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Back to: Seventh
Session of the Ad Hoc Committee
Summaries of the Seventh Session
Original
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Languages: French
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Monitoring
The Chair noted that at AHC6 there was general agreement that both national and international level monitoring be addressed in the text, and that these “pivotal” issues were to be discussed at AHC7. He also noted the request made of the Office of the High Commissioner for Human Rights (OHCHR) to produce a paper on monitoring for AHC7, and invited that paper to be presented with questions and comments by States to follow, with a focus on international rather than national level monitoring.
Jane Connors of the OHCHR presented a summary of the paper prepared by the OHCHR on existing monitoring mechanisms, possible relevant improvements and possible innovations in monitoring mechanisms. (http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7unedchrmonitor.doc)
Japan queried the timetable for the UN treaty body reform process, and when that process might reasonably be predicted to conclude.
OHCHR noted that the treaty reform process was ongoing. A concept paper outlining the High Commissioner’s proposal for a unified treaty body would be released shortly, with States, treaty bodies, human rights institutions and civil society invited to consult and comment upon that paper. An options paper will be released to an inter-governmental meeting of States Parties to the treaties towards the end of 2006. The outcomes of these processes will determine the speed and duration of the treaty reform process.
Chile sought clarification on the idea of an ombudsperson for the Convention, and specifically what powers that ombudsperson would have and how the office might relate to the existing Special Rapporteur on disability.
OHCHR explained that the paper included few details on the mandate and functions of an ombudsperson/Global Disability Advocate, as the paper was to examine existing monitoring mechanisms, and innovations that could be considered in light of experience with those mechanisms. As there is currently no global ombud, delegates would need to consider the mandate of such an office. There is also no indication of how any ombud might interact with the Special Rapporteur. Experience from the existing monitoring system shows the need to expressly and clearly indicate the competencies, authorities and intended interactions of any monitoring mechanisms.
Costa Rica sought clarification on the nomination of experts, specifically the suggestion for the Secretary General to be involved in nominations. It also queried how peer review might work here - if communications between States have not worked in the past, such as in the context of the Human Rights Commission, how might peer review work here? The paper seems not to move away from the traditional approach of national reporting – will it be necessary to continue with a system of periodic reporting, or might it be possible to have reports presented at the request of a committee following a preliminary investigation? Are all these proposals compatible, or are they mutually exclusive?
OHCHR explained that suggestions regarding membership and nominations are based on ensuring that any committee contains the expertise needed, especially the extremely important need for a mix of expertise regarding different disabilities which may not emerge through traditional election processes. There is also a need to ensure that the national level nomination process is open, participatory and transparent, so that those working on disability issues can provide their inputs to States Parties. Regarding peer review, the paper considers the OECD peer review process which is widely regarded as successful, though its success may be a function of the nature of the OECD body. In terms of moving away from a ‘traditional approach,’ the paper called for reflections on existing mechanisms, especially reporting, and proposals on the basis of known information. It is well known that reporting is often difficult and challenging, leading to delays. States have been receptive to lists of issues and questions, and so the suggestion here is to include innovations that allow for more targeted direction from a committee to facilitate responses from States Parties.
Republic of Korea noted the important role of NGOs in improving the lives of PWDs, and queried what role might be expected for NGOs in the international level monitoring mechanism?
OHCHR noted that the OHCHR paper HRI/MC/2005/4 provides info on the participation of NGOs in the work of the current monitoring mechanism. Although not explicitly provided for in most treaties, a practice has grown up of treaty bodies encouraging NGOs to participate in reporting processes at the national level through consultation. The current 7 treaty bodies have different practices regarding interaction of NGOs with the bodies, (CRC has the most developed working methods) and harmonization of these practices is underway. NGOs (ECOSOC accredited and others) can usually provide written and oral information, and many are involved in the follow-up to concluding observations. The challenge for many bodies is to develop modalities of interaction in the context of reporting. There is some interaction with NGOs in petitions/communications, but usually only in the context of NGOs assisting in petitions. Inquiry mechanisms for CAT and CEDAW tend to be generated as a result of NGO information, though that is not necessarily required. To prevent challenges confronted by treaty bodies, it is preferable to include provisions addressing participation of other entities like NGOs.
