Disability Negotiations Daily Summary Volume 2, #1 June 16, 2003

Morning session

Commenced: 10:30

Recessed: 11:05

The proceedings of the morning session were slightly delayed in order to ensure proper seating arrangements for the wheelchair user members.

The following dignitaries were given special recognition by the Chairperson of the Bureau, Ambassador of Ecuador, Luis Gallegos: Ambassador Jung Clark, representing the President of the General Assembly; Sheikha Hessa bint Khalifa bin Ahmed al-Thani, of Qatar, the new Special Rapporteur on Disability; Rapporteur of the Special Committee, the delegate of South Africa, and Representative and Bureau Member from Africa; Mr. Shulving and Mr. Bafuhr from the Department of Economic and Social Affairs (DESA); Secretary Timur.

Agenda Item 1: Opening of the session

The Chairperson opened his introductory statement by expressing his pleasure to start the first day of the second Ad Hoc Committee session. He emphasized that the deliberations of this session will have an impact on "not only the rights and dignity of persons with disabilities, but on all societies of the world. Our societies must think long and hard and look at themselves in the mirror of reality to analyze the true situation which hundreds of millions of disabled persons and their families are going through. There are more than 600 million human beings to whom we owe our best effort. The experts indicate that there is not a family on the planet that does not have within it a person with some disability." He appealed to member states to "overcome minor differences, and to achieve broad but substantive consensus." The Chair concluded by saying that our decisions "will have consequences for those who have disabilities, but also for our societies, that we will not see the necessary changes to ensure that our societies become integrated unless we overcome the limitations of all kinds imposed upon those who have disabilities. The time has come to make this change in international society."

Following the Chair's introductory statement, Ambassador Clark read the message from President of the General Assembly, Jan Kavan. The President emphasized, "There are an estimated 600 million people with disabilities in this world, more than four-fifths of them in developing countries. A comprehensive and integral international convention is needed to sever the link between disability and poverty, disability and social exclusion, disability and despair. It is needed to ensure that persons with disabilities are not treated as problems that must be dealt with, but as human agents with a right to full participation on the basis of equality in all spheres of social life and development. It is needed so that states have a better understanding of their obligations to bring persons with disabilities into the mainstream." The President concluded his message by expressing hope that the deliberations of this committee will produce "a significant step towards a world where persons with disabilities have the same rights and civic responsibilities as all other people."

DESA representative, Mr. Shoulden began his speech by summarizing the historical evolution of the UN's efforts to promote the rights of persons with disabilities (PWD) so far. He specifically recalled that the 56th General Assembly Session initiative by the delegation from Mexico to form the Ad Hoc Committee on Disability was made in the context of "addressing poverty and promoting social integration so as to create just and equitable societies based on participation of all citizens as stakeholders." He recounted major developments which have taken place since the first meeting of the Ad Hoc Committee in July, 2003. These developments have been based on international open forum input from governmental organizations (GO), NGO's, etc. The documentation of all these efforts may be found at the fully accessible website located online at www.un.org/esa/enable. Under Agenda Item 5, four documents (available online) were given to member states:

Shoulden enumerated a series of national and regional consultations which have taken place since last year's Ad Hoc Committee meeting with support of the United Nations. The outcome of these consultations are available as Conference Room Papers, and include valuable resources from five regional meetings:

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Shoulden drew attention to three important panels to be convened during this Session in order to expand the Committee's technical and knowledge base. In closing, he recalled that Bengt Lindqvist, Special Rapporteur to the 40th Session of the Commission for Social Development in 2002, had raised the following questions regarding the scope and purpose of the Convention:

Agenda Item 2: Election of a new member of the Bureau

To complete its Bureau, the Committee unanimously elected Mrs. Ivana Grollova of the Czech Republic as Vice-Chair for the group of Eastern European States.

Agenda Items 3 and 4: Adoption of the agenda, and organization of work

The provisional agenda and proposed organization of work as contained in documents A/AC.265/2003/L1-2, respectively, was adopted unanimously.

The session was recessed until 3:00 pm.

Afternoon session

Commenced: 3:13 PM

Adjourned: 5:51 PM

Panel Discussion

The Chairman announced that the Hellenic Presidency of the European Union had prepared a background paper on today's panel discussion, "Typology of the International Convention on the Rights of Persons with Disabilities."

The Chair introduced the members of the panel who have been asked to speak on the "Typology of international conventions and options for a convention on the rights of persons with disabilities." Panel members included Muna Ndulo, Velina Todorova, Andrew Byrnes, and Deepika Udagama. The panel member from Germany (Theresia Degener) was unable to attend.

Andrew Byrnes, Professor of Law, Australia National University, Canberra, addressed the need for a convention to protect the human rights of PWD. Citing the Quinn/Degener study commissioned by the Office of the High Commissioner for Human Rights on the "Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability," he proposed that existing treaties do not do enough to protect the rights of PWD. He discussed the use of specialized conventions as precedents for the development of a specialized human rights convention for PWD, and stressed that a specialized convention would not replace but instead complement existing human rights treaties. He advocated a human rights based convention that makes "clear statements of guarantees that are binding on states and are enforceable and monitorable at the national and international level." Such a convention would be reflective of the full range of civil, political, economic, social and cultural rights, and would include updated definitions of disability, reasonable accommodation, and accessibility. He also discussed the need for an independent monitoring body to engage in assessment of the treaty and examine individual and group complaints of violations. He proposed that the monitoring body include PWD to provide the necessary disability expertise.

