Viewpoint: Where we are in the process of developing a UN Disability Rights Convention

Now that the sessions of the Third Meeting of the UN Ad Hoc Committee are over, it is necessary to make a balance regarding the advances and achievements, obstacles and problems, together with the challenges and perspectives. That is my purpose with this special report.

As planned, the Third Session of the Ad Hoc Committee established by the United Nations to work on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, was inaugurated on May 24.

This event was held at the headquarters of the United Nations in New York, for two weeks, the first session lasted five days and the second session four days. There was no formal meeting on May 31, because of Memorial Day and the event concluded on Friday, June 4.

Representing 140 countries, more than 200 persons from disability-related non governmental organizations and UN Specialized Agencies, gathered to participate and advance in this negotiation process, aimed at the eventual approval of a new human rights international treaty.

One major difference of this Third Meeting of the Ad Hoc Committee, compared to the First Meeting of July-August 2001 and the Second Meeting of June 2003, is that there was a Preliminary Draft of a convention text, prepared by the Working Group (January 5 to 16, 2004).

The appointment of this Working Group was one of the two most important achievements of the Second Meeting of the Ad Hoc Committee. The other achievement was the recognition that we, the more than 600 million disabled persons of the world, need an International Convention on Disability Rights. Though an important step in laying the foundation for the process, the First Meeting of the Ad Hoc Committee, held in August-September of 2002, did not yet recognize the urgent need for an international treaty on disability rights.

Procedures, agenda and general development

The negotiations for this Third Meeting of the Ad Hoc Committee followed the general United Nations procedures. The delegates reacted to the first reading of the Draft, by advancing criteria and comments, additions and preliminary modifications, to parts of articles, complete articles or partial or complete elimination of some articles.

The Draft for the Convention has a Preamble, 25 substitutive articles and 114 footnotes. These footnotes were recorded to include the topics in which the Working Group did not reach consensus and several proposals left for further consideration. The Ad Hoc Committee considered them a major contribution to its discussions.

It was not expected that definite texts had to be negotiated or achieved from this first reading. The purpose of this first reading was to present and collect the ideas and opinions expressed by the government missions.

On the second reading, the purpose was to move on with the approximations to particular positions and to meeting points among the texts. Then, the third and final reading, is derived from the complete redaction, idea by idea, sentence by sentence and, in some cases, word by word.

The procedure established by the Chair of the Ad Hoc Committee with respect to the participation of the delegations, was the following: On each article or topic presented and debated, once the governmental delegations had intervened, then it was the turn of the specialized agencies of the United Nations (the International Labor Organization, the World Health Organization or UNICEF, for example). Thereafter, the representatives of the nongovernmental organizations presented their ideas and opinions.

The difference between the proposals of the governmental delegates and the proposals of the specialized agencies of the United Nations and those of the non governmental organizations is that the first were kept on record to be considered during the second reading, while no record was kept of these other proposals and opinions.

At the beginning of this Third Meeting, Dr. Luis Gallegos, Chair of the Ad Hoc Committee, the documents were to be interpreted and rewritten and a systematic effort to advance positions and prepared for the Second Reading, where diverging and emerging elements would be duly resolved or left for the final third Reading.

On the first session, May 24, A motion presented by Mexico and accepted by the group, left the discussion of the Preamble and Article 3 on Definitions to the end, so we would begin reading and discussing the other articles contained in the Draft Document presented by the Working Group.

During the first week work advanced fine. We were able to review 18 of the 25 articles of the Draft. That is 3 to 6 articles per day. On the second week, we were able to review 7 articles more and the Preamble for the International Convention. The article with the Definitions and Article 25 on Supervision, remained pending for the Second Reading. The Chair of the Ad Hoc Committee had worked on some proposals to be discussed at the informal meetings to be held the last day of the sessions. But this idea was not implemented because some State delegations from Asia and Africa opposed the participation of representatives of nongovernmental organizations in these informal meetings. So, the last day was used to discuss the Preamble and the approval of the Report of the Third Meeting of the Ad Hoc Committee in the Plenary Session.

Article by Article

First week: The following articles were presented and discussed during the first week.

