5th Session of the Ad Hoc Committee

Volume 6, #3 January 26, 2005

A service brought to you by RI (Rehabilitation International)

MORNING SESSION

ARTICLE 9: EQUAL RECOGNITION AS A PERSON BEFORE THE LAW (continued)

The Coordinator noted that the rules of informal sessions do not allow NGOs to participate. He asked delegates to reflect on how NGOs could give input. NGOs may participate in the AHC's formal plenary but not its informal consultations and this may lead to some imbalance in the discussion. The involvement of NGOs has enriched the discussions.

When yesterday's session ended, the facilitator was asked to draft new language with input. The Coordinator expressed concern about overdrafting, remarking, "The perfect is the enemy of the good." He stated that language will never be ideal, but should reflect an appropriate compromise and should advance the rights of PWD. The facilitator's new language reads: "1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as a person before the law. [source: ICCPR, Article 16 and UDHR, Article 6.] 2. States Parties shall recognize that persons with disabilities have legal capacity, [in Spanish, Chinese and Russian translated as “capacity to act"] on an equal basis with others, in all fields. 3. States Parties shall ensure to the extent possible that where support is required in order to exercise that capacity a) the assistance is proportional to the degree required and tailored to the person's circumstances; that such support shall not undermine the rights of the person and shall respect the will and preferences of the person, and shall be free from conflict of interest and undue influence;"

The Coordinator asked for comments on the new 9.1.

Yemen asked whether it was necessary to "reaffirm," which means that States Parties have affirmed this recognition many times. It suggested using the stronger term "affirm."

The Coordinator responded that this idea has been affirmed elsewhere. For example, ICCPR states, "Everyone shall have the right to recognition everywhere as a person before the law," and everyone includes PWD. The same wording can be found in UDHR. This Convention should not imply that other treaties do not include PWD, the Convention wants to reaffirm these rights for PWD. Therefore, "reaffirm" is technically correct.

Costa Rica expressed appreciation for the efforts involved in redrafting this Article. However, this proposal makes things much more difficult. For example, 9.2 is the opposite of what was discussed yesterday; this group had agreed to legal capacity as not being the capacity to act. Paragraph 9.1 is a reaffirmation of UDHR, Article 6, as well as ICCPR, Article 16. The term "reaffirming" is a concern because it implies uncertainty about States Parties not yet respecting previous treaties. The term adds no value since it also appears in 7(1), and is therefore redundant.

The Coordinator pointed out that the language in 7(1) is not identical to 9.1. The latter deals with the issue of legal capacity. Yesterday all delegations, including Costa Rica, agreed that PWD have the right to recognition before the law.

Mexico agreed with Costa Rica that 9.1 embodies the same concepts as 7(1), and expressed concern with the repetition in this Convention. The core of Article 9 is paragraph 2; 9.1 should be deleted because the reaffirmation is redundant.

The EU proposed revising 9.1 to read: "States Parties shall respect the rights of all PWD to recognition everywhere as a person before the law." The term "shall respect" will strengthen the right of all PWD to be recognized before the law.

The Coordinator asked Costa Rica and Mexico whether the EU's proposed language would enable them to accept 9.1. Instead of reaffirming that right, States Parties "shall respect" that right; it is a required action, rather than passive recognition.

Mexico responded that it will consider the EU language, but it repeated that the core of this article is 9.2.

China agreed with Mexico and Costa Rica that 9.1, although important, overlaps with 7(1). It agreed with Mexico's proposal to delete 9.1, but it will consider EU's proposal. It proposed using, to the maximum extent possible, the same wording as ICCPR, Article 16, which is universally accepted. It proposed the following wording: "Every PWD shall have the right to recognition everywhere as a person before the law." This changes one word, from "all" to "every."

Russian Federation stated that it is flexible concerning the changes proposed by the EU and China. The WG text contains another concept not included in this new proposal, that is, equality for PWD before the law, taken from UDHR, Article 7. It asked the Committee to consider where this concept should be placed in the Convention, if not in Article 9.

Liechtenstein voiced its concern regarding the process and its pace. These are informal consultations where compromises and decisions must be made. Delegates should raise objections, but this is not the time for drafting suggestions. As for the issue of redundancy, the ICCPR also has the same duplication issue: Article 16 addresses recognition everywhere as a person before the law and Article 26 addresses all persons' equality before the law and nondiscrimination. There is a difference in nuance between recognition as a person before the law and the right to equality. One is a precondition to the other. Delegations should only raise objections when necessary and should try to speed the process along.

The Coordinator agreed with Liechtenstein's comments, noting that the group could spend all its time on this one article without making it any better, and perhaps making it worse. Redrafting could go on forever until perfection is reached. The WG text came out of a great deal of work and reflects many views. It is impossible to draft in such a huge meeting, but it is difficult to break up the group due to access issues. He is trying to keep the negotiations in this room. However, he cannot continue if delegations keep trying to improve the language because it will take too long. The issues and concerns of PWD are relevant today and this process cannot go on for 20 years. There are also issues of expense. The process must move on. Objections are necessary, but delegations should refrain from proposing word changes which do not change the substance. He asked again whether anyone in the room disagrees with the substance of 9.1.

Japan does not oppose 9.1 or the suggestions of the EU. It questions 9.2's definition of legal capacity as the "capacity to act." This misstates the outcome of the debate yesterday. It also found 9.1 to be redundant, and therefore agreed with Mexico and Costa Rica. It asked to return to 9.1 after discussion of 9.2. The Coordinator responded that the entire text will be discussed again. At this stage, the Committee needs to clarify the Article's shape and sequencing.

Yemen stated its support for 9.1.

The Coordinator stated that 9.1 will now read: "States Parties shall respect the right of every PWD to recognition everywhere as a person before the law." This takes into consideration most of the comments made by delegations. He asked for comments regarding the new 9.2.

