UN Convention on the Human Rights of People with Disabilities Sixth Ad Hoc Committee Daily Summaries
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Volume 7, #4
August 4, 2005

MORNING SESSION

Article 17: Education (cont): Statements from NGOs and NHRIs

British Council of Disabled People on behalf of the International Disability Caucus (IDC) sought to clarify its position by emphasizing that inclusive education must be the overriding principle in Article 17. The problem with inclusive education is that a lot of states think they've already done it. In most cases, this is not true. Placing children in the mainstream is not inclusive education: it is integration. The "mixed economy" of inclusive education around the world is "mainly segregation with some integration and tiny islands of inclusion." This has led to some 40 million disabled children left out of the education system in poorer parts of the world. In Europe, despite commitments to inclusion, over half of disabled children of primary age are still in segregated schools. In the UK 33% of disabled children are in special schools, and it is noteworthy that their achievement is 7 times worse than disabled children in mainstream schools. This lack of inclusive education has led to massive underachievement and disempowerment of disabled children, leading to a lack of employment opportunities, lack of independent living, and lack of relationships. These are the very problems that these meetings are seeking to resolve.
Inclusion is not one size fits all. In an inclusive system, all barriers are removed, of organization, attitudes, curriculum, and environment. This would be done progressively for those countries with limited resources. In the case of people with sensory impairments, the IDC believes their needs can be met within the mainstream. This means Deaf children for example cannot be spread out one in each school. Because they need Sign Language they need to come together in a group, but this can happen in mainstream schools. For Deaf children this means qualified teachers of the deaf and sign language interpreters. For blind children this means teachers qualified in these methods of communication but with a curriculum organized by mainstream teachers. This amounts to massive teacher training projects around the world. There is much concern among teacher's organizations, not about the principle of inclusion, which they support, but for lack of training and support by governments. The Indian government is seeking to provide such support. In aiming to have the entire education system inclusive by 2020, it has recognized that every university will have to teach inclusive education. In the slums of Mumbai the National Resource Center for Inclusion in India has succeeded in getting all stakeholders to agree to inclusive early years provision which would then lead these children on to mainstream schools. In Tamilnadu 10,000 children were found by NGOs to be out of school by facilitators who reached out into the community to argue with parents and community members why those children need to be included.
So there is a need to work for inclusion, for all learners, those with sensory impairments, as well as the much larger groups - those with speech and language, physical, behavioral and psychiatric impairments. This will require a flexible approach and resources.
Inclusive education has to also mean including persons with disabilities in the curriculum. If disabled people growing up do not see themselves in books, pictures, the curriculum, and the talk, they will be invisible, including in the human rights curriculum as Israel suggested. Therefore there is much work to be done on this article to achieve the IDC vision of inclusive education.

World Federation of Deafblind as a member of the International Disability Caucus described several examples of deafblind people whose inability to communicate had isolated them from society. It agreed that there are too many special schools, too much segregation, but there is still a need to specify in this convention what it means for disabled people to have an education, and for deaf, blind and deafblind people to be educated in their means of communication. Otherwise it will be a vague document that can be interpreted in many different ways. Education is about empowerment, the acquisition of skills, the development of personhood, identity and social skills, the ability to communicate with those one can communicate with. Education will give deafblind people the right to develop their tactile qualities, to be artists, to be people with special qualities that are different from those of hearing and sighted people. It will also help fulfill the ultimate goal of integrating them into, and making them contributors to, society.

People with Disabilities Australia/National Association of Community Legal Centers strongly supported those delegations who oppose qualifying the obligations of this article with additions like "endeavor to", and "to the extent possible." An inclusive society is an absolute commitment. Allowing for specialized or integrated education on a global level only creates the illusion of choice. If governments don't properly resource the mainstream schooling system, children and families will be encouraged to send their children to segregated systems. Every school should be able to meet the needs of every child. With the inclusion of 17.3, the convention will end up time-locked into how things are now. PWDA supports the Australian proposal to move elements in 17.4 and 17.5 to 17(bis). Learning language and peer support deserve their own place in the convention as this happens in all settings and should not be locked away in education.

Namibia Association of People with Physical Disabilities called for an unequivocal obligation upon member states for inclusive education because this "the lever that will facilitate the strategic jump of disabled people from a life of exclusion and marginalization to inclusion, engagement and visibility." NAPPD is concerned about language that does not place explicit responsibility on member states to act in ways that people with disabilities want. Words like "choice" are dangerous, and can be misleading. It is not clear on whose authority that choice is to be made. Since when did victims have the capacity to make an effective choice? Choice assumes that alternatives exist in which those choices can be made. "Choice" could be a pseudonym for something more sinister. NAPPD strongly urges the use of language that does not fudge issues, making the responsibility clear on who is expected to act and in what way with regard to educational delivery.

Center for Studies on Inclusive Education (CSIE) called for an article focused on government's obligations to make the right to properly supported and adapted inclusive education for each and every disabled student a reality. The convention must affirm inclusion as "the first right". This has been done, and is possible. Some organisations have maintained that deaf and blind children need to be in separate settings to access their language and communication. This does not have to be the case when mainstream schools have been restructured to meet their needs. This convention must not time-lock the situation as things are now. The convention cannot deliver lower standards than exist at present, for example, under the Convention on the Rights of the Child (CRC). It is not acceptable to separate disabled students from their peers into separate settings on a permanent basis in order for them to receive the supports and accommodations that they need and which are necessary for their learning. This article should enshrine the right for disabled students to receive the support they need in mainstream schools and for those schools to change and accommodate them. This would not allow for isolation and marginalization within mainstream schools.
CSIE is not against choice in terms of autonomy and self-determination for disabled people and their right to make decisions about their own lives; it is against putting an obligation on states to provide a choice between inclusive education and separate special education for disabled pupils. This is not a proper choice to be enshrining in a human rights convention. Another problem with choice is upholding children's rights. Under CRC, children have a right to inclusive education. Choice by any adult, disabled or not, should not usurp that right of the child.

Adapt India stated that inclusion is not a luxury, it is a necessity, a right that every person with disability needs. In a country like India where only 2% of disabled people get some education, and there are only 3000 NGOs, inclusive education is the only way out. Education is a means to a life of independence, self reliance, a livelihood, employment, a place in mainstream society. Words like "Shall endeavor to " and "to the possible extent" defeats the purpose of Article 17. "To the possible extent" would only lead states either to deny education, a fundamental right, or to an instrument towards more segregated environments. India is in the process of drafting a policy on education and the request by the Indian delegate for "to the possible extent" is a retrograde step that defeats the purpose of its own policy. Choice is made by the state or parents, not the child. Therefore inclusive education should become compulsory.

