United Nations Update — Back on Track

Circa 2005
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UN Update

Previously, in the second session of the United Nations Ad Hoc Committee on a Comprehensive and Integral International Convention on the Promotion and Protection of the Rights and Dignity of Persons with Disabilities, the member states adopted a resolution establishing a working group to prepare a convention plan (draft convention) for presentation to the full committee as the basis for further negotiation. With that resolution, the disability community scored its first success: a consensus to proceed with the process of promoting the rights and dignity of people with disabilities through a legally binding instrument—a new international convention. In another remarkable achievement, along with the 27 governmental representatives that would be appointed to the working group, 12 additional seats were designated for nongovernmental organizations (NGOs), especially organizations of people with disabilities. Through this success, people with disabilities achieved a historic milestone—the ability to participate equally in a traditionally states-only venue to plan the policies that would affect them. However, after demonstrating their ability to successfully contribute in the working group, the NGOs of the international disability caucus returned to the third session of the full Ad Hoc Committee to meet resistance and controversy about the level of their continued involvement; consequently, they left the third session concerned about their continued effectiveness as active participants. The following is an update from the fourth and latest session of the Ad Hoc Committee.

The fourth session of the Ad Hoc Committee on the International Convention on the Rights and Dignity of Persons with Disabilities opened with great suspense. After more than two months of correspondence and meetings with the United Nations bureau and with states’ delegations, the extent of non-governmental organizations’ (NGOs’) participation in the session was still up in the air. Their role as observers of the process in the plenary was guaranteed. However, their active participation, if any, with the states during informal negotiations was unclear. Although the principle of partnership between the states and people with disabilities is one of the building blocks of the future, the demand by a few states to exclude NGOs during the informal discussions threatened to override it. After more than 20 years of efforts to achieve a voice for people with disabilities in planning policies affecting them, the potential exclusion of NGOs was a distressing sign. The heartfelt slogan of the international disability caucus, nothing about us without us, appeared to be losing ground at the very venue created to give it voice.

Eventually, after heated debates, the states reached a compromise. NGOs were allowed to participate fully during the discussion of articles that had not previously been read, as well as comment again on articles 1 through 24 of the draft convention. During the informal discussions in the states’ negotiation phase, however, the NGOs’ participation was limited to the role of observers, without the ability to make interventions.

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The chairman of the Ad Hoc Committee, H.E. Luis Gallegos Chiriboga, the ambassador and the permanent representative of Ecuador to the UN, presided over the beginning of the session. Draft articles that had not yet been discussed were raised; states submitted comments on the draft articles, and their proposed amendments, additions and deletions were integrated directly into the draft text. NGOs made interventions to voice their particular points of concern. Debates arose most prominently about two issues: definitions and monitoring.

States tended to agree that new terms in the convention needed to be defined (e.g., reasonable accommodation hasn’t been defined so far in other conventions under international law). Due to the difficulties in reaching a universally accepted set of definitions, however, they debated whether a comprehensive and separate article of definitions that would guide the entire convention would be needed (the view of Thailand and China, among others), or whether adopting a more limited number of definitions throughout the text, when relevant, would suffice (as proposed by the European Union, India and Bahrain).

The main debate about monitoring surrounded the establishment of an international mechanism to monitor states’ implementation of the convention (beyond each country’s own national monitoring body). Many states expressed the need for such an international monitoring body, but the scope of its responsibility remained controversial. Others proposed to further postpone the discussion about monitoring mechanisms until the exact boundaries of states’ responsibilities under the convention are clarified.

The discussion on these articles revved up rapidly to a rather high pitch, then just as quickly was over. Amazingly, by the end of the second day of the session, the first submission of the draft convention was complete. States’ delegations and NGOs appeared to take a big breath to prepare for the upcoming week, which was used for furthering discussion on articles already on the table. The second week of the session was allocated for states’ informal discussions. According to the agreed agenda, only articles 1 through 15 and 24 of the draft convention were opened at this point for negotiation. Articles that had been read for the first time during this session (the preamble, definitions and monitoring) were excluded. For each article a state facilitator was appointed to lead the discussion, with the aim of exploring the substantial controversies and searching for possible ways to bridge the gaps in states’ positions.

