Volume 3, #2
January 6, 2004

Morning Session

Commenced: 10:15 am
Adjourned: 1 pm

GUARANTEE OF EQUALITY AND NONDISCRIMINATION (cont)

Discrimination and its various types were explored in depth, with a focus on direct and indirect discrimination, as well as other forms of discrimination variously described as covert / hidden and overt, intentional and unintentional, passive and active, positive and negative. Members discussed whether and how these differences should be articulated and their relationship to each other. The Chair's and EU drafts were primary points of reference. India circulated its draft convention; the Secretariat circulated a paper on General Principles that reflected the discussion from the previous day. Page numbers refer to the Compilation.

India selectively supported adoption of Article 2 of the Chair's draft, Parts 1 and 2 (a), and the deletion of Part 4 because this could potentially lead to much litigation in what should be a justiciable provision. It recommended against separating discrimination between direct and indirect forms. Canada noted that defining discrimination by its consequences may be helpful, with the purpose of ensuring that those consequences don't come to fruition. The

WNUSP elaborated on its concerns in Article 2 (p 44) as raised in the previous session that "discrimination on the ground of disability" is different from language prohibiting discrimination "explicitly based on disability". Different and conflicting standards are being applied to the same practice and the latter allows governments to justify a challenged practice. NGOs may draft alternative language on this issue.

WFD "felt strongly" that there must be recognition of indirect discrimination, as this was both "very common" and has the effect of excluding PWD from society. It also expressed concerns that linguistic rights were not acknowledged in the relevant parts of the Compilation.

RI was "heartened" to see that the BKK and India drafts, as with the Chair's draft (pg 44), provide that the failure to make reasonable accommodation constitutes discrimination.

Japan asked for examples of indirect discrimination to which the Coordinator responded with the case of stairs, which were meant to be used by everybody, yet exclude people in wheelchairs. A sign that said "no access for people in wheelchairs" on the other hand would constitute direct discrimination. Another element of the difference between direct and indirect as reflected in the EU draft (pg 61) is that the former is not permissible in any situation, but the latter can be permissible where it is objectively justified by a legitimate aim.

The WNUSP noted that in addition to the BKK draft there may be a problem with the EU language as well in that it referred to "an apparently neutral provision" but with no description on what that meant. A case could be made that buildings without ramps are directly discriminatory because "someone made the decision to construct it that way". There is a need therefore to define terms. The Coordinator further clarified that situations of direct discrimination would be stated as such. On the other hand the "apparently neutral provision" in Art 3 (b) refers to all people, not just PWD, in situations where treating everyone equally results in fact in PWD being indirectly discriminated against.

Korea noted that indirect discrimination, while common, is difficult to quantify and measure, and suggested that developing a methodology would be helpful.

WBU emphasized that both direct and indirect forms of discrimination exist, the latter being situations where the guarantee of equality exists but the practical denial of rights continues nonetheless. This was demonstrated in the discrimination still experienced by women, including in industrial countries, in the workplace. Precision in the text on this issue is important.

Sierra Leone questioned whether unintentional discrimination the same as indirect discrimination as seemingly reflected in the DPI Japan draft (p 40). One way to elaborate on this term could be in relation to measures that states parties can take to eliminate such discrimination.

RI emphasized that if a distinction is to be made creating a category of indirect discrimination then "we are in effect allowing for a certain degree of permissible indirect discrimination, in which case it is exceptionally important to tightly circumscribe the defense. This underlines "the importance of drawing a clear link between a failure to implement reasonable accommodation and discrimination whether direct or indirect. If there is a defense to indirect discrimination whatever content that defense may have, it should only become "live" after all efforts have been made to reasonably accommodate the difference of disability.

Ireland explained the value of having the distinction explicitly stated in EU draft. Direct discrimination is clearly unacceptable. It would be quite possible to have a law that applied to everybody, was not specifically designed to exclude PWD, but could certainly have that effect. The exclusion of PWD is allowed in this language to pursue a "legitimate aim" such as a driving test, which is justifiable. But in all cases the burden of proof is always on the state, not on the individual concerned and the presumption is that indirect discrimination is prohibited and it is up to the state to justify it.

