5th Session of the Ad Hoc Committee

Volume 6, #10 February 4, 2005

A service brought to you by RI (Rehabilitation International)

Morning Session

The Coordinator went through the draft Coordinator's Report (CR) asking for corrections and comments to numbered paragraphs. He noted the distinction between this document, which is an Annex to the Ad Hoc Committee's Report, and the AHC report itself which is a negotiated report. The finalized CR is annexed at: http://www.un.org/esa/socdev/enable/rights/ahc5docs/ahc5advancereporte.doc

The EU asked why the draft report used the term "general agreement" rather than "general support."

The Coordinator responded that "general agreement," which has been used in previous meetings and reports, means that no objections were voiced. The report is not binding; delegates will return later to discussion of these articles.

The EU stated that the report should specify when a proposal was made by the Coordinator. The report should reflect that the EU did not agree with CR Paragraph 5, but that there was some support for this paragraph.

The Coordinator responded that whenever the CR states that there was general agreement, he had asked whether all delegates agreed. Proposals made by the Coordinator were included only if they had been approved by delegates. There were a number of proposals that were discussed in smaller groups that were not reflected in the CR, because they were not brought back to the larger group for discussion. The Coordinator then asked whether there were any objections to CR Paragraph 5, and heard none. He then continued to ask for approval from delegates for each paragraph.

The United States suggested that in relation to CR Paragraph 10, it would be more accurate to state that the concepts were left open for discussion, rather than that there had been no general agreement.

The Coordinator agreed. He noted that the proposal in CR Paragraph 23 is attributed to the Coordinator because there had been no general discussion about it.

China proposed amending the CR to read "some delegates expressed grave concern about the wording ‘legal capacity,' and if these words need to be used they should be interpreted in each language to reflect legal capacity as to rights, not legal capacity to act." In legal systems legal capacity can mean two different things.

The Coordinator noted that China's proposal would be a new sentence in CR Paragraph 18. In CR Paragraph 20 the words "legal capacity" would be in brackets and tied to a footnote saying that in China legal capacity means capacity for rights, not capacity to act. The same will be done for any other language groups that require it.

The Russian Federation agreed that it would be helpful to provide a footnote on this issue as proposed by China. However, the CR should not over-dramatize the situation, so "grave concerns" should simply read "concerns."

The Coordinator ascertained that China agreed, and stated that the footnote would also apply to the Russian language.

Yemen stated that in Arabic "capacity" means a person has the right to enjoy rights. Hence it has the same problem as China.

The Coordinator stated that the CR would reflect this, and asked if it should do so for Spanish as well.

Costa Rica proposed adding a statement that the phrase should be translated into each national language and interpreted accordingly. In Spanish legal capacity refers to capacity for rights, not capacity to act. This is not the idea contained in CEDAW, where this language originated.

The Coordinator asked the Office of the High Commissioner for Human Rights to explain the meaning of the term "legal capacity" as it appears in CEDAW.

The Office of the High Commissioner for Human Rights answered that the text came from Article 15 of CEDAW, which says that States Parties shall accord to women legal capacity equal to men. It represents multiple concepts, including equal rights to make contracts and to administer property, which could be said to relate to the capacity to act.

Palestine asked to comment on Article 8.

The Coordinator said delegates should first finish commenting on the proposal from China. After "interpreted," the word "accordingly" would be inserted. "Legal capacity" shall be in brackets, with a footnote explaining that in Chinese, Russian, and Arabic "legal capacity" means capacity for rights, not capacity to act. The Coordinator noted that delegates agreed to this.

Palestine stated that its interventions regarding occupation and natural disasters were not mentioned, nor was protection of civilians. Palestine proposed placing all of Article 8 in brackets.

The Coordinator responded that the brackets should not go around Article 8, addressing the right to life, but around Article 8(bis), which addresses broader issues. Article 12.3 of the facilitators text, which covers foreign occupation and international humanitarian law, is discussed later in the CR.

Palestine said it would study that part of the CR.

The Coordinator stated that Palestine's proposals would be put aside for now.