The Chair noted an earlier speakers' reference to the exemplary plan of action by the Indian government towards the objective of inclusive education by 2020.

Disabled People's International (DPI) Latin America highlighted the importance of inclusive education because it gives persons with disabilities a framework for involvement with others in common activities starting in primary school so that they can enjoy a life equal to other citizens. Education is a process for training people to acquire and transfer knowledge, both scientific and artistic. It is the only way for persons with disabilities to find freedom of thought, participation in social life, independence and autonomy. It is the obligation of states to provide education to persons with disabilities. Developing countries in particular do not have the necessary financial resources that would enable them to provide access to education to persons with disabilities. Access and quality of education is particularly important, not just architecture or universal design of schools. It's how information is conveyed through new teaching materials, new technologies, that will make it possible for PWD, in industry and employment, to compete in the globalized world of the future, where distinctions between a person with a disability and one without a disability would not be made. Effective education means teaching PWD to use everything they have towards their social environment. DPI urged the Committee to think deeply about these issues to bring PWD out of segregation and marginalization and away from an assisted life.

All Russian Society of the Deaf stated that in Article 17.4 of the convention, it is important for persons with disabilities to receive instruction in their language/sign language. Sign language is the oldest language on earth and for the hearing impaired individual, sign language is the natural instrument for communication, self-expression and the most effective way to take in information. Many states do not pay attention to the development of national sign language and standards and the instructional level of the east in particular, is not up to levels it should be compared with countries where sign language programs do exist. The All Russian Society of the Deaf encouraged colleagues to support the idea that implementing this paragraph will help improve the instructional process and give strength to the movement and the development of and greater understanding of the problems that have to do with linguistic minorities - hearing impaired and deaf people. Adoption of the article will in a harmonious way allow the committee to embody the principle of the convention, the principle of nondiscrimination for disability. The society thanked the Russian delegation, who under articles 17.4 and 17.5 approved this article.

Mental Disability Rights International (MDRI) reiterated the position of the IDC that the reference to the right to choose in WG draft Article 2(a) should be removed and replaced by a reference to the right of "access" or "effective access" to inclusive education, as New Zealand proposed, to replace references to choice. The issue of choice arises repeatedly in the convention and should be addressed systematically, including in Article 15. The right to educational choice in current international law refers only to the right to remove a child from public education, not to choice within it. Article 13.3 of International Covenant on Economic, Social and Cultural Rights (ICESCR) provides for the liberty of parents and legal guardians to choose schools for their children other than those established by the public authorities. Parents do not have the right to choose a specific type of public educational system for their children, which has been affirmed by the European Court of Human Rights. They only have the right to take their children out of the public education system and place them in a private system or home schooling environment as long as that system or environment conforms to minimum education standards laid down by the state. Japan's comment, that where inclusive general education is not available the only choice is segregated or separate education, is a very different kind of choice.
There is an analogous situation in international human rights law for the singling out of the blind, deaf and deafblind, if it is their preference, for a separate educational system that is financed by the state although administered independently or largely independently by those particular groups. Article 27 of the ILO Convention 169 on indigenous and tribal peoples recognizes their right given their cultural identity to establish their own educational institutions and facilities, as well as the obligations of the state to provide appropriate resources, and assistance and training in administering these facilities. This is also enshrined in the draft UN and OAS declaration on the rights of indigenous persons. This underscores the international law basis for the IDC and MDRI position on both removing the general reference to choice of inclusive education for persons with disabilities and replacing it with effective access to inclusive education and second, retaining an element of choice for a defined subgroup, which has its own cultural identity and specific needs. A general reference to choice within the general education system does not find support in international human rights law at present and should be replaced by a focus on the right of access to inclusive education.
Qualifying phrases like "progressive realization" and "to the extent possible" should be removed. Substantive provisions in all international human rights treaties, whether they deal with so called economic, social and cultural rights, or civil and political rights or both, use neither of these phrases. Such provisions tend to require that states take appropriate measures to ensure the given right. This is the terminology used in other human rights treaties and should also be used here. Such terminology does not in itself express either immediacy or progressivity as was the concern of Japan, China and India, but rather accommodates both concepts, which is appropriate since all rights, whether characterized as civil, political, economic, social or cultural have both immediate and progressive elements to them. In addition, the phrase "to the extent possible", is not used in any human rights instrument and should not be used in the disability convention either. Instead terms of appropriateness and reasonableness are used to reflect considerations of proportionality.

The National Human Rights Institutions supports the requirement that states shall "ensure" the right to education, and does not support the expression "shall endeavor". This would be less stringent than under ICESCR. The General Comments of the Committee on Economic, Social and Cultural Rights have made it plain that the right to education is not only an economic, social and cultural right but also a civil and political right. In addition, certain aspects of the right to education are not subject to progressive realization such as the right to nondiscrimination. NHRI supports the EU proposal that the obligation must be to ensure inclusiveness of general systems of education in all its forms, and does not favor references to specific systems such as individual education plans because this refers to methods that may change over time.

The Chair asked delegations for any reactions to the points raised by representatives of civil society.

Thailand clarified its position on its proposal for a new 17.3. After consultation and rethinking, it withdraws its previously expressed flexibility to the suggestion that the terms "blind, deaf and deafblind" be substituted.

Yemen supported the position of NGOs in opposing the use of qualifying language like "endeavor to." States should be fully committed to their obligations.

Uganda suggested that perhaps "inclusive education" ought to be defined, given that previous interventions seemed to reflect different understandings about this concept.

Panama supported Yemen's position and those of civil society organizations. Expressions such as "progressively" and "to the extent possible" should be removed. In Panama, children with disabilities continue to be left out of the educational system despite a prohibition on discrimination. States obligations with regard to this in this Convention should be clear.

The Chair summarized the discussion on 17.3, 17.4 and 17.5. Inclusiveness is at the heart of this article. Obligations need to be made clear, and the language, quoting Namibia, should "not fudge the issues." Education lays the basis for the participation of persons with disabilities in society as a whole, not only in the schooling phase.