Canada cautioned that the distinction is creating confusion. Furthermore States may be encouraged to push the entire discussion on discrimination into the indirect realm and thereby not have the same obligations they would in the direct realm. Finally, Canada believed strongly that the qualifications should apply to discrimination generally, not just to indirect discrimination, as they have encountered concrete examples where they have needed to adjust their policies "due to unforeseen circumstances," for example "an overriding societal consideration, which may indeed turn out to be detrimental to the PWD in question". The test should be the effect and impact of a law, policy or practice ? has the disabled person been denied a benefit or access they would otherwise enjoy? In this regard the examples raised of direct and indirect discrimination are not as clear cut ? is denying blind people drivers licenses an example of direct discrimination?

Slovenia supports retention of the distinction given that this is based on a broader definition of discrimination, thereby leading to a wider understanding of this in relation to PWD. It also supports RI's suggestion that there be a strong linkage with reasonable accommodation.

The Inter American Institute on Disability (IAID) also supported the distinction, and suggested using interpretation found in human rights as a guide. "Active discrimination" is carried out with the agency of the State, and "passive" discrimination is de facto, without any express intent. When individuals are not allowed to hold public office, for example, this is direct discrimination. However in societies shaped by perceptions of individuals with disabilities, indirect discrimination is prevalent. He disputed that steps are an example of indirect discrimination against PWD ? when laws mandate public buildings to be accessible, the failure to implement constitutes direct discrimination. Indirect and passive forms of discrimination exist in the social and cultural environment and this needs to be changed by educating society at large, not by approaching public officials.

Colombia noted that the New Zealand draft also refers to "hidden" discrimination, and that, along with passive and active, seem to be yet another form of discrimination. It is also possible that in the future other forms of discrimination may develop. For this reason they support Canada's proposal that distinctions be avoided, and instead ensure a broad and open definition of discrimination that could encompass all these forms.

World Federation of the Deaf (WFD) reiterated the prevalence of indirect discrimination, eg, as well as direct. For example, fire alarms in drills. Discrimination against deaf or disabled people include not being allowed to hold office in parliament, vote, be eligible for insurance and others.

Inclusion International noted that an inability to communicate is one of the reasons that PWD are discriminated against but full inclusion is about making life's choices.

Mexico highlighted the importance of specifying the elimination of both forms of discrimination given the problem of hidden discrimination. They fully supported the conceptual position of the delegate from the Inter American Institute on Disability. The distinctions between negative and positive discrimination including affirmative action should be clarified. Mexico hoped that that the representative from the Office of the High Commissioner for Human Rights could provide guidance on language here.

Thailand dissociated its position from discrimination when it has a positive purpose focusing on how "indirect discrimination leaves room for people to justify discrimination." It urged that positive measures be approached "in a different way" so as not to cause confusion with this category of discrimination.

Lebanon recommended that unless there is a concrete definition of indirect discrimination it should not be included in the Convention as it can create confusion in the monitoring process. It recommends a WG proposal to "further analysis of this issue be taken by all the parties in order to come up with the precise indicators and measures to be discussed at the AHC." In reviewing examples of discrimination, they will help come to a more concrete understanding of indirect discrimination. Finally Lebanon will revisit the issue of positive discrimination later.

World Federation of the DeafBlind described how "we live in a society that is not made for us." He added that we may be confusing discrimination with exclusion, which is a result of discrimination.

Disabled Peoples International (DPI) called for concrete parameters to determine what constitutes indirect and direct discrimination. In some cases there is no awareness that PWD are even being discriminated against; in other cases discrimination is the result of good intentions for what is perceived as a valid reason. For this reason this Convention must address indirect discrimination.

Serbia ? Montenegro called for the coverage of all aspects of discrimination including indirect and direct discrimination. With regard to qualifications in relation to indirect discrimination it noted that the basis for interpretation must start with the principle of international law that states parties implement the Convention "in good faith" so as to ensure that states do not exploit this exception.

