Final Report: Community Consultation on the United Nations effort to elaborate a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities

By the Council of Canadians with Disabilities

Ottawa February 29 - March 1, 2004

Executive Summary

From February 29 to March 1, 2004, the Council of Canadians with Disabilities (CCD) held a national community consultation to discuss the draft UN Convention on the Human Rights of Disabled People. The goals of the meeting were to introduce participants to the convention and some of the key issues surrounding it, and to look specifically at the draft text formulated by the UN Ad Hoc Committee's Working Group in January 2004.

Participants heard briefings outlining the history of human rights for people with disabilities, both in Canada and at the UN, and received advice from representatives of the International Commission of Jurists and Mines Action Canada on how Canadian NGOs could work to influence this convention. Delegates then discussed the convention's objectives and principles, as well as the options for monitoring and implementation.

After reviewing and commenting on the draft convention's substantive articles, participants listened to a briefing from representatives of the Department of Foreign Affairs and offered their comments on issues of concern.

A number of key issues arose throughout the day's discussions:

• Several definitions were identified as needing further discussion: disability, equality, independence, self-determination, and mobility are all terms that remain undefined or could be further clarified.
  
  
• It was noted that the purpose of the convention has not yet been clearly established: is it meant to elaborate on how existing human rights instruments apply to people with disabilities, or should it go further to create new rights specific to disability?
  
  
• Participants discussed whether the focus should be on individual rights, or on the role of civil society in creating an environment of inclusion.
  
  
• There was tension between the preference for an inclusive school environment and the preference for specialized schools. Some delegates stated that specialized schools could be better for students who are deaf or blind. Others called this "segregated" schooling and favoured inclusiveness (or "mainstreaming").
  
  
• Institutionalization was an issue of concern: many felt strongly that institutions should be eliminated, but DFAIT representatives suggested that the answer could not be "an absolute."

Although the participants were not ready to identify consensus positions on the issues, there was strong support for the following points:

• The Canadian delegation should include broad representation from the disability community. Disability NGOs in Canada want to have their voices heard in future consultations on the convention.
  
  
• The convention should include a strong statement on the duty to accommodate, which should be defined as outlined in Canadian law, where the responsible party must provide accommodation up to the point of undue hardship.
  
  
• There must be a strong monitoring mechanism - otherwise the convention may not have a significant impact.

The group agreed that CCD would take the lead in preparing a statement of principles which could be circulated as a position statement from the disability community in Canada.

Welcome and Introductions

Steven Estey, Chair of the meeting and Chair of the Council of Canadians with Disabilities (CCD) International Committee, welcomed delegates and explained that CCD's National Vice-Chair, Mary Ennis, who was to chair the meeting, was not able to attend due to illness. He then presented Ennis' opening remarks.

In her message, Ennis stated that the UN convention process will challenge everyone involved to think of all persons with all disabilities in all countries. Canadians must take care not to impose their expectations and demands on those in other countries, and the convention must reflect inclusion and flexibility.

Ennis acknowledged the commitment of the Canadian government representatives to the convention process, and urged that they continue to include NGO representatives as part of their delegation, as disabled people have unique knowledge and expertise in the field of disability. When putting together the delegation, she said, officials ought to ensure that one individual is present during all deliberations, and dispense with the rotational approach we have seen in the past.

Ennis concluded that CCD is proud to take the lead role as the world works toward this convention - the "ultimate milestone in systemic advocacy for persons with disabilities."

Overview and Review of Meeting Objectives

Steven Estey reviewed the work to date on the development of this convention, explaining that the General Assembly of the United Nations adopted resolution 56/168 in December 2001, which established an Ad Hoc Committee to consider proposals for an international convention to protect and promote the rights and dignity of people with disabilities. Since that time, this committee has held two meetings and struck a working group to write a first draft of the new convention. CCD has participated in all of these meetings, and this is CCD's first effort to engage other Canadian disability organizations on this topic.

The goals of this meeting are to introduce participants to the convention and some of the key issues surrounding it, and to look specifically at the draft text formulated by the Ad Hoc Committee's Working Group in January 2004.

Human Rights: Domestic Issues

Jim Derksen, Chair of CCD's Human Rights Committee, offered a historical perspective on the rights of people with disabilities in Canada. He noted that rights have to be learned: people with disabilities did not always see themselves as people with rights. In the 1970s, when Canadians began to look at human rights legislation, people with disabilities faced problems that were "local and immediate." They realized, however, that they needed to make a long-term investment in having their rights recognized. Early forms of protection were narrow and limited mostly to employment discrimination, but people with disabilities began to see human rights legislation as an opportunity to articulate a culture of rights. When the opportunity arose to repatriate the constitution, it was a chance for people with disabilities to participate in the creation of a charter of rights. Such human rights legislation has been valuable in the Canadian courts and as a "symbolic reframing of our cultural values."