Jordan stated that discussion about Article 8(bis) was not reflected in the CR, which contains no reference to national disasters or to international humanitarian law. Jordan is not satisfied with the phrase "all feasible measures."

The Coordinator responded that the facilitator on 8(bis) had reported a lack of agreement on these issues. He suggested tabling the discussion of 8(bis) until after consideration of the CR's treatment of Article 12. If concerns remained after that, he would return to Article 8(bis) to give delegates another opportunity to amend it.

Yemen agreed with Palestine and Jordan regarding Article 8(bis), and asked that it be placed in brackets.

The Coordinator repeated that delegates would return to this issue after discussion of Article 12.

Trinidad and Tobago, which had acted as facilitator for Article 10, said there had been general agreement to add to the chapeau of 10(2) the words "through a civil, criminal, administrative, or other process" after the word "liberty." A corresponding change should be made in CR Paragraph 34, where the Article is quoted.

The Coordinator noted that this would involve a substantive change.

The EU disagreed with Trinidad and Tobago's proposal, and urged the report to reflect "some support," not "general agreement."

The Coordinator asked delegates to set this topic aside for now.

Trinidad and Tobago suggested that the words "through a civil, criminal, administrative or other process" be placed in brackets.

The Coordinator said that square brackets refer to unresolved issues.

Morocco stated that there had been general agreement to add the word "sanitary" after "education" in 11(1), but that this was not reflected in the CR.

The Coordinator recalled the word in question was "medical."

The EU asked to return to CR Paragraph 35, concerning torture. The prohibition of medical and scientific experimentation should stay in the article which addresses torture, following the example of ICCPR, Article 7.

The Coordinator asked delegates to discuss CR Paragraph 35 before considering Morocco's concern. Article 7 of the ICCPR states, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation." That second element from the ICCPR Article 7 became a separate paragraph in Article 11 of the WG draft of this Convention. In discussions earlier this week, delegates had agreed that the prohibition of torture should stand on its own, and that the part of 11(2) barring forced interventions should be moved to another part of the Convention. Delegates had not meant to move the other part of 11(2), which barred medical or scientific experimentation without consent. The Coordinator suggested adopting the EU's proposal to return the prohibition on medical and scientific experimentation to 11(1). As for Morocco's proposal, the Coordinator noted that in this context "sanitary" means "medical." He proposed adding "medical/sanitary" to the text and returning to it later.

The EU proposed replacing the words "all delegations" with "some delegations" in CR Paragraph 40, to reflect the fact that the EU had wanted the issue of forced institutionalization to be in a separate article.

The Coordinator responded that there had been general agreement that PWD should be protected from forced interventions or forced institutionalization aimed at correcting, improving or alleviating actual or perceived impairment. However, many delegations thought this protection should appear elsewhere in the convention. He proposed to resolve the EU's concern by adding the statement, "Many delegations considered this best dealt with elsewhere."

The EU responded that there had been agreement with the concept of protecting PWD against forced interventions and institutionalization. However, there was no agreement on specific wording.

The Coordinator offered to draft some language for the delegates to consider.

New Zealand asked which phrase in the CR was affected.

The Coordinator responded that the EU was concerned with the second sentence in CR Paragraph 40, which begins with "All delegations agreed with the phrase ‘States Parties shall prohibit....'" He proposed replacing that sentence with this new sentence: "There was general agreement that PWD shall be protected from forced interventions or forced institutionalization aimed at correcting, improving or alleviating any actual or perceived impairment, but the precise wording and placement will need to be considered further."

China expressed concern that the terms "institutionalization" and "perceived impairment" were not defined in previous discussions. Also, it is concerned that the proposed text would permit forced interventions. This sentence requires more discussion.

The Coordinator responded that delegates had already discussed this issue extensively, and that it should not be reopened now. The proposed sentence includes language making clear that the specific wording would be discussed later. That should address China's concern. The Coordinator stated that he had been careful to check for general agreement on this concept, because it is of paramount importance to PWD.