European Disability Forum (EDF) believes that both indirect and direct discrimination will need to be covered. However defining indirect discrimination will lead to the exceptions, which will in turn legitimize discrimination. Therefore they support the view that there should be no distinction. The EDF also supports the view that the failure to implement reasonable accommodation constitutes discrimination.

South Africa cited an outcome of the African regional consultative conference that for the full integration of persons with disabilities a clear distinction providing for the elimination of all forms on discrimination was needed. Some forms of discrimination are masked in cultural practices and put forward as positive discrimination. Others are clear forms of discrimination, like women with mental disabilities who are forcibly sterilized.

Mali warned of the problem of a text with too much detail. This might in turn lead to reservations, like CEDAW. Therefore they support the Canadian proposal allows for broad definition of all forms.

Rehabilitation International (RI) noted that intent is not the marker of the distinction between direct or indirect discrimination. There are many forms of indirect discrimination that can be both intentional and non-intentional. An employer who consciously sets job requirements such that PWD are screened out is practicing intentional indirect discrimination (the "disparate treatment" branch of indirect discrimination). Or an employer may unthinkingly choose a qualification that operates to screen off PWD (the disparate impact branch of indirect discrimination, or passive discrimination). The utility of indirect discrimination is that it enables one to challenge such covert forms of discrimination whether intentional (active) or not (passive). There are many examples of laws and policies that are supposed to support the right to health but that are widely used as a pretext to exclude PWD. A concept of indirect discrimination helps us to challenge those. Medical testing is routinely used to screen out PWD ? a form of intentional indirect discrimination. A fine balance needs to be struck between broadening our concept of discrimination to include indirect discrimination, precisely to get at covert forms of discrimination. This would come at a price of allowing a defense, no matter how circumscribed. RI believes, tentatively at least, that this is a price worth paying so long as the defense is tightly circumscribed, objective, with "no hint of subjectivity", provided that there is a link drawn between reasonable accommodation and discrimination, and sufficient space can be carved out for positive action measures.

Venezuela called for the establishment of nondiscrimination as a General Principle. Because of the many different types of discrimination it was impossible to establish a definition. Therefore they recommend that nondiscrimination instead should be identified in broad and general terms without specifying any particular forms. Discrimination is also a cultural issue. Venezuela cited reference to Article 2 (b) on the principle of nondiscrimination. It also noted that Article 1 of the Chair's draft did not include elements from the Chinese, Mexican, Venezuelan proposals as well as the Quito draft and called on the Coordinator to bear in mind these proposals.

WNUSP stated that making the distinction between indirect discrimination and direct discrimination including covert forms of indirect discrimination "is not worth the price" of having a defense. "Purposeful and intentional forms of covert discrimination should not be subject to any caveat" the delegate emphasised.

China suggests that rather than further clarify terms such as covert, direct, indirect, etc - which could make the issue further complicated and perhaps lead to further discrimination ? that there should be no distinction

The Coordinator noted that there was broad consensus for as broad a definition of discrimination as possible. Some countries support a more detailed description of discrimination. The differences in approaches that have been identified will be encapsulated and presented to the AHC.

GENERAL PRINCIPLES

The Coordinator introduced a draft text A/AC.265/2003/WG/CRP.3 with language indicating areas of general agreement, and footnotes indicating areas of disagreement ? international cooperation, self determination, and the right to be different. He reiterated at several points that the discussions were not meant to produce a final text.

Morocco proposed Article 1 should include the elimination of all forms of discrimination and international cooperation. Ireland agreed with Morocco on the former proposal and reiterated its "major reservations" on the latter, which in any case, would not fit under Article 1. It noted that Equality of Opportunity as mentioned in EU text is not included. In Article 2 the delegate recommended avoiding subjective terms as in "valuing" diversity.

WNUSP noted that the words used are not as important as the concepts behind them and called for a basic definition of these terms, especially autonomy and self determination. Autonomy / self determination centers on making one's own choices, and constitutes 3 elements:

1. the legal rights to make one's choices which has to be guaranteed.
   
