Fourth National Consultation on the International Convention on the Rights of People with Disabilities (ICRPD)

FINAL REPORT

Ottawa, May 26 & 27, 2006

Introduction

On 26-27 May 2006, CCD hosted the fourth Canadian national consultation on the draft UN treaty known as the International Convention on the Rights of Persons with Disabilities (ICRPD).

Participants were provided with advance copies of the current draft of the treaty, as well as other pertinent information. The two key documents used were those issued at the end of the last Ad Hoc Committee meeting in February of 2006, which can be found on line at:

Closing remarks by the Chair http://www.un.org/esa/socdev/enable/rights/ahc7chairclose.htm
Current text http://www.un.org/esa/socdev/enable/rights/ahc7ann2rep.htm

What follows is an article by article summary of the key points and observations made by all participants at the meeting. Also appended are the remarks made by two international Human Rights Experts who participated in the meeting: Commissioner Charlotte McClain Nhlapo from the South African Human Rights Commission; and Jeanette Sautner, a member of Canada's delegation to the Ad Hoc Committee and a lawyer in the Human Rights Law section of Canada's Department of Foreign Affairs and International Trade.

Preamble

Background:

Main Issue identified by Chairman:

There is only one piece outstanding in this part of the convention, the [square bracketed] discussion around families at the end of the Preamble. This has been a bit of a contentious issue and has taken up quite a bit of time.

The Canadian Association for Community Living and Inclusion International feel strongly that the Convention needs to recognize the role that families play in the life of a family member with a disability. This position has proven to be challenging for some organizations. NGOs in New York have been trying to put forward a position that recognizes the individual rights of the person, at the same time trying to recognize families but in no way give families rights that would override the individual or give more of a voice to the family.

Other Issues:

Paragraph H-there was a suggestion to add a statement that includes those who require more support. This suggestion appears to have originated with the best intentions, but upon further discussion, there is now concern about separating people with disabilities based on their varying support level requirements, and an emerging consensus that this may ultimately prove unhelpful. Thus, there has been some discussion about possibly suggesting an amendment that would make the paragraph more general, such as, "recognizing the need to promote and protect the human rights of all people with disabilities," and then something to the effect of "regardless of disability or level of support."

Paragraph K-refers to the contributions of persons with disabilities to their communities, which could be interpreted as meaning "the disability community" as opposed to the community as a whole. Language broadening this idea to recognize contributions made to all communities, would seem useful here. It has also been suggested that the paragraph is longer than need be, and efforts to shorten it may be in order.

Paragraph M-there has been some discussion about including the phrase "including those directly concerning them." Some question whether the words "including those directly" may confuse the broader intent of that paragraph, which is to have the disability perspective widely reflected in policy development, and not just policies that are thought to directly impact people with disabilities.

Paragraph S-which deals with situations of armed conflict, brings us back to the concept of prevention, and as such may warrant some further dialogue. It had been brought up as a question about whether or not we should be recognizing humanitarian law. It has not been incorporated within the text at this point, and we may wish to consider the point.

Finally, some have questioned whether paragraph U, which is about responsibility, is needed or even appropriate to include in the text at all.

Discussion:

General comments

It was noted that the Preamble relates to all the individual articles, in a way that was characterized as "setting the scene" for more specific descriptions of the various rights which follow in the operative paragraphs of any treaty. This style, it was noted, ought to be kept in mind especially in terms of issues of detail and specificity in the Preambular paragraphs of the treaty.

Main Issue: Family

The focus here is on supports to families who have children with disabilities. This is not about giving families rights; rather, it is about recognizing that families need supports to play the role they play in the lives of their family members with a disability. Effort was made to cast this in a positive manner, and to be aware of the valid sensitivities that a number of people with disabilities express about the potentially negative role that families have and sometimes do play.

The proposed wording, in square brackets, was supported by the group and no participant expressed concern or reservation about this wording.

Other Issues:

Paragraph M-Some found M to be "very light!" Several people suggested that it "ought to be replaced by "must"" so that the language will be strengthened.

Paragraph R-People felt this paragraph was important. It has an impact on people with disabilities, but again some found it rather "light." There was a proposal to add some language that would state "and in situations of poverty they have minimum access to food, medical services, education, training, job possibilities, and to the meeting of other needs."

Further there was a suggestion to add, after "recognizing in this regard," the phrase "they should have access to a minimum level of food, medical services, education, training, to job possibilities, and to the meeting of other needs."

Instead of talking about addressing the impact of the violation of rights, the Preamble should be addressing the violation itself. In other words, they have to remedy the excessive poverty among people with disabilities, not address its negative impacts which are already clear. The current approach in the treaty (as seen in this paragraph) reflects what some called a "neo-liberal shift." Noting that globally we have seen in the last 10 years a shift where, for example, the same thing has been done around child poverty. Instead of addressing the substantive issue 'poverty of family,' the focus has been to address the impact of poverty on children. Some argued that as currently drafted, the draft text is deflected from the root issues, and refocused instead on symptoms or effects, which cannot by themselves ever hope to really focus on the essential causes.

Paragraph U-some were puzzled about where this paragraph was coming from, and what its real purpose was? They asked is it, for example, an attempt to address the obligations of non-state actors? Also, questions were asked about where the wording came from?

Members of the delegation noted that the language was adopted from the International Covenant on Civil and Political Rights, a covenant from 1966 and part of the International Bill of Rights. It seems to track the language exactly, as found in the Preamble of that treaty, in the second to last paragraph.

In terms of intent, different States seemed to want to introduce the concept of responsibility. That is, there are rights as well as responsibilities, and the language here appears to be along those lines. In reply to this, concerns were again brought forward that the UN system should avoid this kind of language. Such language feeds into a lot of what people with disabilities are dealing with in terms of the recent neo-liberal shift, focusing on symptoms and not causes. In Canada, this approach has led to things like "work-fare," and participants felt that having this kind of language in the Preamble should be reconsidered.

Draft Article 2-Definitions

Background

At AHC 1, people were appalled that we were going to proceed with this process without having a definition. How could we talk about substantive rights? Now as we go to the eighth meeting we have a good set of substantive rights and we still have not defined who we are talking about. For several delegations, this begs the question as to whether the treaty really needs a definition. If we look at the section on definitions, "disability/persons with disabilities" is the only section that has not been elaborated. "Communication," for example, has been elaborated, and it has a listing of what communication can mean. There has also been elaboration of discrimination on the grounds of disability. Further, there is elaboration on language, etcetera.

Presently many countries have extremely narrow definitions of disability. Those definitions often result in very minimal numbers of people with disabilities being reported in things like the national census. For example, if you look at the Indian definition you have a very narrow definition of disability. Then if you look at the Indian census data, it shows between 1.3 and 2.3 percent of the population report having a disability. In comparison, if you look at New Zealand's definition, which is quite broad, you then see numbers going up to around 20 percent of the population having a disability.

So we need to be very careful about this issue. It would be a shame if countries respond to a broad a definition by clawing back on the substantive issues that are already in the text, as in the long-run this may do no good.

One approach is to instead focus on a strong definition of discrimination on the basis of disability. That moves us into that paradigm shift we are talking about, i.e. a rights-based approach to considering disability. We are defining the violation, not the cause, if you will.

Another issue we need to ask ourselves is why we need the definition of disability. If we look at it from a policy and domestic level, definitions are necessary for people to access particular services, for specific reasons. Those definitions vary, and in fact there are often a number of different types of definitions even in one country, as is certainly true in Canada.

While it is obvious that many countries need to revisit their current definitions, perhaps in doing that they may draw on the principles of non-discrimination generally and, in that way, as we go forward the paradigm shift may be strengthened. In terms of trying to see what the best route is, it may be preferable to focus more on the discrimination components, and not so much on the definition of "person with the disability" or what we mean by a "disability."

Discussion:

Main Issue-defining disability

Within the Canadian context, many of the definitions of disability are not definitions of disability per se, but are rather eligibility criteria for programs of support. They draw the line in the sand as to who will get the benefit. So, for example, the definition we have within the tax act is different from the definition within Canada Pension Plan, or the definition within income support programs at the provincial level, or from our eligibility for home care.

We have also within Canada differing definitions even within human rights codes across this country in language. We also have from court interpretation an evolving definition of disability as other people identify barriers and obstacles to their full and equal participation because of an impairment or disability etcetera.

Therefore, really in Canada, we have not defined in a substantive way what disability is, and we have recognized that it is an evolving definition. For example, twenty years ago, we would not have defined in Canada obesity as a disability, but in some cases, we do so now.

There is then an evolving understanding of disability, and in the context of equality of rights, substantive equality rights analysis and defining discrimination is more helpful.

