roles of both state and society, ie. mass media, and its obligations in promoting a climate of public understanding instead of inequality. He noted that laws promoting or favoring equal opportunity were most productive when strict norms regarding indirect discrimination are in place, for example, discrimination against PWD because of religion, beliefs, etc. Regarding the reservations of states, he warns that emergencies should not be a reason to suspend the obligations of the Convention since this is when PWD are most negatively affected. Specificity and limits were recommended, since the purpose of the Convention is to establish legal rules to enable PWD to exercise their full rights. The role of NGOs in social rights, housing, and related areas of public policy is very important because such initiatives have difficulty reaching specific populations such as PWD and women. Waddell reflected upon her own experience as a hearing-impaired ADA compliance officer whose perspective incorporated both that of a PWD and a government officer monitoring legal compliance. She suggested some practical steps like the need for coalition building and networking with all disability groups regarding best practices and use of available resources. Her recommendaations don't require extraordinary spending, but targeting for effective implementation. Provisions such as those in the Manila Declaration, calling for study of resources available for capacity building in member states, will differ in their impact in different states. They should, therefore, identify resources using universal definitions of human rights for PWD, and then move on to studying how best to assist states in implementing these rights given the resources. PWD input is imperative in informing and promoting awareness about member states' particular needs. De Alwis supported the efficacy of using a non-arbitrary method of legal classification which is rationally related to the objective sought. According to her, the classification-based flexibility of the Harvard quota system is one way to actualize PWD rights, along with watchdog monitoring from the NGO sector.

China suggested that Convention's formulation include construction of meaningful global guideposts incorporating differing historical backgrounds, and asked the panel to address the relationship between civil and political rights, and the rights of economy and social culture. McClain replied that the common thread between all of these rights, because of its overarching, interdependent and interconnected nature, was the ban on discrimination. Waddell noted that in the final analysis, the obligation to execute these rights lies with the state, therefore the state has the obligation to create an enabling environment in which NGOs or any other entities can enhance the work of the state or engage with it in meeting those rights. She stated that progressive rights require progressive, not overnight, realization by putting in place plans that work within a reasonable time frame. Despouy suggested an answer could consist of equal inclusion of all rights in equal conditions, with an ideal model removing obstacles preventing PWD from accessing rights. This would include the acknowledgement that structural barriers prevent the exercise of all freedoms and rights, political, social and economic. Colombia asked what models would be global and comprehensive in nature to provide for adequate follow-up and supervision mechanisms. Despouy affirmed Columbia's special efforts for PWD, because of the conflict that had created a large population of PWD, and advocated a holistic approach with a verification committee as a mechanism facilitating compliance with nationally applied norms. Venezuela requested clarification of the term "different categories of people" in the context of a panel discussion about non-discrimination, non-segregation and non-marginalization of PWD. Despouy affirmed this as a timely question highlighting the need for continuous clarification of the interpretation of words, and stated that his particular discussion was framed in terms of equal rights and dignity. He encouraged care in the use of equal rights terms because of their connotations. Mexico enquired into the possibility of developing indicators to find common experiences in monitoring in different countries, and ensure their effectiveness across countries. Despouy agreed with the particular importance of federal disability legislation and developing national programs for PWD. Thailand requested the Convention address equal outcome as well as equal opportunity. De Alwis concurred, saying that the CEDAW model shows this is important, and urged that direct, as well as indirect, discrimination be outlawed under the Convention.

Questions from NGOs included a query from the International Labor Organization regarding the panelists opinions as to the need for affirmative action provisions in the Convention. McClain reflected on the South African constitutional model which says that the state has an obligation to respect, promote and fulfill constitutional concepts, seeing the issue around positive duties as going beyond equalization of opportunities and looking to positive results. The Pan American Organization of Health asked Despouy about the proposal of adopting a human rights Convention system similar to the U.S. and European models, ie. international and national monitoring in order to protect PWD rights as well as their enjoyment of those rights. He expressed that the Inter-American system could also be a practical reference, since it is already operating, linking states in the continent with a definition of disability and discrimination that is useful for mechanisms already established there, and demonstrating a possibility of implementation without major problems for states. He suggested that the ideal system would call for NGO as well as state reports, recognising the legitimacy of NGO contributions in policing flagrant violations. The World Association for Psychosocial Rehabilitation questioned whether this Convention would focus on issues of gender, race, disability, caste, low SES and mental illness sufferers. De Alwis affirmed the importance of Convention focus on these multiple factors of ethnicity, caste and class to ensure safety nets for PWD, seeing the Convention focus as considering the manifold burdens of women with disabilities, especially in developing countries, and focusing on bias in other laws impacting women. The European Disability Forum expressed the need for broad non-discrimination legislation in all countries, promoting general accountability, and, when required, individual reasonable accommodation. The Humanitarian Organization emphasized the need for national programs to be decentralized, enabling players to take action at the level of municipalities so that PWD can have genuine needs taken into account, stating the Convention could incorporate this level of specificity by calling for implementation of programs at the local level.

The Chair summarized the panel's contributions noting the expressed view of PWD, that does not simply ask what we should do for them, but what we can do in concert with them.