Article 1: Purpose
Article 2: General principles
Article 3: Definitions (Discussion postponed)
Article 4: General obligations
Article 5: Promotion of positive attitudes toward persons with disabilities
Article 6: Statistics and data collection
Article 7: Equality and Non-discrimination
Article 8: Right to Life
Article 9: Equal Recognition as a Person Before the Law
Article 10: Liberty and Security of the Person
Article 11: Freedom from Torture or Cruel, Inhuman or Degrading Treatment or Punishment
Article 12: Freedom from Violence and Abuse
Article 13: Freedom of Expression and Opinion, and Access to Information
Article 14: Respect for Privacy, the Home and the Family
Article 15: Living Independently and Being Included in the Community
Article 16: Children with Disabilities
Article 17: Education

The Second Week : The Preamble, the topic of International Cooperation, and the following articles, were presented and discussed during the second week. These are based on an article proposed by the delegation of Mexico:

Article 18: Participation in Political and Public Life
Article 19: Accessibility
Article 20: Personal Mobility
Article 21: Right to Health and Rehabilitation
Article 22: Right to Work
Article 23: Social Security and an Adequate Standard of Living
Article 24: Participation in Cultural Life, Recreation, Leisure, and Sports
International Cooperation
Preamble

Agreement and Controversy

There were important debates during these sessions, at which converging, differing and even contradictory positions were manifested by the sectors participating in this process.

Without being exhaustive, the list of topics that prompted more discussions included the following:

The nature of the Convention : Regarding this point, some delegates leaned toward a Convention on Non discrimination, which would be less demanding for States. Whereas, the majority of the participants wanted and demanded, including representatives of the nongovernmental organizations, a wide scope, human rights and social development instrument, as it is established by the General Assembly of the United Nations. Though some delegates still insist on nondiscrimination as the central part of the Convention, the majority have emphasized that the purpose of the new international treaty is to ensure human rights for persons with disabilities.

This debate was heated; it led to a strong confrontation by the Mexican delegation accusing the delegation of the European Union of trying to mutilate the text in an effort to make it less demanding.

Wider principles : There is a felt need to widen the coverage of the article on the principles for the new treaty to include accessibility, inclusion, and participation of persons with disabilities, not just their inclusion in all sectors of society. Some delegates expressed that to increase the coverage of the principles of the new treaty, the words "and their families" should be added.

Obligations : In addition to the obligations proposed by the Working Group to improve the living conditions of persons with disabilities, some delegations express the need to include international cooperation as one of the obligations of the States. Also, some delegates manifested that the States have special obligations toward persons with disabilities during and after armed conflicts, natural disasters, and conditions such as refugees, poverty and extreme poverty.

Privacy vs. Data collection : The discussion regarding the convenience of including or not the topic of data collection on persons with disabilities in the Convention was postponed. Some delegates consider that data collection is not a right, furthermore, the way that data and statistics may be manipulated could create discrimination and violate privacy. Other delegations stressed that, though data and statistics do not constitute a right, there is a need for them, to better know the situation of persons with disabilities, and to establish whether there is fulfillment with respect to existing norms (as in the case of surveillance and monitoring). Both groups recognized the importance of respecting the right to privacy and that it should be paramount within data collection efforts.

Equality and non-discrimination : During the discussion of this article, some delegates emphasized the need to establish the difference between equality and non- discrimination. They also expressed the need of including both concepts in the new Convention.

Reasonable accommodations: Some delegations did not want to include the concept of reasonable accommodations in the International Conventions, meaning that it should not be subordinated to the fulfillment of human rights. For instance, the right to reasonable accommodation should not be made dependent exclusively on economic feasibility.

The right to life as a human right: This became one of the most controversial topics. Some delegates consider that this right is already included in other conventions and treaties and that it protects all persons. They also maintained that by specifically restating it in the International Convention it would acquire a discriminatory characteristic. Other delegations favored the need to include the right to life in the International Convention, because many persons detected as having disabilities are eliminated before they are born.

The right to be persons before the law : When discussing this point, much was mentioned regarding how persons with disabilities (particularly those presenting intellectual and psycho and social impairments) are deprived of their rights to own property or to inherit. There was a felt need to establish some type of mechanism, like a third party representation, to protect the right to be a person before the law, in the case of persons with extensive intellectual, and communication disabilities. In every case, all the rights of the persons being assisted or represented by a third party much be respected.