Uruguay stated that it has no problems with the term "legal capacity." All people have legal capacity, but some need assistance exercising legal capacity.

The Coordinator asked which languages involve problems with the translation of the term "legal capacity."

The Russian Federation stated that it had no problem with the language in 9.2. However, the parenthesis in 9.2 does create an issue because the capacity to act is different from legal capacity. All PWD have legal capacity; this is different from the capacity to act, which may be limited by judges. The Coordinator confirmed that the Russian Federation has no problems with the Russian translation of "legal capacity."

China stated that the discussions about legal capacity have not been reflected in the proposed 9.2. It is an issue of translation. If legal capacity means legal entitlement or legal rights, there is no problem. Capacity to act is a different concept in the Chinese language. The definitional parentheses ("capacity to act") is not a correct translation, and causes problems.

The Coordinator suggested a solution. He proposed deleting the words in parentheses, "capacity to act," and adding to the beginning of 9(3), "States Parties shall ensure to the extent possible that where support is required to exercise the capacity to act." That should create a clear distinction between legal capacity (entitlement and rights) and capacity to act. He asked if this would solve this problem.

Iran generally supported 9.2 as written. However, in the most severe cases, PWD cannot use their own legal capacity. This is addressed in 9(3), which is long and includes safeguards.

The EU objected to the definition in the chapeau of 9.2. There is still no agreement as to the definition of legal capacity; it believes that 9.1 covers this idea.

The Coordinator asked if the EU believes that PWD do not have legal capacity on an equal basis with others in all fields. There is now a distinction between having legal capacity and having capacity to act. The EU responded, no, if a person is a person before the law, they have legal capacity and once this legal capacity is recognized, they have the capacity to act and to enjoy rights. The Coordinator stated if that is true, then there is no objection to the substance of 9.2. The issue is how to qualify the exercise of legal capacity.

Egypt still had a problem with the concept of legal capacity because it does not correspond to its legal system. The distinction between legal capacity and the capacity to act, as developed in this Convention, does not allow for exceptions. Some PWD cannot exercise legal capacity or the capacity to act. The language in the Convention does not make clear that some PWD cannot have absolute equality.

The Coordinator suggested adding the words "that capacity or" after the word "exercise" in the chapeau of 9(3), so it would read: "States Parties shall ensure to the extent possible that where support is required to exercise that capacity or the capacity to act." He asked whether that would solve the problem raised by Egypt. The goal of the WG text was to ensure PWD would be on the same legal footing as others, but there are some situations where support or substituted decision-making is necessary. But the fundamental rights of PWD as persons before law should not be denied.

Yemen stated that the distinction between legal capacity and the capacity to act is not a matter of translation, but of interpretation and understanding. Legal capacity comes at a certain age, when a person is entitled to stand before the law. How the person exercises that capacity is another issue, not affecting legal capacity per se, which is about age. It supports the concept of legal capacity. It supported the Coordinator's chapeau, but suggested deleting "to the extent possible" which could limit the assistance given; everyone should have the assistance they need to be enabled to exercise legal capacity and enjoy those rights.

The Coordinator pointed out "to the extent possible" came from the Africa Group to recognize that some States, for resource reasons, will be unable to carry out all the supports necessary. It was not designed to undermine the concept.

Chile supported the Coordinator's proposed language though it believed that “capacity" and “capacity to act" were synonymous.

The Coordinator responded that based on the discussions so far it is clear that in some legal systems they are not synonymous.

China supported the positions of Egypt, Yemen and the EU. It called for combining 9.2 and 9(3), as in a previous facilitator's drafting. After the words "in all fields," it proposed adding "as provided by the law" because each States' laws have specific definitions about capacity to act.

United Arab Emirates found the concept of legal capacity to be problematic. It is held by everyone but lawmakers can establish provisions or limitations based on age or other factors. For example, people under 18 cannot drink or smoke, but they have the capacity to do so. Likewise, lawmakers can establish provisions such as guardians to allow a person to exercise legal capacity.

Republic of Korea agreed with other delegates' concerns about legal capacity. However, 9(3) qualifies 9.2, which should diminish the concerns of delegates. It agreed either to keep the text as it is or combine 9.2 and 9(3). Both paragraphs are important, as one recognizes legal capacity and the other ensures the provision of assistance.

The Coordinator stated that combining the two paragraphs is a matter for drafters. However, some delegations believe that combining the two will solve some problems with this Article. He proposed the following revision, combining 9.2 and 9(3): "(2) States Parties shall recognize that persons with disabilities have legal capacity, on an equal basis with others, in all fields and shall ensure to the extent possible that where support is required in order to exercise that capacity, a) the assistance is proportional to the degree required and tailored to the person's circumstances; that such support shall not undermine the rights of the person and shall respect the will and preferences of the person, and shall be free from conflict of interest and undue influence..."

Serbia and Montenegro stated that if legal capacity means entitlements and duties under the law, and not the capacity to act, then it supports the Article. It suggested replacing the term "legal capacity" with "legal personality," so that the Article would begin with "States Parties will recognize that PWD have legal personality..." It also recommended replacing "support is required in order to exercise that capacity" with "support is required to exercise the capacity to act." This may solve the problem with States' laws regarding legal capacity. Otherwise, the term "legal capacity," implying the capacity to act, could cause many countries to have problems ratifying this Convention.

EU stated it presumes that every person has legal personality.