One concern was raised with this approach in that with no definition the inevitable question "who does this cover?" is bound to emerge. Participants felt that if no definition of disability is included, then it is likely that the eventual monitoring mechanism will have to adopt some sort of a definition in order to conduct its work deliberations. That body will have to put in some kind of terms an idea of what "disability" means. So in a sense, if it is not going to go into the actual text of the convention, it will be defined in some terms at some point.

The understanding of the convention has always been that it is to be a document that will stand the test of time and be relevant to us 10 years from now and longer. With a definition of disability-that we may agree at this point in time-we cannot have any assurance that five years from now we will still support a definition agreed upon at this point in time. Therefore, recognizing the evolution of the definition of disability, it may not be not wise for us to try cast this in stone at this point.

At the end of the discussion participants agreed to support the approach of defining discrimination on the basis of disability, at the same time avoiding a definition of disability itself.

Other issues-

Reasonable Accommodation-participants recalled that at the last consultation, we had some conversation about this and the notion was that we were stuck with the phrase "reasonable accommodation," even though many would much prefer something better. Still they wondered if at AHC 7 the definition itself came under any discussion.

Those who attended AHC 7 did not remember any discussion, and it was noted that, if we look at the actual text, there are no brackets, so one would assume there has been consensus on the formulation as it stands.

Others recalled that there was some discussion during the last session on reasonable accommodation. It wasn't a lengthy discussion, but Canada did intervene on this article, calling for stronger language, as was suggested at the last CCD consultation. So we did suggest language along the lines of what we have in our human rights legislation, i.e. "the duty to accommodate to the point of undue hardship," but we didn't get a lot of support on the floor.

The Australian delegation also called for stronger wording, and they put forth the wording from their human rights legislation, which is somewhat similar to the Canadian formulation. Unfortunately, that proposal was not supported either, and that is why we see the text has pretty much remained the same from the last time.

Participants suggested that an intervention on this point would be worth doing again, and perhaps working in collaboration with the Australian delegation we may be able to achieve a strengthening of the language. In the absence of this, participants felt strongly it would be a lost opportunity.

DRAFT ARTICLE 4-GENERAL OBLIGATIONS

Background:

Main Issue:

As currently drafted, the article omits concepts of "reasonable accommodation" or a "duty to accommodate." However, in 1994 the Committee on Economic, Social and Cultural Rights (CESCR), in General Comment Number 5, established a test with respect to reasonable accommodation for persons with a disability, and that was a four-part test that commits States Parties to:
 

1. abstain from taking measures that have a negative impact,
2. do more than merely abstain from taking measures that have a negative impact, they must take positive action to reduce structural disadvantage,
3. in addition to taking positive action they must employ resources to follow up and see that positive action through,
4. provide a wide range of specially tailored measures, in other words, the accommodation needs to find creative measures and you have to seek out other options.

This background seemed important, and failure to acknowledge it in the new treaty was a point raised for discussion by participants.

Other issues:

Another point for discussion was raised in the Chair's letter, when he talked about outstanding issues. He notes that 4 (h) is a new paragraph with respect to training. He suggests this may not be needed as Article 26 covers this issue. The Chair of the Ad Hoc Committee asked for views on eliminating 4 (h) and participants were invited to comment on that approach as well.

Discussion:

With regard to Paragraph 2, which addresses progressive realization of economic, social and cultural rights, there was some discussion about the use of wording from Article Two of the Covenant on Economic, Social and Cultural Rights, (CESCR) but some participants noted there are conspicuous omissions. For example, the phrase "appropriate measures" is absent, and in particular the reference to "legislative measures," which has been very important in terms of implementation of economic, social and cultural rights. This idea is missing in Paragraph 2 with respect to economic, social and cultural rights. CESCR, Article 2(1), states: "Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures."
This language seems closer to our standard of "undue hardship" than "reasonable accommodation," making the omission of legislative measures even more significant.

Paragraph 4 (h)-There was not strong feeling one way or the other on this, and thus the rule of deleting that for which there is no strong support should perhaps be considered.

DRAFT ARTICLE 6-WOMEN WITH DISABILITIES

Background:

Early in the Convention development process it was decided by NGOs that, due to the historic discrimination against women with disabilities and the lack of reference to disability in the CEDAW, a twin track approach be adopted to ensure that the rights of women with disabilities be enshrined in the convention, both as a separate article and, where appropriate, in the remainder of the text.

After the last AHC meeting there is a separate article, Draft Article 6, but there is still nothing to say for sure that Article 6 will be there at the end of the negotiations.

The Working Text, Draft Article 6 reads as follows:

1. States Parties recognize that women and girls with disabilities are subject to multiple discrimination and that focused, empowerment and gender-sensitive measures are necessary to ensure the full and equal enjoyment by women and girls with disabilities of all human rights and fundamental freedoms.
2. States Parties shall take all appropriate measures to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms set out in this Convention.

In general, NGOs are open to this text, with two exceptions. In the first paragraph, they want to include reference to reproductive rights, along the lines of: "States Parties shall ensure that women with disabilities can exercise their reproductive rights on an equal basis with others and that exercising these rights are not used to perpetuate inequality."

Regarding Paragraph 2, the following addition has been proposed. "States Parties shall assess the implications for women and girls with disabilities of any planned action concerning all rights set out in this Convention as a strategy so that women and men with disabilities benefit equally."

Discussion:

Concern was expressed that the proposed amended text on reproductive rights might prove too controversial and lead to the deletion of the whole article.

It was also pointed out that if provisions around reproductive rights were only left in Article 6, questions of men and boys and their rights to reproductive health, et cetera, would remain open, and for this reason, some suggested leaving the reference out here and ensure it was appropriately incorporated in other articles on family and/or health.

Other participants observed that the provision makes no reference to issues of what women with disabilities experience in terms of poverty and violence and sexual exploitation. The comment was made that "the section is afraid of naming what it is really about." When the content of the oppression of women with disabilities is so specific, it seems a very strange level of abstraction for something so concrete for millions of women.

Suggestions to strengthen the article include addressing issues such as sexual violence against women, empowerment of women with disabilities, and economic development for women with disabilities. At the same time reproductive health could be addressed somewhere else, so that all relevant issues would be contained in the Convention, but not necessarily exclusively in the article on women.

DRAFT ARTICLE 7-CHILDREN WITH DISABILITIES

Background:

There are only a few contentious issues remaining with this article, and as with the women's article, there have been ongoing discussions through several meetings on whether, or not, there would be a distinct article. There seems to be general support for a distinct article on children, as well as mainstreaming of relevant issues throughout. NGOs have been working in New York to ensure that children are recognized throughout the document as follows:

In the context of Draft Article 7, one sees measures for children to enjoy their full human rights, and concepts of the best interests of the child. Three issues remain outstanding here, two of which NGOs feel require continued action:

First, NGOs agree that the Convention should contain a prohibition of the sterilization of children with disabilities, but this has not been picked up in the Working Text, nor has it received wide support from States. Some have suggested that the provision could be placed in Article 17, on Integrity of the Person, or, in Article 23, on Respect for the Home and the Family, and there is also discussion about whether or not sterilization issues should go into Article 16 on Freedom from Exploitation, Violence and Abuse, as forced sterilization should be seen as an act of violence.

Secondly, participants highlighted the issue of institutionalizing children on the basis of disability. Again though, there has not been a lot of support from delegations to include an explicit prohibition on institutionalizing children on the basis of their disability. NGOs believe that Article 19, on Living Independently and Being Included in the Community, or again Article 23, would be likely options. Part of the difficulty of this issue is that the CRC does not prohibit institutionalization, so it is hard to say that no child with a disability should be institutionalized because other children do not enjoy this right, so it needs to be phrased in a way to correspond with the rights of all children.

Third, NGOs have been looking for a specific obligation to ensure that all children's services are accessible and available for children with disabilities. Again, this is not widely supported by States, who suggest that it is already addressed in Draft Article 19 in the context of community living. NGOs are not convinced of this and it requires more discussion.

Discussion:

On the issue of sterilization, it was noted that most legal systems do not accord the same legal rights to children as they do to adults, and that is perhaps why there was a specific concern with respect to sterilization of children. There may well need to be a specific reference to forced sterilization of children, because they may not fully enjoy the protections elaborated in Draft Article 23.

It was also noted-with the Eve case-that Canada has prohibition against forced sterilization for non-therapeutic reasons. We are hoping to bring some of the people that were involved in that case, going back twenty years ago, to events here in Ottawa in November.

For the Canadian delegation, we have had law here in Canada for over twenty years now that is from the Supreme Court prohibiting forced sterilizations, and we want to celebrate this and make it known.