2. the absence of economic, social, cultural factors of coercion that could lead to deprivation of the right to make make one's choices.
   
3. Availability of meaningful options, ensuring that recognized rights can actually be realized.

LSN recommended that International Cooperation should be one of the General Principles. China suggested adjustments to Article 2 adding a new principle 2 (e) "equality of opportunity" and adding "protection of" to existing principles in 2 (a). It called for more positive language. It expressed concerns with the use of the term autonomy, which means "self government of a state or community" and in some contexts may have political connotations. Sierra Leone sought clarification on the distinction between principles and objectives, noting that the Chair's draft Article 1 uses both in the same heading. Once this is done discussion of where concepts like autonomy and international cooperation belong can proceed. Disability Australia added "equal and effective enjoyment" to Article 1 and called for a definition of principles. International cooperation needs to be included in a broader sense than that of a transfer of financial resources, in objectives and principles. Mali proposed adding "elimination of all forms of discrimination against PWD" into Article 1 as well as international cooperation.

Japan supported the Chinese proposal to add equality of opportunity to Article 2 and noted that the problems with the words self-determination and autonomy both need to be considered. Inclusion International took the position that self determination is much stronger than autonomy and suggested leaving this section for a later discussion of autonomy. Diversity in and of itself does not mean much but the right to be different is based on the fact that PWD have different needs. Finally, the language on children in 2 (e) should also mention the elderly.

India noted that progressive realization should be recognized in the principles given the resource issues at hand. Replace valuing with more objective "respecting … diversity"

Colombia supported the Sierra Leone proposal to distinguish between General Principles and Objectives. The latter must be measurable. Principles provide inspiration for the text and for this reason International Cooperation should be among the principles. It added "promotion and protecting" in ensuring full and equal enjoyment of rights.

RI suggested "irrespective of age" to 2 (e) to address Sierra Leone's concerns and cited a precedent for this in the EU to include different types of disabilty. It sought clarification on the wording of Article 2, as to how principles were "to be followed".

Thailand fully supported right to be different. It requested further definition of self determination, noting that terminology can be redefined - this has happened for other words in international law.

Slovenia preferred autonomy over self determination in 2 (a) as the latter has a highly specific meaning in international law. In 2 (b) it supported the addition of equality of opportunity. For 2(d), it questioned how recognizing diversity helps PWD.

Afternoon Session

Commenced: 3:11 PM
Adjourned: 6:04 PM

GENERAL PRINCIPLES (continued)

Mexico called for the inclusion of "elimination of discrimination" into Article 1 of the text, and suggested that the wording found in Article 1 of the Mexican version or the wording proposed by Rehabilitation International (RI) or Mali, be used. The delegate also suggested that Article 2 include the principle of "equality of opportunity," as was proposed in the EU draft, as well as reference to gender equality, which would cover the equality of women, men, girls, and boys. It supported the inclusion of international cooperation as a principle and called for the text to contain broad elements.

The South African Human Rights Commission suggested that paragraph 2(a) reference human dignity as opposed to respect for dignity. In paragraph 2(b), a more positive formulation was needed (eg "promotion of equality and non-discrimination") and that paragraph 2(e) should state "equality for all." Positive action should be required in this area, such as reasonable accommodations and a barrier free society so as to remedy the cause of disability.

Canada commented that Article 1 should include "elimination of all forms of discrimination" and that 2(b) should not include reference to discrimination, because it was already discussed. The representative indicated that "in value of" should not be eliminated in paragraph (d) and shared the optimism of his WG colleagues that they could find wording to capture the concepts of self-determination and the right to be different. He suggested using "accommodation of differences" to capture the first idea and "the ability to make one's own choices" for the second.

The Coordinator asked Canada and the other delegations with views on the wording of self-determination and the right to be different to meet informally to discuss language. Canada agreed to arrange the meeting and the Coordinator opined that a linguistic solution could be found to these issues because they were issues of language and not of substance.