Costa Rica expressed its frustration regarding definitions. Everyone understands certain words in the context of what he/she wishes to understand. This creates a circular discussion. In Spanish, legal capacity comes before the capacity to act. Everyone has legal capacity, but not everyone has the capacity to act. It proposed obtaining a definition of "legal capacity" from the UN legal office. These are legal concepts, and the Committee must be clear in the terms it chooses for the Convention. There is no debate about the fact that all PWD have legal capacity and are subjects of law. The issue is whether everyone has the same capacity to act. Minors below a certain age do not have the capacity to act. It is a huge step to state that all PWD have a capacity to act; yet this is how the new draft reads. These issues should be resolved within a small group discussion.

Australia proposed restoring the first sentence of 9(3) from the original Canadian proposal, to make clear that only a competent, independent and impartial authority, using a standard established by law, can deem a person unable to exercise their legal capacity with support. This Article should also reinforce the importance of an independent review process. Australia disagreed with New Zealand that this implies an adversarial system; all this requires is an independent decision-making process in the form of a tribunal. Many tribunals are non-adversarial. The person need not go to court for each decision; instead, the court can appoint someone to make day-to-day decisions. This process is an important safeguard to prevent unnecessary interference with the rights of PWD. Some kind of tribunal for substituted decision-making is necessary to protect PWD.

The Coordinator made clear that the facilitator's proposal is a partial proposal and that the issue raised by Australia will be addressed in future revisions.

Thailand clarified the statement it made yesterday. It did not mean that PWD have lesser legal capacity; it meant that legal capacity and the capacity to act should be dealt with separately. The recognition that each PWD has full legal capacity should lead to the provision of need-based supports, not impairment-based supports as defined by others. Where needed, support should be an entitlement. Exceptions should not be included, because all PWD have full legal capacity.

Liechtenstein pointed out that CEDAW, Article 15(2), uses the term "legal capacity," and the same paragraph talks about exercising legal capacity. It would be best to stick with this language. Because of the precedent set in CEDAW, Liechtenstein supports the facilitator's text. The fact that these words are already used in CEDAW should alleviate some delegations' concerns.

The Coordinator observed that the issue of legal capacity would not be solved in this session. The session report should say that the Committee came close to agreeing upon the facilitator's text with the Coordinator's edits, but that a number of delegations expressed reservations about the references to "legal capacity," and that this Article will require further reflection between sessions. The only question is whether to delete the words "or capacity to act," a phrase which as Liechtenstein noted is not found in CEDAW. The report shall reflect both terms in an effort to address problems raised by some States. He will add a footnote to that phrase mentioning Liechtenstein's concerns.

Next the Coordinator moved the discussion to paragraph 9(3)(a), which is still incomplete. By mandating that "the assistance is proportional to the degree required and tailored to the person's circumstances; that such support shall not undermine the rights of the person and shall respect the will and preferences of the person, and shall be free from conflict of interest and undue influence," 9(3)(a) ensures that PWD will not be over-supported. The Convention's philosophy is that PWD should be able to exercise their own will and desires. Too much assistance could constrain PWD. He asked whether any delegations had any substantive difficulty with 9(3)(a). Hearing no objections, he moved on to other issues which need inclusion in this article. He noted Australia's desire to include other elements found in the original Canadian proposal, such as the requirement that a person's inability to exercise legal capacity with support can only be decided by a competent, independent and impartial authority at a standard established by law. Under Canada's earlier proposal for 9(3)(a), there are safeguards to protect PWD who are unable to exercise their legal capacity even with support. There is no equivalent provision in the WG text. He asked for input regarding this provision.

New Zealand stated that PWD have a long history of being denied legal capacity, and being abused by systems that are designed to protect them. The Convention should not overprescribe the kinds of systems PWD might need to exercise legal capacity, in order to avoid situations where PWD are denied opportunities to express their own wishes, or where other people speak for them or tell them where, how, and with whom they may live. These situations can lead to unnecessary confinement and human rights violations. New Zealand expressed support for the facilitator's draft, which contains adequate safeguards to protect PWD from interference by the State or by other individuals, and objected to the Canadian text, 9(3), as unnecessarily prescriptive.

The Coordinator asked New Zealand to clarify its position. Does 9(3)(a) cover situations in which PWD are unable to exercise their legal capacity even with support, and may need substitute decision-making, such as someone with advanced Alzheimer's who cannot make decisions at all? Does the language in 9(3)(a) allow for substitute decision-making?

New Zealand answered that it believes 9(3)(a) is broad enough to cover substitute decision-making. Canada's proposed language in 9(3), suggesting that some people cannot exercise legal capacity or that they can be legally deemed to lack legal capacity, contradicts the language in 9.2. The paragraph implies that substitute decision-making guardianship are not forms of support, which they are. That creates a false distinction between assisted decision-making and substituted decision-making.

The Coordinator restated and clarified New Zealand's position: The facilitator's text, 9.2, covers situations in which substituted decision-making is necessary, and treats it as a form of support for exercising legal capacity. Thus, even when the person is not directly involved in the decision-making, he/she is exercising the capacity to act, with support.

Australia does not share New Zealand's view. While not mandating specific actions, the Article should suggest the kind of constraints which States need. The Canadian provision 9(c) is not overly prescriptive because it does not detail what should be done, but simply constrains the manner in which decisions are to be made. In implementing the general terms, such as the requirement for an independent authority, States could appoint a person or persons, or could themselves act as decision-maker, rather than sending the matter to a tribunal or a court, which Australia believes is a more appropriate result. There are cases, for example, involving a person in a coma, which necessitate substituted decision-making beyond the merely supported decision-making process described in 9.2.

Kenya (Africa Group) stated that it had redrafted the original WG text 9(c)(ii) to bring in a competent, independent authority when a decision about supported decision-making had to be taken. Its proposal reads: "In such situations that decisions are taken by a competent, independent, impartial authority in accordance with the procedures established by law and with the application of relevant legal safeguards." The decision that a person needs support must be made by a relevant authority, and there must be safeguards. These elements are also in the Canadian proposal. There must be periodic review. The person in a coma may not be in a coma for the rest of his/her life. There are elements in the WG text, including 9(c)(ii), which are similar to the Canadian text and should be considered.