With regard to proposals to add qualifying language in 17.1and17.2, the Chair recalled his earlier summing up which reflected the general sense in the room for adding "to the extent possible" from the EU proposal to the obligation in the WG text to educate PWD in the community in which they live, or in relation to the goal of inclusive education. The Chair emphasised that the obligations under this convention, to the extent that they relate to economic, cultural and social rights, are in themselves progressive. In addition, the element of progressive realization will need to be incorporated elsewhere in the convention, for example, in Article 4. There are concerns about having a general concept of progressive realization in respect of economic, social and cultural rights and then introducing again the specific concept of progressive realization in this article with terms such as "having the goal of inclusive education" or "to the extent possible, educating persons with disabilities in the community in which they live." Furthermore, resource constraints cannot be a justification for avoiding obligations. Therefore the Chair requested those states supporting qualifying language to reflect further, keeping in mind the need for a balance between what states can do immediately and what the convention needs to provide to protect the rights of persons with disabilities.

Formulas based on a concept of choice have raised major concerns for civil society. It can be interpreted as embracing choice by states to avoid the broader obligation of inclusiveness. The Chair recalled his proposition yesterday that the Committee refer to this concept as the choice of the person with a disability, not as the choice of the state. He noted that no one had objected to that proposition.
Alternative expressions have been suggested and should be considered, to refer to a right to be educated in the general education system, a right of access to the general education system, or, as a representative of civil society had suggested, for appropriate measures to be provided to ensure that children or persons with disabilities are educated in the general education system.

There was no strong support for retaining 17.3 of the WG text as is. There was a lot of support for Thailand's proposal. Some delegations had suggested that the reference in the Thai proposal to persons who are "blind, deaf or deafblind" should be expanded to include persons with disabilities more generally. However, it is clear from the interventions since then that such an amendment would be problematic. Thailand has clarified that it wishes to keep its proposed language limited to that particular group of persons with disabilities. The Chair proposed the committee take a similar approach.
There was a lot of general support for retaining 17.4 and 17.5 of the WG text. Australia's proposal for 17(bis) received some support, and some of its elements could be incorporated into the WG text. A number of delegations referred to the need to specify the development of life skills and the training of professionals, including professionals with disabilities who in turn would be involved in training and educating other persons with disabilities. Including human rights issues in the curriculum was also emphasized by several delegations, as well as the need to have a reference to systems for certification that would ensure that such training was formally recognized. There is opposition to "assistance," especially as used in 17.5, due to its negative connotations, and suggestions from many delegations call for replacing this word with "support". There was also an alternative suggestion for "support services." There is a fair amount of support for ensuring that the language at the end of 17.4 reflects the formulation from Article 13 on modes of communication. The key role of the family was raised by several delegations, and its mention here should be considered in the context of the Convention as a whole, and then reflected accordingly throughout its text.

The Chair reiterated the primacy of the WG text subject to his comments. Only "essential elements" of delegations' proposals not reflected in his summing up should be referred to the facilitator at this point. The unusually high number of interventions and the wide range of views, including those clearly expressed by civil society, have brought the Committee considerably closer to an outcome where the lines of a redrafted WG text are now reasonably clear. Delegations therefore should refrain from proposing any additional major redrafts of their own. "If the committee gets this article right, it will get a lot of the convention right and will add a huge amount of value to existing law. If not, then it will be extremely unfortunate."

Article 18: Participation in Political and Public Life

The Chair recalled general agreement at AHC4 that elements in 18(c) should be consolidated generically in Article 4.2, along with elements from other articles as well: 5.2(d), 6(c), 19.2(g), 21(m). Delegations should therefore focus on (a) and (b) of this Article. Any general comments on (c) will be considered upon consolidation in Article 4.

New Zealand supported proposals to move Article 18 to a position earlier in the convention, given its status as the most fundamental of the political rights guaranteed in all human rights conventions. In no way should the language in the WG text weaken the rights of PWD compared to those conventions. Unfortunately, some language in Article 18 allows for a weaker level of protection to PWD than are provided, for example, to women in CEDAW. Hence New Zealand's proposed amendments, drawing from CEDAW Article 7, which were submitted first at AHC3 to a positive response from delegations, and distributed at this meeting in modified form: http://www.un.org/esa/socdev/enable/rights/ahc6nz.htm.

The obligation in 18(a) to "actively promote an environment in which" is a weak standard of protection for the rights described and should be replaced with the words "ensure that". "Citizens with disabilities" should be replaced with "persons with disabilities" throughout para (a). In some countries, children with disabilities are not registered at birth and therefore cannot get access to the rights that should be accorded them as citizens. In addition, while ICCPR recognizes the right of citizens alone to vote and be elected, the later convention of CEDAW refers not to female citizens voting on equal terms with male citizens, but to women voting on equal terms with men. NZ is not proposing a new right for persons with disabilities which members of the general population do not enjoy. Women with disabilities already have the right to vote and be elected under the provisions of CEDAW and it is now possible to also give men with disabilities this right. Adding the phrase "on an equal basis with others" makes clear that persons with disabilities are to have the same political rights as the rest of the population and in accordance with the electoral provisions of legislation in the countries in which they live. The reference to "assistance" in 18(a)(iii) should be qualified with a formulation from ICCPR Article 25(b) guaranteeing the free expression of the will of the electors: "the provision to persons with disabilities of assistance which guarantees them the free expression of their will as electors." A new a(bis) tracking CEDAW Article 7(b) and (c), should be inserted between WG text (a) and (b), and replace WG text (b)(i) and (c).

China supported the WG text and the participation of PWD at all levels of government. It proposed that "persons with disabilities" in 18.1(a) be substituted with "citizens with disabilities" given that in many countries the enjoyment of political rights is often associated with citizenship, and to ensure consistency in the current text.

Jamaica pointed out that if persons with disabilities want to ensure implementation of the convention in their respective countries, they have to get more actively involved in the political processes of their countries. At 10% of a country's population, they can form a powerful voting block. Disabled parliamentarians should build networks to share best practices and experiences and strengthen international cooperation so the convention is fully realized. It noted that given the different political systems and cultures across the world, sometimes persons with disabilities are not just subjected to discrimination but also intimidation. They are therefore a particularly vulnerable group, and Jamaica proposed inserting "or intimidation" after "discrimination" in the chapeau.