Some of the debates and international biases were expected, based on positions states had made clear in the previous session. An example was the discussion on the principle of international cooperation. As before, states disagreed whether the requirement for international cooperation should be delineated explicitly in the main body of the text or referred to only briefly in the preamble. In the end, Mexico’s renewed proposal for a separate article on the issue seemed to garner most support.

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Another debate concerned data collection and statistics. States deliberated whether these issues should be addressed only as a means of implementing the convention, under the article on monitoring, or should stand alone as a separate article recognizing the general independent benefit of such information. After an initial lack of consensus, an initiative led by Mexico, Israel and other delegations put forth a shorter, more balanced version of the draft article that drew wide support, even from previously reluctant delegations such as Canada and the European Union (EU).

Finally, the discussion on states’ commitment to accommodation of people with disabilities remained a point of concern. The main question was whether states should be considered in violation of the prohibition on discrimination if they fail to take appropriate measures to provide reasonable accommodation when such measures are deemed to impose a disproportionate burden on the state. Several states pointed out that the concept of disproportionate burden is incorporated into many national laws. However, no similar provision has ever been included in a core human rights instrument. The proposal to include it thus represents a major departure from the existing international human rights law, and also from the view of reasonable accommodation that has already been fully integrated into the convention. Furthermore, if the international convention is to have any future inspirational value, adjusting the international standard to the national ones misses the point. Many national laws have not proven sufficiently effective in fully integrating people with disabilities into the mainstream. The suggestion to include an exception for cases of disproportionate burden raised concerns about opening a wide door for states’ discretion and misuse, and diverting the attention of the convention to the protection of the states rather than of people with disabilities. At first, many states’ delegations appeared to accept these counter-arguments. However, several (mainly Israel, Kenya, Australia and China) steadfastly insisted that allowing for disproportionate burden merely represented a balanced approach.

Debates on the title of the convention were discussed during the first week of the session. There was a general agreement that the current title of the convention was too long and inappropriate. As expected, states’ positions on the preferred type of the convention (i.e., focused on disability issues separately, versus incorporating them into a broader human rights agenda) were reflected in their proposed amendments. Choices for a new shorter title were International Convention on the Rights of Persons with Disabilities, proposed by New Zealand and widely supported, or International Convention for the Rights of Persons with Disabilities, as suggested by Yemen and others. The more cumbersome title of International Convention on the Protection and Promotion of the Full and Equal Enjoyment of Human Rights and Fundamental Freedoms by Persons with Disabilities was also suggested, following the broader equality and non-discrimination approach advocated by the EU. Beyond illuminating the states’ different approaches to the convention, the discussion on the title also revealed difference perspectives about the value of the title. Yemen and other delegations felt that the title of a document is the most important representation of the entire document, and thus, from their point of view, the entire discussion on the convention was premature without a decision about the title.

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Perhaps the most controversial and unexpected cultural difference affecting the negotiations involved the role of the families of people with disabilities under the convention. The issue was raised during the discussions addressing states’ obligations. An India-led initiative, supported by other delegations (particularly South African states), proposed inserting a sub-paragraph requiring states to consult with the families of people with disabilities in order to ensure their involvement. The debate illuminated cultural differences among states about the role the family plays in various social settings, and raised concerns within the international disability representatives, especially in regard to people with intellectual disabilities. Traditionally, families are the primary caregivers of people with disabilities and confront many difficulties because of the social prejudice, time and financial costs involved. Families of people with disabilities are therefore important in the entire fabric of the convention and, indeed, may also need some sort of protection. However, families’ fears of discrimination and their roles as guardians can also make people with disabilities vulnerable to imposed institutionalization. As the convention aims at protecting personal autonomy and decision-making of people with disabilities, requiring states to collaborate with and consult the families would give the appearance of endowing families with rights that should belong solely to the people with disabilities themselves. Furthermore, as the convention already requires consultation with organizations of people with disabilities, which incorporate the needs of families into their missions, there is no reason to assume that families are being excluded. States’ delegations have not yet proposed any solutions to this debate, but considering the tension and concern created, the issue will undoubtedly resurface in the future.