The Coordinator pointed out that the facilitator's text does provide for periodic review.

Yemen supported 3 elements in this Article: States are responsible for providing assistance; the assistance should be commensurate with the law; assistance should be given only with the free will of the PWD.

EU stated that it is considering New Zealand's proposal to add legal safeguards to the text, and also a much shorter text with less detail.

The Coordinator clarified that he understood New Zealand's proposal to be to eliminate any provision dealing with the loss of legal capacity.

Canada thanked the African Group for pointing out the connection between its original proposal and the WG text, 9(c)(ii). It asked other delegates whether the term "relevant decisions" in the African Group's proposal would adequately address the issues. Canada's intent was to make clear that any decisions regarding a personal representative must be subject to appropriate safeguards. It is concerned that "relevant decisions" could apply to a broader range of situations; this is why it attempted to list those situations in its proposal. Hearing New Zealand's concerns about being too prescriptive, Canada is willing to be flexible. However, the first sentence of 9(3) could be deleted from its original proposal, and the remainder could be revised to read as follows: "Where States Parties provide by law for a procedure for the appointment of a personal representative, they shall do so with appropriate safeguards including provision of regular review and ensure that appointment be guided by principles consistent with this Convention and international human rights law, including..." These safeguards are described in the facilitator's text, 9.2(a), but they need to apply also to situations of a personal representative. It seeks input from other delegates.

Thailand said it understands the difference between supported and substituted decision-making, but there is no practical way to distinguish these in legislation. Supported decision-making may be made without the involvement of the person; the State cannot control the situation to make sure the PWD stays involved. The appointed person might substitute himself or herself as the decision-maker, rather than simply assisting the PWD. This is a philosophical approach and difficult to legislate.

Chile said there is a need for “relevant decisions" (a very difficult term to define) made for PWD by a representative to be reviewed periodically by an authority to prevent abuse of that position, and to establish balance.

Russian Federation stated that it likes much of Canada's original proposal. The measures taken to ensure that PWD are able to exercise legal capacity as fully as possible is not related exclusively to a judge's decision to appoint a representative. The appointment of representatives is a very important issue for ensuring PWD rights. Therefore, caution is needed in looking at Canada's proposals regarding this. Often the decision to provide assistance to PWD is made in a non-legal setting; this is dealt with in the original Canadian proposal's 9.2. In the Russian Federation, such decisions are not made by courts, but by an authority with a medical background, working within legal safeguards. It supports the wording of the WG text's 9(c)(ii), i.e., "in accordance with a procedure established by law." It could accept either the WG text (not dealing with personal representatives), or inclusion of both the non-legal and legal processes as in the Canadian proposal.

New Zealand agreed that the Canadian amendment to its proposal would satisfy its concerns.

The Coordinator restated Canada's amended 9(3): "Where States Parties provide by law for the appointment of a personal representative to exercise legal capacity on the persons' behalf, it shall include in this procedure appropriate safeguards including provision of regular review."

Liechtenstein supported the facilitator's text. It is concerned with over-regulation in this area. "Assistance" in the facilitator's text may be interpreted as including substituted decision-making and this is good because countries can interpret it in their own cultural context. The facilitator's text creates clear, substantive standards for assistance. As long as the Article's standards are clear, there is no need to tell States exactly how to implement the requirements in specific cases; for example, States can determine whether decisions should be made by a court or not. There is a difference between deciding to buy a can of soda and deciding to sell property; one action may require court approval, the other may not. The facilitator's text allows this flexibility. The Convention's monitoring article can provide further guidance to States if necessary.

The Coordinator pointed out that the revised Canadian text provides for periodic review of personal representative appointments. Many delegations, including the African Group, voiced support for that review process.

Jordan supported Canada's revised proposal for 9(3), with the provision for periodic review. It cautioned against over-regulating or putting too many details in this Article because it is a guide, not a plan for action. The Convention should cover basic ideas, not details; and the process should go faster.

The Coordinator suggested that this problem is solved by the revised Canadian text, as read above.

Canada asked to re-read its revised proposal, fully consolidated, which is now 9.2(b): "Where States Parties provide by law for a procedure for the appointment of a personal representative, as a matter of last resort, such a law shall provide appropriate safeguards including regular review. The appointment shall be guided by principles consistent with this Convention and international human rights law." To give the notion of continuum, it added the words "as a matter of last resort," suggesting that such appointments are to be considered only in exceptional circumstances. If delegates believe this is too detailed, an alternative is to add the idea of review, possibly as a separate sentence reading: "Where appropriate, such assistance shall be subject to regular review."

The Coordinator suggested a slight amendment because the words "by law for a procedure" may include an administrative act. He suggested "where States Parties provide for a procedure, which shall be established by law..." Canada indicated its agreement.

Iran expressed support for the new 9.2(b) because some PWD will not be able to use assistance, and States need a way to protect and promote the person's rights in such cases. It likes the idea of combining the proposals from the African Group and Canada.

The Coordinator asked whether any delegations had difficulty with the amendment to 9.2(b).

Costa Rica asked what would happen when States Parties have no procedures in place. It proposed the following revision: "States Parties should establish by law a procedure for the appointment of a personal representative, as a matter of last resort; such a law shall provide appropriate safeguards including regular review." It supported the new Canadian 9.2(a) regarding periodic review.

The Coordinator recalled that a few States objected to requiring appointment of a personal representative because they regarded that as covered by the facilitator's proposed 9.2(a). As Thailand stated, this is a philosophical issue to some extent. The Coordinator asked for comments on Costa Rica's proposal to add language about establishing procedures, and on the necessity of providing for review in 9.2(a).