Sudan noted that these discussions occur in the context of wider UN reform, and in particular the transformation of the Human Rights Commission to a Council in light of the “politicization” of the Commission and its failure to address human rights abuses in developed countries. In monitoring this Convention, national and regional level mechanisms should be examined, as regional mechanisms better understand the environment of States Parties. Reviews should be comprehensive and examine violations anywhere in the world, and reviewers should be independent and have a code of conduct. NGO participation is good, but NGOs should ideally be neutral and aim at the enhancement of human rights for PWDs. Monitoring processes should avoid double-standards and politicization.
New Zealand questioned how the monitoring and reporting of issues of particular population groups that overlap different conventions can be addressed. For example, children with disabilities could be covered by this Convention and the CRC. Though future streamlining and harmonization may address this, it queried how to manage the concern that too many or unclear division between procedures could divide or dilute the energies of States, NGOs and treaty bodies, and prevent sufficient focus on specific issues for, eg children with disabilities.
OHCHR agreed that because of the “congruent provisions” across existing treaties, there can be a significant amount of overlap in reporting materials of States Parties to different treaty bodies. Also, similar questions are frequently posed by treaty bodies, and large areas of implementation issues not addressed at all. Furthermore, individuals do not suffer violations according to treaty body, and when States implement it is typically easier to implement comprehensive recommendations across human rights. In the long term the reform proposals of the High Commissioner would need to be addressed, and in the short term more targeted and integrated reporting (e.g. through the expanded core document) could be of assistance.
Mexico noted that it has been an active participant in monitoring reform, but suggested that although the AHC should take into account current monitoring, it should not get too caught up in the process of reform. Rather, as the most recent human rights treaty, the Convention’s provisions could be updated and used as an example for the reform process. It sought further information regarding Para 6 of the paper, and the role of international cooperation and monitoring.
OHCHR explained that Para 6 of the paper examines the purposes of monitoring, and notes that monitoring is not just an individual State issue, but rather it is also an opportunity for States as a whole to seek lessons learned and experiences from other States. Monitoring is also an opportunity for international cooperation and capacity building one State to another. It is suggested that there be some explicit mention of these different aspects of monitoring. Regarding the wider reform process, it is understood that there is a need to be attentive to wider reforms, but establishment of a mechanism here should not be confused with the reform process.
Yemen supported the “questions” raised by Sudan regarding the need to protect the Convention from conflicting political interests, as well as the questions of the Republic of Korea regarding the role of NGOs. Convinced of the need for a separate monitoring mechanism for the Convention, Yemen queried whether it would be possible for such a mechanism to exist in light of the treaty reform process. It also asked whether detailed national and regional level mechanisms would be foreseen to make monitoring as efficient as possible. Additionally, when would the OHCHR paper be available in all official UN languages?
The Chair noted the Yemeni delegation’s referral to a “question” from Sudan, and clarified that he had not offered the floor to Ms. Connors to respond to the earlier statement from Sudan, as in the interpretation no question had come through. He invited Sudan to resubmit its question after the Ms. Connors responded to the questions from Yemen.
OHCHR indicated that whilst there is no deadline, the OHCHR paper was currently being translated and would be issued in all official UN languages as soon as possible. The remaining questions highlighted a number of important issues for the consideration of all delegates. Regarding a possible national level mechanism, such a mechanism is provided for in the optional protocol for CAT and the OHCHR has no concerns regarding a detailed national level mechanism being part of the monitoring mechanism. There is not regional component in the international system thus far, but the draft text on forced disappearances discusses cooperation with regional and other monitoring mechanisms and could provide a useful reference here.
Sudan expressed concern that the floor had not been given to Ms. Connors following its earlier intervention. It acknowledged that no question per se had been asked, but felt that the issues it raised regarding the shortcomings of the present monitoring system should have been responded to. The issue of a monitoring mechanism for the proposed Convention is very important, and the comments of all States present should be addressed equally.
The Chair acknowledged that he had invited States to offer both questions and comments. The concerns of Sudan are shared by many, and he invited Ms. Connors to respond on the issue of the operation of the Human Rights Commission.
Ms. Connors of the OHCHR clarified that she works with the human rights treaty bodies rather than the Human Rights Commission, and therefore was not best placed to offer comments on the work of the Commission. The paper similarly does not address wider intergovernmental monitoring mechanisms, but rather focuses on existing expert monitoring mechanisms. Any monitoring mechanism for this treaty should certainly be one that is entirely focused on implementation, and not one that looks at political issues in the wider sense.