Overview of Disability at the UN

An Evolving Understanding of Disability

Marcia Rioux tracked the evolving understanding of disability rights at the UN. Key milestones have included the UN Decade of Disabled Persons (1983-1992), the establishment of an International Day of Disabled Persons, the World Conference on Human Rights (Vienna, 1993), and Resolution 31, passed in 1998 by the UN Commission on Human Rights to acknowledge the rights of people with disabilities. Regional meetings held in the late 1990s led to the recommendation of a convention on the rights of people with disabilities, and this process began in 2000.

Looking back at the work done in the 1970s, Rioux reflected on how far the disability movement has come. Current trends include changing international laws, the rise of genetic science, demographic shifts, technological advancement, the entrenchment of human rights in national and international legislation, and evolving models of disability.

Structure of Human Rights Conventions

David Shannon discussed treaties and treaty making in general, and commented on how NGOs in Canada could work toward the advancement of disability rights both domestically and internationally.

Although legal and policy regimes exist to protect human rights, they do not always promote the rights of people with disabilities in a meaningful way at the domestic level. International treaties can resolve such gaps and create a framework by which people can advance disability rights locally. Treaty drafting should begin with a clear sense of purpose, and it will be important for the NGO community in Canada to develop a sense of purpose with regard to this treaty. The ratification process for the treaty will be government-controlled, so it is important at the political level to lobby and promote the convention from a disability perspective (both federally and provincially). When entrenched, this treaty will create a crucial framework for the advancement of disability rights in Canada and around the world.

Canada's Approach to International Negotiations

Alan McChesney, International Commission of Jurists - Canadian Section

Alan McChesney discussed how treaties are negotiated at the UN and how NGOs can influence government players. It is an advantage that NGOs can participate on the official delegation in the creation of this treaty. The individual lawyers and bureaucrats representing the Canadian government may be "on our side," but they are influenced by their departments and by other foreign policy issues. NGOs can have more influence on the Canadian position by emphasizing their international influence.

McChesney advised NGOs to identify individual diplomats whom they can trust and work with them consistently over time. Sometimes the best approach is to quietly hand Canadian diplomats the text that you wish to promote, so that they can then present it as a government idea. Another strategic approach is to have someone from a Southern country make a suggestion, so that it cannot be rejected as a Western perspective.

Paul Hannon, Mines Action Canada

Paul Hannon outlined some of his experiences with the process around the Treaty to Ban Landmines, and made the following suggestions to groups wishing to influence this convention process:

• The governments may choose to operate on consensus-based rules, but this can pose problems: certain countries could block what is wanted by the disability community.
• Be aware of "code words." For example, the word "balance" does not mean "equal." Rather, it is a way of ensuring that the government gets the balance it wants.
• Recognize those who are personally supportive and treat them as partners. Identify supportive delegates from countries other than Canada.
• Get access to documents in electronic form. Try to encourage transparency.
• Aim for broad rules rather than specific rules, so that there are fewer restrictions on the process.
• Request daily meetings in order to be briefed by government representatives (if not on the Canadian delegation).
• Identify other key governments and request regular meetings with their delegations.
• Be aware that the diplomatic goal is to negotiate a deal, not to get a good convention. Be clear about your goals, and pressure the government (through the media and MPs) not to compromise.
• Try to identify legitimate, value-added roles that you can take on, which government delegates cannot do (e.g. sharing field experience and expertise).
• Hold NGO briefings for delegates, and host receptions for key countries.
• Have media briefings before and after negotiations.
• Recognize that, while only states can sign treaties, states are not the only ones who can negotiate, implement, or even monitor. For the landmines treaty, civil society does all the monitoring and produces the annual report.
• Try to avoid heavy structures, or, where they are imposed, try to insert yourselves into them.
• Be helpful; for example, try to find options and alternative language.
• Once negotiations are underway, start working with friendly states on a plan of action.
• To keep momentum going, keep your constituency informed and have strategies to deal with last-minute problems.
• Develop an individual rapport with government representatives: build and maintain trust. "If you are the most credible person in the room, that will increase the pressure on them."

Round Table Discussion: Objectives and Principles of the Convention

Before introducing David Shannon to discuss the objectives and principles of the convention, Steven Estey commented that a convention is meant to be a broad framework document - as valuable in 50 years as it is now. To be effective, this convention should talk broadly about issues like accessibility and mobility and should not be too specific.