China agreed that PWD should be protected, and that this concept could fit in Article 12. However, the word "institutionalization" is not clearly defined, nor is it clear why persons with perceived disabilities would need protection.

The Coordinator responded that in order to make delegates comfortable with the CR, he would bracket the following words: "the meaning of ‘institutionalization' and ‘perceived impairment' will need to be further considered, as well as the placement of such a provision." That should address China's concerns, while preserving the delegates' commitment to ending forced interventions and forced institutionalization aimed at curing or ameliorating disabilities, when contrary to wishes of PWD.

Canada recalled that the last sentence of CR Paragraph 40 reflected what was a general agreement that if forced intervention and institutionalization are to be moved elsewhere it should be to 12(bis). Therefore it preferred that, while the last and penultimate sentences of CR 40 may not follow, the last sentence nevertheless should not be deleted.

The Coordinator clarified that neither he nor China intended to delete the last sentence of CR Paragraph 40.

Honduras stated that the Convention should ban all types of forced interventions, including forced institutionalization.

The Coordinator ascertained that his proposed text satisfied China's concerns. He asked China to check its translation before the next session, because the English text clearly bars forced interventions.

Australia noted that in light of current discussions on CR 40 its last sentence now incorrectly implies that the wording of the second phrase in question is agreed upon. Australia proposed alternative language for the last sentence: "However there was broad agreement during the later discussion that Article 12(bis) was the appropriate Article for these to be issues to be resolved."

China expressed concern that the current wording of the text may permit forced interventions for reasons other than correcting, improving, or alleviating actual or perceived impairments. PWD should be protected against any forced interventions, regardless of the reasons for the interventions. China endorsed the Coordinator's proposal to state in the CR: "There is general agreement on the concept that PWD should be protected from forced interventions..." etc.

The Coordinator clarified that China's concern is that the "aimed at" language implies that forced institutionalization may be permitted for other reasons.

The Russian Federation agreed with China that more discussion was needed, both about wording and about some of the issues related to forced interventions. However, all delegations clearly agree that forced interventions and institutionalization should be banned.

Serbia and Montenegro thanked Australia for pointing out that the Coordinator's proposed sentence, stating that the placement of forced institutionalization will be decided later, would be inconsistent with the last sentence of CR Paragraph 40, which reports broad support for addressing this issue in Article 12(bis).

The Coordinator ascertained that China and Russia were comfortable with his proposed wording for CR Paragraph 40. He then moved the discussion to CR Paragraphs 29 and 29(bis). Delegates have already agreed upon CR Paragraph 29. The Coordinator asked for comments on the proposal by Trinidad and Tobago to insert a new CR Paragraph 29(bis).

Trinidad and Tobago pointed out that there had been general agreement to add the words "through a civil, criminal, administrative, or other process" to the chapeau.

The Coordinator asked whether delegates agreed to add Trinidad and Tobago's proposed language in brackets.

Trinidad & Tobago proposed bracketing the word "liberty."

The Coordinator announced that the first part of the CR dealing with Articles 7.5 through 11 has been approved by the delegates.

ARTICLE 15: LIVING INDEPENDENTLY (continued)

The Coordinator resumed the previous session's discussion of Article 15. He proposed amending the chapeau to read, "States Parties shall take effective and appropriate measures to [enable/facilitate] the enjoyment by PWD of independent living (footnote 1) and full participation as members in the community [on an equal basis with others] including by ensuring that...." Footnote 1 would read, "The reference to ‘independent living' in this paragraph is in no way meant as an endorsement of the Independent Living movement or philosophy."

The EU proposed replacing the phrase "full participation" with the broader term "full inclusion." The EU is flexible about the phrase "on an equal basis with others."

The Coordinator asked whether the brackets around "on an equal basis with others" could now be removed, since the EU no longer objected to the phrase.

Venezuela proposed replacing "community" with the word "society," which conveys a broader concept not limited to a specific place.

The Coordinator ascertained that there were no objections to removing the brackets from "on an equal basis with others." He reiterated Venezuela's proposal to replace "community" with "society." The Russian Federation had asked whether the two words are equivalent. The Coordinator asked whether they are equivalent in Spanish.