Despite the original plan, the prolonged debates prevented the Ad Hoc Committee from negotiating beyond draft article 7, entitled, “Equality and Non-discrimination.” Yet the overall sense was of progress. Moreover, in spite of the barriers and the change in the NGOs’ role, the international disability caucus maintained its vitality and impact. Its well-organized, planned and coordinated work throughout the session and in the preceding months allowed it to continue as an effective advocacy body.

Working together, the international disability representatives have found a way to ensure their continuing voice and power in the process. From the beginning their caucus presented itself officially to the states’ delegations as the representative body of organizations of people with disabilities. The majority of NGOs’ interventions and statements made at the plenary were made in a unified voice on behalf of the 35 organizations that comprised the caucus, although NGOs were still able to take separate stances and make separate interventions if needed without detracting from the powerful position that the caucus held. The caucus continued its work on proposed textual amendments and prepared position papers on a variety of issues raised and discussed throughout the sessions (such as the role of families, legal capacity of people with disabilities, the right to live in the community, non-discrimination, etc.).

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Furthermore, as a coherent body, the international disability caucus extended its hand to increase and strengthen its working relationship with the states’ delegations. It convened, for the first time, an official meeting with all states’ delegations in which it distributed its textual proposal for the relevant articles and presented particular points of concern. During the meeting, representatives of the international disability caucus gave presentations on a number of issues, including states’ obligations, equality and non-discrimination, and sign language and Braille as essential languages for the education and full development of people who are deaf, blind and deaf-blind. About 50 delegates attended the meeting and participated in the question-and-answer segment, which proved a productive framework for facilitating the flow of information and a means to explore appropriate solutions with the delegations. Delegations such as the EU, the US, Canada and others commented positively about the meeting and showed willingness to further the work with the caucus. They endorsed the effort as a successful way to increase the collaboration with NGOs in future sessions.

Thus, although NGOs could not speak publicly in the informal discussions, they retained effective influence. Beyond the progress made in the articles that were formally discussed, the informal discussions between the NGOs and the states’ delegations appeared to provide substantial progress on a few of the most controversial issues. There seems to be a growing support for recognition of sign language as a language. The inclusion of perceived and past disabilities under the prohibition of discrimination against people with disabilities seems to be taking a similar positive path. Developments also appear to be on track regarding the elimination of the current standards of guardianship and substituted decision-making, which allow others to make decisions for people with mental and intellectual disabilities. Finally, the relationships among the NGOs themselves improved. Despite the diversity of NGOs and the various types of disabilities the organizations represent, the disability caucus succeeded, for the most part, in speaking with one voice. Although some disagreement occurred, the internal mechanisms of the caucus enabled it to reach consensual agreements, while still providing a stage to argue different positions when desired, and a greater sense of collegiality arose among the various NGOs.

According to Chairman Gallegos, the projection for next year is for three extended sessions of three weeks each instead of the two sessions of two weeks that comprised this years’ deliberations. The aim is to accelerate the states’ negotiation process and finalize the convention proposal so it can be opened for adoption by September 2005.

The intensity and the number of sessions proposed raises concerns that NGOs will find themselves overburdened financially and less able to participate in future meetings. Similarly, there is fear that a rushed drafting process may diminish the quality of the convention. However, Ambassador Gallegos assured the caucus that quality would not be compromised and promised to explore the possibility of financial assistance for organizations of people with disabilities, especially those from developing countries. Their absence from most of the proceedings was noted as a substantial deficit that puts the future acceptability of the convention at risk.

Meanwhile, the international disability caucus has already intensified its work to promote its ongoing textual draft and to enhance its collaborative work with states’ delegations. Despite full hands and little time, the disability caucus remains right on track!

by Maya Sabatello, JD

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