Reject forced institutionalization: The topic of the institutionalization of persons with disabilities emerged when discussing several articles of the draft text. In many cases when institutionalization is mandated, the psychiatrist becomes a judge, it is a way of locking people up, violating the most elemental rights like personal liberty, using disability and linking it with a "possibility of committing a wrongful act." Some delegates, the majority representing nongovernmental organizations, did not want to allow dispositions in the new International Convention, that would be used as legal ways to continue violating the fundamental rights of persons with disabilities.

Information and communication : On this topic, it was indicated that freedom of opinion and expression is contemplated within other international instruments. What must be stressed is that persons with disabilities need and therefore are entitled to, full access to means, resources, and opportunities to express their opinions and to access communications, including sign language, Braille, and information technology, which should be made available. The group emphasized the importance of reducing the digital divide and fostering new information and communication technologies. This digital divide is more profound among persons with disabilities living in developing countries.

Privacy: It was emphasized that persons with disabilities were often denied their right to privacy, both at home and at institutions. There is a need to provide protection to persons with disabilities regarding their communications, information, and documentation. There is a felt need to ensure "adequate measures to eliminate discrimination against persons with disabilities with respect to their emotional and family relationships." The provisions needed include: equal opportunities to enjoy sexuality, maternity, and paternity, to develop love relationships, and the spacing of children, among others.

Independence and community : Here emphasis was made on the right of every person with disabilities to make decisions regarding personal affairs, including where and how to live, except in the case where the type of disability greatly affects decision making. The point to make clear is that independent living does not mean that the person wants to be isolated or does not need others, it only means that persons with disabilities should have the right of making their own choices and have control over their lives. This is the best way of promoting their full development and inclusion in social life and the community.

Children with disabilities : Some of the delegations felt there is a need to include a specific article on the rights of girls and boys with disabilities. Other delegations stated that the Article 23 of the International Convention on the Rights of the Child was sufficient.

Those oppose to including a special article on children with disabilities in the new international instrument, argued that by doing so, there would be a need to redact a specific article for women, senior citizens, and other groups. This would create the problem of establishing limits or going beyond the purpose of the International Convention on the Rights of Persons with Disabilities.

The debate continued with other delegates mentioning the possibility of creating a single article in which to include each of the vulnerable groups that need to be protected against discrimination and exclusion.

There is a need to include gender implications across all of these sectors of the population and not just restricting it within a specific article.

Education : It was emphasized that education needs to be recognized as a fundamental right that has to be extended to persons with disabilities during every stage of their lives. Education has to be inclusive, and options for special education must be made readily available for students who need it. Efforts must be made to make available technical aids and support services, so persons with disabilities may benefit from education and learning experiences.

Participation in political life: The group decided that this article should not be restricted to accessible voting spaces and ballots. This International Convention must foster the full political participation of persons with disabilities at all the stages of the political process, including the access to programs, political messages and the right to be included by political parties and electoral authorities. Persons with disabilities should be able to participate as pre candidates and candidates for public offices, particularly those positions more closely related to disability

Accessibility: The emphasis was made that State Parties need to interpret accessibility from a wider perspective, not just the access to physical public spaces. Accessibility includes access to public and private spaces, and as some delegates indicated, it also includes the services and the information provided therein, and even if an institution or service is privatized, the right to full access must be respected.

Health and rehabilitation: All delegations agreed that the International Convention should protect and even expand the right to health and rehabilitation for persons with disabilities. The real discussion was if health and rehabilitation would be better served if divided and organized into separate articles in the final text, as some delegates preferred or if they should remain within the same article, as defended by other delegates.

The delegates proposing to cover health and rehabilitation in separate articles stated that the field of rehabilitation exceeds the field of health, and that rehabilitation should not be limited to just one of several health services. On the other hand, those who defended the position of keeping health and rehabilitation within a single article, do understand that rehabilitation is not just another health issue yet, pointed out that, if they were to be placed in separate articles in the new treaty, there is a danger of disrupting long range and long standing programs where both components are closely interrelated and function as part of a single integrated process. For instance, in most developing countries health and rehabilitation services operate as single programs, persons with disabilities run the risk of just receiving the health component if the rehabilitation component is moved to another category.