Preliminary Comments: David Shannon

David Shannon made some preliminary comments on the objectives and principles of the convention, from a Canadian perspective. The UN has articulated human rights in bundles, through the Covenant on Civil and Political Rights (which focuses on individual rights) and the Covenant on Economic, Social and Cultural Rights (which focuses on "second-generation" rights that go beyond individual rights). Canada is always trying to find a balance between individual and group rights, and its experience will be important to share in the development of principles for the convention. In its legal theory around the "duty to accommodate," Canada is ahead of much of the world. As defined in Canada, the duty to accommodate requires the responsible party to provide accommodation up to the point of "undue hardship." Canadian NGOs must promote this principle in the convention - otherwise the power of the convention will be diluted.

As the Canadian Supreme Court has articulated, the question of dignity is at the heart of the issue, and it will be critical to promote this concept. Laws must recognize the full place of all individuals and groups within society - this is a critical message.

Discussion

Harley Nott asked to what extent the UN approach is based on the principle of human dignity, and whether this reflects a Western perspective (given that human rights for some is a question of survival rather than dignity). David Shannon noted that more than one covenant is based on concepts of dignity. Although it could be considered a Western focus, in this convention the provision against "undue hardship" on the part of those providing accommodation allows for a relative scale of expectations. Laurie Beachell added that dignity is a part of equality, but it cannot become a predominant issue. Alan McChesney commented that in some countries which do not favour the concept of human rights, the principle of dignity is recognized and can be used as a way to discuss human rights.

Chloe Serradori suggested including the concept of progressive implementation in the statement on the duty to accommodate. Alan McChesney suggested adding the duty to accommodate to the list of general principles in Draft Article 2. He acknowledged the idea of progressively implementing legislation and programs, but emphasized that governments would have to show that they have given proper priority to this obligation in their planning and budgets.

Laurie Beachell noted that there may also be language questions to consider: definitions of disability have often translated into eligibility criteria for programs or benefits. Commenting on the reference in Article 2 to individual autonomy and self-determination, Vangelis noted that, within the UN, the latter term traditionally refers to the rights of political units or aspiring political units rather than individuals.

Barbara Anello of DisAbled Women's Network (DAWN) Ontario recommended that the preamble be strengthened to reflect the intersection of disability and gender. The preamble must also make reference to civil society and communities, rather than focusing only on individual rights.

Several participants expressed concern about the mobility rights of immigrants, especially those coming to developed countries. Marcia Rioux noted that there should be a clause on immigration and nationality in the convention. Gordon Fletcher suggested that the general principles (Article 3) include "the right to reside in any country."

Discussing the concept of equality, Moira Jones asked if equality of opportunity could be a way to "dumb down" the equality rights of people with disabilities. It was agreed that there needs to be a broader definition of equality. Pat Danforth suggested language like that of the Canadian Charter of Rights and Freedoms, which discusses equality before, under, and throughout the law.

Chloe Serradori agreed that the principle of inclusion should recognize the role of civil society - without implying that states can dump their responsibilities onto civil society. There should also be a clear definition of standards and follow up. She added that the issue of double discrimination should be mentioned in the preamble.

Governments sometimes focus on the rights of communities as a way to protect the rights of minorities or traditional Indigenous Peoples, said Alan McChesney. In other cases, governments may simply be avoiding the issue of individual rights. Perhaps the disability community could create a new collective noun for people with disabilities without denying either individual rights or progressive rights. Zuhy Sayeed acknowledged the point, emphasized the need to focus on the obligations of society to welcome all people. Richard noted that some laws may protect people with disabilities as a group, but may also prevent them from gaining access to other legislation.

Vangelis commented that this convention had been drafted based on the assumption that it was meant to ensure that existing human rights instruments apply to people with disabilities. Some have assumed that new rights are going to be created, but this has not been established.

Round Table Discussion: Monitoring and Implementation

Preliminary Comments: Marcia Rioux

Marcia Rioux listed key questions to consider with regard to monitoring and implementation:

• Should there be a monitoring process?
• What kind of reporting should be in place?
• What will be the relationship of this committee to other monitoring bodies, to the existing Special Rapporteur on the Standard Rules, and to other UN bodies?
  Should those relationships be reflected be in the section on monitoring?
• Should there be an individual complaints mechanism?
• What will the composition of the committee be, and how should it reflect the field?
• Should a provision be made for general comments from the committee?