Chile called for more explicit and stronger language noting the difficulties encountered by persons with disabilities in exercising their political rights. In the chapeau, "recognize" should be replaced by "ensure" or "guarantee" the political rights of persons with disabilities without discrimination and on an equal basis with others. In para (a)(iii) "allow" should be replaced with "guarantee where necessary" and "on request of the person with a disability" should be added. Chile supports Costa Rica's proposal to change "provision of assistance" to "provide support services", then spelling out that one of the ways in which support services can be provided is assisted voting, which should be ensured to PWD in national domestic legal provisions. Para (a)(ii) should make clear that assisted voting must not interfere with the secrecy of the ballot, that is, when the citizen with a disability requests assistance from a person s/he trusts. There is an arbitrariness and ambiguity to "as appropriate" in 18(b) and these words should be deleted. While18(c) relates to Article 4, its reference to PWD having input into decision-making processes concerning them makes it more specific than a General Obligation which would be applicable throughout the convention to consult with PWD on all matters, and is therefore more generic. This para should therefore be retained in the WG text, and broadened to make clear PWD role in decision-making on all matters of public concern, not only on matters relating to PWD, in designing and implementing, monitoring and assessing public policies and the elaboration of legislation.

Argentina agreed with NZ that the objective of this convention is to strengthen the level of protection currently provided in international human rights instruments. In order to avoid weakening protections the chapeau should reflect Article 25 of ICCPR: "States parties shall guarantee the political rights of persons with disabilities without undue discrimination." The reference to "conduct of public administration" in 18(b) should be replaced with the generally agreed upon language from Article 23 of the Inter American Convention on Human Rights and Article 25 of ICCPR, which is a universal instrument.

Bosnia and Herzegovina agreed with NZ, Chile and others that the chapeau must guarantee political rights of all persons with disabilities without discrimination and on the basis of equality with other citizens. It proposed rewording of the chapeau to incorporate parts of the IDC proposal reflecting Article 25 of ICCPR: "States parties shall ensure political rights to all citizens with disabilities without discrimination and on an equal basis with others, and to that end, undertake to." It agrees with NZ regarding paras (a) and (b) and suggests replacing the expression "actively promote" with "provide" so as to strengthen state parties responsibilities with respect to participation of PWD in political and public life. "As appropriate" in (b) is a qualifier that is not conducive to the goal of this article and should be deleted. The CEDAW Committee has issued a General Recommendation 23 on political and public life that should be considered for language on the equal participation of women with disabilities.

The Chair asked delegations to bear in mind that if Article 18 limits its provisions to "citizens" on an equal basis with others, persons with disabilities who are non-citizens are potentially disenfranchised from the exercise of rights which others who are non-citizens are able to exercise. Some countries don't limit the exercise of some political rights to citizens. If state parties guarantee political rights of citizens with disabilities on an equal basis with others, that then leaves it open to states not to guarantee or provide those rights to non-citizens with disabilities where other non-citizens do in fact have political rights. There is a question as to whether the chapeau should be so broadly stated. China also raised the question of whether in 18(a) persons with disabilities should be broadened to citizens with disabilities.
The Chair noted that once a qualifier like "on an equal basis with others" is introduced, then that would take care of concerns that the convention might be extending more generally the rights of non-citizens. It means that if citizens have rights, then persons with a disability have those same rights. If persons who are not citizens have certain rights, then persons with disabilities who are not citizens have those rights. The Chair emphasized that new rights were not being where they don't already exist; such language would only ensure that persons with disabilities are treated on an equal basis.

Yemen stressed the need for language guaranteeing the application of Article 18. It proposed using "citizens with disabilities" in 18(a). Language in 18(a)(iii) needs to be made obligatory so "allow" should be deleted and replaced with "is committed to". It is not useful to specify "where necessary" in 18(a)(iii) as it is not clear who would decide if provision of assistance is necessary or not necessary, so this should be deleted. The obligations in 18(b) are necessary at all times so "as appropriate" should be deleted. Inserting "international" in 18(b)(ii) would make its language on representation more general.

The Chair clarified that with regard to the position of Yemen and others calling for the deletion of "allow, where necessary" does not provide a discretion for the state. If assisted voting is being provided, it needs to be by someone who is trusted by the PWD. The Chair emphasized the need to find an appropriate balance between the state needing to allow assistance to persons with disabilities when they require it but that assistance should not be provided by the state itself as that could potentially interfere with the legitimate exercise of the secret vote. It is an obligation of state to allow persons with disabilities to have that assistance from someone they trust. There needs to be a clear obligation on the state to allow this, but it is not an obligation on the state to actually "provide" the assistance. Issues will arise in terms of persons with disabilities being comfortable that their wishes are being reflected by the physical act of voting.

The EU noted that without full participation in political and public life, disabled people risk being invisible to wider society and undergoing further discrimination. The EU prefers NZ's full proposal and its structuring as a basis for work on Article 18. A rights chapeau should set out unequivocally what political rights are and not be left as in the currently vaguely worded chapeau from the WG text that weakens obligations in the ICCPR and CEDAW. Accordingly, the chapeau should make clear the right and opportunity to vote, be elected in all elections, and the right to be eligible for election in publicly elected bodies, as in ICCPR Article 25 and Article 7 in CEDAW, and as called for by Argentina and NZ.
"Persons with disabilities" have been the subject of this Convention throughout, and should replace "citizens with disabilities." There are cases, such as in the EU, where non-citizens have the right to vote in various levels of government. The EU concurs with the Chair that adding "on an equal basis with others" or "on the basis of equality" would make clear the convention does not extend the right from the ICCPR.
The EU's proposal http://www.un.org/esa/socdev/enable/rights/ahc6eu.htm amends, as NZ suggested, paras a (i), (ii), (iii) to 1(a), (b) and (c). A new second para 2, similar to NZ's a(bis) would make a logical progression from the rights set out in the first para to the right to take part in the formulation of government policy and the implementation thereof. With regard to "the activities and administration of political parties" in WG text (b), NZ proposal a(bis) and EU proposal para 3, the EU differs with NZ because this is not an obligation that states can ensure nor is it necessarily a right, so the obligation to "actively promote an environment in which persons with disabilities can participate...." would remain. In most countries there are laws about the non-interference of the state in the administration of political parties and in private entities in general.
Para 18 (c) in the WG text should be deleted. It is dealt with in Article 4, and also in this article if 2(a) of the NZ proposed text ensuring the right to participate in the formulation of government policy and the implementation is adopted.