The World Network of Users and Survivors of Psychiatry (WNUSP) supported some of the language and the position of Thailand on Article 2 and opined that these principles should be expressed in "strong form" and should include language on individual choice and the right to make decisions.

The Coordinator said that the issue of "autonomy" is only a problem in the English language and that he hoped the WG would find a way around it.

Lebanon had the position that "equality of opportunity" should be one of the fundamental principles and that although "international cooperation" should not be included in the objectives or the principles section, it was a necessary element to include in another section which would clearly define the partnership between states and other entities, including international organizations.

The Coordinator said that "equality of opportunity" was an element that would appropriately fit in the redraft of Article 2 because of the general support for it by members.

The World Blind Union (WBU) pointed out that diversity and self-determination were two different things, though both elements are important and should be listed in the draft. It supported the views of RI and Thailand with regard to Article 2e and said that the text should also refer to children and older people, as it is easier for older people "to find disability." WBU pointed out that reference to a barrier-free society and universal design was missing from the document and that different words could be used to capture those concepts if there was no common language yet. She also pointed out that the document did not reference "full participation of PWD in society" or a "right to life."

The Coordinator concurred with the remark and pointed out that the text reflected areas in which there was no opposition. He also suggested that a "barrier-free society" was a means to an end and not a principle.

Thailand surmised that "accessibility" should be included as a word after "equality of opportunity," as it pointed out in the morning session. Accessibility, in areas such as the environment, transportation, and communication he said, could be achieved by universal design and reasonable accommodation.

Venezuela reiterated its opinion on Article 1, as they pointed out in the morning session and opined that reference to international cooperation should also be included. This term, he said, had to do with not only resources, but also the transfer of technology, technical assistance, experience, and support. He did not support inclusion of "self-determination" in Article 2a because of its political connotation, and indicated autonomy should be referenced. He called for the elimination of Article 2d, because it was ambiguous to say "valuing of disability" because one does not choose to be a PWD. He did not support the inclusion of a "right to be different" because it could be interpreted as being self- discrimination or self-segregation, which would conflict the purpose of the Convention and allow for PWD to be treated differently. He also opined that "special needs" should not be included because everyone has special needs and called for Article 2e to reference all stages/ages in the development of a person by saying the equality of all PWD without discrimination on basis of age.

Japan wanted the concept of a barrier free society to be considered a principle and pointed out that this was not just a means to an end because various measures had to be taken to eliminate barriers. He indicated that was closely related to the achievement of a goal and pointed out that there were at least four categories of barriers: physical, legal, cultural/information (lack of Braille, Sign Language), and attitudinal (stereotypes).

Germany indicated that they would make a preliminary statement before consulting with the EU and commented that the purpose of saying a "right to be different" was not to say that disability is beautiful, but related to a question of whether PWD had a duty of assimilation into culture and should be thought of in the context of human dignity. It referred to the problem of assimilation as limitation in rights of PWD. She indicated that such limitations could be forbidding sign language and expelling people with physical disabilities from public places because they look different/did not use prostheses.

SPECIFIC RIGHTS

Proposed Framing of Discussion

The Coordinator suggested that the WG move on to the guarantee of specific rights, which could be found on page 76-136 of the Compilation and indicated that one way to break down and facilitate discussion on this long and complex area was to frame the discussion first around the Chair Draft's part 2 (rights in a civil/political context, which are absolute) and then around part 3 (rights in a social and economic context, which are progressively implemented/realized). He reminded members to refer as precisely as possible to particular texts in their interventions, so as to make it easier for those who have the web-based compilation.