The "Rolls Royce" option for monitoring would take the approach of a traditional human rights treaty monitoring body, with a monitoring committee of 8-12 members serving in individual capacities, nominated by the states parties to the convention. There would be periodic reporting and an individual complaints procedure. Additional elements would include explicit requirements that people with disabilities participate in the election process and that half of the committee members be people with disabilities. Although there are many advantages to this approach, one concern is the reluctance of most countries to add an eighth treaty body to the existing UN Human Rights reporting system.

Other options include:

• An international ombudsman (an enhanced version of the current special rapporteur, with some authority).
• Monitoring and reporting through national institutions (e.g. human rights commissions). This could include regular reporting to national legislatures.
• A plan to work through existing regional institutions (e.g. the European Union).
• "Smart reporting," where governments are asked to focus on specific issues in each periodic report.

Discussion

Diane Richler commented on a concern brought forward by the World Network of Users and Survivors of Psychiatry that the original draft text makes it possible for third parties to lodge complaints, rather than requiring individuals to complain on their own behalf. On the other hand, Inclusion International was concerned about the cases of children and people in institutions or under guardianship.

Diane Richler noted that the World Blind Union (WBU) and the International Disability Alliance (IDA) have generated an alternative proposal that deals with monitoring.

Alan McChesney noted that UN treaty monitoring bodies have not demonstrated a great deal of success, although their general comments may have influenced some governments. European countries involved in this current negotiation do not seem to want much of an implementation model at all, and seem to favour an ombudsman with extra powers. Marcia Rioux said that the WBU/IDA proposal is similar to this idea.

Laurie Beachell asked about cross-reporting (e.g. reporting based on ethnicity or gender). It was noted that too many additional elements can create a barrier to reporting, because the task becomes overwhelming. McChesney said that there is a tendency for governments to cross-reference from one report to another, in order to save resources.

Discussing the concept of smart reporting, Jim Derksen gave the example of large institutions that do annual audits, touching on 5-10 percent of operations but investigating those areas in detail. This process can be quite effective.

Whatever model is chosen, it will still require follow-up by civil society groups, said Chloe Serradori. Zuhy Sayeed agreed, adding that, in the Convention on the Rights of the Child, there is a provision that any organization can send a parallel report to the monitoring committee. Organizations often lack the resources to meet this challenge, but government reporting can be inadequate. She expressed concern about the complaints process, noting that some situations could be matters of life and death, and may take too long to get to a UN body.

David Shannon suggested that they embrace the concept of individual complaints, because these can be the lifeblood of a document and can help it to grow. A combination of individual complaints and smart reporting will probably be the principle way in which real evolution will occur in the field of disability rights. This would be a holistic approach that would include systemic change. Steven Estey added that individual complaints often provide better information than the periodic reporting of state parties, because the source is nongovernmental.

Jason Mitschele suggested a move to a more group-driven civil society process, such as a system of parallel reporting where domestic and international NGOs would collect individual complaints, group them into categories, and then look at the system as a whole.

Globally, a few regional human rights mechanisms allow for group complaints to be made on the basis of economic or social rights, said Alan McChesney. These could be explored as possible models.

A View From the South: Song Kosal, Youth Ambassador, International Campaign to Ban Landmines (ICBL)

Song Kosal told the story of her life in Cambodia as a landmine survivor, explaining that many people in Cambodia are disabled by landmines. She said that she lost her leg to a landmine as a little girl and her brother was killed by a landmine.

Kosal told the group that when she was little she was very sad to see other children playing and swimming, because she was missing a leg and could not take part. She used to stand with her crutch and wish that she could play freely like the other children. At nine, she started school, but there was often fighting and noise caused by war. These incidents were frightening, and Kosal hid because she could not run fast like everyone else.

She explained that she once asked a shoemaker to make her a shoe, but he said that making only one would bring bad luck. "I wanted to bring good luck, so I decided to begin by helping the campaign to ban landmines," she said. In 1995, Kosal spoke at the UN in favour of a ban on landmines, taking strength from friends who had lost legs to landmines. After the treaty to ban landmines was finally signed in 1997, Kosal started a campaign asking young people to take simple actions in support of peace and the environment.

Review of Substantive Obligations

Participants broke into small groups to review the substantive obligations. These are articles 5 - 24 of the draft convention prepared by the working group in New York in January of 2004. They reported back to the larger group with their comments and while these comments do not represent consensus positions they are presented here in order to highlight participants' issues, concerns, and perspectives as they relate to the details of the new convention at this early stage.