On the issue of prohibition of institutionalization, in the area of adult services it has been the approach over the last couple of years in many jurisdictions to avoid the negative approach of prohibiting institutions. Instead, drafters tend to favour a positive approach emphasizing the right to live in the community. So a similar approach was suggested regarding the prohibition of institutionalization of children with disabilities. If they have the right to live with a family and in the community, the right to education, etcetera, then they could not possibly live in an institution.

DRAFT ARTICLE 11-SITUATIONS OF RISK

Background:

Generally, this article, as currently drafted, is intended to focus on emergencies, natural disasters, and other similar situations. Despite some sense that it was not integral to this Convention, participants did not think it takes away from anything else, so including the article, while not necessary for some, did not present problems for participants.

The question for consideration really relates to whether or not the text should give examples of the types of risk that it seeks to safeguard against.

Discussion:

It was noted that the World Bank was conducting on-line discussions on this issue, and that we may wish to consult the results of these discussions before the next meeting of the Ad Hoc Committee.

Some suggested that this sort of an article might respond to concerns by some delegations who would like to address concepts like foreign occupation in the treaty but are aware of its sensitivities. The current formulation may take this concept out of a politicized setting and allow drafters to recognize that there are situations and risk, without elaborating details.

Another point was made that this type of an article could be helpful with failures of the international community to respond to pandemics, like HIV/AIDS, and other epidemics which we see from time to time around the world, and which generally impact disproportionately on people with disabilities.

Participants suggested in terms of the square bracketed text that a detailed list was not appropriate, but perhaps text such as, "including, inter alia, states of emergency; disasters, both natural and man-made; pandemics, epidemics and other events in which … persons with disabilities …"

This general grouping would help clarify the article, while at the same time laying out a useful framework for international cooperation in the future.

DRAFT ARTICLE 12-EQUAL RECOGNITION BEFORE THE LAW

Background:

This article is one of the three remaining flagged by the Chair as having "difficult issues remaining," and the Canadian delegation has struggled with this issue particularly since we were acting as facilitator. A great deal of time has been spent trying to pound out some language with like-minded countries, and so as a result you've got a couple of choices, particularly for Paragraph 2.

In December, at our last consultation meeting, we recognized this as a difficult issue, and there was some agreement that it would be best if the article remained silent on the issues of guardianship and substitute decision-making. The meeting supported this approach, while noting that States Parties might indeed proceed with such policies in their own jurisdictions. The meeting also acknowledged that this approach might not provide sufficient clarity on how we determine capacity, and how we implement supported decision-making, but at that time we felt that it was the best compromise that we could hope to achieve.

The Chair, in his covering letter, recognizes that there was general agreement on the need to signal a paradigm shift towards the supported decision-making model, where everyone is recognized as having legal capacity. It was also agreed that some measures are required in order to safeguard the support. However, there are a variety of views on what degree of participation should be provided for in these measures, and getting the right balance has proven very difficult.

This is one of the most difficult issues that will have to be addressed at AHC 8. There are still profound divides between the States discussing this issue, and they turn on questions of emphasis and specificity. Canada's proposed language tries to signal a general direction towards supported decision-making, while not creating a prohibition against substitute decision-making, which many delegations believe may still be necessary in some instances.

That was an effort to bridge a number of different interests at play here. However, there are a number of States that cannot accept this approach, at least they could not as of the last meeting. Those States require specific reference to the exercise of guardianship, as they have concerns about abuse in situations where people are subject to guardianship, and they are looking to try to address those concerns directly.

Discussion:

• Safeguards

Participants noted that the struggle, even with like-minded countries that show openness to the Canadian approach, is that they still see a need for safeguards. They point to situations where, for whatever reason, a person may lack capacity to make a fully informed decision. In such a situation, without safeguards, this Article could create an environment that would lead to the breach of other rights. So, in a sense, what they are doing is trying to superimpose a civil libertarian model on top of another right that is being protected.

A key issue then is to find a way to ensure that whatever support is in place does not become abusive. In fact, there may be instances where the person is simply incapable (perhaps because of, e.g. a coma or extremely advanced Alzheimer's disease), of making a decision, and somebody else may be making decisions on their behalf, effectively providing one hundred percent "support." It is in such situations that one may want limits placed on the exercise of functions on another's behalf, without expressly stipulating what manner of substitute or support may or may not be used.

• IDC position

Part of the stumbling block has been that as consensus seemed to be forming on the part of States, or at least getting some commonality, the Canadian approach of remaining "silent" on issues of guardianship and substitute decision-making was not supported by the IDC.

Yet there is a sense that this approach is the best we've seen so far. So perhaps the IDC will move forward a text that reflects this approach. It may be worth discussing it with their representatives in advance. The Canadian approach ought to gain more support than the original Chair's Text discussed at AHC7.

There is very strong solidarity within the community behind this issue, and agreement that we do need to have safeguards in place. It is just a matter of how those safeguards are framed, and recognizing safeguards versus giving someone else authority and power to make decisions in the lives of people with disabilities.

• Impact of this article on people with intellectual disabilities

There has been an overall under-representation of people with intellectual disabilities at these meetings for a variety of reasons. This article in particular has significant impacts for people with intellectual disabilities, and because of this it is of paramount importance to secure full legal capacity and not back away from that as some proposals have done.

This article, one person observed, is not so much the heart of the Convention, which is really equality, rather it's more the "conscience" or the "soul" of the Convention. People with mobility disabilities require certain things, similarly people with intellectual disabilities need support to make decisions, and such support is analogous to a wheelchair user's "ramp." It is also about protecting them when somebody has forgotten to make a living will or a power of attorney.

• Impact of this article for countries from the south

One of the issues around this article for many of the countries from the south is that, very often, assisted decision-making has been an informal act. There is a concern from many countries that the formalizing of this may be resource intensive, and it may require the creation of a whole new mechanism. The formulation that the Canadians have provided ought to allow for this. However, it will require discussion, dialogue, and persuasion for people really to understand what it is that Canada is trying to put forward, because for very many countries, especially poor countries, the notion of assisted or supported decision-making does not exist. There are lots of different players trying to grapple with what is a very important provision. It may be prudent to continue to talk to various delegates, and perhaps convene another meeting so that people really understand what it is. Perhaps with sufficient explanation people will really begin to understand this and then they would not oppose it.

DRAFT ARTICLE 17-INTEGRITY OF THE PERSON

Background:

Article 17 is another that the Chair has identified as one of the few remaining very difficult issues. There is a portion in brackets that should specifically be addressed. At the last consultation, participants asked in what circumstances, if any, is it appropriate to impose medical treatment on a person against his or her will, and what are the legal protections that should apply in such circumstances.

The Chair's letter points to four things: 1) there has been a paradigm shift in how we look at this issue, 2) that unfortunately there is not yet consensus on this shift, 3) there is no consensus as to how to provide restrictions and protections in the use of involuntary treatment, and 4) there seems to be a strong appetite for having a provision on involuntary treatment in the convention.

The Chair also notes that there is a great deal of overlap between this article and articles already developed on legal capacity, freedom from torture, liberty and security, right to live in the community, and health care services, and we have to be aware of these five articles while looking to this article, in order to avoid repetition and ensure that we are being consistent in the approach.

The first three paragraphs appear to have overall support, but the fourth paragraph and the provisions it contains are proving problematic. The IDC would strongly oppose it, as it opens a door to involuntary treatment. The Canadian experience is well reflected in the Eve Case, over 20 years ago, in which the Supreme Court prohibited sterilization solely on the basis of having a disability.

Discussion:

• Eliminating the article altogether

In New York, Ambassador MacKay noted the link between this article and Article 12. There was some discussion in New York that we could delete Article 17 in its entirety, based on the presence of Article 12, though it is unclear how serious this proposal was. It was also noted that persons with disabilities are protected under existing international human rights law which protects the security of the person.

Generally, there was a concern about the idea of eliminating Article 17 and just retaining Article 12 in its place. The concept of legal capacity is so meaningless for the majority of people with disabilities throughout the world, and this issue is one which is so real to those people, that there is some real added value in an international human rights instrument addressing these issues. It could be very useful for the Convention to articulate solutions and principles which people can apply where they currently have no access to courts, where they will never meet a lawyer in their life, and where the term "legal capacity" would be absolutely meaningless to them. It may be worth thinking what the value-added is for those people in having a separate section that articulates, as a matter of rights, language which might be more understandable to them, and with solutions that might be more accessible to them.

These issues will likely be most often encountered in the scenario of an argument between a person and a doctor, where there will be little possibility for any legally oriented review of the situation, and it will be resolved without any recourse to the legal system. It may therefore be useful for the person in question to have something in plain language setting forth their rights, that they can show a doctor.