Austria, on behalf of the EU welcomed the interesting and innovative ideas in the OHCHR paper that go beyond what is typically seen in traditional treaty bodies. The EU is following closely the treaty monitoring reform process, but believes that given the progress made in the current negotiations a treaty body will likely be needed before the reform process is concluded. A “strong body” with elected independent members is very important to the EU. Members should possess expertise in the fields of human rights and disability, and the need for gender balance should be explicitly mentioned. It is also very important to have a strong link of this body to other bodies, and the draft language in the disappearances text is an interesting example in this regard. The EU believes that focused and thematic reports would be better than traditional reports, and that if no report is submitted it should be possible for the body to still examine the situation in that State Party. The EU sought more elaboration of the idea of an ombudsperson, and in particular how this individual might link to, or be completely independent of, the treaty body. It may be good to have an individual to conduct advocacy and be the visible face of treaty, but the EU is unsure of how this might work.
OHCHR acknowledged that there is no “visible face” of individual treaty bodies now, though work is done through outreach by the OHCHR regarding some of the treaties and the Division for the Advancement of Women regarding CEDAW. There is some experience with thematic rapporteurs and independent experts appointed by the Secretary General, who typically focus on a narrow part of a treaty but work to make that part visible. Attempts at linkages with treaty bodies can be complicated because the treaty bodies are not in session all the time and individuals are available to react at all times. An advocacy role is interesting and possibly useful, but would require a clear delineation of responsibilities for transparent cooperation. One possibility would be for individual petitions to be directed to an ombud rather than a treaty body, given the limited uptake of such petitions by treaty bodies now. A full discussion of the nature of the entities and their interaction is needed, especially given the limits of experience in this area to rapporteurs and independent experts.
Kenya emphasized the need to understand the weaknesses in the current monitoring system, so that they may be avoided here. It raised the example of the backlog of reports, and queried what would need to be done so that, were States Parties to submit their reports on time, the treaty body would be adequately staffed and resourced to examine those reports in a timely manner. An additional concern is effective measurement of the enjoyment of human rights by individuals in a country. A country may submit reports but be doing nothing on the ground to promote actual implementation, and in the past the treaty bodies have not done a good job of measurement with a view to actual implementation. Kenya further queried the role of NHRIs (established in accordance with the Paris Principles), beyond their ability, like NGOs, to simply submit information to a treaty body.
OHCHR indicated that in terms of weaknesses in the current system, it is well known that there is a significant backlog of reports, particularly for the CRC and CEDAW as there are more States reporting to those bodies than with respect to other treaties. In response, the CRC now meets in two chambers and CEDAW has been provided with a third meeting session each year. Despite these innovations, it seems likely that were all States to report on time, it would be impossible for any treaty body meeting three times per year to keep up with the reports. Consequently, attention has turned to other innovations, such as the expanded core document, lists of issues, questions, and more focused reports. The most important issue though remains assessment of actual implementation at the national level, and the treaty bodies have sought to work with the OHCHR and Division for the Advancement of Women in order to assist States and discuss implementation of treaty body recommendations and treaty obligations. A system with strong national and international level monitoring mechanisms, perhaps with the involvement of NHRIs, would seem better. The situation of NHRIs and existing bodies is uneven, with not all the bodies having indicated a desired role for NHRIs. It therefore seems important to reflect the role of NHRIs in both national and international level monitoring mechanisms for the convention.
Lichtenstein highlighted that it is very attached to the issue of treaty body reform, and noted that it is a difficult decision to add another institutional layer to the UN given that many feel there are too many layers already. However, it sees no alternative to the establishment of a new body, as there must be some form of effective monitoring mechanism. It questioned how long it might take to establish a unified treaty body, and how any disability treaty specific body might be “blended” into such a unified body in the future. In the meantime, problems and lessons learned from the current treaty body system should be studied. A structured reporting dialogue is critical to any system, and lists of issues and questions seem particularly helpful elements as it makes it harder for States to avoid issues in their reports. Moreover, States should not be able to take advantage of their non-reporting, as this would be “absurd,” and the committee should be able to draw on information other than that provided by the State. Whether a reporting system works depends upon two issues: 1) how important States think the process is; and 2) sufficiency of resources for the committee to deal with reports in a timely manner. So, there is a question of commitment and resources, and States owe it to people with disabilities to provide both.