Jordan asked a question of the Canadian delegation: Is the phrase "personal representative" singular? If so, "personal representation" could take its place. The Coordinator responded that "personal representative" is a term of art in most legal systems. He is concerned that the words "provide for personal representation" could be too ambiguous. In most Conventions, the singular includes the plural and the plural includes the singular.

Mexico asserted the importance of keeping decisions about assistance separate from decisions about legal capacity, and urged against including too much detail. The African Group proposal achieves the right balance because it includes references to competent, independent authorities as well as to periodic review of decisions. If the term "relevant decisions" is considered too broad, it could be moved within the African Group's text, to make clear that this deals with the types of assistance provided, not with decisions about legal capacity. Language about assistance generally is preferable to language about specific procedures.

The session was adjourned.

AFTERNOON SESSION

ARTICLE 9: EQUAL RECOGNITION AS A PERSON BEFORE THE LAW (continued)

The Coordinator resumed discussion with the issues raised by Mexico: the need to add periodic review to 9.2(a) -- as proposed earlier by Canada, with its language reading "regular review, where appropriate" -- and the need to include language about safeguards in 9.2(b) as well as in 9.2(a).

Noting the difficulties of drafting in a rush, Canada suggested the following language to deal with both the appointment and the actions of personal representatives: "States shall provide for a personal representative which shall be established by law for the purpose of personal representation as a matter of last resort." It proposed adding to 9.2(b) these words: "Such a law shall provide appropriate safeguards including regular review of the appointment and decisions made by the personal representative by a competent, impartial and independent tribunal." Canada hopes this deals with Mexico's concerns; however, the text is becoming very cumbersome and may require further drafting changes. Canada also proposed adding to the end of 9.2(a) this sentence: "Where appropriate, such assistance shall be subject to regular and independent review."

The Coordinator asked Mexico whether those changes would address its concerns. Mexico responded yes, in substance. It raised one minor drafting point -- the word "tribunal" could be clarified and placed at the beginning.

The Coordinator encouraged delegations to keep working on this Article since it deals with complex legal concepts. There is no general agreement yet, but the Committee has gotten as close as it can for now.

Chile stated that it supports the text as amended. One missing issue is guaranteed access to justice and to the judicial system for PWD. It proposed adding the following sentence: "Pursuant to the principle of equal protection before the law in the exercise of human rights, States should guarantee adequate access to courts for PWD, facilitating their effective role as direct or indirect parties to contentious and non-contentious legal proceedings." (Page 47 of the compendium and at http://www.un.org/esa/socdev/enable/rights/ahc4da9.htm

Republic of Korea expressed substantive agreement with 9.2(b), and proposed one change to the last sentence to govern the conduct of a personal representative to ensure that his/her acts are guided by the Convention's principles. The Coordinator proposed adding "and conduct" after the word "appointment" in the last sentence.

After the Secretariat displayed Chile's text from page 47 on the screen, Chile made a correction: before "rights," the word "human" should be deleted, because this paragraph applies to all rights, not just human rights.

India stated that 9.2(b) repeats the same concepts as 9.2(a) and therefore should be deleted.

Costa Rica favored Chile's proposal, but noted that Article 9 is long and deals only with legal capacity. Access to justice and other similar ideas should be placed in a separate article.

Liechtenstein agreed with Costa Rica. The separate article should also deal with access to courts and fair trials, as does ICCPR, Article 14. Access to justice is different from recognition as a person with legal capacity. Liechtenstein also agreed with India that because 9.2(a) now includes periodic review, 9.2(b) is duplicative and is no longer needed. However, it would not object to retaining both.

Norway agreed with India and Liechtenstein that with the revised 9.2(a), there is no longer a need for 9.2(b), although its only objection to 9.2(b) is that there is too much detail.

The Coordinator noted that some delegations wished to keep 9.2(b) and since none objected to keeping it, the Committee would now move on. He wanted to be sure that nothing from the WG text was left out of the facilitator's text. He pointed to 9(d), covering the provision of assistance, understanding information and communication; to 9(e), addressing the right to own and inherit property and financial affairs; and to 9(f), stipulating that PWD shall not be arbitrarily deprived of property. These are not in the facilitator's text yet and he asked the delegates whether these points should be added to it. The words "financial matters" were replaced by "in all fields." Given that, the Coordinator asked the delegates to consider whether 9(e) should stay in. He noted that the reason the WG had addressed financial matters in the text was because PWD are often at a disadvantage.

Japan asserted that the facilitator's text is complete. Access to justice should be considered in a separate article. It asked whether 9.2(b) was intended for PWD who could not exercise legal capacity even with assistance, and noted that Japan has no provision for this in its legal system. However, it understands the paragraph to apply to States that do have those procedures. The Coordinator answered that Japan's understanding is correct.

Kenya stated that 9(d) of the original WG text should be added in because it deals with facilitating PWD participation in their decisions. This is a different matter than the appointment of the representative. Likewise, the substance of 9(e) of the original WG text is not covered in the facilitator's text. These are major elements which would be missed if they are not included in 9.2 of the facilitator's text.

Costa Rica agreed with Japan that all elements are covered in the existing facilitator's text. It reiterated its earlier statement that the change to "in all matters" was to avoid emphasizing financial matters. [Remainder of intervention not recorded]

New Zealand pointed out that Article 15 mentions equal access to financial matters and property, the topics covered in 9(d) and 9(e).

The Coordinator assured the Committee that the Coordinator's Report will note that when Article 9 is reviewed again, 9(d), 9(e) and 9(f) will be reviewed also.

Russian Federation agreed that everything in 9(d) and 9(e) is included in the facilitator's text. However, there are elements in 9(d) and 9(e) that may be integrated into other articles, just as the idea of access to justice may be.