Article 5: Promotion of Positive Attitudes to Persons with Disabilities

• This article should either be removed or moved so that it is not the first article on substantive obligations. The promotion of positive attitudes has much to do with the promotion of equality, but it may be best to make a concrete statement about equality (which is currently done in Article 6) and move the issue of public awareness to a later article.
  
  
• Public awareness could also be linked with monitoring mechanisms.

Article 6: Statistics and Data Collection

• Statistics and data collection should be linked with monitoring mechanisms, and should not be put into a substantive article so early in document. The concept should be broadened to include a peer-reviewed methodology and to have the methodology grow to reflect broader statistics and data, including quantitative research. Privacy must be protected and collection must be consistent with human rights principles. Data should not be used from a biomedical perspective.
  
  
• The concept of this article should be broadened to deal with the socioeconomic aspects of disability, rather than a list of specific problems.
  
  
• There should be standardization, so that data and statistics are comparable among different countries.

Article 7: Equality and Non-Discrimination

• The first paragraph should include equal benefit of the law and equality under the law (as understood in the Canadian Charter). Section 1 includes a shopping list, as opposed to broader conceptual list. Section 2 defines "discrimination" and should be moved to the definition section. After Section 1, which discusses equal benefit and protection under the law, there should be discussion of the supporting concepts to equality: inclusion and mainstreaming of people with disabilities, and the duty to accommodate (involving stronger wording than in Section 4, which allows governments to define accommodation). There should be policies to ameliorate conditions of discrimination and countries should adopt progressive measures toward equality.

Article 8: Right to Life

• This article should be broadened so that there are three clear concepts: life would include the right to health and supportive services; there would be protection from war/catastrophe (including major displacement); and people with disabilities would have the right to be protected from eugenics/bioethics.

Article 9: Equal Recognition as a Person Before the Law

• This article is too limiting. The concept of property should be broadened. The article should also include concepts like consent to treatment, self-determination, understanding unique needs, the right to be informed regarding treatment, and the principle that information should be accessible and free from intimidation or other restrictions.

Article 10: Liberty and Security of the Person

• Section 1-B should be clearer about the fact that confinement would not be permitted just because someone has a disability (in contrast with confinement that would occur because someone has committed acts that were dangerous or criminal, regardless of their disability).
  
  
• There was some debate in the group about whether there should be clearer limits on the ways in which a person's liberty could be curtailed because of a psychiatric condition. There were differing views on whether confining oneself for one's own protection should be covered specifically.
  
  
• Instead of defining "deprivation of liberty" under civil law, this article should insert terms limiting the deprivation of liberty under any form of law. There could be reference to Article 9 of the Covenant on Civil and Political Rights, making clear that any procedural protections shown, where appropriate, would be applicable to any type of procedure leading to confinement (civil, administrative, or criminal). There should be a general reference to fair procedures (an issue that is currently addressed in Section 2.
  
  
• Instead of settling for governments being required simply to follow procedures in conformity with the law, there should be a requirement that they change laws that perpetuate arrests because of disability. This would tie in with the general provisions of Article 4, Section1, which requires the reform of bad laws.

Article 11: Freedom from Torture or Cruel, Inhuman or Degrading Treatment or Punishment

• This article should make explicit that people must be protected from cruel, inhuman, or degrading treatment - and this treatment should be referred to separately from experimentation. There should also be some reference to punishments that themselves are disabling (e.g. cutting off hands).

Article 12: Freedom from Violence and Abuse

• This article ends with words "judicial involvement." Instead, the wording should be "judicial or other remedial measures including compensation, punishment, and systemic remedies."

Article 13: Freedom of Expression and Opinion, and Access to Information

• It will be important to guard against new barriers being created by fact that North America uses electronic technology rather than direct human services. The goal is to ensure accessible forms of communication, but to avoid creating new barriers. There should be specific reference to electronic and digital formats, but the article should also cover forms of communication that do not rely on machinery. The word "choice" should be included in this article.
  
  
• There should be explicit reference to plain/clear language (see note 42 of the working group draft).
  
  
• This article should be expanded to cover the training of live assistants and intermediaries (see note 43 of the working group draft).

Article 14: Respect for Privacy, the Home and the Family

• Section 2-E should be expressed positively: there should be encouragement that children stay with their parents. The word "correspondence" should be changed to "communication," taking into account other forms of communication.
  
  
• The provisions of this article should be broadened to include all types of interpersonal/intimate relationships, not just marriage (see note 46 of the working group draft).
  
  
• The issue of forced sterilization should be covered in Article 11 or 12 rather than in this article. Any reference to sterilization should be qualified by the word "forced."