Article 17 is therefore an important article, and if the Committee can keep it short and just have one paragraph respecting a person's right to physical integrity, perhaps that will suffice. Although Article 17 clearly has links to Article 12, it is important enough for it to stand alone. We should keep the first three paragraphs, but paragraph four has no place here.

This approach is also advantageous in terms of reporting, because if we collapse the concepts of Article 17 into Article 12 we will never get proper reports on these issues. We need to think about this Convention also as a tool for raising awareness, and a tool for reporting on whether things are actually changing for people with disabilities.

• Eliminating Paragraph 4

The IDC has been looking at Article 17 from a number of perspectives. There has been an argument that Article 17, Paragraph 1, should be maintained, and the rest of it could be dealt with in other places. Paragraph 4 has been rejected by the users and survivors of psychiatry movement and the IDC has supported them in that, issuing statements that Paragraph 4 should be removed.

While no one at the meeting was very comfortable with Article 17(4), it is true to say that the Chair has placed it in square brackets at least in part because of the strong opposition of IDC. People should remember though that in the end the States will decide what is included and what is not. Moreover, there are some States in favour of maintaining this language, and so it may be helpful to work with the text and articulate an alternative way of dealing with the language, as there is a chance it will make it through into a final document.

The issues addressed in Paragraph 4 are very close and dear to the hearts of many, and deal with very serious problems. Setting in place safeguards is very important if involuntary treatment is allowed to happen. However, 4(c), references the "best interest test," and it is worth noting that this test has never been a friend of people with disabilities.

Whether it is in the best interests of the person or not, in reality those who will be judging this will be doctors and psychiatrists. When a psychiatrist says that it is therapeutic and in the best interests of a person to be locked up, etcetera, that is where problems occur. Many believe that we should simply withdraw this provision, or at least address instead the rights and remedies of people with disabilities in situations of involuntary treatment under Article 17(3). Then we would have a Convention ensuring the rights of people with disabilities.

Paragraph 4 runs absolutely counter to Canadian law and court decisions in Canada. There was strong support for the Canadian delegation to go forward with the very strong message that this is not an acceptable position. Support was also expressed by some for the Canadian delegation to support the IDC position. Safeguards have frequently been inadequate for vulnerable persons because of the negative stereotype. Similar issues have been faced in the debate on assisted suicide, as safeguards do not work. There is little research internationally that safeguards can protect vulnerable individuals at end-of-life decisions and instead we actually have interventions that end people's lives. We have a medical system that places "do not resuscitate" orders on people against their expressed wish, and the courts have upheld that, unfortunately, in some provinces. It is something we continue to challenge and fight against.

If Paragraph 4 remains it will be essential to examine what is liveable and whether it really equates with the law in Canada. Certainly the reference in Article 17(4)(b) to "exceptional circumstances" does not. Such a standard could rationalize many reasons for involuntary committal. The Supreme Court was very clear in the Starson decision that it is only in extreme situations of public safety or imminent harm to self or others that there should be involuntary committal. Thus the language in 17(4)(b) is vague, and there was support for its deletion. If 17(4)(b) is to be retained, it should not include vague terms such as "exceptional circumstances."

DRAFT ARTICLE 21-FREEDOM OF EXPRESSION, OPINION & ACCESS TO INFORMATION

Background:

The Chair noted that although the list of forms of communication in the chapeau seemed acceptable, the Ad Hoc Committee may want to reconsider whether such a list is necessary, once the definition of communication is agreed in Article 2. He suggested that such a listing would be more appropriately placed in an article concerning definitions. Consideration may also be warranted for the notion of including text that makes explicit the need for plain language, translations, and things of that sort.

Discussion:

There was a general agreement that the detailed listing of types of communication should be deleted from the article in favour of placement in Article 2 on definitions, as the Chair has suggested. It was noted that the history is that the listing first occurred in Article 21 before the definition section was well developed. Discussion then moved to the idea of expanding that list - in Article 2 - to include non-verbal communication as well, and this inclusion was again generally supported by participants.

DRAFT ARTICLE 23-RESPECT FOR HOME AND FAMILY

Background:

Much of the substance of this article was dealt with in previous discussions of children, the family, and the women's article, which touch on many of the key issues that have been raised here. With specific regard to this article the Chair has suggested that:

Article 23 on the family in this category of articles on which there are only some issues remaining because I do not believe that, with the exception of the phrase in square brackets, views are very divergent. Although the issues covered are sensitive ones for most States, there was agreement in the Committee that the Article should be narrowly focused on non-discrimination only. The current wording of the article, therefore, clearly will not require States to alter their general laws and customs on matters relating to marriage and the family, so long as those laws and customs do not discriminate on the basis of disability. The Article preserves the ability of States to determine their own policies and legislation on marriage and the family.

The square bracketed text to which he refers has to do with the right to "experience sexuality," and that has been a very sensitive issue for many delegations. Canada has not expressed concern about the text.

Discussion:

There was general support for the approach of the Chair and the preservation of the current formulation of the article.

A different point was noted in relation to Paragraph 5, concerning care of children. Recently, in Canada, there has been increasing attention to the disproportionate number of children relinquished into care by people living in poverty and elsewhere. This leads to disproportionate representation of not only people with disabilities, but also Aboriginal people, African Canadians and others, and some treaty monitoring bodies have expressed some concern about this.

It was suggested that some wording be included in Paragraph 5, which establishes an obligation on the State to ensure, wherever possible, that the family is provided with adequate means to care for children. Only when the immediate family is unable to care (with such supports) for a child with a disability, would that child be moved. This approach could be made less controversial by checking the Convention on the Rights of the Child, to ensure that such a provision would not create any new rights for children with disabilities.

DRAFT ARTICLE 24-EDUCATION

Background:

The key issue according to the Chair, relates to bracketed language in Article 24(2)(d). While a number of delegations at the last meeting supported the language in the first set of brackets, others felt that there was a need to retain relevant language along the lines of the Chair's Text issued in October, which acknowledged that in some cases the general education system could not adequately meet the needs of all people with disabilities. The Chair notes that this was a very good example of the so called "paradigm shift" often talked about at the 7th Session. He further noted that it was clear that delegations were in agreement as to the fundamental premise of this Article - namely an inclusive education for persons with disabilities. However, the question remains as to how best and most realistically to achieve this accepted goal.

Discussion:

Key Issue

The proposal for Paragraph 2(d) posed significant problems for several participants and was something they could not accept. There are two sets of brackets. The first one reads "in order to meet adequately," and most felt that they could live with this wording. However the alternative bracketed text of "In those circumstances where the general education system cannot adequately meet," signals a parallel system, and most felt it needed to be removed from the text.

Additionally, towards the end of Paragraph 2(d), participants expressed concerns about the phrase "environments which maximize academic and social development." NGOs were disappointed that this language was brought forward in New York, and are concerned that because it is not in brackets now it may not be as open to negotiation as some of the other text.

There are ways to avoid use of "environments" that would meet the concerns of those supportive of the current formulation. As it now stands, the Paragraph puts people with intellectual disabilities at significant risk of being excluded from the classroom. The current language will make the fight for inclusive education much more difficult for children with intellectual disabilities and students with intellectual disabilities in general. Concerns were also expressed that, as currently drafted, the Paragraph links a person's right to be in an inclusive setting to maximizing academic and social development. CACL in particular was unable to support the Article as it stands now and would like to see the word "environment" removed completely from the text, as well as the phrase "in those circumstances where the general education system cannot adequately meet".

Other issues:

Overly prescriptive language leading to contradictions in text

There was some discussion of whether this article should be subjected to a substantive rewrite, because as drafted it is fairly prescriptive in some places (for example, 24(2)(d), to be limiting for a particular community, but the same language in 24(3)(c) to be enabling for a community).

As it is now written, some felt there were contradictions in the article. Ultimately what we have recognized in Canada is an approach to inclusive education, recognizing the unique and distinct needs of the Deaf community, of Deaf culture and of schools for the Deaf. Some saw this approach as enabled within 24(3)(c), but they also appreciated the concerns of CACL and People First regarding references to environments which maximize academic and social development. Within the Deaf community there has been a choice and the decision to support schools for the Deaf is seen as a way of maximizing social and economic development. However, for those who have been labelled developmentally disabled, segregated schools have been seen as not maximizing educational opportunity or inclusion but as warehousing. Thus, we have the same language within this text that in one context enables and in another puts limitations on separate sectors of our community. This point, while well taken, gave rise to a discussion that it is very unlikely there would be a significant reworking of the text at the next meeting. Given the tenor of the discussions at this stage, the Chair himself would be extraordinarily unreceptive to any such effort.

Vocational training

There is no sense here of the State's obligation to ensure that opportunities are made available to realize the right to work that may involve substantively different kinds of vocational training, and positive measures taken to ensure that people with disabilities have access to meaningful and productive work.