The Coordinator read Chile's proposal: "Pursuant to the principle of equal protection before the law in the exercise of rights, States should guarantee adequate access to courts for PWD, facilitating their effective role as direct or indirect parties to contentious and non-contentious legal proceedings." The Coordinator asked delegates to suggest additional elements that should be included in a separate article dealing with access to the courts.

Liechtenstein commented that access to courts and access to a fair trial are not addressed in this Convention. Chile's proposal may only refer to civil cases, not criminal cases. A separate article is needed and will take time to develop.

Yemen stated that the issue of property will raise the same issues as legal capacity. It agreed with Chile's proposal to guarantee access to courts, but it proposed deleting the words "adequate" and "contentious and non-contentious."

Chile stated that its proposed text refers to access to civil, criminal and administrative matters. "Contentious and non-contentious" implies any proceeding.

The Coordinator asked Chile to respond to the proposed deletion of "adequate" and "contentious and non-contentious" to be replaced with "all legal proceedings." Chile responded that its intent is to use the broadest possible terms, to encompass all types of justice. It has no objection to the terms "adequate" or "appropriate," or to deleting "adequate."

Mexico agreed that access to justice should be included in the Convention, but not in Article 9. It is not ready to discuss details, but generally the new article should cover PWD access to courts, tribunals and legal proceedings, and a guarantee of PWD equal participation in legal proceedings, modeled on Article 14 of ICCPR.

Australia asserted that Chile's proposal belongs in Article 9 rather than in a separate article, because the principle of equality before the law includes equal access to courts, and that it should follow ICCPR. Australia proposed: "Pursuant to the principle of equality before the law, States should guarantee adequate access to justice for PWD." These words focus on equality before the law rather than on equal protection of the law, and on access to justice rather than on access to the courts.

Costa Rica supported the change to "access to courts," which could refer to physical access, to "access to justice," but has not yet formed an opinion about the placement of this guarantee. It asked for consideration of its proposed language: “States Parties will take necessary measures to guarantee that all persons suffering from violations of freedoms stated in this Convention will have available effective recourse before a national authority irrespective of whether the violation has been committed in the performance of an official function." (At http://www.un.org/esa/socdev/enable/rights/ahc5costarica.htm.) This could be placed either in General Obligations or in a new article.

The Coordinator, concerned about the length of this discussion, suggested ending it in a few minutes.

Japan said that it has also proposed a paragraph, separate from Article 9, covering "access to justice," as have China, the EU, Costa Rica, and others.

The Coordinator suggested including in the report references to the proposals from Chile, Australia and Japan to include access to justice for PWD, and to Costa Rica's proposal to provide for effective remedies when violations of this Convention occur. He encouraged discussion between sessions, and asked Chile, Australia and Japan to come up with a single text.

Chile agreed with the Coordinator's suggestion, and noted that its proposed text used the word "justice," but this was translated as "courts."

United States agreed with the Australian proposal because access to justice is intertwined with equality before the law. This proposal will result in improved accessibility to courthouses, the availability of interpreters for Deaf parties and witnesses, accessible jury boxes, materials for people who are blind or vision-impaired, and the ability of attorneys with disabilities to fully participate in court proceedings.

United Arab Emirates suggested adding language to the proposal, disallowing vindictive treatment of PWD in court proceedings.

Jordan supported the Australian proposal as more inclusive and encompassing. Justice is not found only in courts, but in many places.

The Coordinator encouraged all delegates interested in drafting language to confer. Article 9 lays a cornerstone for the articles which follow, reflecting the concept that PWD are able to act in their own best interests with minimal interference from others.

ARTICLE 10: LIBERTY AND SECURITY OF THE PERSON

The Coordinator called this Article fundamental for PWD because of their long and unfortunate history of being deprived of liberty in most countries because they are disabled. Issues for further discussion are: Should Article 10 deal with PWD in the criminal justice system as well as civil commitment system, considering that in human rights treaties, deprivation of liberty is usually construed narrowly (footnote 35)? To what extent should this Article deal with forced institutionalization? Should the word "solely" be inserted before "on disability" in 10.1(b)? Should a new paragraph be added to clarify that violations of the freedom of PWD must not exceed the general standard? Should discussions of treatment take into account particular disabilities? Should this article include provisions for review? When PWD are incarcerated, should States be required to place them in facilities which are adapted to their needs? How should the Article deal with the issue of adequate safeguards when PWD are deprived of liberty? The ICCPR is a useful reference. In developing this Article, delegates should aim for minimal interference with the rights and freedoms of PWD. He asked for comments on 10.1(a) and (b).

Jordan proposed the following revision: "1. States Parties shall ensure that persons with disabilities on an equal basis with others: (a) Enjoy the right to liberty and security of the person; (b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty shall be in conformity with the law." Jordan explained that it added "on an equal basis with others" to the chapeau, and deleted "without discrimination based on disability" in (a), because nondiscrimination is already established in Articles 4 and 7; and that it deleted "and in no case be based on disability" in (b). In 10.2(a) it proposed adding "in a manner that takes into account the needs they might have." In 10.2(d), it deleted "deprivation based on disability."

South Africa stated its strong support for this Article, which safeguards the liberties of PWD. It should refer to all liberties, civil and criminal. This Article is weak on security, but since this is covered in Article 11 and 12, South Africa will support this Article.

The EU supported the WG text of 10.1(a) as written, and proposed adding to 10.1(b) the words "and involuntary institutionalization" after "liberty," to make clear that the Article also deals with civil commitment. It also suggested adding the words "exclusively based on" before "disability."

Yemen agreed with the EU that PWD should not be deprived of liberty based on disability alone. He pointed out that PWD are citizens of a country and that they could be deprived of liberty based on factors other than disability. PWD should be provided with assistance to enjoy their full rights.