Ireland expressed concern numerous times over the Coordinator's proposed approach to the discussion as this would prioritise just one draft (the Chair's). He was concerned that the text (along with the Mexican and Bangkok drafts) created new rights, rewrote / reformulated existing rights, which is not the purpose of the Convention (i.e. it is not to acknowledge for the first time that PWD have rights). He called for the use of the four guiding principles outlined in the EU draft and asked members to look at the issues of non-discrimination, autonomy, participation, which are discussed in earlier parts of the EU draft. They desired discussion of the EU text and indicated they would like to hear any problems other delegates had with that text. New Zealand agreed and suggested that this particular section should be about overcoming barriers, and should be perhaps re-titled to reflect that. It should look at what actions states can take to ensure rights are achieved, which would eliminate Ireland's problem. Canada echoed the thought that the focus should be on measures to assure existing rights and not assumed rights. The World Federation of the Deaf (WFD) concurred and pointed out that existing rights in other instruments are not realisable for PWD, and cited freedom of expression problems the a deaf child might encounter despite the provision that all children participate in the CRC. It called for specific rights of PWD in this regard, to allow the Convention to focus on how to carry out those specific rights. Japan concurred with the approach and said that if the members touched upon each article, they could find common ground in the EU and Chair drafts. It called for this section to stipulate specific measures to be taken by state parties, so as to make the Convention more practical and effective.

Implementation of Specific Rights

The Coordinator intervened by saying that he saw there was agreement that existing rights are applicable to PWD, but the question was how to implement them. Many delegations nodded their heads in concurrence.

Colombia suggested that all specific rights be addressed in one chapter and that it was perhaps "not worth it" to restate general rights in this part.

The Inter-American Institute on Disability (IID) suggested that the group draft an exhaustive list of what should be covered in the specific rights (political, civil, economic, social, cultural) so as not to make a general/restrictive Convention. He called attention to the specific experiences/violations of groups such as women and children.

WNUSP said that one had to be careful when talking about caution in restating existing rights in different way, because there are situations in which these statements can be prejudicial to those who are disabled, like any historically marginalized or excluded group. The Convention should express the lived reality of PWD in relation to the existing covenants, using adequate language, where it may not exist in the previous instruments. The Coordinator replied by saying that this Convention could not change covenant obligations, as states were bound to those, but could, as WNUSP said previously, give meaning and content to how they are implemented given the experiences of PWD. Disability Australia Limited (DAL) concurred and said that the Convention should draw on the experience of other thematic treaties such as CRC and CEDAW, in restating rights but not undermining them. Sierra Leone pointed out that the need for specific rights to reflect the experience of specific population groups, such as the disabled, and discuss how existing rights should be implemented. This could be done through the drafting of a manageable list of rights, taking into account all drafts and ILO guidelines, after which the HC could decide which are implemented. Ireland responds by saying it would be difficult to go through a list and say "no and yes" to each one. Inclusion International pointed out that this same issue had been discussed previously in the 1979 Women's Convention (Article 11) in which they indirectly listed rights and suggested that this could be a solution for this Convention and called for a discussion on rights the members thought were important, which would them lead to decisions on whether they should be enlisted or not. Later Sweden pointed out that CEDAW only did this in a few articles and that they could move forward with a new approach. The Coordinator called Inclusion International's point a good concrete suggestion and pointed out that the implementation approach is the overall approach of the EU draft, in addition to the other drafts. There was general agreement and he moved that the group discuss Article 11 of the Chair Draft.

Article 11: "Right of recognition as person before the law"

Thailand supported Article 11.1. Ireland pointed out a commonality between Article 11 in this draft with Article 5a in the EU draft and suggested that reasonable accommodation (11.2 of Chair Draft) be dealt with under a separate heading, as is done in the EU draft, and not in the same paragraph as "recognition." Sierra Leone agreed that 5a and 11 were similar.

Serbia and Montenegro agreed with Ireland that 11.1 and 11.2 were two separate issues and the Coordinator concurred that these were separate issues. WNUSP did not agree and said that 11.1 and 11.2 should be together because they were related issues, as it was not conducive to take away right to make choices for PWD, but to provide assistance in effectively exercising rights, so as to support human dignity and autonomy (Bangkok Draft). This was related to issues of guardianship, which was a central issue to PWD.