Article 15: Living Independently and Being Included in the Community

• Independent living, accessibility, and other issues are interconnected and must be addressed throughout life. The issues cannot be isolated. States should strive to move along the continuum toward the promotion of integrated independent living in one's community of choice.
  
  
• Sections 1-A and 1-C could be incorporated into one section. The group rejected the idea of deinstitutionalization, because it would be a problem for some cultures. However it should be acknowledged that people with disabilities have a choice.
  
  
• There may be some government misunderstanding of the term "self-determination." Also, although there are concerns about using the term "deinstitutionalization": there needs to be some way to show that institutions are being presented as the only choice for some around the world.

Article 16: Children with Disabilities

• There should be a preamble or some statement focused on family in general, not just on children. Also, this section should recognize the importance of children staying with their families. It should include something on the provision of adequate support for the child so that families have the ability to raise their children, and provide what is required until the reach adulthood, at age 21, or what ever the state determines the age to be for the general population.
  
  
• Section 4, which mentions "cultural and spiritual development," should also mention "physical, emotional, psychological, intellectual, and social development."
  
  
• It will be important to make reference to the Convention on the Rights of the Child. In this convention, the rights of children should be integrated through all the articles.

Article 17: Education

• This article was problematic. There is tension between the preference for an inclusive school environment and the preference for segregated schools. The group recommended striving for an inclusive mainstreaming approach. Section 3 should be cut: no parallel, segregated systems should be promoted in this convention, either as educational institutions or as living arrangements.
  
  
• The preamble should make reference to the UNESCO "Education for All" document and the Convention on the Rights of the Child.
  
  
• There may be too much subjectivity in the language: words like "fullest potential" and "talent" are culturally specific and some language seems to reflect a medical model.
  
  
• The article fails to discuss tertiary education, and there is no recognition of the interconnectedness of poverty, access to political life, and other issues. There could even be two articles: one on early childhood education and another on post-secondary education.
  
  
• Section 4 should make a distinction between language rights and accommodation through alternative formats. There should also be more detail on alternative formats, so that print disabilities are included (e.g. by mentioning the need for plain language).

Article 18: Participation in Political and Public Life

• There is no emphasis in the preamble on the systemic barriers that need to be addressed and the promotion and participation of public and political life. Guidance could be taken from Election Canada, which is inclusive.
  
  
• Section B-ii should include active dialogue and formal representation at all levels of government and should not just apply to those forming organizations.
  
  
• This section was lacking in terms of the accessibility of media and the availability of emergency services for those using alternative forms of communication. Accessible formats should be available in key areas (e.g. the National Library of Canada). Also, standards of accessibility should apply to the construction of buildings for public use.

Article 19: Accessibility

• Discussion of Articles 19 and 20 was presented simultaneously, and the group did not distinguish between the two.

Article 20: Personal Mobility

• In Article 20, there is a conflict between the traditional international understanding of mobility rights (as a more general issue including cross-boundary travel) and an understanding focused on the provision of specialized aids and assistive devices. It would make more sense to remove the reference to the provision of specialized aids and assistive devices and place that section within Article 19. Article 20 could then focus on a more traditional understanding of mobility and make reference to the Covenant on Civil and Political Rights, which discusses travel. Mobility within states should include portable or comparable service delivery so that, within a state, people with disabilities can move and maintain supports.

Article 21: Right to Health and Rehabilitation

• The group discussed whether or not this article gives states the opportunity to set up specialized/segregated systems to keep people with disabilities from gaining access to regular publicly funded systems. The introductory paragraph must state that the article is discussing inclusion and access to regular systems. However, there is still concern that this might not be clear in the article.
  
  
• This article could be split into three sections: general access, the right to refuse treatment, and forced institutionalization. The way it is currently written, a number of issues would be interpreted through a medical model, especially issues like prevention (including the definition of disability).
  
  
• The article has some strengths - especially Section H, which should be retained.
  
  
• Should the concept of institutionalization remain? Is it a question of liberty, or a right to health issue?
  
  
• The concept of dignity should also be introduced, as it may allow for a broader understanding of disability rights.

Article 22: Right to Work

• Statements about double disadvantage should be incorporated into this article (i.e. barriers related to gender or ethnicity which may compound barriers related to disability).
  
  
• The Ad Hoc Committee should consider incorporating the core labour principles of the International Labour Organization (ILO).

Article 23: Social Security and an Adequate Standard of Living

• This article reflects a northern perspective, and does not necessarily address poverty alleviation as well as it could. It would be better to have language around the alleviation of poverty, perhaps changing the title altogether.
  
