Disability Negotiations Daily Summary

Volume 1,#5
August 2, 2002

Meeting of the Ad Hoc Committee, 29 July - 9 August 2002 : NGO Daily Summaries :

Morning session

Commenced: 10:27
Closed: 11:16

The Chairperson, Luis Gallegos, announced that 6 NGOs had submitted accreditation applications, and given the termination of the 7 day waiting period for states to object, these NGOs would be eligible to participate. Receiving no objections the Chair declared the 6 NGOs fully accredited to the Ad Hoc Committee, but did not identify the NGOs.

Japan requested that an informal list of participating experts and their qualifications be provided to each delegation, since lack of advance information about Messrs. Quinn and Mathiason had complicated delegate interventions in the previous day’s session. Japan also requested the right to return in future debates to the EU’s Four Points already discussed. The Chair granted these two requests.

Relationship of a legally binding instrument to the Standard Rules and other UN human rights instruments

In accordance with Mexico’s suggestion of the previous day, the last of the EU’s Four Points, on monitoring mechanisms, was put off for Thursday, as stated in the Programme of Work. Following the format of beginning discussions with an introduction on the topic by an expert, as suggested by the US on the previous day, the Chair read from a prepared statement by Prof. Mathiason, who was unable to attend. Prof. Mathiason began by setting forth the background to the Standard Rules, namely that they were drafted and adopted as an alternative to a convention. As they were never intended to become legal obligations for states, they were drafted in less precise terms than would be used in a Convention. Also, the world has changed since the time the Rules were drafted, and so the Rules do not address all relevant issues. Nevertheless, they continue to provide “normative guidance.” In addition, a new convention would strengthen and bolster, rather than undermine, existing human rights conventions.

Australia suggested that the Standard Rules provide a good framework for formulating programmes for PWDs. The Rules also have an “independent and active monitoring mechanism,” and given their usefulness it would therefore be desirable to build on them. It noted that the existing human rights instruments apply to PWDs, although conceded that in many instances people with disabilities are not explicitly referenced in the treaties. It emphasized that it is important for these instruments to continue to work to achieve these aims, and any new convention must not ignore the existing human rights treaty framework.

Denmark, on behalf of the EU, made a statement emphasizing the need to develop any new convention in parallel with efforts to mainstream disability in the existing human rights framework of the 6 core UN human rights treaties. In addition, the development of a new instrument should not delay improvements to the Standard Rules, but rather should complement it. In particular, the monitoring mechanism of the Standard Rules could enrich any monitoring mechanism developed by a new instrument, thus adding to the relevance of the Standard Rules. Finally, any new instrument should elaborate on, rather than duplicate, the rights already addressed in the 6 core treaties. In drafting, enforcement and implementation must be considered.

The EU also cited a UN Commission on Human Rights resolution [1998/31], which asserted that: “any violation of the fundamental principle of equality … [relating to] persons with disabilities, inconsistent with the UN Standard Rules … is an infringement of the[ir] human rights.”

Kicki Nordstrom, President of the World Blind Union (WBU), stressed that the disability community would be very much in favour of a strong human rights convention. There needs to be a shift in consideration of disability as a social problem, to disability as a human rights issue. A new convention must refer to the rights mentioned in existing treaties, but must elaborate upon those rights in a way that ensures the enjoyment of those rights by PWDs. Reference to the Standard Rules, as well as the supplement to the Standard Rules to be adopted in 2004, should be made in the convention to strengthen it. A new convention would be preferable to the creation of optional protocols to the existing human rights treaties, as optional protocols could confuse human rights framework for PWDs. Although “mainstreaming” disability is desirable, the WBU would not support such a multi-track approach at this time, as the Ad Hoc Committee must focus on development of a convention, not improvements to the Standard Rules or other existing instruments.

Liisa Kauppinen of the World Federation of the Deaf (WFD) strongly supported a new convention for PWDs, as part of a multi-track approach, which she asserted would be more “efficient.” Because the Standard Rules are not used by many countries, a convention should strengthen the Standard Rules, as well as elaborate on the rights set forth in the existing 6 core treaties. Even with the establishment of a disability-specific monitoring mechanism, existing human rights committees must be encouraged to mainstream disability into their work.

South Africa recommended that any new convention be a general human rights instrument, reflecting both civil and political rights as well as economic, social and cultural rights. The standards contained in the Standard Rules should be placed in the context of a binding instrument.

The United States acknowledged that some overlap between the Standard Rules and any new instrument was inevitable, but there was also a need for both to stand alone. Any future instrument would build upon the concepts contained in the Standard Rules, but not include all of the provisions of the Standard Rules. There would continue to be a role for the Special Rapporteur.

A representative from the European Disability Forum (EDF) spoke in support of a multi-track approach. Although there is a need to strengthen existing instruments such as the Standard Rules, there is also a clear need for a specific convention to enforce the civil, political, economic, social and cultural rights of PWDs.