OHCHR provided a “pessimistic” prediction for a unified body of “never,” and an “optimistic” prediction of three to four years. The key is commitment of States, as if States wish to have such a body then the transition should not be complicated. In addition is the question of resources. The proposed budgetary impact of a short extension of meeting times for CEDAW was estimated to be $10 million, used to pay for conference services and very little else. If there were significant resources in the current system it would work well, even in current context. There are resources, but as yet not the resources required.
Serbia and Montenegro associated itself with the points made by Austria on behalf of the EU, Costa Rica, Mexico and Lichtenstein. It noted the issue of reporting backlog raised by Kenya and Lichtenstein. Bearing in mind the cross-cutting nature of disability and the resulting comprehensive nature of the draft convention, it asked what would be a realistic timeline for initial and subsequent reporting. Second, given the rich contribution of NGOs and DPOs in the negotiations, it invited the OHCHR to comment on the possible role of DPOs in nominating experts for an international monitoring committee.
OHCHR suggested that it be left to a monitoring committee to determine when reports should first be submitted. For example, the committee could call on States when it wished to receive reports, and the request could be focused using lists of issues and questions. Similarly, it could be left to the committee to decide the periodicity of reports and what should be included in them. Experience shows that treaty bodies tend to develop their own reporting guidelines, and indicating this in the treaty could be helpful. The taking up of reports in a timely fashion is linked to the length of meeting times for the committee, secretariat support provided, and what capacity building activities could be undertaken by the secretariat, perhaps combined with any national mechanism that might exist. Regarding the nomination of experts, it is up to States to decide. Experience has shown that a role for NGOs, and here DPOs in particular, is critical because the expertise of the body is going to be a real test of the successfulness of the monitoring mechanism. A mechanism for proposals from, or mediated by, DPOs at the national level would be critical, and it could be helpful for such an approach to be noted in the treaty, given that NGO involvement is currently done on a case-by-case basis by States parties.
Chile suggested two approaches for dealing with States that do not meet their reporting requirements: 1) publishing the names of States that do not submit their periodic reports in a timely manner; and 2) applying an assumption of responsibility, such as “guilt by omission” against States that fail to respond to reporting obligations triggered by a communication/complaint of treaty violation. Such measures might encourage States to comply with their reporting obligations. Reporting compliance would also be improved by providing technical information and guidance to States where relevant for completion of reports. Chile also noted the importance of the ability of the committee to interpret the various articles of the convention. It called for an interpretation standard to be used, with the convention always to be interpreted in the way most favorable to PWDs and avoiding any reduction in rights. Such a provision would relate to similar provisions found in Article 4 (General Obligations) but would go further. Chile called attention to a proposal it submitted in this regard during AHC3, and offered to resubmit the proposal to the secretariat if needed.
Ethiopia queried whether “cross-checking,” in the form of State to State complaints regarding violations, would be possible to include in the monitoring provisions for this convention.
OHCHR explained that four of the existing treaties have an inter-state complaints capacity, the draft text for the disappearances treaty contains provisions for inter-state complaints, as does the options paper presented by the chair of the optional protocol working group for the ICESCR. However, to date no such complaint has been launched. There is nothing to preclude consideration of such a procedure for this convention.
Russian Federation supported establishment of a body for this convention, as it would not be possible to not have a mechanism that would create the necessary framework for cooperation in implementation. Implementation is a challenge for all countries, both developed and developing, because the problems associated with protecting the human rights of PWDs are quite “specific.” It will be important for any body to be integrated and effectively linked with other bodies in the UN system. This is especially true given the close interaction of civil and political rights, and economic, social and cultural rights, and the need to identify the mandate and working methods of this body as distinct from existing treaty bodies. Regarding resources, it supported establishment of an organ that would not apply an “excessive burden on the organization’s budget.” With regard to the current reform process, it queried whether it might be feasible and easier to wait to establish a body for this convention after the reform process has been completed, rather than establishing a body which would then itself have to be reformed.