WNUSP offered an alternative formulation of the Article: "Every person with a disability has the right to make his or her own decisions in personal matters in all areas of life. State parties undertake to recognize and enforce this right, to eliminate economic, social, and cultural factors that may be a barrier, to its exercise and enjoyment, and to take positive measures to ensure availability of economic, social, and cultural opportunities, which are necessary to the exercise of meaningful choice."

The Coordinator pointed out that the first sentence in Article 11 was a restatement of the Covenant with the addition of "full legal capacity," which was a crucial issue for PWD. Ireland saw this as an example of the text adding a new concept, and modifying existing rights/creating a new one, which it did not support. Sweden agreed. RI said this was not a modification of rights and that "if we want to recognize concept of personhood, it's quite logical to continue on in this way." The issue was whether there should be exceptions to this full legal capacity and how they should be handled. He suggested use of the EU concept of proportionality. Inclusion International pointed out that "full legal capacity" was not a progressive right, but was a civil/political one and the Coordinator concurred.

Canada said the addition of "full legal capacity" did not take into account children, which do not have full legal capacity in Canada and said that 11.2 could be widely interpreted and should use permissive and flexible language (use the word "encourage") and not mandatory language. This will ensure that that the language does not undermine the ability of the state to provide for those with severe disabilities, who may not have capacity we assume they have.

Inclusion International called the article a "key element" and a "revolutionary proposal" and said that it would make 80% of European governments abolish their "old-fashioned guardianship laws", and replace them with a more modern approach (assistantship law) that will ensure that no one is incapacitated and receive assistance to exercise this right. Germany wanted a look at the EU proposal again in this regard as the main issue was discrimination and that proposal focused on state obligations, which would mean that states would have to reconsider, and reevaluate laws on incapacitation and the practices under guardianship law.

Mexico pointed out that this article was similar to Article 10 in the Mexican Draft (page 100 of compilation) and asked for inclusion of 10 b, c, d in the text under this heading. Sweden concurred with Canada and Ireland's concerns and pointed out that 11.2 mixed too many issues, although they were linked. WFD called 11.2 "too negative" and said it would "stigmatize PWD" and encouraged the expression of issues in a positive way (ensuring accessibility of rights and ensuring all necessary support to carry out that right).

India said that the second sentence in 11.1 was not required and that "full legal capacity" was important for persons who had severe/multiple disabilities. She noted that the use of the word "advocacy" was not required in paragraph 3.

In response to whether article 5a of the EU Draft would add anything new with regard to implementation of the Covenant as relayed in Article 11 of the Chair Draft, Ireland said that it did add to the Covenant as recognition before law is minimalist in that it just recognizes that a person exists. Article 5a would go beyond this minimalism and say that PWD were persons in their own right, without ordering or rewriting existing law and provide a positive, forward-looking means by which to overcome practices. The Coordinator asked if 5a would give PWD full legal capacity, to which Ireland said that it would depend on the national legal system in country of concern (take into account age) and what is meant by full legal capacity as some PWD might require assistance to exercise this right. The right, however, would be there, and could not be taken away.

The South African Human Rights Commission proposed a reformulation of 11.2 so that the onus of ensuring the right would be on the state.

Article 12: "Right to life"

The Coordinator asked if there was an equal provision to Article 12 in the EU Draft. Ireland said there was not and that "this was not accidental." Sierra Leone suggested that this article be skipped for now, and the WG move on. The Coordinator agreed that this was a complex area, not only in this Convention, bt also in others. The World Federation of the Deaf and the Blind said this right is often denied in developing countries because PWD often don't survive. She called it a general HR and proposed that it not be removed. The Coordinator concurs on its importance and said that it would be discussed later.

Article 13: "Right to be free from torture or cruel inhumane or degrading treatment, punishment."

WNUSP said that 13.2 was most important because this was something that is commonly done to PWD, especially those who have psycho-social disabilities or are perceived to have them. She pointed out that it related to autonomy and the making own choices and said that there were some kinds of medical interventions, treatments that could be helpful if wanted. If unwanted, however, they could be experienced as being violent, and cause or exasperate disability, and cause suffering. This also, she said, implicates the right to be different, the right to remain as we are, and have medical and physical integrity.