Afternoon session

Commenced 3.20 pm
Adjourned 5.30 pm

Stefan Tromel, a participant at the Mexico meeting of experts and member of the European Disability Forum, began the discussion of Overarching Principles and Rights, as stated in the proposed Programme of Work. He noted the convention must take into consideration the diversity of disability and full participation of PWDs. He emphasized a need to raise-awareness of the issue.

Brian Burdekin of the OHCHR focused on 2 main principles arising in the context of disability that “brings particular challenges for all kinds of action”. The first was the principle of affirmative action, and connected to that the idea of reasonable accommodation. This will, he suggested, “require considerable discussion.” The second was the principle of state obligation. This is accepted in the public sector, but if these standards are to be effective they must be made applicable in the private sphere. This “will require particular attention of governments to disseminate the information broadly.”

Mr Burdekin emphasised that “front-end” needs, educating public opinion, must also be met in order to make these standards applicable. In his professional experience working on these issues, sometimes he “found fear and ignorance”. There is “a very poor understanding” of how rights apply in the context of disability.

He noted that the drafters of a new convention should strive to satisfy two objectives: the new convention needs to articulate general principles, but also be interpreted in a way they can be monitored. The principles need to be expressed precisely enough that these issues of affirmative action and reasonable accommodation can be implemented.

Suriname echoed the OHCHR’s call for human rights education, which “is critical to the implementation of this convention … the time to start ... is now.” The delegation referred the Committee to the work of the People’s Decade for Human Rights Education, noting that, as stated in their materials, the classification of “differently abled persons” is more appropriate. She also referred to the Habitat agenda [that emerged out of the Conference on Human Rights and Evictions], where “governments committed themselves to provide adequate policies and legal protections against anyone on the basis of disability,” and to the positions of the OHCHR stressing the human rights approach to development. Human rights education is also “key to development. We have to use the human rights decade to educate ourselves and others. In this education should include all kinds of rights, including the right to development”

Denmark on behalf of the EU made a statement emphasizing that the main challenge facing the Committee is “to select relevant, existing human rights and to tailor existing obligations to fit the circumstances of persons with disabilities”. The EU called for the following “basic values” to “animate the text and guide the process of drafting”: Inherent dignity of person, a notion of common humanity Self determination and autonomy - participation in any decision-making process Equality and nondiscrimination - Not just protect people from abuse of power but also return power to PWD that has been usurped by barriers by removing barriers against participation. Social justice - “European Social Model is designed to harness social solidarity in support of the rights of others.” Some expression of this ethic ought to be found in the new instrument.

The Philippines, also designated as the regional representative in the Bureau, elaborated on the national standards it implemented with regard to PWD.

The US “envisioned a narrowly crafted instrument” with a preambular paragraph reaffirming that PWD have the same rights as others. It should include a prohibition on discrimination, as well as standards of “reasonableness.” The US draws extensively on lessons learned from the American Disabilities Act which leads more than 20 other countries in furthering the Standard Rules. The US noted that any definition of disability should be consistent with US law, and the US would not be open to a definition based on environmental or sociological factors. Finally, the US recommended that the title of the instrument should be made more concise since it is both difficult to read and remember.

Chile noted that delegations were already talking about issues of content. It offered the following suggestions for consideration as general principles: 1. Diversity has to have some legal expression and definition. 2. Positive discrimination and affirmative action 3. Monitoring mechanisms - consultations should be requested with experts on rights of women and children. 4. The level of specificity in the convention 5. Legal entitlement should be based on norms that have been mentioned, there is no subjective right. 6. Notwithstanding the US position, the convention must cover the socio-cultural context. It must have a combination of both specific and general principles.

Norway supported the EU’s position and responded to the US remark on a definition of disability. Norway takes “the opposite approach” defining this as a loss or limitation of opportunity with a consideration of environmental factors.

Chile and Australia requested the OHCHR to carry out studies and a survey on the questions of overarching principles. Mr Burdekin and the Chair pointed out that some work has already been done but these requests would be forwarded on to the HC.

Kicki Nordstrom of the World Blind Union pointed out that incorporating a disability perspective was necessary because it meant that even those rights that are taken for granted by the able-bodied in most parts of the world, like the right to life, the right to information or the right to vote are denied for many PWD. A narrow convention cannot cover all rights. Making it too wide may also be complicating as it will mean listing all of the disability groups. She asserted that “this is a matter that affects one from the cradle to the grave, cannot be addressed in a few lines.”

South Africa aligned its position alongside that of the EU, while separating itself from any US position calling for a mere amendment to existing human rights laws.

In closing, the Chair announced that a list of participants for the panel discussion will be circulated on Monday, and that the conference room location will be changed to Room #4.

The Disability Negotiations Daily Summaries are published by the Landmine Survivors Network, a US based international organization with amputee support networks in six developing / mine affected countries. LSN staff and consultants contributing to these summaries include Zahabia Adamaly, MA (zahabia@landminesurvivors.org), Katherine Guernsey, JD (Kathy@landminesurvivors.org), and Janet E. Lord, LLB (editor) (janet@landminesurvivors.org). Any questions or concerns relating to the Summaries should be directed to Janet Lord.