China raised three questions for the OHCHR: 1) Given that GA Res 56/168 requests the AHC to consider human rights and social development in an integral way, how can these two aspects be taken into account in the monitoring mechanism? 2) How can the treaty mechanism be made suitable efficient and effective, given the questions raised with regard to delayed consideration of periodic reports, and how best to make use of State mechanisms and existing resources, such as rapporteurs and expert groups. 3) What is the understanding of the OHCHR regarding international cooperation, which is mentioned in the OHCHR paper as one of the five purposes for establishing a mechanism? Specifically, is international cooperation to be understood broadly, to encompass such things as information exchange, awareness raising and capacity building?
OHCHR With regard to the first question, the OHCHR pointed to the activities of the Committee on ESCRs, CRC, and CEDAW, as bodies striving to take both human rights and social development aspects into account in their work. Similar efforts can be seen in the beginning work of the Committee on Migrant Workers. In that context it is important to reflect on the usefulness of reflection in the treaty of those parts of the UN system and other specific entities that might be able to cooperate and provide information to the committee. Regarding the second question, the OHCHR pointed to information provided earlier regarding the ongoing activities of the OHCHR and the Division for the Advancement of Women. Particularly relevant are the activities that seek to discuss implementation of obligations in a cohesive manner at the national level at the invitation of States Parties. Such activities have proven effective in looking at capacity building of State mechanisms. Regarding international cooperation, the paper highlights how the monitoring mechanism can provide a forum for sharing of experiences and lessons learned, through which States can obtain ideas and lessons learned, particularly from other States that have similar challenges and obligations. This is an important emphasis to include in the monitoring mechanism for this important treaty.
International Disability Caucus (IDC) strongly supported the establishment of a treaty body. With regard to composition, it proposed that all experts be people with disabilities, subject to the requirements of expertise and independence which are not mutually exclusive. On the national level, Para 77 of the OHCHR paper says that there is a need to strive for involvement of PWDs, which the IDC felt weak and could be strengthened. Similarly, children with disabilities should have an element of representation on the treaty body and at the national level, which would be consistent with the mainstreaming approach. The IDC supported the gender balance reflected in the OHCHR paper. Regarding the selection process, it asked the OHCHR to expand on the transparency of the selection process at the national level, and how this could be reflected in the text of the treaty. It supported the reference to national plans of action, which the IDC sees as an element of the reporting process to be provided after the baseline/initial report has been submitted. National plans are particularly important because of the provision of targets and benchmarks, which additionally can help to move the monitoring process from an adversarial to a more cooperative approach. Regarding the issue of special procedures, the IDC supports introduction of a Global Disability Rights Advocate, which could provide a method of better integrating and reinforcing the special procedures. On the issue of peer review, the IDC supported suggestions for a conference of States Parties, not as a monitoring mechanism per se, but as an implementation measure. In terms of follow-up, it welcomed this as a way of bringing human rights to both national and regional levels, but queried whether this could usefully be addressed in the treaty text, or whether it was preferable to pursue this on an ad hoc basis. Regarding remedies, there has not been enough discussion of remedies at the national level, and the IDC feels Article 4 (General Obligations) is weak in this regard. It invited the OHCHR to speak to the issue of national level remedies and their importance for the convention. Finally, with regard to resources, it queried the point of this convention if there are not the resources to sufficiently ensure its implementation.
OHCHR suggested that textualizing a transparent selections process in the treaty should not be too difficult, through reference to consultations in nominations, the possibility of nominations to the State, and perhaps an obligation for canvassing by States for nominations from groups, especially DPOs. In terms of the representation and involvement of children with disabilities, the CRC has particular views on the participation of children in the monitoring of that treaty, and Save the Children has done work regarding the participation of children in inter-governmental processes in a way that addresses both access and safeguards issues. Regarding the utility of national action plans as a means of moving away from an adversarial approach, the OHCHR disagreed with this characterization, stating that consideration of reports “certainly is not an adversarial process,” but rather “constructive” dialogue intended to create targets and benchmarks. Regarding the relationship between special rapporteurs and treaty bodies, it noted that this treaty could provide an opportunity to explore methods to pursue this. On the issue of follow-up, it would seem more appropriate to address this in the treaty text rather than leaving it to the rules of procedure. Experience to date has shown that it has been extremely difficult to keep the working methods of the different bodies harmonized, even though both States and rights holders need some level of predictability and harmonization in the working methods. Regarding remedies, this issues was outside the mandate of the report. The issue of resources was raised and addressed.