Serbia Montenegro echoed the EU's sentiments and preferred the NZ text to that of the WG. It is flexible on the issue of citizens or persons with disabilities. It shares the concerns of Chile, Yemen, and others on the possible ambiguity of the obligation to "allow where necessary the provision" of assistance in 18(a)(iii), and proposed replacing this phrase with "guarantee where necessary the use of assistance in voting to persons with disabilities."

Australia supported the NZ proposal over the WG text as well as the positions of the EU and Serbia Montenegro. It supports use of "persons with disabilities" instead of "citizens". It is important that persons with disabilities who are not citizens are not disenfranchised. In Australia only citizens have the right to vote but in a number of countries this is not necessarily the case and some non-citizens have particular entitlements. Australia agrees with the EU that adding a phrase like "on the basis of equality with others" protects the convention from introducing a new right. Australia is concerned about "guaranteeing" the secrecy of the ballot for persons with certain disabilities if this is not realistically achievable. The Australian government, like most countries, has not yet resolved how blind people, for example, can obtain this right. Australia therefore supports the "allowing" of assistance but proposed an alteration to the chapeau so the secret ballot is not "guaranteed", as this could potentially contradict the provision of assistance where necessary.

The Chair explained his understanding of the right to the secret ballot as subject to the provision of assistance in certain cases, since the purpose of this right is to prevent states from interfering when persons with disabilities are technically able to exercise the vote. However Article 25 of ICCPR guarantees only the free expression of the will of the electors and does not refer to secrecy of the ballot, so this issue needs to further review.

AFTERNOON SESSION

The Chair clarified his position with regard to secret ballots. Although article 25 of the ICCPR requires secret ballots, the guaranteed right referred to is that of the free expression of the will of the electors, not specifically to the secrecy of the ballot. Before continuing with Article 18, he acknowledged the presence of Jacob Egbert Doek, Chairperson of the Committee on the Rights of the Child, and invited him to comment.

The Chairperson of the Committee on the Rights of the Child asserted that a convention on PWDs without a specific provision for children would be incomplete. Article 23 of CRC is the only international human rights treaty that contains a set of provisions for children with disabilities. This is why states parties to the convention pay attention to the rights of children with disabilities in their reports to the Committee. The Committee submits to almost every state party specific recommendations related to children with disabilities. A 1997 special day of discussion on children with disabilities resulted in a set of recommendations addressed to states parties to improve and strengthen their efforts to implement children's rights and in particular the rights of children with disabilities. The committee is currently preparing a general comment on the rights of children with disabilities, to be completed in 2006.
The Committee is of the opinion that despite this work, the special needs of children with disabilities should be mainstreamed into the provisions of this convention and be reflected in a separate article that spells out the specific rights of children with disabilities and the related specific obligations of states parties. If this is not done, the rights of children with disabilities will not get the attention they deserve in the convention reporting and reviewing process. This would be serious flaw.
The new convention should spell out as clearly as possible the rights of PWDs and the measures that states parties should take to respect and protect those rights. However there is a difference between children and adults, and this has consequences for states parties' obligations. The Committee's reports reflect that in almost all circumstances children with disabilities are significantly more vulnerable than other vulnerable children. For example, states parties should take specific measures to ensure that children with disabilities can stay within their families, that families receive the support to do so, and to avoid their institutionalization. Children are individuals with a developing capacity that should be recognized when states parties address their rights. Specific measures are also needed to make sure that children with disabilities are given appropriate opportunities to express their views freely in all matters affecting them.
States parties may argue that there is no need to report on children with disabilities under this convention because they report on children with disabilities under the CRC. To avoid duplication of the two treaties the Committee will coordinate its monitoring activities with the body or mechanism that will monitor this convention. These two treaties, if operational, will contribute to a strengthened protection and promotion of the rights of children with disabilities.

Article 18: Participation in Political and Public Life (cont)

Kenya supported the more inclusive reference to "persons with disabilities" as opposed to "citizens with disabilities." This will address concerns of the different countries and jurisdictions in terms of citizens or persons with disabilities whether they are able to vote or not to vote. The term "assisted voting" should be clarified in 18(a)(iii), to ensure that when a person with a disability has to be assisted to vote, the PWD is assisted by a person of their choice. The phrase "by a person of their choice" should be added at the end of this subpara. A new subpara b(iii) on the right to "participate in all the state's governance organs" should ensure PWD participation in all policymaking. New subpara b(iv) should be added after b(iii), "Take all appropriate measures to ensure that persons with disabilities, without any discrimination, have the opportunity to represent their governments and to participate in the work of international organizations." The kind of participatory activity currently taking place at the UN on this convention proves the necessity for PWDs to represent their governments in such forums. Kenya proposed a new 18(d), "Enable persons with disabilities to participate in the formulation, implementation, monitoring and evaluation of plans and programs for local, national and international development, which may affect them." All proposals for the article need to be reviewed to ensure there are no repetitions, yet capture the essence of participation of PWDs in the process. Kenya supports NZ's proposal for (b), because it calls for more imperative language than "actively promote".

Israel supported NZ's proposal to strengthen the article, and submitted a number of proposed additions: http://www.un.org/esa/socedev/enable/rights/ahc6israel.htm. It furthermore suggested the following amendments: Words such as "as appropriate" restricts rights instead of adding or establishing rights and should be deleted. The element of free choice of the voter must be established and it agrees with delegations to add the words "... provision, by choice, of assistance ...." to 18(a)(iii). There should be a more forceful statement of the levels of participation of PWD in the chapeau of 18(a), and the reference to "political life" should be specified: "parliamentary, governmental, judicial and local government."