Ireland pointed out that this was dealt with in Article 7 of the EU Draft which was not too far removed from part 3 of Chair text. Japan said that the concept and language in Article 7.b, c, d of the EU Draft was important, as it relates to the intervention and institutionalization of PWD, and said it would like to see it included in the text, because of its action-oriented approach to state obligations. It also liked the reference to legal safeguards. Along those lines, Inclusion international relayed the experience of being in an institution and how staff treatment, and medication, could in some cases, be seen as a form of abuse. He reiterated that one cannot change having an intellectual disability and that actions of others could make a disability worse.

Sierra Leone proposed that Article 7a, b, c of the EU Proposal be added to after Article 13.1, 2, 3 of the Chair draft.

Inclusion of an Element of Vulnerability

There was some discussion on the inclusion of a statement on the vulnerabilities of PWD in this section. Sierra Leone called attention to Article 9 of Mexican draft and said that reference to the vulnerabilities of PWD might find a place in the Preamble, as is found in the CRC. He pointed out that people in his country who have become disabled as a result of the war (cutting off of hands etc), should be treated in the same way as outlined in the CRC. The Coordinator said that Article 9 struck him as well. Sweden said the idea of vulnerability is contrary to enforcing full enjoyment of the HR of PWD and disagreed with the statement that all PWD are considered vulnerable and called for a more positive statement, and the inclusion of a reference to empowerment in this section, instead. The WFD concurred by saying that this idea would add "stigma we don't need" and said that mention of vulnerable groups would be acceptable, as is done in the CRC. Germany also said that the words "at risk" should be used instead of "vulnerability" and hoped that the Convention would take into account the experience of disabled women, as they are "at risk" for violence.

Landmine Survivors Network (LSN) said that it was clear that PWD faced different abuses, and the various forms of abuse should be covered, such as sexual abuse and institutionalization of those who are mentally disabled. He said that some of the proposed texts were weak in this regard and called for the adaptation of provisions in CRC relating to abuse and exploitation in this regard. LSN stated that it could provide a text on this and the Coordinator expressed interest. Canada added that the WG should look at Article 12.2 of the Bangkok Draft (page 114 of compilation text) in this regard. Inclusion International called that Article "old-fashioned status quo guardianship law" and called it "what we want to change." He supported assistance but not any restriction on legal capacity for these people. Germany agreed with Inclusion International and expressed support for Article 7d in the EU Draft instead. WNUSP did not agree with Germany's proposal to include Article 7d of the EU Draft and supported Inclusion International's thought on needing to change the guardianship laws and said that Article 14 in the Chair's text was similar to 7d in the EU draft. She called for a rejection of the status quo, that is, the deprivation of "liberty because we are PWD" and said that no legal safeguards could remedy this. She pointed out that Article 7e of EU draft, did not prohibit institutionalization, and was not a clear obligation for states. Overall, she asked for the Convention to give content to existing HR in the context of disability and create something more specific for states to see what their obligation is. She supported articles on specific rights as well as general obligations for states.

The Coordinator enquired if there is ever a situation in which a PWD cannot give free and informed consent. The WNUSP emphasised that rights not be formulated in a way that has limitations on the Standard Rules.

The Disability Negotiations Daily Summaries are published by the Landmine Survivors Network, a US based international organization with amputee support networks in six mine affected / developing countries. They cover the intergovernmental proceedings of the Ad Hoc Committee on the human rights of people with disabilities. Reporters covering the Working Group meetings are Elizabeth Kissam, Jennifer Perry and Zahabia Adamaly (editor). The Summaries are posted on line by noon the following day at www.worldenable.net. They are also translated into Japanese (Japanese Society for Rehabilitation of Persons with Disabilities (dinf-j@dinf.ne.jp). If you are interested in translating and disseminating the Summaries over the course of the Working Group meetings, and would like your contact information to be distributed, or have comments / questions, please write to Zahabia@landminesurvivors.org