Work: The whole discussion of this article served to underline the importance of having a source of employment for the majority of persons, including persons with disabilities, who are entitled to a decent and fairly paid job and who need to make their contribution to society. Having a job is not just something that provides a source of income, it may mark the difference between independence or confinement. Delegates recognized the importance of creating adequate professional or technical training opportunities for persons with disabilities. Also, since work is also a fundamental human right, State Parties and society as a whole, should foster the employment of workers with disabilities by, among other means, reasonable accommodations in the work place, flexible schedules, and improving hiring practices. Other ways of promoting persons with disabilities in the work market include, access to credit for small enterprises or creating cooperatives. Affirmative action and other similar initiatives also improve the work opportunities for persons with disabilities.

Living conditions and social security: Some participants wanted to divide this article into two articles: one dedicated to the right of persons with disabilities to enjoy an adequate standard of living, and another article dedicated to those measures that States should consider, as part of social security, to ensure such a standard of living.

International Cooperation

The topic of International Cooperation has been running along the whole process, particularly at this Third Meeting of the Ad Hoc Committee. What happens is that it means different things for different participants in this New York meeting. Yet everyone recognizes its importance for the International Convention on the Rights of Persons with Disabilities, particularly because of the close link of disability and poverty. In this dimension, international cooperation must be included in the new treaty as an instrument to combat poverty and exclusion which prevent persons with disabilities from fully participating in society. Here member States must recognize that international cooperation is not just financial, it includes a wide range of options, where financial resources may or may not be equally significant.

On the document prepared by the Working Group of the Ad Hoc Committee, International Cooperation is presented in Section g of the Preamble: " International Cooperation should be emphasized as a way to foster full exercise of human rights and fundamental liberties by persons with disabilities." Now, in order to stress the importance and the results thereof, the majority of the representatives want International Cooperation as an article of the Convention.

The delegation of the European Union, which put forward so many reservations during the meeting of the Working Group last January, did agree to include International Cooperation as an article of the Convention. The delegate from Ireland, representing the European Union, suggested the following text: "With respect to economic, social, and cultural rights, the States Parties shall adopt the corresponding measures pursuant to its resources available and, as necessary, they may look for international cooperation."

Though they recognized the importance of this change of posture, many delegations insisted on including International Cooperation in other articles, such as the ones dedicated to the principles and general obligations, while other delegations point to a need for a specific article on International Cooperation.

Mexico, one of the States more strongly defending this position, presented an article on International Cooperation, as a necessary condition to ensure that persons with disabilities may exercise and enjoy their human rights and fundamental liberties.

The text presented by the Mexican delegation includes different forms of cooperation and describes activities which may be performed to generate conditions to foster human rights, particularly those linked with economic and social rights.

This means that there is a need to correct the misinformation that International Cooperation only means North to South financial support. It was also made clear that the obligations of the States Parties to this International Convention may not be subordinated to the achievement of International Cooperation.

All indications are that the discussions held on the day before the last of the sessions, did contribute to converge opinions and, though we still do not have a final determination on what this International Cooperation should be, progress was made.

The Participation of NonGovernmental Organizations

As they did during previous meetings of the Ad Hoc Committee, nongovernmental disability organizations played a major role. Their number had increased and their level of expertise had also improved.

At this Third Meeting of the Ad Hoc Committee, there was the participation of more than 200 hundred delegates from nongovernmental organizations from countries of every continent. Additionally, some of the members of delegations of the State Parties were persons with disabilities who were active in nongovernmental organizations.

From the beginning of the International Convention process, the participation, work, and commitment of the nongovernmental organizations has been recognized. Surely, without their effort, much of the progress described, including the draft document, would not have advanced as much it did.

Such participation opened wider participation venues by persons with disabilities within the United Nations. There has also been a great level of activity and building up efforts on the part of international, regional, and national nongovernmenalt organizations, and all of them inspired by the words: Nothing about us without us! The participation of disability organizations within the events of the United Nations has also contributed to refreshing and making more democratic this international body, that needs much strengthening.