Deepika Udagama, head of the law department at the University of Colombo in Sri Lanka, also discussed the need for a specialized convention for PWD, particularly in light of the lack of attention paid to disability-specific issues by the general human rights treaty bodies. She advocated a hybrid model incorporating survival rights, participation rights, protection rights and developmental rights. Regarding the definition of disability to be used she stressed the need to re-examine the definition of disability set forth in the 1975 declaration, as it does not deal with the complexity of issues relating to the question of who is "disabled." On the question of implementation she also proposed the establishment of an independent monitoring body. Ms. Udagama also addressed resource allocation and training and capacity building as challenges for some governments in complying with the treaty. However, she determined that "each state is obliged to acknowledge the universality and indivisibility of rights" and advocated for specialized bodies and agencies implemented at the national level to meet the demands of compliance with the international treaty.

Velina Todorova, expert on the Convention on the Rights of the Child (CRC) from Bulgaria, addressed the nature and monitoring mechanism of the convention. She discussed three treaty models: (1) holistic; (2) non-discrimination; and (3) hybrid (social development and human rights elements combined). She explained that any model must meet the expectations both of advocates and governments. Todorova said there is an opportunity to strengthen existing provisions but highlighted the potential danger of promoting "special rights as opposed to other humans" rather than "special human rights" because of different needs. She noted that the major innovation of the CRC was the 'participation rights' of children. The CRC also has the advantages of combining the human rights and social development approaches and addressing specific situations (for example, employment, juvenile justice, deprivation of liberty). She noted though, that there can be disadvantages of restating rights already in existing treaties as this can potentially marginalize some rights, and that there are no "specific guarantees" against some types of discrimination. The importance of involving the NGO community and engaging in constructive dialogue were lessons learned from the CRC drafting process.

Muna Ndulo began with the assessment that there is general agreement that there should be a Convention and on what it should contain. Ndulo reminded the Committee that the focus of such a Convention is not just on "protection" of rights but also "promotion" of rights. He cited two recent cases before the Constitutional Court in South Africa--one case involving AIDS treatment, the other housing policy?as an example of enforcement that goes beyond "minimal standards" and evaluates policy choices in light of guaranteed rights. Ndulo also addressed other legal issues, such as: separation of powers; status for bringing a legal action; whether to allow reservations; and composition of an enforcement body. Regarding the development of the convention, he noted that it is very important that any convention be seen as "reflecting interests of stakeholders." He also stressed the need to find ways to bring in expertise from countries with fewer resources to devote to the convention development process.

Question and Answer Period Commenced: 4:20 p.m.

The Chairman noted that Q & A with the Panel would progress as follows: (1) State delegations; (2) IGOs; and (3) NGOs. Andrew Byrnes served as moderator.

The Representatives from Tunisia, Venezuela, Colombia and Thailand voiced support for a convention to protect and promote the human rights of people with disabilities. Tunisia, and Colombia also expressed some concerns that more be done to continue the process of improving accessibility for PWD at the Ad Hoc Committee. The Representative from South Africa requested an elaboration of what is meant by "combining" treaty models. The representative from Mexico also indicated support for a convention, expressing a preference for the holistic approach, as it would both encourage and strengthen the development of national programs to meet the needs of PWD, strengthen regional programs, and strengthen structures to promote dialogue among all entities.

Greece, in its capacity as President of the European Union, noted that the EU is prepared to work on the development of a thematic convention incorporating a rights-based approach within a non-discrimination model. The Representative stated that the non-discrimination model offers the "most constructive approach" because the holistic model "could include a risk of diluting the protection offered to [PWD] under existing international human rights law." The EU also advocates for the non-discriminatory approach to a convention because it would be a "clear political symbol of transition" from the welfare-based approach to disability to a more human rights-focused approach, which is generally favored by the disability community. In response to these statements panel member Udagama emphasized that the non-discrimination model is limiting in that it only imposes negative obligations on the states, whereas the hybrid model also encourages and demands proactive and positive measures. Byrnes also expressed that a holistic model provides the opportunity to restate rights already guaranteed by other treaties, and to elaborate those rights with respect to the specific needs and circumstances of the group in question.

Barbara Murray from the International Labor Organization (ILO) asked for an elaboration of what we have learned in the past twenty five years regarding economic, social, and cultural rights. Byrnes referred to the work done by the Committee on Economic, Social, and Cultural Rights, various rapporteurs, and the Committee on Human Rights, as indications that some rights can be realized immediately, while some are realized progressively. He highlighted the issue of justiciability as being central to a discussion on this topic.

NGO interventions were provided by the European Disability Forum (EDF), Disabled Peoples' International (DPI), the World Federation of the Deaf (WDF), SHIA, the World Network of Users & Survivors of Psychiatry (WNUSP), National Assembly for the Blind in Palestine, and grassroots activists from Hong Kong, India, Italy, and Uganda. Many focused on the holistic vs. non-discrimination models as well as the relationship of the convention to existing instruments. EDF noted that its group favors strong legally-[enforceable non-discrimination provisions but questioned whether that is enough to obtain equal and effective enjoyment of human rights for PWDs. WNUSP advocated for a holistic approach that recognizes the rights in choice of treatment and living locality for persons with disabilities, as these are not currently guaranteed under international law. The holistic approach was also supported by the National Assembly for the Blind in Palestine.

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. Summaries staff contributing include Jagdish Chander, Margaret Holt, Jennifer Perry, Marshall Traster and Katherine Guernsey (editor). The Summaries are available online at www.rightsforall.org and www.worldenable.net. Translations in Spanish, French and Japanese are provided courtesy of Disabled Peoples' International, Handicap International, and DINF Japan. Any questions or concerns relating to the Summaries should be directed to Katherine Guernsey (k_Guernsey@yahoo.com).