Some hesitation was expressed here in regards to linking more strongly vocational training and skills training within this article. Linking as part of the right to education may tend to connect the right to an end output, that of being a productive. While this was not seen as a bad thing per se, there was concern about connecting economic productivity to education, as there may be those who will not become "productive," and this could have the unintended impact of encumbering their access to education.

DRAFT ARTICLE 25-RIGHT TO HEALTH

Background:

This is one of three draft Articles that the chairman has identified as having significant issues remaining to be overcome. The key concern is that the [bracketed] reference to sexual and reproductive health services in Paragraph (a) is difficult for many delegations, while it is strongly supported by others. However, as the Chair noted there was agreement that the paragraph has a narrow focus on non-discrimination, and that neither it, nor the term "health services," would create any new rights or obligations under international law. Given this common understanding, he suggested that the problem is not so much the phrase "health services" per se, but rather the potential for misinterpretation. The following footnote to this effect is included at the end of the working text.

The Ad Hoc Committee notes that the use of the phrase "sexual and reproductive health services" would not constitute recognition of any new international law obligations or human rights. The Ad Hoc Committee understands draft paragraph (a) to be a non-discrimination provision that does not add to, or alter, the right to health as contained in article 12 of the International Covenant on Economic, Social and Cultural Rights or article 24 of the Convention on the Rights of the Child. Rather, the effect of paragraph (a) would be to require States Parties to ensure that where health services are provided, they are provided without discrimination on the basis of disability.

Another concern presenting a problem to NGOs is the reference, in Paragraph (b), which states:

Provide those health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities, (emphasis added) including among children and the elderly.

There is concern among some NGOs that the reference to "prevent further disabilities" could also be open to misinterpretation.

Discussion:

Paragraph (a)-reproductive health care

There was discussion of the tendency in UN Treaties to stay away from specific language around sexuality and reproductive rights, as it is very sensitive for many UN Member States. Specifically, there is the idea that access to reproductive services necessarily means access to abortion.

It was suggested, given that the text essentially refers to an equality right, that consideration might be given to framing things differently, so that you give the same guarantee but without using the language that makes delegations so tense.

Some agued that we need to keep the reference to access to reproductive health services, but it could be linked to other equality rights, by emphasizing the multiple forms of discrimination to which disabled women in particular are subject.

Paragraph (b)-prevention of further disabilities

Discussion under Paragraph (b) was that using the words "designed to minimize and prevent further disabilities" was repugnant, and that it somehow meant we would go to all steps possible to avoid disability. Many, particularly in the NGO community, felt this perpetuated and entrenched in the text a notion that to have a disability was something negative to be prevented and minimized. Some also felt that it implied that people with disabilities didn't want to be people with disabilities, and some also raised bioethics concerns. Thus, people generally felt it helpful to get rid of this part of the paragraph, as it could be misinterpreted.

It's important to highlight here that the NGOs were not opposed to vaccinations or similar health initiatives. However, they did not want the negative perception attached to the text as it stands.

Paragraph (e)- insurance

There was a lot of discussion on just what the intent of the provision was, and no clearer understanding was achieved. At least three different understandings were suggested: one in relation to privatization and health care; a second as a positive obligation on States to provide insurance; and a third to ensure equal insurance benefits for those with mental health concerns, in a similar way as they were provided for persons with physical or sensory disability.

It was noted by a member of the Canadian delegation that there is not a good understanding in New York either of what this language will do, or means to do. There has been some discussion around the question of actuarial information, in the setting of premiums for various sorts of insurance, but it is has been minimal. Part of the difficulty is that you have a room full of people who are experts in human rights and in disability issues, but no similar insurance expertise in the room. It was therefore agreed that the sub-paragraph should be flagged for further discussion and clarification.

DRAFT ARTICLE 26-HABILITATION AND REHABILITATION

Background:

None of the text is currently bracketed, but the Chair suggests that Paragraph 2 is no longer necessary, given the general obligation on training now contained early in the draft treaty, in Article 4, on General Obligations. Article 4(1)(h) reads:

To promote the training of professionals and staff working with persons with disabilities in the rights recognized in the present Convention so as to better provide the assistance and services guaranteed by those rights.

Article 26(2) reads: "States Parties shall promote the development of initial and continuing training for professionals and staff working in habilitation and rehabilitation services."

The argument was made that because these are very similar, and because the concept is already addressed in the article on General Obligations (which of course is meant to apply and be used to interpret the rest of the Convention), it may be redundant to address the concept in Article 26 as well.

Discussion:

While the preference in drafting is often to cut text rather than keep it, some suggested here that there was value added by retaining Article 26(2). It was noted that Article (4)(1) (h) focuses on training staff and professionals working with persons with disabilities specifically on the rights recognized in this convention, whereas Article 26(2) is more about training in how they perform their functions in the areas related to their profession. People felt that this was true and that the Chair has simply missed this distinction.

An interesting aside was brought to the group by a participant who noted that if we had written a rehabilitation statement 15 years ago, it would have been much more than two paragraphs. So in a sense the Draft Text is a major success. The treaty has recognized the limited, and time limited, role that rehabilitation plays in the lives of persons with disabilities, and we have moved substantively forward in a rights-based orientation.

DRAFT ARTICLE 28-Adequate standard of living and social protection

Background:

The square bracketed issue on language in draft Article 28, was that there was a divergence of opinion amongst delegations on the use of the term "social protection" as opposed to "social security." Most of those delegations that preferred "social security," did so because they viewed it as a wider concept than "social protection." There seemed to be general agreement that we should use the widest term possible. Further study seems to suggest that in the UN context "social protection" is actually the broader term. On that understanding there should not be a need to revisit this issue to ensure that the best term is used.

Discussion:

Before addressing the issue in question, there was a lively discussion about concerns that the provision was not using the strong language needed to bring this article in line with the already existing body of International Human Rights law in this crucial area of economic, social and cultural rights.

For example, it was suggested that if you look at what we had in the Standard Rules, which were reaffirmed in the (CESCR) General Comment No. 5, the language there, states:

Social security and income maintenance schemes are of particular importance for persons with disabilities. As stated in standard rules, States should ensure the provision of adequate income support for persons with disabilities who, owing to disability or disability-related factors have ... lost or received reduction in their income or have been denied employment opportunities.

Such support should reflect the special needs for assistance and other expenses associated with disability. In addition, far as possible, the support should also cover individuals, who are overwhelmingly female, who undertake the care of persons with disabilities. Such persons including the members of the family of persons with disabilities are often in urgent need of financial support because of their assistance role.

There is nothing in this Convention that addresses the massive homelessness and poverty, the social program cuts, the hunger, and the fact that people relying on social assistance are disproportionately people with disabilities. Nothing in this Convention speaks to their increasing poverty and homelessness, or the specific right to adequate housing.

Some expressed concern that the treaty was actually moving backwards the support for which people have fought hard over many years. Some felt there is a lack of responsibility of the State and instead the language gives all the responsibility to the individual.

It was agreed that further work and consultation about this concern would take place after the meeting and in advance of the August meeting in New York.

The question posed by Ambassador MacKay and is that there has been proposed language relating to "social protection," but this is not language that we see in the Universal Declaration or in the ICESCR, which refer to "social security" and "social insurance." Essentially, what has happened in New York is that this has been the initiative of the Article Facilitator, Jamaica, and they have tried to convince delegations that we should move towards the terminology of "social protection."

Several people noted that people with disabilities want the same rights as everyone else, not special rights, so it is best to use the same terminology as used in existing international instruments. This suggests that use of "social security" is best. Similarly, it was noted that the term "protection" can have a paternalistic sense, and it can be interpreted as something other than that right.

While participants preferred the term "social security," there seemed to be a general agreement that we should use the widest term possible and therefore people deferred to the Chair's view that "social protection" is actually the broader term, and on that understanding we should not revisit the issue.

DRAFT ARTICLE 32-INTERNATIONAL COOPERATION

Background:

It is important that we remember that international cooperation is not a new concept. It is one found in both the ICESCR as well as in the CRC. What we have seen at the meetings of the AHC is the development of a split essentially on north and south lines, based unfortunately on the misconception that international cooperation is all about money and financial aid.

To some degree we have witnessed the beginning of a change, and a recognition that international cooperation is about more than money, that it happens south to south and south to north, and it is about sharing experiences, building capacity and sharing knowledge.
The Chair noted that it seems clear that colleagues are in general substantive agreement on the need for a reference to International Cooperation, and that remaining issues are generally a matter of finding the right language to reflect that agreement.