Japan supported the EU and Yemen in adding "exclusively based on" or "solely." In exceptional cases, people with mental disabilities may be subject to forced institutionalization, taking into account the risk of harm to themselves or others.

New Zealand supported the WG text. This article is about deprivation of liberty and detention, not about the many issues involving civil commitment. However, when criminal or civil detention occurs legally, for whatever reason, this Article's protections will apply. New Zealand disagreed with the EU's proposal to add "involuntary institutionalization," because this idea is covered by "deprivation of liberty." Involuntary institutionalization is a legal process, not clearly established; if this Committee wants to add protections related to involuntary institutionalization, it should add these to a different article.

The Coordinator asked whether involuntary institutionalization is addressed in any other article. New Zealand responded that involuntary institutionalization is addressed in Articles 11 and 12, and that there are proposals to confine this issue to either Article 11 or Article 12.

The Coordinator asked Jordan to explain its reasons for deleting the words "without discrimination based on disability" from 10.1(a), and for deleting the words "and in no case be based on disability" from 10.1(b). He understands Jordan believes these phrases are redundant. However, he noted that PWD have historically been deprived of their liberty and/or security due to disability, and that these subparagraphs emphasize that this must not happen. If the qualification in 10.1(b) is deleted, the Article would allow deprivation of liberty on the basis of disability, as long as this is done in conformity with the law. An essential element of this Article is that States cannot lock someone up just because of a disability.

Jordan responded that the objective of this Convention is to remove barriers and secure equal rights for PWD, and that the chapeau is enough to make this point. The words "based solely on disability" would imply that fundamentally, disability is a basis for States' discrimination. Also since this Article is primarily about liberty, the word "security" should be deleted from the title.

The Coordinator pointed out that even though the ICCPR explicitly covers PWD, discrimination based on disability continues which is why the WG text says "without discrimination based on disability" in 10.1(a) and in 10.1(b), "based solely on disability."

Costa Rica agreed with New Zealand's reasons for retaining the WG text. It would prefer not to delete anything, but will consider Jordan's proposals for the sake of consensus. The EU's proposal to add "solely" is too risky to support.

Mexico objected to adding to 10.1(a) any qualifiers such as "exclusively" or "solely" which could lead to misinterpretation. Adding a qualifier could imply permission for States to discriminate in other ways. Article 11.3 discusses involuntary institutionalization based on disability. Mexico believes it is necessary to discuss the question of where this very important concept belongs. The freedoms in Article 10 refer not only to criminal matters, but to civil liberties as well.

The Coordinator pointed out that the EU's proposal was to insert "solely" in 10.1(b), not in 10.1(a). This misunderstanding may have resulted from an incorrect interpretation.

United Arab Emirates mentioned that the term "security" was mistranslated in the Arabic version. It should be translated as safety, not security.

Thailand supported keeping the WG draft text and opposed adding "solely" because this could allow disability to be used as one factor, along with other factors, in decisions to deprive someone of liberty. Thailand would like to study Jordan's proposal.

Russian Federation supported the WG text. The reference to disability discrimination in 10.1(a) should stay, because this would add disability to the list of types of discrimination prohibited by international law. Jordan's understandable concerns could perhaps be addressed by the following revision: "enjoy the right to liberty and security of the person, without discrimination inter alia based on disability." There is a translation issue regarding the word "security"; this should be translated as "personal immunity" because in this context security means safety. Deprivation of liberty is not just confined to criminal matters; therefore Russian Federation supports adding the word "exclusively." Functional limitations of PWD could lead to negative consequences for other people, and may therefore be a factor in some loss of liberty; but disability itself, without any negative consequences, should not be a basis for depriving liberty.

Kenya stated that in the same way that other Conventions prohibit using race or gender as a basis for depriving a person of liberty, it is important to prevent situations in which disability is used to deprive a PWD of liberty. Therefore no qualifiers should be used in 10.1(b); the WG text should be retained. Kenya is willing to consider Jordan's proposal for the chapeau of 10.1, but the principles must remain. Kenya reminded the delegates that PWD do face discrimination based on disability.

The Coordinator pointed out that Article 5 of CERD reads: "States Parties undertake to guarantee the right of everyone without distinction as to race, color or national or ethnic origin to equality before the law." This Convention must, as CERD does, spell out a prohibition on discrimination, rather than just speaking in generalities.

Uganda stated that historically PWD have been unfairly confined, but there are also circumstances, such as serious illness or mental illness, in which PWD may require some level of confinement, either to receive medication or to be prevented from hurting themselves or others. Uganda does not object to the present wording provided it is clear that there are instances where confinement of PWD is needed. It proposed using the words "exceptional circumstances" or "solely based on disability," meaning that confinement could be justified based on other reasons such as being dangerous or not taking medications.

Australia supported 10.1 and particularly, 10.1(b). It shares other delegates' concerns about adding "solely" or "exclusively," although it supports the concept behind the proposed additions. As a compromise, it proposed adding instead: "The existence of a disability shall not of itself be a sufficient reason to justify the deprivation of liberty." This avoids trying to qualify or quantify the justification for the deprivation of liberty.

Yemen opposed the deprivation of liberty on the basis of disability; however if "solely" is added, then disability could be part of the reason for depriving liberty. It agreed with United Arab Emirates that "security" should be translated as "safety."

Norway supported either adding "solely" or "exclusively" to 10.1(b), or else deleting the last phrase, as suggested by Jordan, in order to clarify that disability cannot be the reason for deprivation of liberty, but that the effects of the disability may require deprivation. Norway also expressed interest in Australia's proposal.

Australia added that its proposed language should be placed in 10.1(b), to read as follows: "(b) are not deprived of their liberty unlawfully or arbitrarily. The existence of a disability shall not of itself be a sufficient reason to justify the deprivation of liberty."