  
• Section 1-C assumes that only those with severe and multiple disabilities live in poverty, but that is not the case. Also, there are problems with limiting eligibility, which could raise definitional issues for the whole convention. This section should be left out entirely.
  
  
• Section 1-E, which mentions tax exemptions, is too specific and should be deleted.

Article 24: Participation in Cultural Life, Recreation, Leisure and Sport

• This article appears to have a very Northern perspective. Section 1-B should include plain language materials in its list of materials (plain language materials should be included anywhere that alternative formats are mentioned). Alternatively, the discussion of alternative formats could be limited to Article 13.

At the conclusion of the presentations on specific articles, Robert commented that there is a danger in the approach taken in this document, which targets specific areas and excludes others (such as family support, daycare, or religious activity). Perhaps, he suggested, the convention should avoid targeting specific areas, so that at the implementation stage it will clearly have a broad application.

Panel Discussion: Government of Canada's Involvement

Panel member's included:

David Sproule

Director, United Nations, Human Rights and Economic Law Division,

Department of Foreign Affairs and International Trade

Rebecca Netley

United Nations, Human Rights and Economic Law Division, Department of

Foreign Affairs and International Trade

Marthe St-Louis

Human Rights, Humanitarian Affairs and International Women's Equality

Division, Department of Foreign Affairs and International Trade

Vangelis Nikias

Office for Disability Issues, Department of Social Development

Abdou Saoub

Office for Disability Issues, Department of Social Development

Erin Brady

Human Rights Law Section, Department of Justice

Commenting that the Canadian delegation must balance the interests of many groups (including the disability community, the federal and provincial governments, and the multilateral views internationally), David Sproule summarized the key issues around the draft convention.

There was a central question regarding the objective of the process: Is this convention meant to develop new rights specific to disability, or is it meant to elaborate and provide practical means to implement existing rights (rights already articulated in international instruments)? The Canadian government's approach tended towards the latter. This would result in a practical instrument and acknowledge the "international convention exhaustion" that exists.

A key issue, which was never resolved in the Working Group, was the definition of disability. It is unusual to create a convention without such a basic definition in place, but not unheard of. The Canadian position is that it would be best not to have a definition. This is because there was quite a long debate over what should be included in the definition, and Canadian government representatives sensed that it would be possible to have a practical instrument without defining the term.

Another underlying issue was the question of international cooperation. This was not discussed in detail in the Working Group. Any suggestion in the Ad Hoc Committee meetings of an obligation to transfer resources from Northern to Southern countries would present a problem.

The progressive realization standard was mentioned by some colleagues from developing countries, who were concerned that some obligations could be beyond their ability to implement soon. Incorporation of this concept could make this convention more practical for these countries. Also, some less developed countries were concerned about the costs if the obligations were made mandatory (rather than providing some flexibility).

Medical treatment and institutionalization were discussed in general, and there were different opinions about the question of consent. Many felt that the answer could not be "an absolute," and stated that there needs to be some way for governments to make decisions on behalf of those who are really incapacitated, with appropriate safeguards. On the issue of institutionalization, some developing country governments felt strongly that they do not have the same capacity as richer governments to provide home services.

One group was concerned about the problem of eliminating the opportunity for life where a foetus is diagnosed to have an abnormality or disability. The group wanted to see a "right to life" provision within the convention. The Canadian delegation suggested that a good middle course would be to utilize the language found in existing international instruments, without becoming too prescriptive.

The issue of education led to the question of whether people with disabilities should have a right to be part of the general school population, or whether it is sometimes necessary to have separate schools offering specialized training (e.g. for blind or deaf students). The Canadian delegation encouraged increasing integration but did not support the position that there should be no separate schooling for people with disabilities.

Sproule also noted that at the Working Group meeting there was considerable confusion over the theme of mobility, which needs to be defined more clearly.

Monitoring was a key issue of concern. The Working Group chair deferred discussion on this issue until the end of the meeting, at which point they were only able to draft a general statement to guide the Ad Hoc Committee. An elaborate monitoring mechanism is not favoured by the Canadian government. The trend is toward more creative thinking in this area, including, perhaps, the use of existing human rights mechanisms. The Canadian government resisted making domestic monitoring obligatory, as this would require a significant policy shift domestically.

Discussion

Jason Mitschele asked if it would be practical to aim for a gradual paradigm shift over time, using words like "endeavour, strive, and should." Sproule agreed that gradual provisions could be a good choice if obligatory requirements are not possible.

Zuhy Sayeed suggested that the goal should be to move further into inclusion rather than becoming bogged down in the individual rights already articulated in other conventions.