The Chair noted the strong sense among delegations to strengthen the chapeau. The Chair and several delegations suggested using Article 25 of ICCPR and CEDAW as a basis. A number of delegations suggested replacing the word "recognize" with "guarantee", and that as well as recognizing political rights, states parties should ensure that they can be exercised. With regard to the chapeau and other subparagraphs, there is a strong level of support for replacing "citizens with disabilities" to "persons with disabilities" but qualifying that with "on equal basis of others", which would clarify that new rights are not being created for noncitizens, but where noncitizens have rights, noncitizens with disabilities should have the same rights as other noncitizens.
There was support to strengthen the opening phrase of 18(a) by replacing "actively promote" with "ensure that." The language in 18(a)(ii) should be reviewed to ensure that rights of PWDs are protected, though if there are any issues here it would be linguistic rather than substantive. There was general agreement that 18(a)(iii) deals with situations where PWD require physical, personal assistance to exercise the right to vote. Concern was expressed with "where necessary" and Chile suggested a phrase such as "guarantee where necessary on the request of the person with a disability...." Other concerns around this provision have been linguistic rather than substantive in nature.
Regarding para (b) and chapeau, there is support to delete the words "as appropriate." Placement of a reference to political parties in 18(b)(i) may be problematic because political parties are not normally under the direct instruction of the government. It was suggested that this reference should be included in the chapeau.
Several delegations pointed for the need to strengthen the reference in 18(c) to "the participation of persons with disabilities and their organizations on an equal basis with others in decision making or decision making processes." Chile suggested making this more generic and not so focused on decision making issues relating to persons with disabilities. Yemen suggested a reference to participation of persons with disabilities in international forums.

Mexico supports NZ's proposal highlighting the participation of PWD on an equal basis with others. It proposed adding "international" to 18(b)(ii), to ensure that persons with disabilities are represented at the international level as well as in various entities and organizations.

Japan preferred NZ's original text. Everyone has the inherent right to participate in political and public life, but in the past PWDs have been excluded from exercising those rights. Language in the chapeau should be strengthened. After listening to interventions made by delegations and the Chair, Japan is rethinking its position on "citizens" vs. persons with disabilities, with the addition of "on an equal basis with others" so that there are no new rights. Language regarding political parties or civil society must be drafted with care. In Japan, the government does not oblige NGOs, political parties or civil society to ensure participation of PWDs as long as they are not violating laws and regulations. This may be a drafting rather than substantive issue.

Canada supported the Chair's summing up and proposed several amendments broadening the scope of paras b and c, and strengthening accessibility of the voting process and secrecy of the ballot: www.un.org/esa/socdev/enable/rights/ahc6canada.htm. The Chair confirmed that Canada believes 18(c) should be broadened.

Thailand supported the Chair's summing up and called for strengthening the chapeau and broadening 18(c) to include participation of PWDs and organizations in decision making in public affairs. Adding "on an equal basis with others" will address the concerns of countries that have reservations on this issue. "Actively promote" in (a) and (b) should be changed to the more affirmative "provide". It agrees with delegations regarding unnecessary terms such as "as appropriate" in 18(b). In 18(a)(iii) perhaps the word "where necessary" refers to the individual rather than the state providing assistance. Thailand will consider NZ's redraft of the text, but at present is comfortable with the WG structure.

Sudan pointed out the importance of institutions representing PWDs worldwide to spearhead these initiatives to raise their voices. These institutions must fulfill their role to protect and guarantee the rights of PWDs and their participation in political and public life. Sudan supports current wording of the chapeau and it proposed that "guarantee" be added in 18(a). Sudan's constitution guarantees the rights of PWDs who are citizens and therefore supports Yemen and China's proposals to use the term "citizens with disabilities." It supports the Chair's comments that authorities should uphold, retain and protect the right to vote in 18(a)(iii). 18(c) should not be a general paragraph, but should reflect Article 4 on general obligations. There needs to be a link between Articles 4 and 18, in particular 18(c), to avoid repetition.

Costa Rica supported the Chair's summing up and emphasized that assistance for the purpose of accessibility should be at the request of the individual with a disability. The secret ballot should be achievable to the extent possible, and the quality of this secrecy is a right and should be guaranteed. Language should ensure that the political process is fully inclusive. PWDs need to be involved in the political process so that they can establish their criteria and ensure that they are part of the political message both as electors and candidates. A political campaign that would not envisage mechanisms to convey messages to all persons with disabilities is a political campaign that is depriving persons with a disability the right to vote, even if assistance is provided at the time of voting. A political campaign that deprives PWDs of the instruments to ensure that they in turn are able to convey their political message is depriving them of a right that is enshrined in law. Costa Rica supported Chile, Mexico, Argentina and NZ's proposals to strengthen the chapeau.

Oman pointed out that NGOs differ from one country to the next, as do the laws under which they operate. Hence their political experience and participation differs from country to country and these differences in the manner of participation should be taken into account. It proposed to amend 18(b)(i) to affirm the right to political participation in political life and within political parties "in accordance with the legislation of different countries." Oman supports Sudan's proposal to replace "recognise" with "guarantee" in the chapeau. The last paragraph in 18(c) is not necessary because participation of PWDs in public life is already enshrined at all levels and should not be restricted within these paragraphs.

Mali suggested a compromise be found between the use of "persons with disabilities" and "citizens", given the diversity and changes between countries.

Norway supported the Chair's summing up and expressed concern that the WG text seems to weaken rights explicitly given in other core legal rights instruments. It favored the approach taken by NZ that the chapeau should be strengthened based on existing legal instruments such as ICCPR and CEDAW. Norway is among those countries that have extended some political rights to non-citizens and therefore prefers to use "persons with disabilities" in the convention. Clarifying the goal of 18(a)(iii) would build on what is already enshrined in ICCPR, Article 25(b) "...guaranteeing the free expression of the will of the electors." These words are the main objective of the paragraph and should be included in this convention text: "allow where necessary, the provision of assistance in voting to persons with disabilities, to guarantee the free expression of the will of the elector." It is essential to explicitly state the right of PWD to hold public office and therefore Norway supports including a(bis) of the NZ proposal.

The Chair noted the text still needs to reflect the right of persons with disabilities to hold public office, a point expressed by Costa Rica, Jamaica and several delegations.

India highlighted the two most important elements to ensure persons with disabilities' participation in public and political life: the elimination of discrimination and the removal of barriers. To facilitate the participation of PWDs in the voting process, the Supreme Court in India directed in the last general elections that all polling booths in the country should have ramps for PWDs. The chapeau should be strengthened so that the level of rights available to persons with disabilities is consistent with other human rights instruments. The chapeau should also contain a reference to non-discrimination and ensure the political rights to persons with disabilities "on an equal basis with others." India therefore supports the EU proposal for setting out the rights as in ICCPR. It agrees with NZ's proposal on 18(b), which draws from the language of CEDAW. However India has doubts regarding language on political parties in the NZ proposal. It noted that independent bodies such as electoral commissions exist to recommend a code of conduct for political bodies. Can such bodies issue directions to ensure equitable participation of PWDs in activities of political parties? This may not be difficult to implement if the language is not couched as an obligation of the states parties alone. One possibility would be to use language from the IDC proposal's chapeau for para 2, replacing "ensure" with "to promote" so 18(b) reads: "States parties shall take all appropriate measures to promote..." 18(c) should be retained, as this paragraph addresses general public decision making whereas Article 4.2 focuses on the processes leading to implementation of the convention.

