Report by the FIMITIC President Nigel Brander, Ireland,
on
the 7th Session of the United Nations Ad Hoc Meeting on the
Convention on the Human Rights of People with Disabilities
The 7th session of the Ad Hoc meeting took place from the 16th January to the
3rd February 2006. I attended from the 23rd of January to the 3rd February and
received 2 briefing documents each day during the first week, one from Mr Jim
McCaffrey of the Department of Justice, Equality and Law Reform and one from
European Disability Forum. Within an hour of the opening session on the first
day, after the chairÂ’s opening comments it was full speed ahead, with the chair
indicating that he was allowing 2 hours for each article, one and half hours for
the State Parties and half an hour for the NGOs. This pace was kept up right
through the three weeks, to give an example would be on the last day;
negotiations had to be stopped by the chair at five fifteen pm to allow for the
adoption of the final report to the General Assembly and for the chairÂ’s closing
remarks, to which we did not finish till six fifteen.
There were also a large number of informal meetings and, what are called side
events, these mainly take place during the lunch period, normally 2 per day
ranging from various disability organisations on specific subjects to the
Institute of Human Rights Commissions and State Parties on various Articles of
the convention, we even had a briefing by the U.S.A. delegation on how good the
A.D.A is which was interesting as they did say that the A.D.A was working well
except for the definition of disability which has caused them, inside and
outside of court a great many difficulties.
I will not go into a daily summary of each day; if one is wanted they can be
found on the UN Enable web site or the E.D.F web site. A complete reading was
done of all the articles during this session and I believe we have made
substantial progress on a lot of areas, there remains 3 very difficult articles,
Article 12: Equal recognition as a person before the law (or legal capacity),
from the interventions I believe most States agree including the EU that all
persons have legal capacity and that a form of assistive decision making should
be in place. The problem comes in extreme cases when a person cannot make a free
and informed decision, the mental health NGOs maintain a very strong view that
100% decision making should not be allowed and wording to satisfy them and to
give States the right to protect life and society as a whole seems to be a long
way a way.
Article 17: Protecting the integrity of the person, this again is causing
very different opinions and deals with forced institutionalisation and
involuntary medical interventions. There is a strong lobby group that wants to
see a moratorium ban on forced institutionalisation and involuntary medical
interventions and the removal from law of the insanity law. Most States want a
protection clause in cases of medical emergency or issues of risk to public
health but the IDC, mainly the mental health lobby group are strongly opposed to
any out clauses for States. My personal opinion is that we will not reach
agreement on this article and feel that as this overlaps into 3 or 4 other
articles it may well end up being removed all together.
Article 25: Health, there is a gap between state parties in this article on
the inclusion of reference to «sexual and reproductive services», the NGOs and
many States want this included but a lot a States are saying that this gives new
rights to people with disabilities, even with the chairÂ’s intervention with a
footnote stating that «this phrase does not constitute recognition of any new
international law or human rights». There are some difficulties with the phrase
«health services», many States want «health care», but this is narrowing the
services protected under this article. Some NGOs also want a paragraph in this
article prohibiting any medical intervention without free and informed consent.
As per Article 17, state parties will not sign to language like this.
A lot of other difficulties I believe are linguistic in nature, as this
convention must be translated into 10 or more languages and also different
countries have different terminology for services and concepts.
Articles 34 to 53: International Co-operation, International Monitoring, and
National Monitoring and complaints procedures. There has been negotiations on
these but due to the review taking place on all United Nations monitoring by the
Office of the Commissioner on Human Rights some States want to hold this
convention until that is complete, which could be a number of years, most States
want to move forward with a number stating that we must be flexible and whatever
the language used in this convention should allow for amalgamation to avoid
overlapping and duplicating of reporting procedures. There are going to be
informal negotiations between now and the next Ad Hoc meeting under the
facilitator from Mexico to try and come to some consensus and language that will
be acceptable,
Article 2: Definitions, I have left this article to last as for most part it
is not causing a problem except for the word «disability» or «person with a
disability», it has always been a difficult area, the vast majority of NGOs, the
Institute of Human Rights Commissions, the EU member States and a number of
other States are of the opinion we do not need to define disability or the
person with a disability, the EU commission is of the opinion we need to define
«disability». Having listened to all sides of the argument I am still firmly
against any definition of me as a person. My opinion is thus, this convention,
as stated many times, contains no new Human Rights, accepting this means this
convention and everything contained in it is open to all human being without
discrimination. It should be every ones right, as it is in most cases (except
people with disabilities, which this convention will address) that reasonable
accommodation is an accepted form of compliance of Human Rights. For example we
have ladies and gentlemenÂ’s toilets, steps on stairs are not built 2 feet high
just for tall people, education is no longer just for the male population, this
are simplistic points but state my point that «reasonable accommodation» has
been around for a long time. My second point is that as we have seen in history
when you label a particular section of the human race it leads to
discrimination, intolerance and persecution, we must never again label human
beings but accept diversity of life and inclusion and equality of all human
being into society. My last point is if we label a person with a disability we
are denying some people of their human rights, for example if a person left
school with very poor reading, you would not class him or he would not agree
that he had a learning disability, in this case would you deny him «plain
language text» to allow him to realize his human rights.
A definition of the word «disability» has caused many problems as well, with
some States using a very medical model, others and the some NGOs using a more
social model and a suggestion that we use the WHO definition of functioning
(I.C.F.). I have been informed that this definition would not be accepted in
human rights legislation due to the fact that is not static and is redefined and
changed at intervals. A definition proposed by the chair states;
«Disability» results from the interaction between persons with impairments,
conditions or illnesses and the environmental and attitudinal barriers they
face. Such impairments conditions or illnesses may be permanent, temporary,
intermittent or imputed and include those that are physical, sensory,
psychosocial, neurological, medical or intellectual.
Whilst this definition is fairly inclusive on the social model, does my last
point on the definition of a person not apply, would this lead to States being
able to opt-out of their responsibilities if a person did not agree that they
had a disability. Any comments or opinions would be welcome?
The chair of the Ad Hoc meeting indicated that at the next session he wants
to concentrate on the issues of concern and where there has been no agreement.
He has indicated that he is hoping that a convention could be ready for
ratification by the autumn meeting of the General Assembly and asked all
involved to approach the next session in a self-disciplined and flexible manner.
Using one the chairÂ’s phases «perfection is the evil of the good», I believe
both States and NGOs, in some areas, must accept that sticking to perfection is
not going to gain or deliver a convention to protection the Human Rights of
people with disabilities.
This is my report on the 7th Ad Hoc meeting, I have attached to this report
the revised text which was annexed to the final report to General Assembly and
which will be used at the next Ad Hoc meeting, if clarification is sort or if
there are any opinions please do not hesitate to contact me.
Nigel Brander
Chairman of People with Disabilities in Ireland – P w D
I –
President of the International Federation of Persons with Physical
Disability
– F I M I T I C –