Discussion:

The example was put forward that if international donors are involved in assisting States Parties in, for instance, education for all programs, it must be incumbent on them to ensure all schools are built accessibly and that teachers are trained in relation to inclusive education. This is not necessarily an additional cost, but a different way of doing business.

In New York, the Canadian Delegation participated in all the international cooperation side meetings, and there were several. Whilst they spoke at those meetings, they are not at the forefront of this discussion, and at this time it is fair to say they are considering moving forward.

Given our domestic policy framework and lack of attention to disability issues in our official development assistance policy, it is not likely that between now and August, Canada will find itself in a position to lead on this issue. There are some points within the array of things that should be considered international cooperation (such as bilateral exchanges and the importance of the experience of people with disabilities and our organizations in international cooperation), that Canada can very legitimately point to leadership in and it has a responsibility to do so.

People expressed the view that Canada needs to step up and support this article more strongly at the next AHC meeting. While there are some examples of Canada working bilaterally in a positive way, like the support to DPI, generally our foreign policy and our ODA have not attempted to address disability issues. It is time for this to change. A useful first step, everyone agreed, would be to actively support a well drafted article on International Cooperation at AHC8.

[DRAFT ARTICLE 34-INTERNATIONAL MONITORING]

Background:

The AHC had preliminary discussion of this issue at the 7th Session, but delegations were asked to consult informally amongst themselves between now and the August session, for the purpose of advancing the language, particularly in technical areas.

The issue of international monitoring, including the political issues, will be discussed in full at the August session. The Chair invited the delegation of Mexico to assist us by convening informal consultations with colleagues in this important area, which have been taking place in New York although Canada has not been actively engaged. The Canadian Mission in New York has sent an observer to record and convey the proceedings, with no mandate to intervene.

There are many issues at play here but perhaps the key issue is what form monitoring of the new treaty should take. All agree monitoring is essential, but there are differing views on how best to accomplish it effectively in the context of the various considerations at play in the overall UN Human Rights system at present, especially with the establishment of the new Human Rights Council and calls for a consolidated treaty body as part of the UN human rights treaty reform process.

The proposals, non-papers and papers considered by the AHC to date have drawn heavily from CEDAW, the Convention against Torture, the Disappearances Treaty and from the Mine Ban Treaty, also known as the Ottawa Convention.

Discussion:

It is useful to be mindful that international monitoring is not an end in itself. It is really a means to an end of ensuring that change happens and that the convention is implemented. There is growing consensus that we need to establish a committee (or treaty body), and that this committee would be a committee that receives reports, that has a procedure for individual complaints, and that conducts inquiries. There have also been proposals put forward for the establishment of a global disability advocate, or ombud, and that this person's work would complement that of the committee.

One idea that was put forth was that we should be looking at a 'sunset clause,' so that we have a committee that has a life for "X amount of years," and once we know what is happening with the UN treaty reforms our committee falls into whatever it is they are doing. A sunset clause would give us an avenue to begin to work on the Convention but then with a view to mainstreaming ourselves into this larger committee.

There was support for a committee made up of independent and impartial persons, that would be as vigorous as possible and well resourced. The latter point is particularly important, because lack of resources for existing committees has been a major hindrance, as they have not had sufficient resources either financial or in terms of human capital.

Another important principle in relation to international monitoring is that it be interactive and that there be a close interaction with DPOs, so that civil society takes on a more proactive nature.

Generally, the treaty bodies that exist in the UN have been reactive, largely responding to reports. Here there is an opportunity to be more proactive and look at establishing, as has been proposed, action plans, so that as States Parties begin to implement on the ground, there is also collection of baseline data. In this manner, when one looks at the report one knows what one is comparing it against.

Another principle is to look at is how the committee will work with other existing instruments. We will also have to find a way of mainstreaming the issue of disability in the seven other instruments.

It was noted that Canadian government officials often note that it is too burdensome on governments to have to file periodic reports to seven different committees every five years. From the NGOs' standpoint, filing a report on the enjoyment of rights by people with disabilities on all of the important issues covered in the convention, every five years, is a reasonable burden to place on governments when they are signing on to the convention.

In terms of numbers of committee members (who it should be noted are independent and do not represent a government), given the volume of material and the criteria of regional representation, cross disability, etc., eighteen may be an insufficient number. It may thus be necessary to think further on the numbers of committee members needed to ensure appropriate representation.

Caution was expressed by some about moving towards the idea of somebody sitting on the committee as a representative of an NGO coalition, it may be better to put emphasis on the appointments process itself. What you really need is experts who are real experts, and who understand disability in a way which would meet the needs of the NGOs. NGOs have such an expertise in those issues that it would make sense to have the NGOs involved in the appointments process to ensure that the experts appointed are actually experts and not being appointed for political reasons, which is the problem sometimes run into with other committees. The competence of committee members is critical if you are to get influential views and progressive ones that will stand the test of time. It is critical that the jurisprudence produced be good. States Parties have a real interest in having experts, actual experts, rather than political nominees to sit on this committee.

In terms of the nomination processes, it was suggested that there are more innovative ways of doing that, especially as regards the more recently negotiated treaties, and we could look to those processes for guidance.

OTHER ISSUES

Translation

There were some concerns about the French translation, which we wanted to flag to make sure the Canadian delegation was on top of at the final meeting. It was recognized that translation issues will probably be addressed at the very end of the discussion, but it is good to bring them up now.

Concerns were expressed about failure domestically in engaging the Aboriginal community. Prior efforts, frankly, have not received a lot of response. Before the last AHC meeting Foreign Affairs did organize an informational session/teleconference, and in the end it was very brief and poorly attended. Leaving officials with the feeling that they were not terribly engaged on this issue.

Canadian Values

Several delegates noted that the effort to promote Canadian values and principles was essential. But as part of this, we must realize that there are issues in which Canadian standards maybe ahead of what ends up in the convention and other issues in which Canada is significantly behind. There is a tendency to look at the proposed text, compare it with the Canadian law, and say, well, is this something that we are complying with, and if it is, something where Canada would potentially be found to be not in compliance. That is seen as an issue that Canada does not want to fight for in the convention.

Value for all people with disabilities

In interacting with governments around this, you have to try to communicate that this is a Convention that is supposed to take people with disabilities forward in all countries, including Canada. If Canada only fights for the provisions that it is already in compliance with or above and does not support the kinds of things that will address some of the emerging critical issues for people with disabilities in Canada, it is not doing its job as a member of the human rights council, particularly.

This treaty is something that should mean something to people with disabilities in Canada, not give Canada another thing it can go around the world lecturing about the inadequacies in other countries.

Appendix 1

 

 

Comments of Charlotte McClain Nhlapo
and
Introduction by Steve Estey

 

May 26, 2006,
Ottawa, Ontario

Introductory Comments by Steve Estey

Steve Estey: Good morning, everyone. I think we should probably commence. My name is Steve Estey. I chair the International Development Committee of the Council of Canadians with Disabilities (CCD). I would like to welcome you all here for this, which is the fourth national meeting that we have hosted on the international Convention on the Human Rights of People with Disabilities. I think the first one was in 2003, and in advance of each of the Ad Hoc meetings since that time we have brought Canadians from across the country together in these meetings, mostly members of our community from disability organizations, from the East Coast to the West. We have been fortunate because of having the meetings here in Ottawa to be able to have the participation of most of the members of the government delegation to the meetings as well. It is an interesting dynamic, I think, where we, the members of the community, get together, sit and talk with people from the delegation for a couple of days to exchange our views and make known our concerns and just give a general sense of how we as people with disabilities in Canada see the development and evolution of the Convention process.

I have also been fortunate myself to be part of the Canadian delegation for the last few meetings of the Ad Hoc Committee and it is fair to say these meetings with the community are key to the development of Canadian thinking around where the position of the Government of Canada is at the meetings of the Ad Hoc Committee. We are coming close to the end of that process. This is very likely the last national consultation that we will have on the Convention development, because I think that it is probable that the meeting of the Ad Hoc Committee in August will be either the last meeting or maybe the second last meeting of the Committee.

Therefore, I think we are getting close to the end of things. As you get closer to the end of things, the process gets more refined, if you will. The questions that we are looking at are more specific. At the beginning of the consultation process, we were looking very generally at some of the concepts related to the different articles of the Convention, but now we have gone through seven meetings of the Ad Hoc Committee, and governments and people with disabilities have had the chance to make their thinking known about all of these issues. We are more at a point now of refining things and coming up with a document that is livable for one and all.

I hope you can keep that in mind as we go through the next couple of days. We are at the end stage of things. We are certainly not going to be looking to introduce new concepts or language at this point but rather refine things and make sure that the issues that are essential and of main concern for people with disabilities, here in Canada and around the world are addressed in the language of the new draft treaty.