Morocco proposed changing "actively promote" to "to guarantee" in 18(a), which is more affirmative.

The Russian Federation supported the Chair's summing up and was in favor of strengthening the chapeau using Article 25 of ICCPR and Article 7 of CEDAW. With respect to language pertaining to the right to elect or be elected, "of the country" should be added after "in political and public life" in 18(a), as used in CEDAW. Language from Article 7.1 of CEDAW would include the right of PWDs to take part in referendums. Many states have referendums and are one of the most important forums for the population to express its will. A number of elements and rights in Article 18 are combined whose implementation does not involve citizenship. There is a clear trend toward expansion of rights in political and public life for persons who are not citizens, or foreign citizens, specifically at the city level. Russia supports replacing the "citizens with disabilities" with "persons with disabilities' and include in the report an additional paragraph noting that Article 18 is not intended to grant rights to non-citizens not already provided by laws of the relevant states.
As noted by Costa Rica, there is more to elections than only the act of voting. Participating in the election process is equally important as having access to the procedure of secret voting. Therefore language in Article 25 of ICCPR should be included in 18(a)(ii). The term assistance in 18(a)(iii) needs clarification and "where necessary" should be replaced with "allow for the provision of necessary assistance." Assistance that is provided to PWDs needs to be in accordance with, and executed in accordance to, the law, without inhibiting the ability of the person with a disability to express his or her will. Russia is flexible in language used to replace "actively promote" in (a) and (b) and could support "provide" in 18(a)(iii). "Public administration" in 18(b) is narrower than "political affairs" in the ICCPR, so the ICCPR reference should be used instead. Russia agrees with other delegations to delete "as appropriate" in 18(b). It supports NZ's proposal on a(bis), but has misgivings about the reference to political parties. Not all states have political parties that would be defined as NGOs. Russia has no objection to maintain the text of 18(b)(ii). In the Russian text, this language needs to be adjusted from "national" to "state, regional and local levels."

The Chair noted Russia's suggestions, specifically its reference to public administration, also raised by Argentina and other delegations in relation to ICCPR and Inter American Convention.

Uganda pointed out the importance of electoral laws specifically covering the participation of PWDs who have been historically marginalized and excluded from political and public life, and that the diversity of disabilities must be taken into account when making these laws. To ensure this is not overlooked in 18(a) state parties should undertake to include specific needs of people with specific disabilities in their electoral laws so they can effectively and fully participate in political life. Paras 18(a)(i)(ii)(iii) are necessary but the language of "actively promoting" is not sufficient. Likewise, in para (b) provisions should be made in the laws relating to appointment or recruitment in public administration for the inclusion of PWD. Often the people involved have negative attitudes towards people with disabilities and without stating these obligations, they may not be aware of them or that the desired inclusive environment does not exist. While the reference to political parties has caused some concern, it should be noted that countries have laws for the registration of political parties. In such circumstances there is no reason why the registration processes should not require inclusion of diverse populations like PWDs, gender. 18(c) is adequate as is.

Yemen stressed that references to "necessity", and whether and how it is derived from the disability, should be clarified. Yemen occasionally takes in refugees, and to ensure that refugees with disabilities have the right to vote, "citizen" should be used. The last part of 18(c) restricts rights of PWD granted elsewhere in this Article and it supports Oman's proposal to delete this.

Qatar emphasized that the right to participation is not only about elections but to political life generally. It supports the term "citizens" in accordance with the legislation of all countries concerned.

The Chair explained that whether "persons with disabilities" or "citizens" is used, the text is not intended to create any additional rights. The provision is intended to ensure that PWD shall be treated on an equal basis as non disabled persons. Use of "persons with disabilities", would require the addition of "on the equal basis of others" to clarify that no new rights are being created. The Russian Federation suggested that language be included in the report to clarify this. Referring only to citizens with disabilities may give states where noncitizens have rights the right to discriminate against non-citizens with disabilities. The goal, in this Article and Articles 8 and 14, where similar discussions arose, is to ensure that PWDs are not treated differently whatever the laws of the country.

Namibia supported adding "ensuring" to strengthen the chapeau. To ensure that the entire process is accessible to all PWDs, it supports Canada's proposal to add "materials" to the end of 18(a) and "easy to use" to 18(a)(i). Namibia supports Uganda's position that national laws must make appropriate provisions for the inclusion of PWDs, including within public administration. The word "encourage" in 18(b) should be deleted. Namibia proposed adding 18(b)(iii), "to represent their states at national, regional and international levels and to participate in the work of international organizations." The last part of 18(c) should be replaced with "to participate in the formulation, implementation evaluation of plans and programs for national and regional development."

Colombia supported the regional positions expressed by Chile, Costa Rica and Argentina to broaden the scope for public participation.

Senegal proposed to add in 18(a)(ii), "and providing adequate means" after "vote by secret ballot", to address the need for resources to enable citizens with disabilities to vote by secret ballot.