Venezuela responded that "community" means a social group with common interests, whereas "society" is broader.

The Coordinator proposed either replacing "community" with "society," or else bracketing both words. He noted that the definition of "community" given by Venezuela was more narrow than the delegates had intended.

The EU proposed keeping both "community" and "society" in the text for now. It proposed ending the chapeau with the words "in ensuring that," to show that all the measures have a purpose.

The Coordinator responded that the word "including" indicated that the provisions which followed were not exclusive.

Yemen stated that in Arabic the fact that countries are taking measures is not sufficient. The Article should make a binding commitment. Yemen is flexible about the word "including."

The Coordinator stated that "commitment" refers to the future. Yemen, which had made the same remark the previous day, should speak with the facilitator about this Article. He said that the delegates were in agreement on this language.

Israel expressed support for using the word "participation," and replacing "community" with "society." Because independent living is a matter of choice, as had been discussed the previous day, the beginning of the sentence should be revised to read, "States Parties shall take effective and appropriate measures to facilitate freedom of choice and decision regarding independent living."

Australia observed that the term "full participation" means both physical and social integration of PWD. It covers not only where PWD live, but also how they are treated in the community. Because measures alone cannot produce results, the EU's proposal to insert "aimed at" before "ensuring" should be adopted.

The Coordinator stated that once the rest of the Coordinator's report had been discussed, delegates would revert to their discussion of Article 15.

The session was adjourned.

AFTERNOON SESSION

The Coordinator Ambassador Mackay continued with a review of the Coordinator's Draft Report dealing with Articles 12 through 15.

Mexico recalled a proposal it had made in relation to Article 11 on monitoring of institutions. This proposal was put off until structural issues of the relationship between Articles 10, 11, and 12 were dealt with. Mexico enquired as to the fate of that proposal.

The Coordinator agreed that the Mexican proposal needs to be addressed and suggested that this should be reflected in the Coordinator's report for Article 11. Mexico agreed with the suggestion.

India had reservations on the use of the word "perceived" disability in paragraph 2 of the proposed new Article 12(bis) on informed consent (CR 59, 60 and 61). The use of this word raises the question "perceived by whom?" India will raise this issue in future sessions.

China also raised similar concerns regarding "perceived" and recalled its previous positions that this Article should deal with "actual" disability. It reiterated its position that language qualifying interventions to those "aimed at correcting, improving, or alleviating any actual or perceived impairment" should be deleted from this paragraph.

The Coordinator agreed that this should be highlighted in the report as an issue to be dealt with.

Morocco noted that paragraph (h) of Article 13 "[Developing / recognising / promoting a national sign language]" was not a part of the Facilitator's text, and should not be referred to in that way (CR 88). This language is simply an exact reflection of what was in the Compilation of amendments.

The Coordinator agreed that the language introducing this paragraph would be changed to say "paragraph (h) on which further discussion would be required."

EU noted that it had wanted to keep the principle of the protection of private life with its logical link to measures taken by the state, as in Article 14 of the WG text. The EU did not want to split the substance of this Article. The Coordinators Report indicates (CR 90) that there was "general agreement" to the Facilitators proposals for 14. The EU preferred to have this changed to "some support or some agreement."

The Coordinator noted his understanding that there was wide agreement to split this Article; however he agreed to change the wording introducing the split to "broad support."

Yemen asked that the Coordinators Report (#98) should indicate that, in connection to proposals to delete (a) from 14.2, there were also proposals to amend (b). This was so as to avoid use of controversial words. In addition the report should note that many of the paragraphs in 14.2 of the WG text did not command much support and resulted in long debate among delegates.

The Coordinator recalled that none of the language in (b) had posed a problem in negotiations, and will consult further on this with Yemen to ensure that there is no confusion.

Australia asked that its amendments to 14.2(e) be considered, incorporating on the concept that the disability could either be of the child or one or both of the parents. It suggested that the last sentence could be changed to "The existence of a disability of either the child or one or both of the parents does not justify the separation of the child from his or her parents."