Afternoon Session

Commenced: 15:19

Adjourned: 17:07

The proceedings for the morning session were delayed slightly due to an electrical problem.

The Chairman opened the floor to general debate. Mr. Johan Scholvink from the Department of Economic and Social Affairs then discussed item #5 on the agenda. He highlighted five documents (A/AC/265/2003/1 thru A/AC/265/2003/4 and addendum to /4, see Disability Negotiations Daily Summary for June 16, 2003) that will be submitted at the 58th session of the GA. They review progress from the World Program on Disability, accessible ICT, and the regional meetings relating to the development of a convention that were held in April and May in Quito, Johannesburg, Madrid, Bangkok and Beirut. The outcome documents for each of these meetings are available on the accessible UN PWD homepage at: www.un.org/esa/enable

General Debate

The delegate from New Zealand indicated his full support for a convention because the core human rights conventions, although they apply to all people, still do not guarantee the non-violation of rights of PWD. One common violation particularly in New Zealand relates to employment issues. He elaborated on the ways in which his country has developed a rights- based national strategy and highlighted the need for any convention to do the same. He called for the convention to have inclusion, participation, equity, and partnership at its core. Such a convention, he said, should also emphasize the rights of PWD who face double discrimination, such as minorities, indigenous people, women, children, and those who are significantly disabled. He called for consideration of the recommendations put forth at the Bangkok meeting in the development of such an instrument. Any process towards the development of such a treaty should also capture "all views" and be both "dynamic and inclusive," involving the full and active participation of PWD.

The delegate from Mexico was the first of many delegates to welcome the new Special Rapporteur on Disability of the Commission for Social Development, Ms. Hessa Al-Thani. He noted a message from President Vicente Fox that expressed Mexico's intensifying efforts towards protecting and promoting the rights of PWD through the creation of a special committee to look at the elaboration of an international convention during the 58th session of the GA. Mexico also called for governments, expert NGOs, and PWD to collaborate in developing the scope of the convention. He called for accessibility of documents and contribution to a voluntary fund that would help NGO experts and PWD to fully participate in this process.

Senegal pledged to provide all support necessary to the Chair and the Bureau. The speaker noted that the drafting of an International Convention has been on the U.N. agenda for some time and expressed disappointment that in spite of "promising provisions" in the Commission on Social Development, the momentum seems to be dissipating. "Is it not now time to act?" was asked of the Ad Hoc Committee. The delegate pointed to the African Decade of Disabled Persons, an initiative of African NGOs and the OAU, as contributing to equality, and further trumpeted the existence of both domestic initiatives and the Dakar sub-regional headquarters of the African Institute of Rehabilitation as evidence of Senegal's concern. Senegal's programs prioritise enabling participation of PWD, by making appropriations to capacity-building initiatives. The delegate noted that programs are one aspect of Senegal's fight against poverty (for example, improving access to medication, health care, and social services). The delegate concluded by paying strong tribute to the Chairman and the Working Group in charge of drafting the Convention.

The Ambassador from Canada proclaimed his hope that discussions will lead to consensus on the most effective means to move the process forward. The important role of PWD in effecting recent advances in Canadian laws was highlighted. He noted that it is of "paramount importance" that "all necessary arrangements" be made to include PWD in the Convention process. The speaker highlighted the experience of cooperation amongst colleagues across multiple levels of government in Canada in implementing initiatives regarding PWD such as research, education, employment, and tax measures. Gratitude was expressed for the exchange of ideas during and after the regional workshop in Quito in April. He noted that the Convention must be drafted to ensure the broadest possible support and consistency with existing instruments, favoring coordination in areas where a "real difference" can be made. The speaker concluded by assuring the Committee that Canada "intends to be very active in these discussions".

The delegate from Australia noted its "long-standing commitment" and its domestic regime of "world-class" legislation, policy, and services designed to maximize participation of PWD. He noted the pleasure of including PWD in their delegation. While acknowledging that there is "still much to be done", the speaker noted that "significant advances" have been made. He outlined several "fundamental" principles that should be borne in mind by delegates and the Committee in considering proposals for development of a new instrument: (1) endeavor to make sure that existing efforts are fully recognized and clarified; (2) existing protections in other instruments should not be duplicated; (3) gaps that are identified should be closed; (4) assessment of existing HR instruments in light of previous principles is in order; (5) any new instrument should be "effective" and "efficient" (he enumerated that a protocol or annexation to existing HR Treaties could be the "most effective means"; and (6) any regime should incorporate streamlined reporting requirements and improved rules of procedure.

The Ambassador from Greece, in his capacity of representing the EU Presidency, noted that there has been significant progress towards a mechanism that would protect and promote the rights of PWD but there is still work to be done. Such work includes further full recognition of the goals of full participation and equality, the need for a developmental approach to disability, and the changing of attitudes at a government and societal level. He highlighted the importance of dealing with aging issues, mental health issues, the special rights of women and girls in such a convention, as well as further attention to accessibility and equality of opportunity. He emphasized the need for "direct" dialogue between states and NGOs alike in the development of such a Convention, as well as the need for any such document to include a rights-based approach to the issues at hand. Such a rights-based approach, he said, has been seen at the EU level, especially in the 1996 resolution and the 2002 directive. Given such experience in the EU, he invited the committee to make use of the experience of the Human Rights Council of the EU in this initiative.