Statement from NGOs and NHRIs

World Network of Users and Survivors of Psychiatry on behalf of IDC highlighted that the right to participate in the political life of a country is an integral component of active citizenship, which has been denied persons with disabilities either through exclusionary legal provisions or inaccessible procedures and facilities. This has led to the relegation of disability issues to the private arena/sector. It calls for an unequivocal article on political rights that would enable PWDs to "show the political nature of the personal." Jamaica stated that unless political rights become a reality, the convention would remain a paper convention. The participation of civil society organizations in the negotiations of this convention demonstrates the importance of this right.
The Russian Federation's proposal to include referendums in 18(a) is included in the IDC draft. http://www.un.org/esa/socdev/enable/rights/documents/ahc6idcda18.doc. The chapeau needs to be strengthened as stated by a number of delegations and political rights need to be guaranteed or ensured. "Promoting an environment" is too soft language. Accessibility must be a guarantee and 18(b) should read, "that procedures and facilities are appropriate, accessible to persons with disabilities and easy to understand." Secrecy of the ballot is an absolute standard. As long as the ballot is secret from the government and its representatives, the demands of a secret ballot for PWDs is met, which is why PWDs that need assistance should be provided the assistance of their choice. IDC supports Kenya's formulation over that of the IDC text regarding the right to vote by secret ballot. The participation of PWDs in public affairs and administration does not necessarily need to be through electoral processes; they are also mediated by PWDs and their organisations.
IDC supports a twin track approach on gender. The special attention of a stand- alone article would focus on the exclusion and silence of women with disabilities. The gender perspective should also be integrated into every article of the convention to ensure that exclusion of women with disabilities does not reoccur. 18(2) should also include: "States parties shall take all appropriate measures to ensure that persons with disabilities on a basis of equality between men and women can effectively and fully participate in the conduct of public affairs and administration." The Indian delegation supports this if the word "ensure" were deleted and addressed in "appropriate measures." The IDC will look into this matter further.
A provision should be added for people with disabilities to hold public office and perform public functions at all levels of government. Inclusion of political parties in Article18 should reflect that they separate from civil society. Political parties and civil society cannot be thought of in the same manner. Regulatory mechanisms in different states may vary as to how much of an impact they can have on political parties. They would be somewhere closer to state agencies than civil society.
The convention has brought PWDs together and disability organizations have provided a sense of community. IDC seeks measures to establish DPOs and to accord representational status at international, national, state and local levels. Rule 18 of the Standard Rules underscores the significance of organizations of PWDs as consultative, representational and monitoring bodies. 18(c) should be retained. PWDs have an opinion, expertise and experience to contribute. Every major policy contains a disability dimension and it is important that this be included at the design stage rather than the end. PWDs have to be heard on an equal basis with all others on every policy, plan, program of governments, not just on matters related to disability. In addition, PWDs have to be given primacy of voice on matters related to disability. There is a complexity in the disability experience on which PWDs can best provide input.

The Chair noted that there was no longer a strong view about shifting 18(c) to Article 4. There is support for retaining 18(c) in this article. Some delegations have proposed that the latter part of 18(c) be deleted. There was also a proposal for substitute language.

DPI, a member of the IDC highlighted accessibility of voting procedures and the need to ensure that PWDs enjoy the right to vote without discrimination and in secret. However access to ballot boxes is not meaningful unless the entire political process is made accessible. Access to information, public discussion and other facets of political life are necessary prerequisites to informed choice by PWDs, both as voters and as pubic officials. Therefore, DPI supports delegations proposals to use "political processes" in 18(a). PWDs must be able to represent themselves, their organizations and their governments at all levels, including at the international level and in the work of intergovernmental organizations. DPI welcomes proposals to include the concept of representation by PWDs in the draft text. CEDAW Articles 7 and 8 recognize the value of the contribution of women in this regard, resulting in a positive change in dynamics of international relations. Enhanced participation of disabled people in all fora will ultimately bring a similar transformation.

People with Disabilities Australia Inc. proposed that the scope of 18(a) should be expanded to include "information and materials", to ensure all dimensions of the voting process are accessible to PWDs. It supports Uganda that states electoral laws must specifically mandate the full and effective participation of people with disabilities in all aspect of the electoral process. The term "actively promote" in 18(a) and (b) should be replaced with "to ensure", recognizing that civic participation and the right to vote are immediately realizable civil and political rights. The term "as appropriate" should be deleted from the chapeau of 18(b), as it may allow the article to be interpreted weakly. Wording should be added in 18(b)(i) that would clarify that PWDs may hold public office and perform public functions. Article 18(b)(ii) should be strengthened in 3 key respects as reflected in the Bangkok draft: [1] PWDs are entitled to form and join independent organizations. Independence of DPOs is a key dimension not captured in the current WG text and is crucial to the integrity of civic participation. [2] States are required to recognise and financially support such associations, as without this DPOs cannot fulfill their role in civil society. [3] The level of participation of DPOs should to be expanded to recognize the crucial role they play at the international level, as demonstrated in this convention. DPOs will become increasingly important in international affairs in reporting, monitoring and other compliance measures, as intergovernmental bodies and other multinational entities adjust to the requirements of the convention. 18(c) should be strengthened to require states to recognize the primacy of the participation of PWDs in decision-making processes that affect their lives. Persons with disabilities want more than equal standing with others in these matters.

Arab Organization of Disabled People called for the following obligations to be clearly stated: [1] to recognize that political participation is a right for PWDs because they are citizens who have the same rights and obligations as others; [2] to ensure that this right is protected by deleting words such as "encouraging", [3] to ensure that PWDs with experience in any field can represent their countries in various fora at the local, regional or international levels; [4] to ensure that different parties provide facilities for PWDs to enable them to exercise all of their rights.

DPI Latin America stated that member states must guarantee through their legislation political participation of PWDs including by holding office, in elections and in political parties. Acquisition of citizenship by PWDs is a requirement for PWD to be able to participate in a way that is recognized by all member states. PWDs do not have citizenship and lack adequate documentation, and must be able to acquire this. Political participation of children would also be restricted due to their age. Voting should be open and accessible to PWDs at the local, regional and national level. PWDs must also be involved in public administration, and represented in government at all levels. If PWDs are excluded, democracy has not fully evolved.

National Human Rights Institutions supported the Chair's summing up that would ensure parity between this convention and existing ones. NHRI's also supported NZ's modifications of this Article, and suggested a further amendment to the text of para (b)(ii) which is the same in both the WG and NZ drafts. Complementing Serbia-Montenegro's proposal in AHC 3, the term "international" should be added to the list of levels at which persons with disabilities and their organizations participate.
Paragraph 5 in General Comment 23 of CEDAW expands the concept of political and public life encompassing all levels of public life including the international level, and addresses the question of whether participation by PWD in political parties can be regulated by the State.

The Chair agreed that the General comment contains useful elements. There is general agreement that Article 18 needs to be strengthened and other useful additions have been proposed.

Yemen agreed with Qatar that the linguistic problem of using "citizens" vs. "persons" with disabilities could be resolved by adding "under the laws in effect in different member countries."

The Chair reiterated the need to capture this concept in the article given the concerns raised by a number of delegations.

The Session was adjourned.

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