The Coordinator suggested that Australia's comments would be incorporated into the last sentence of the facilitator's amended14.2(e) (CR 121) by referring only to "parents" instead of "parents with disabilities" and by bracketing text so that "on the basis of disability" could be replaced with "the existence of disability."

The Coordinator proposed a final additional mention (CR 127) that "there was some discussion of Article 15 and this will need to be reverted to at the next session." He noted that the morning discussion on Article 15 had raised many issues that still need to be resolved. The Coordinator's Report was thus accepted.

The Coordinator also noted that, in addition to Article 15, Article 15(bis) on women with disabilities and Article 24(bis) on International Corporation, were scheduled to be discussed at this 5th Session, and will need to be carried over to the 6th Session. Other issues, such as that raised by Mexico, will also need to be discussed at the next session. To assist delegations in their thinking with regard to Article 24(bis) a text will be circulated by the Facilitator reflecting the current stage of consultations on this issue. The Coordinator noted that this text is not a negotiated text.

For ease of reference Articles 7.5 through 14 with proposed modifications to the Facilitators text where applicable will be made available as an annex to the Coordinator's report in addition to being integrated into the Coordinator's Report as well. (at http://www.un.org/esa/socdev/enable/rights/ahc5docs/ahc5advancereporte.doc)

The Coordinator reiterated that while this current text endeavors to reflect the current stage of the discussion, they can always be revisited. Non-bracketed text can also be negotiated; however the Committee does need to move forward and the bracketed text serves the purpose of highlighting the main areas of agreement and disagreement.

The Committee should not underestimate the magnitude of the issues we are dealing with, because it forces us to address specifically a number of other issues that relate specifically to PWD that other Conventions have been able to avoid. Legal capacity is such an example where CEDAW did not need to define this. Similarly when this Convention stipulates absolute rights, it has required careful thought about what exactly those rights mean, and whether or not they entail exceptions. The Coordinator concluded informal consultations by thanking all participants of the AHC.

Ambassador Luis Gallegos resumed the meeting in formal plenary. He thanked Ambassador Don Mackay for the Coordinator's Report and for his work. The Chair introduced the Draft Report of the AHC along with a number of oral amendments for approval. The last oral amendment inserted 2 new paragraphs in the report's section on Recommendations:

"12. The Ad Hoc Committee decided that, in accordance with established practice of the UN and on the basis of the principle of rotation, the regional groups would hold intersessional informal consultations on the composition of the Bureau and the term of office of the Bureau.
13. The AHC also decided to include "Election of Officers" and "Term of Office" as 2 agenda items of its 6th Session."

Argentina objected to this last oral amendment to the Draft Report. It proposed that a simple reference in the new para 12 to: "in accordance with established practice for the UN regional groups will hold …." is sufficient to cover the principle of rotation as well as other principles which are applicable here under the category of established principles. There is no need to explain the principles that are at work here.

Sweden opposed the proposal by Argentina which it noted had been discussed by all the members of the Bureau and in consultation with regional groups. It was surprised that amendments are being proposed at this late stage. It expressed concern that any member of the UN would be against one of the basic rules of the UN in terms of decisions regarding membership of the Bureau and the principle of rotation.

Costa Rica supported Argentina's proposal, which does not run counter to any of the practices of the UN with regard to elections of the Bureau. Costa Rica sought to clarify that Argentina's suggested references to "established practice" already covers all of the principles. It acknowledged that this language was discussed within the Bureau but this should not impede the plenary from making final decisions. The Bureau is not a key decision taker.

Uruguay, Guatemala, Panama, El Salvador, Brazil, Venezuela, Paraguay, Peru, Trinidad and Tobago, Ecuador, Jamaica, Chile, Colombia agreed with the Argentine and Costa Rican position. They did not oppose the principle of rotation, but preferred not to selectively specify this in the report.

Czech Republic did not see any harm with references including rotation in the orally amended language. If there is objection to this language then the original text of the Draft Report should be retained. The EU supported the proposal of Sweden to keep the reference to "rotation" in the amended text.