Several delegates (including representatives of People First and CCD) spoke in favour of closing all institutions. Even if this could only be expressed as a goal, said one participant, it would represent progress. Also, development aid should not support the building of such institutions

Laurie Beachell commented that the goal for this convention is to articulate a vision that is inclusive and substantive in its theory of equality. This could be expressed in the preamble. Diane Richler added that the issue is the purpose of the convention and the way in which rights are articulated. There is a "disconnect" between the current draft and the idea of elaborating on existing rights. Rather than going through existing rights and interpreting them as they apply to people with disabilities, this draft draws from outmoded, sectoral ways of thinking.

Alan McChesney commented on the positive example of the Canadian Charter of Rights and Freedoms, and suggested using Canadian wording on "undue hardship" in references to the duty to accommodate. He recommended a monitoring mechanism that included ombudsmen: individuals who act like special rapporteurs but have more power to work with governments on implementation.

Asked whether the Canadian government is consulting with human rights commissions as well as public servants within federal departments, Rebecca Netley of DFAIT said that the intention is to consult with government human rights officials, as well as those working on disability-specific files in various ministries. She said that they would consider the idea of consulting the human rights commissions.

Traci Walters commented that some countries misunderstand the term "independent living," which could perhaps be better described as self-determination, which would include the basic concepts of personal autonomy and dignity. It is these concepts which resonate with disabled people all over the world, whether one calls it "independent living" or something else.

Chloe Serradori commented on the importance of monitoring, and suggested that the convention could tell each of the states parties to establish the special mechanisms that they believe are necessary for proper internal monitoring. She also asked that francophone Canadians have access to French translations of the drafts as soon as possible, so that they can participate in the process.

David Shannon stated that Canada should be vigorous in ensuring that people with disability expertise are involved in the process of defining a monitoring mechanism. Finally, he suggested that consultations within Canada use the model established in Aboriginal self-governance discussions (which are also complicated by jurisdictional issues): gathering representatives from different jurisdictions together at the same table to discuss the concepts and challenges.

Meenu Sikand emphasized that the rights of immigrants, including their mobility rights, should be recognized, and immigrants with disabilities should be at the table during consultations.

Sproule closed the discussion by thanking participants for their contributions and inviting them to continue presenting their views through existing mechanisms. He promised to follow up with information on the Canadian plan for domestic consultation.

Next Steps

Steven Estey outlined the timeline for the next few months, noting that the Ad Hoc Committee will meet at the end of May and again at the end of August.

Participants discussed options for presenting NGO views within the process. Several speakers noted that they did not have direction from their organizations to commit to positions. However, there was interest in preparing a written position statement from the disability community in Canada. Diane Richler suggested that it would be worth trying to send a joint statement to the UN. Submissions are invited from "others and individuals," and would be circulated along with the draft convention if received in time.

Participants discussed the timing of the Ad Hoc Committee meetings and the feasibility of organizing an NGO meeting in Canada that would result in a consensus statement. Jason Mitschele suggested that organizations consult internally and circulate their positions first before trying to convene a meeting. Moira Jones added that they should make a resolution to approach ODI and ask that funds be set aside for two things: staff resources for organizations to establish their positions on issues, and money to assist NGOs in coming to consensus within Canada.

Laurie Beachell stated that CCD would make a request for resources directly to Minister Frulla, the Minister of Social Development.

Laurie Beachell suggested that it may be easier to find consensus in statements of principle, and this could be achieved relatively quickly. CCD could draft a list of principles and share the document electronically so that others could contribute comments.

Steven Estey discussed Marcia Rioux's suggestion that they reach out beyond the disability community to involve organizations focusing on other issues (e.g. social justice). Several participants suggested contacting NGOs from Southern countries as well in order to ensure a balanced perspective within the Canadian NGO community.

Alan McChesney noted that they should also advocate for the continued inclusion of consumer groups in the process. Laurie Beachell added that they would have to communicate with provincial organizations in order to have a voice in federal-provincial consultations.

The group agreed to the following steps:

• CCD will make a request to ODI for resources, including money for the broader community to develop a cohesive position on the convention.
• The report on this meeting will be distributed broadly to social justice groups and interested parties.
• CCD will design several plain language newsletters targeting issues related to the convention, to share with local membership and engage people more broadly.
• CCD will draft a principle statement to guide discussions and deliberations, incorporating material from organizations that have already developed such a framework.
• NGOs will request that the government include within its delegation broad representation from the disability community.

Steven Estey thanked participants for their contributions and adjourned the meeting.