The Coordinator pointed out that Australia's proposed revision leaves out the legal protection clause.

Australia responded, agreeing that legal protection should not be dropped. It offered the following revised proposal: "(b) are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty shall be in conformity with the law. The existence of a disability shall not of itself be a sufficient reason to justify the deprivation of liberty."

Yemen pointed out that Australia's proposal raises the same problems as the term "solely." Disability should not be a reason to deprive someone of liberty, either on its own or in combination with other reasons.

The Coordinator suggested that Yemen's concern involves the words "disability shall not of itself." He asked whether removing the words "of itself" would solve the problem. This would clarify that disability itself is not a sufficient reason. Australia indicated its approval.

United Arab Emirates stated that the word "deprivation" is mistranslated in the Arabic version. The English word means taking away someone's liberty by force; therefore the Arabic word "taking away" should be used.

Colombia supported the WG text, and for the Australian proposal without the words "of itself." This Article should consider the safety of individuals, and the new wording clearly establishes that while disability cannot justify deprivation of liberty, other factors can.

Kenya expressed its opinion that delegations are focusing too narrowly on institutionalization. The principle of this Article, that PWD must have liberty without qualification, is getting lost in the discussion. The current wording, for example, would not deal with a situation where a blind person is disallowed from walking on the roadside because it is perceived to be dangerous. The principle of liberty should be more clearly laid out; then specific circumstances may be addressed. Kenya said it does not have language to suggest, but it urged the Committee to focus on the principle of liberty.

The Coordinator commented that the principle is presumably stated in 10.1(a): "1. States Parties shall ensure that persons with disabilities: (a) Enjoy the right to liberty and security of the person, without discrimination based on disability." Then the Article goes on to detail what is meant by this general statement.

Jamaica stated that the WG text ensures rights for PWD similar to the rights enjoyed by other groups, and that trying to qualify that language could create difficulties. The words "solely" and "exclusively" are open to all kinds of interpretation. The Committee should approve 10.1(a) of the WG text, which is clear. There may be exceptions to discuss, but this Convention should not attempt to cover every situation; instead it should lay out the basic human rights of PWD.

The Coordinator summarized his reflections regarding 10.1(a): There is little support for deleting "based on disability" and there is strong support for the WG draft text. There was also a fair level of support for retaining the WG draft of 10.1(b). Whether to insert "solely" or "exclusively" was a major question. He asked whether any delegations have objections to the Australian solution.

Thailand commented that it cannot support the Australian proposal's use of the phrase "of itself," which is equivalent to using a term like "solely" or "exclusively," thus allowing disability to be a reason to deprive a person of liberty. The Coordinator responded that Australia had deleted the words "of itself." Its proposal now reads as follows: "The existence of a disability shall not be a sufficient reason to justify the deprivation of liberty." Thailand answered that this revised version has the same problem because of the word "sufficient." Deletion of "sufficient" may solve the problem.

The Coordinator asked Australia whether the word "sufficient" could be deleted. Australia responded that it could support that deletion. Its proposal now reads: "The existence of a disability shall not justify the deprivation of liberty."

Thailand said that it would study this proposal, as it has merit, but questions whether the new formulation is better than the WG text, which is quite clear.

The Coordinator commented that this new draft was developed in order to avoid adding either "solely" or "exclusively."

Canada expressed support for the newly revised Australian proposal.

The Coordinator stated that the report would reflect a strong level of support for the WG text version of 10.1(b), along with the remaining issue of whether "solely" or "exclusively" should be inserted before the word "disability." Delegates may wish to discuss the proposed alternative draft before the next meeting. He then opened the discussion of 10.2.

The Holy See proposed adding the words "and worth" after "dignity" in 10.2(a), to make it consistent with the language in the U.N. Charter preamble, paragraph 2.

Japan stated its concerns about the structure of 10(2). It wants to ensure that this paragraph will not apply to general criminal convictions or general administrative procedures, such as detention under immigration laws, which are unrelated to disability. Therefore, in 10.2(c)(ii), it proposed deleting the word "regular" because regular review systems are not necessarily required for other people. In 10.2(d), it proposed deleting "or deprivation of liberty based on disability" to avoid redundancy.

Mexico proposed changing the chapeau to read as follows: "2. States Parties shall ensure that if PWD are deprived of their liberty including in civil, criminal, administrative or other contexts, States Parties shall:..." It supported keeping the WG text for the rest of the paragraph.

New Zealand noted that this paragraph is relevant wherever detention occurs. It proposed revising 10.2(b) to read: "provided with adequate information in accessible formats as to their legal rights and the reasons for their deprivation of liberty at the time this occurs." In response to Japan's concerns, it proposed adding to the end of 10.2(c)(ii) the following words: "unless the deprivation of liberty is the result of a criminal conviction, in which case review will be subject to States Parties legislation." In keeping with ICCPR Article 9.5, which is partially reflected in the WG text 10.2(c)(ii), New Zealand proposed adding a new paragraph, as follows: "States Parties shall ensure that any PWD who have been the victim of unlawful deprivation of liberty shall have an enforceable right to compensation." Consistency with other Conventions is important.

Costa Rica supported Mexico's chapeau proposal. It questioned the phrase "treatment with humanity" in 10.2(a), because it sounds paternalistic, as if PWD were to be treated with deference. To reflect the probable intended meaning, Costa Rica proposed the following revision: "Respect their inherent dignity and human rights in conformity with the objectives and principles of this Convention." [Portion of intervention missing] The reference to standards and procedures in 10.2(c) is unclear and confusing. (This may be a translation error.)

The Coordinator pointed out that the language in 10.2(a) is based on language in ICCPR Article 10.1, stating, "All persons deprived of their liberty shall be treated with humanity and with respect of their inherent dignity of the human person".

The session was adjourned

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