We have set it up so that at the beginning of our discussions here this morning we will have the overview discussion. We have asked two people to share some thoughts and reflections on the process with us. First, we have asked Charlotte to do that, and as Charlotte said in her self-introduction, she is from South Africa, and has been at all of the meetings of the Ad Hoc Committee in various capacities. You may remember if you were at the last meeting that we had Andrew Begg from the New Zealand Commission at the United Nations join us. I think that we all benefited from the outside perspective from somebody who is not so enmeshed in the Canadian give and take, the issues related to federal-provincial this, that or the other thing. It is a little bit of a fresh perspective on things, so when we were organizing this meeting we thought about somebody who we might be able to bring in to offer a different kind of a perspective, but one that would be helpful for us as we come to the end stages of our discussion. There are some key technical kinds of things that we need to talk about in regards to issues like definitions and monitoring and things like that.

The person that came immediately to mind was Charlotte. I never thought she would say yes. She told me by email earlier in the spring that she had come to Ottawa already once this year, and it is actually twice, which I learned today, but she talked about how cold and miserable it was when she came in January, February, whatever it was. Therefore, I was a little bit bashful about asking her to come back. I promised that we would try to have good weather for her this time around and I think that so far it has worked out okay. I am very pleased to have Charlotte with us for the whole of the meeting. I think it will be very helpful and I would like to turn the floor over to her now to offer some initial reflections.

Charlotte McClain Nhlapo: Thank you, Steve, and good morning, everybody. Yes, Steve must have done some magic because the weather has been great.

Yesterday as I traveled to Ottawa, I was overwhelmed with a sense of excitement. It dawned on me that we are really making history here. I thought that it was only in 2002 that the first Ad Hoc Committee meeting met to discuss the proposed Convention, and only four years later we are gathered in this room and we are talking about finalizing this Convention. I think that this is really, truly remarkable.

I think what also really excites me is that this Convention has the power to change the lives of at least 600 million people with disabilities, living in the world today. I think it is also important that when we think about this Convention, we need to be mindful of the fact that at least two thirds of the 600 million people live in developing countries, so that becomes very important in terms of what kind of Convention we have.

I think it is also important to say that all people with disabilities—or at least I would say that all people with disabilities—have experienced discrimination in one form or the other at some point of their lives. Therefore, the issue of discrimination and issues around social exclusion become fundamental for the purposes of this Convention. I think it is also important that we recognize that many people with disabilities live in abject poverty, and so while non-discrimination and equality become core features of the Convention, we need to ensure that we have substantive equality, that we have articles that address the quality of life of people with disabilities.

Nevertheless, in spite of all of the injustices that people with disabilities have experienced over the years, I think it is also important to recognize that we have persevered. We have moved rapidly. At a domestic level in various settings, people with disabilities are claiming their rights. They are taking their governments to court, they are demanding legislation, and they are influencing policy. Therefore, it is not as if they are sitting back and waiting for something to happen. They are engaged. I think that is a very important aspect.

We can and we should pat ourselves on the back for having accomplished a major task of almost completing a fully-fledged human rights convention for people with disabilities. This will be the eighth human rights treaty and it will be the first human rights treaty of the 21st century, and I think we need to be proud of that achievement.

So I think what we have before us today in terms of the text is the Convention or a draft Convention that can be a tool for development. It is a text that is premised on human rights and anti-discrimination, and while it may not appear to be apparent in the text, I think it is a text that really does embrace the notion of inclusive development.

During the last session, I think there was general consensus. My sense was that there was general consensus that the draft articles were well-supported. There was a lot of input from various delegations, but the input was not necessarily substantive so they were not challenging the articles per se and I think that that shows good spirit. I think many of those issues we will discuss over the next day and a half, but I would like to highlight just some of the principles that I believe are at the core of the text and the core of the process, because I think we need to see the process as a very important one as well.

For me, I see the issue of innovation as a particularly important one, perhaps most importantly in relation to human rights reporting systems. It is quite clear, and I think the jury is out on this, that the existing systems in terms of human rights reporting have not been satisfactory, so we need to be innovative about how we move this debate along. We need to make sure that we avoid overlaps in the reporting system. We need to make sure that we continue the spirit of dialogue that I think has been present to date. It has been a spirit that I think has greatly enriched the debates in New York. The participation of disabled peoples' organizations, of government delegations, which many now include people with disabilities, with donor agencies and with children with disabilities has been a particularly important aspect of having a Convention that reflects the needs and the demands of people with disabilities. Therefore, I think it is safe to say that it has been a very interactive process and that needs to, in my view, continue.

We also need to recognize that there are still some outstanding issues, and when we think about those issues, we need to think about how we can assist moving them forward. Around the issue of dialogue, I think we still need to discuss how do we ensure interactive dialogue at a regional level. I think particularly about my own continent. How are we going to push and discuss the interactive dialogue at the level of Africa?

I think it is quite clear that the participation of people with disabilities has been absolutely invaluable, and that the process of developing this Convention has really been a steep learning curve for everyone who has been involved in it. I have not met one person who has not gone into that room and feels like they have grown as a result of this process. So I think the process of developing the Convention has already begun to change people's attitudes towards people with disabilities.

I think it has also been a very important fora for understanding the nuances within the disability sector. I came in and I have been on a steep learning curve, just the variety of people with disabilities, the range of issues that we are discussing, and I think we need to be constantly mindful of that, that this is a cross-cutting issue, and it has to be seen as a multi-disability issue. We cannot be single focused in our thinking and in our discussion.

I also think that the Convention has been unique in the sense of its pace. If you look at the history of the making of other international human rights treaties, they have averaged ten years, eight years, but this Convention has moved quickly, and I think it shows that the mood has been right, but also that people with disabilities, I think, are impatient and rightly so. I think people want to see the development of this Convention and I think we need to maintain, ensure that that pace stays, either gets quicker but certainly that it does not subside.

Then, of course, another unique aspect of the Convention has been the participation of people with disabilities. One thing we also cannot forget is that this Convention is now part of a family of human rights treaties. We need to constantly link it and see it within that family of all the other conventions, and that is very important. We need to see how we can link it to the Convention on the Rights of the Child. We need to make sure that we use it as something to reinforce CEDAW and vice versa. We need to constantly think about that.

Then, as I said earlier, we need to make sure that the Convention does actually remain a cross-disability Convention or address issues from a cross-disability perspective.

We also need to be mindful that there are challenges that remain. Some of these challenges that I see are that there remains a great deal of ignorance about disability in the world. Sometimes when you are in these processes you almost get a sense that everybody is on board. You step out of the UN and then it dawns on you that there is a lot to do. Not everybody else is on that steep learning curve.

So we are going to have to ensure that we have huge campaigns, huge awareness-raising programs that run along with the Convention. We cannot just have the Convention ratified. It would be amazing if we all went to New York in August and after two weeks the Convention is done and a couple of months later or six months later we have ratification, but that is almost the beginning of the process. We are going to need to make sure that we have good publicity about this, and again, interact with people.

A major challenge remains I think in terms of the fact that still in many countries, in fact in most of the world, there still is a welfare approach to disability. This we are going to have to also challenge.

I think we have an advantage because this Convention really has at its core a rights-based approach to addressing disability issues, but this will have to be incorporated into domestic law and there will be major challenges in terms of moving along with this.

Stigma and prejudice still remain as an issue in many societies and that is obviously something we will have to continue to address. So, I think while we can celebrate the many achievements we have made, we cannot stop now. We need to engage in massive communication campaigns and we need to reach beyond the usual suspects, and ensure that all the development partners understand and that they are committed to a rights-based approach. So, I think we need to move beyond just preaching to the converted but speaking to mainstream human rights organizations, making them understand, bringing them on board, sharing with them, inviting them to our conferences, to help them see the importance of this Convention.

I think in terms of development partners, this is also very important. As I said earlier on, this Convention can be a tool for development, but we are going to need to bring our development partners on board. Many of our development partners do not have disability as part of their mandate. We need to be part of helping them change this, because this Convention will require resources; therefore, the development agencies become very important in this regard.

Another important challenge that I think we have is the issue around addressing knowledge. There is so much knowledge out there but it is generally all scattered, and in the developing world, where I come from, most of the knowledge around human rights and disability rights, or rather disability rights, is anecdotal. So, we need to really recognize that it is important for us to build strong knowledge bases about disability and disability rights. We need to know what works and what does not work and this becomes really very important if we are going to continue to have an interactive Convention. But we also need to know how to manage this knowledge. This needs to be managed at a community level. It needs to be managed among DPOs, in governments, as well as at an international level.