The seventh intervention was by Thailand. The speaker stated that Thailand is committed to promoting and protecting rights of PWD. He favored the idea of elaborating an international convention on the protection and promotion of rights of PWD. He cited the existence of Resolution 58/4 (22 May 2002), the extension of the Asian and Pacific Decade of Disabled Persons (1993-2002) for another decade (2003-2012), and urged governments to adopt a comprehensive international convention. The speaker noted the awareness at a ceremony in Japan marking the end of the Decade that there is a need to replace the "charity" approach with a "rights-based" approach. Next highlighted was an in-country seminar conducted by the Thai Ministry of Social Development and Human Security on December 03, 2002 (International Day of the Disabled), and the promotion, during January of this year, of "all activities" related to the drafting of an international convention by an Advisory Committee on Disability to the Thai Prime Minister. The fact that the results of the May 26 meeting this year were presented to the Thai government was also mentioned. The delegate noted that it is "crucial that dissemination of information is accessible", and noted that attention also must be given to the specific concerns of: (for example) women, indigenous peoples, ethnic groups, survivors of psychiatric services, people with intellectual/cognitive disabilities; and persons with multiple disabilities. He concluded by reiterating that Thailand "fully supports" the Convention process.

The delegate from Uganda noted that a Convention "should go a long way to ensure conditions that are appropriate . . . without compromising the existing protection and promotion of rights of [PWD]," because the rights of PWD have remained "at risk". A Convention, he said, should recognize civil, political, economic, social and cultural rights and support the removal of all barriers in the environment that hinder PWD in advancement. Acknowledging the CRC and the Women's Convention, he mused that no provision in the Convention should represent a step backwards, and firmly stated that rights are for all without regard to race, nationality, ethnicity, color, sex, age, language, religion, and social status. He remarked that social discrimination constitutes the majority of human rights violations in the world today. Inclusiveness, equality, non-discrimination, equal opportunity, empowerment, and participation were enumerated as principles that should be "embedded" in a Convention. He acknowledged that a rights-based approach confronts the reality that disability discourse has for a long time viewed PWD as "the ones with a problem". He suggested, too, that enumeration of rights should specifically relate to each type of handicap and that there is a need to distinguish between "impairment" and "handicap[s]" of various types. The importance of equitable allocation of the process in order to increase economic means and capacities of disabled persons was stressed; a Convention should empower. Equal opportunity for full employment, access, and the need to attack the "structural basis of inequality" were emphasized as of importance. The dilemma that certain forms of disabilities require constant health care and medication was noted. He noted that a Convention would do well to include an obligation for governments to have comprehensive data related to disability in order to implement "credible" plans. The role of international aid and cooperation is "crucial". It is also "vital" that a Convention prescribe an international mechanism and structures for ensuring state compliance at the domestic level to the norms set out in the instrument. The delegate also noted that a Committee of experts could "cut-out' some of the traditional monitoring reporting requirements.

The next delegate to speak was from Venezuela. He highlighted the measures that Venezuela has taken with regard to their 1999 Constitution to guarantee the rights of all persons, without exclusion or discrimination. He called for reinforcement in the cooperation among the Latin American States in realizing full protection and promotion of the rights of PWD and called for the establishment of universal rights of all PWD to enjoy legal protection, full participation in community life, satisfactory working conditions, and freedom of expression in all ways, including sign language. He then suggested some ways in which these rights could be realized and guaranteed at a national level through the convention, including school programs and professional training of PWD. He, thus, indicated his full support for a broad and comprehensive convention and moving forward to address all integral issues.

Statement by the ILO

The Chairman called for the International Labor Organization (ILO) representative to take the floor. Ms. Barbara Murray expressed her commitment to the convention as a means of encouraging all countries to further their steps for inclusion of all PWD into society. She highlighted the importance of equal opportunity and social dialogue, which are reflected in all ILO conventions. The representative called for meaningful participation of all interested parties, industrialized nations, developing nations, transition nations, NGOs, and public service providers, in all meetings and expert groups. She added that such collaboration should be coordinated at the highest level of government. Such a convention, she said, should build on existing bodies and address the needs of people with all disabilities regardless of gender or age, including those with multiple disabilities or HIV/AIDS. In closing, she outlined the work that the ILO has done to protect the rights of PWD to work, such as a working paper (which is currently available in English and Spanish), regional meetings, and the desire to coordinate meetings on vocational rehabilitation and training as necessary.

Statements from NGOs and Secretariat

The Chairman opened the floor for NGOs to speak. No representatives took the floor at that time. The Secretariat announced open briefings with the ILO and EU representatives to be held on June 18, 2003.

Correction to the Summary #2, #1, from June 16, 2003:

Deepika Udagama sought to clarify her position in her presentation on the expert panel:

Her suggestion of a hybrid Convention incorporates a strong nondiscrimination section combined with substantive rights modeled on those in the CRC, which would include: survival rights, protection rights, developmental rights and participation rights.