As proposed by Serbia-Montenegro, the Chairman suspended the meeting so that delegations with opposing views could come to an agreement.

When the meeting resumed, Argentina read out the orally amended language as agreed upon:
"11. The AHC decided that the regional groups will hold intersessional informal consultations on the composition of the Bureau in accordance with the principles and established practices of the UN.
12. The AHC also decided to include "Election of Officers" as an agenda item of its 6th Session."

The Report of the AHC as orally amended was adopted, and is now available at: http://www.un.org/esa/socdev/enable/rights/ahc5docs/ahc5advancereporte.doc

Ambassador Luis Gallegos read a statement announcing his impending designation as Ambassador of Ecuador to Australia. He thanked Ambassador Don Mackay of New Zealand for his leadership in coordinating informal consultations and the thematic work of the facilitators. He noted that "I would have liked to continue chairing this Committee until the end of the process and the adoption of the Convention. However the new responsibilities, as well as the distance, make it more difficult that I can continue presiding over the Committee and dedicating the time and the effort that this process merits." He added that since his election in June 2002, "this has been one of the most satisfying personal and professional endeavors." He appreciated the "opportunity of getting to know the extraordinary community of PWD, to understand, with all my personal limitations, their needs and concerns." He expressed his continued commitment to the cause of "an enforceable convention" in his new responsibilities.

Paraguay spoke on behalf of the Latin American and Caribbean (GRULAC) countries to express their satisfaction at the Ambassador's leadership and the work that has been accomplished so far in the AHC. "We have managed to make a difference in this process and we owe this difference to you." GRULAC also thanked Ambassador Mackay for his negotiating skill. GRULAC has started consultations to appoint a successor as soon as possible so that the work can move forward. GLULAC believes that Ambassador Gallegos had "successfully fulfilled your task and you have left your imprint."

UK on behalf of the Western Europe and Others (WEOG) group expressed its "heartfelt debt of gratitude" to the Ambassador for his chairmanship of the AHC, his personal commitment to disability rights, and that of his country Ecuador - a recipient of the Franklin Delano Roosevelt Disability Award in 2002. "You will be remembered for having led a process which we are certain will lead to a legally binding convention."

China also expressed its gratitude to the outgoing Chairman, and hoped for his continuing support in the negotiating process in the future.

South Africa thanked the Chairman, on behalf the Africa Group and the community of disabled people of Africa, for his able leadership in advancing the work of the AHC. Africa faces many challenges, in the context of wars and landmines in parts of the continent that have resulted in a high level of disabilities. "This Convention is for us a milestone in that it addresses many issues that we hope can help guide us in the right direction."

The International Disability Caucus, "the unified voice of organizations of PWD," thanked Ambassadors Gallegos and Mackay and shared its views on the negotiating process. It recommended against undertaking a "second reading" of remaining articles, in order to move forward with the negotiations. It highlighted that this Convention must include the full human rights of all PWD, without excluding any group or limiting any right. With regard to comments from delegations that provisions of the Convention contravene national legislation, the Caucus noted that "too often, States' laws have been based on a history of stigma, prejudice and paternalism." Such laws must be identified and amended so they fully reflect PWD human rights. The Caucus expressed its concerns over the "missed opportunities for us to contribute in clarifying complex issues" and expects that a means will be found whereby the AHC can benefit from the expertise of its membership and hear their views at the 6th Session. Given that 80% of PWD are from the developing world, it called on states to contribute to the UN Voluntary Fund so as to enable those PWD to participate in the process, and thanked those states that had already contributed. It called for timely access to information, in formats accessible to all PWD and through sign language interpretation. Finally, over the intersessional period, it called on states to "work with us, as we prepare to respond to future articles, and those previous articles where we have indicated that further work is necessary." For the full statement goto: http://www.dpi.org/en/resources/topics/convention/Ad_Hoc5/4feb05venus.htm

Philippines on behalf of the Asian Group, and the Russian Federation on behalf of the Eastern European Group, thanked Ambassador Gallegos and wished him well.

The Chair closed the Fifth Session.

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