I also think that in many places, certainly in the areas that I work, which are Africa and east Asia, in many of these places disabled peoples' organizations lack capacity to fully participate; and so it is my view that we are going to need to continue to build capacity amongst disabled peoples' organizations, to ensure that this Convention does in fact become a tool for change. I think it is important for us to be able to ensure that we have sincere and effective participation of DPOs from the south and the north, not only in the development of the Convention but post-ratification. Once we have the Convention, it will bring a new culture of participation and we need to be ready to be part of that participation. We need to be ready to step up to the challenge, as I said, go beyond just the DPOs.

Another challenge that I think we have is to think about what happens to the older instruments, like the World Program of Action and the UN Standard Rules. In this regard, some work is currently underway. I think there is an analysis that has been undertaken by DESA, to look at, to go through all of these documents and to identify if there are any loopholes in the current text of the Convention.

We also need to start thinking about how we scale our projects, so to start really thinking big. Because many of us, and particularly in the south, many of us are involved in small-scale pilot projects. This Convention should give us ammunition actually to begin to look at how we scale up our projects.

What have we learned? I think what we have learned is that the disability issue is a very complex issue. That it is a cross-cutting issue, and as a result, all rights must be addressed in the Conventions. I think what we have also learned is that we will need to develop no gap policies and that may need to happen at a domestic level, but we need to make sure that we have a holistic approach, because if just one element is missing, that missing element very often creates a barrier. So, we need to make sure that it is as holistic as possible.

From a programmatic point of view, we need to make sure that we think in terms of continuums of interventions. We also need to be mindful of the fact that the participation of people with intellectual disabilities still remains a huge challenge. I do not think that we have really overcome that issue, and I think it is one that we really need to apply our minds to.

Another point that I want to quickly mention is that this is not going to happen overnight. I think the pace has been great to date, and even if we get ratification by mid-2007, the actual change is going to be one that for many people may be very, very long and painful, but we need to plan around that, and we need to think strategically about how to make the best interventions to show results. But we also have a lot to look forward to. I think for me one of the most important things is we now have a set of standards for Member States. Once this Convention is ratified, it will provide a set of minimum legally binding standards. That gives me pleasure to say that, legally binding standards, and that these would be universal. I think that this is really something to look forward to.

It is also encouraging that this Convention is a Convention to which people with disabilities feel a sense of ownership. That, in the main, is due to the participation of people with disabilities in the process.

Finally, I think we need to see the Convention as a living document. It has been a Convention that has been drafted in good spirit, and yet the challenges of its implementation await us all. I think that we all need to commit ourselves to be part of this next step, and in so doing we need to be looking at how we can forge partnerships, how we can ensure the success of this Convention, and how we can ultimately improve the lives of millions of people with disabilities.

Then I think my last word on this is that many of the outstanding issues that remain will require political will. Many of these hard choices are choices that require political will. I think that we need to be aware of that, and we need to be saying to our governments that we know this, and that if they're serious about building a culture of human rights for all, then they need to make those commitments to actually finalize the Convention that really speaks to changing and improving the lives of people with disabilities.

I think I would like to stop there, and maybe just hand back over to you, Steve.

Steve Estey: Thank you very much. That is very helpful thoughts for us as we begin our deliberations here today. I am hopeful you will continue to participate as we move through the agendas. Thanks again.

 

Speaking Notes
by
Jeanette Sautner
CCD Conference prior to 8th Session of
the Ad hoc Committee
(Check against delivery)

May 26, 2006
Ottawa Ontario

Setting the context for discussion

As you well know, the 7th session of the Ad hoc Committee was held at the beginning of the year, January 16 to February 3, 2006.

This longer, 3 week session was set aside for discussion of the entire draft text proposed by Ambassador McKay in his role as Chair of the Committee. We were able to discuss in detail Articles 1 to 32, with somewhat less time available to discuss national monitoring systems and we only started discussion on international monitoring mechanisms.

Delegations used McKay's draft as the basis for discussion during the seventh session, only changing its terms where consensus so warranted, and generally maintaining his proposed language where there was not agreement among delegations.

While each article was discussed by the Committee, not all were changed from the Chair's proposed language. In communicating his proposals to delegations in October of 2005, the Chair had stressed the importance of focussing comments and suggestions of textual change to only those issues of greatest importance. Throughout the seventh session he returned to this theme, stating that Athe perfect should not be made the enemy of the good.

During the 7th Session, Canada made submissions on virtually every article, making us one of the most active delegations in the room. Additionally, drawing on our previous experience as facilitators for the issue of legal capacity, we sought to seek compromise through meetings with both delegations and representatives of NGOs. As many of you are aware, Canada worked with the World Network of Users and Survivors of Psychiatry, MindFreedom Int., Inclusion International, and the Canadian Association for Community Living in sponsoring an event entitled Exercising Legal Capacity through supported decision making. The event was very well attended with over 100 people, delegates and representatives of civil society, squeezed into the room.

You will all have had a chance to review the Chair's closing remarks and his categorization of the Articles into no significant issues remaining, some issues remaining and difficult issues.

Under some issues remaining Ambassador McKay identified 12 articles:

- the Preamble
- Article 2 on definitions, and most importantly, disability
- Article 4 which outlines the general obligations
- placement of references to women and children with disabilities (Art.6, 7)
- Article 11 on situations of risk
- Article 21 on freedom of expression, and the listing of forms of communication
- Article 23 on the family, especially references to sexuality
- Article 24 on education, especially in relation to inclusive education
- Article 26 on habilitation and rehabilitation
- Article 28 on an adequate standard of living, especially the concept of social protection
- Article 32 on international cooperation

Under difficult issues Ambassador McKay identified 3 articles:

- Article 12 on legal capacity
- Article 17 on integrity of the person
- Article 25 on health, and especially references to sexual / reproductive services

On my count, this leaves as more or less finalized the following articles, categorized as no issues remaining by Ambassador McKay (18 articles):

- Article 1 on Purpose
- Article 3 on General principles
- Article 5 on Equality and non-discrimination
- Article 8 on Awareness raising
- Article 9 on Accessibility
- Article 10 on Right to life
- Article 13 on Access to justice
- Article 14 on Liberty and security of the person
- Article 15 on Freedom from torture or cruel, inhuman or degrading treatment
- Article 16 on Freedom from exploitation, violence and abuse
- Article 18 on Liberty of movement and nationality
- Article 19 on Living independently and being included in the community
- Article 20 on Personal mobility
- Article 22 on Respect for privacy
- Article 27 on Work
- Article 29 on Participation in political and public life
- Article 30 on Cultural life, recreation, leisure and sport
- Article 31 on Statistics and data collection

We think that Ambassador McKay is largely correct in his estimation of where we are in respect of the various articles.

By all accounts, Ambassador McKay has been a dedicated, hard-working and able Chair who is personally engaged to try and finalize negotiations on this Convention in the short term. To that end he encouraged delegations to seek flexible instructions for the upcoming 8th Session, and to expect to focus on the issues he has identified as outstanding.

Although delegations will be able to make statements regarding any aspect of the Convention, even articles identified by Ambassador McKay as having no issues remaining, in practice the opportunity to change text will be limited. This is true even on articles identified as having some issues remaining.

As many of you are aware, because of a change in assignments, Ambassador McKay will no longer be available to chair the Ad Hoc Committee following the 8th Session in August. At this point we have no idea of who might take over as Chair of the Ad hoc Committee.

Moving forward:

We are very appreciative of the opportunity to participate in today=s conference with you and look forward to hearing your views, especially in respect of the articles identified by Ambassador McKay as having outstanding issues. At this moment we are still developing our positions for the next negotiations, and are not currently in a position to indicate how the delegation will approach the specific substantive issues of the Convention. The discussions over the next two days will help us with this formulation, and we are grateful for your participation.

(Check against delivery)

 

Appendix 2

List of Participants
May 26-27, 2006

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Steve Estey
CCD International Committee

Mary Ennis
CCD International Committee

Angie Allard
CCD International Committee

Chris Lytle
CCD International Committee

David Shannon
CCD International Committee

Charlotte McClain Nhlapo
South Africa Human Rights Commission

Jeanette Sautner
Foreign Affairs

John Rae
AEBC

Anna MacQuarrie
Canadian Association for Community Living

Rachael Ross
NEADS

Barbara Anello
Dawn Ontario

Cathy Moore
CNIB

Chloe Serradori
COPHAN

Bruce Porter
Social Rights Advocacy Center

Vangelis Nikias
Social Development Canada
Office for Disability Issues

Dulcie McCallum
Dulcie McCallum Consulting Ltd

Jim Roots
CAD

Zephania Matanga
ACDCA

Marthe St. Louis
Foreign Affairs

Harvey Goldberg
Canadian Human Rights Commission

Laurie Beachell
CCD

April D'Aubin
CCD