As in previous meetings, the President of the Ad Hoc Committee, noted appreciation of the contributions of the representatives of nongovernmental disability organizations. The interventions at these meetings follow a defined procedure, the nongovernmental organizations have an opportunity to comment on each article of the draft document. They would do so, for each article, after the interventions of the delegations of the State Parties to the International Convention and after the interventions of the United Nations specialized organizations. In fact, some government delegates struggled to permit the interventions from disability organizations only at the end of the morning and afternoon sessions.

After the introduction made by President Gallegos, there was a large participation from members of nongovernmental organizations, more than 80 interventions, based on their accumulated expertise and strong levels of commitment and coordinated work. The work of the disability community was coordinated by a series of caucus meetings, sometimes among themselves, others held together with specific State delegations to obtain more support.

There has been this general practice of allowing only the participation of government delegates at informal meetings, which are very important for further debating and negotiation work. The nongovernmental organizations have tried to change this practice, because they believe that they are able to make valuable contributions in the informal meetings.

One day before the last of the end of the Third Meeting, the President of the Ad Hoc Committee proposed that work for the next day (June 4) would begin in informal meetings, advancing with the agenda of the second reading, yet including the representatives of the nongovernmental organizations at the informal meetings. This innovative proposal was supported by the majority of the States, recognizing that the presence of the representatives of the disability community would constitute a contribution to the process.

Nevertheless some States (African and some Asian States) disagreed with having representatives of nongovernmental organizations at the informal meetings. At the end an apparent agreement was achieved and these representatives were allowed to participate at the informal meetings of the next day. Yet as time went by, the opposition to the wider participation at informal meetings, presented a series of technical arguments, including how much public or private should informal meetings be. So, due to a lack of consensus, President Gallegos suspended the informal meetings and work was continued as a Plenary Session, with the Preamble, as it was agreed, discussed at the end with other pending articles.

Then some delegations stated that they would abstain from participating in the Preamble debate because they were not ready, because they thought they were going into the informal meetings and prepared for those. Other delegates insisted that the Chair must respect the decision made on the day before starting to discuss the Preamble. Even one of the members of the Costa Rican delegation requested the Chair to clarify that this situation would not establish a precedent with respect to the whole process.

So, the nongovernmental organizations must continue working very hard during this period until the Fourth Meeting of the Ad Hoc Committee, to be held at the end of this month. They have to move quickly to influence the States and to increase their participation at all scenarios of the treaty negotiations, including their right to participate in the informal meetings, which will become more relevant for the further development of the process.

Perspectives

Now within the Final Text worked on by the Third Meeting of the Ad Hoc Committee, there are the ideas reached as consensus by the Working Group, together with the contributions from many of the 140 government delegations participating in the debates. Such numerous and wide range of the representations support the legitimacy of these final conclusions. All of which came to being thanks to the active participation of persons with disabilities acting as members of State delegations or representing nongovernmental organizations and from some United Nations agencies. Here we should mention the working documents prepared by Dr. Luis Gallegos.

It was agreed that the Articles on "Definitions" and "Supervision", and "Monitoring Mechanisms", together with other emerging topics from these two weeks of May-June 2004, would be discussed at the Fourth Session of the Ad Hoc Committee.

We are approaching the perhaps the richest, most complex and challenging part of this Convention process. Here consensus must be achieved, both at the Plenary Sessions as well as at the informal meetings, headed by facilitating delegations. Our hope is that the active and constructive participation of nongovernmental organizations will be a major contribution as it has been the main characteristic of this process.

If work and negotiations are readily conducted, the second reading could be concluded in the August Meeting. Then we would have completed another important advancing stage toward an International Convention to promote and protect the rights of persons with disabilities. If we are able to move efficiently, we could have the International Convention approved during the Spring of 2005. This will coincide with a major meeting of Presidents and Heads of States to review, in New York, the work performed on the Millennium Goals of the United Nations.

I am optimistic, because the passion of our convictions indicates good results. Yet it is still very early for ringing bells. During this Third Meeting, some discrepancies emerged, both at the discussions and in the case of some procedures used. Beyond our optimism, some obstacles may become challenging and could present further delays for approving the International Convention.

Now it is important that the process keeps on advancing, in a sustainable manner, without interruptions or drawbacks, so we may soon have an international treaty to improve the lives of persons with disabilities and allowing the full exercise of their human rights.

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