NHRIs stressed the importance of effective monitoring and implementation mechanisms at both national and international levels, and called attention to the proposals submitted by NHRIs in a paper at AHC6. The NHRI proposals are in broad alignment with those put forward in the OHCHR and IDC papers. NHRIs see international monitoring as adding value to national processes of implementation and reform, and not as a substitute for them. At the national level there are two types of domestic bodies logically required: 1) a focal point for implementation within the executive government; and 2) an independent body to monitor progress. NHRIs see a national implementation plan as a critical element of implementation of the convention. At same time, there is an important role to be played by a monitoring mechanism independent of government, such as a NHRI, disability commission, equality ombudsperson, or similar institution, and the approach adopted in the optional protocol to CAT provides a useful starting point. The treaty should include a requirement for States to identify the agency or agencies responsible for monitoring implementation in the State, and the Paris Principles should be used to identify the nature of the independence and powers of such a body. NHRIs support establishment of a committee of experts, and the committee should be given the full range of functions that other existing committees already perform, including considering reports in a flexible way with strong follow-up. In addition, a committee should be able to utilize complaints and inquiry procedures, and should expressly be able to adopt general comments and develop an understanding of the convention. Furthermore, the body should be able to play a proactive role, undertaking thematic studies, pointing the way to reform, conducting visits, and providing assistance to States Parties to assist in implementation. Regarding composition, due to the historic neglect of PWDs, NHRIs are open to innovative methods to select independent individuals with requisite disability, human rights and other relevant expertise, independence, and strong representation of PWDs. Names should not be put forward by States absent meaningful consultation with DPOs. Half of the committee could consist of people chosen by States from their own nominees, and half chosen by States Parties from a list of names put forward by HCHR after due consultation with DPOs. NHRIs support explicit reference to participation of PWDs and DPOs in the work of the committee more generally. Regarding treaty body reform, the treaty could provide for the possible future transfer to a new unified body, as done in the draft disappearances text but NHRIs would want to ensure guarantees of disability expertise and participation of DPOs in any new unified body. NHRIs support the creation of a Global Disability Advocate, as “we need more than law, we need an international champion of the law.” NHRIs hoped the Chair might introduce a draft monitoring text for discussion at this session as a way to move forward.
Chair offered to produce and circulate a draft monitoring text within the next few days, purely as a basis for discussion and means of moving the issue forward. He then invited delegates to continue discussions on draft Article 23 (Respect for the Home and the Family), which were begun on Friday afternoon.
Article 23 (Respect for the Home and the Family)
Argentina stressed the importance of the private lives of people not suffering from interference from third parties, in particular the State, which is a concept enshrined in Argentinean constitutional law. As a consequence, it was concerned about the language of Article 23(1)(a), which attempts to regulate areas of private life not dealt with previously in human rights law. It was also concerned about the link made between equality of opportunity, which Argentina feels more relevant in employment and education contexts, and the right to privacy. It does not understand how equality of opportunity would relate to private life and relationships, and what the scope would be in this context. It is also not clear who this will apply to, because the State has the obligation to not interfere. Therefore, it proposed deletion of 23(1)(a), on the understanding that Article 22 (Respect for Privacy) sufficiently covers the rights of all people to not be interfered with, including with regard to aspects of their sexuality. In 23(1)(b) it proposed retention of “persons” rather than “men and women,” as that would be consistent with the approach taken in the rest of the text. Argentina also supported deletion of “[and that spouses should be equal partners]” at the end of 23(1)(b).
Trinidad & Tobago requested permission to provide their intervention, which would be focused on the bracketed section of the article, during the afternoon session.
Jamaica asked to speak now with regard to 23(2), and requested permission to speak again at a later time regarding the bracketed portions of the draft article. It supported 23(2) as currently drafted, because the language “where these concepts exist in national legislation” provides the necessary “balance” in the text, and adequately reflects the concerns of delegations from countries that do not recognize adoption per se.
Libya assumed that all delegations wish to arrive at a formula for the convention that does not run counter to the legislation and traditions in their States. Hence, Libya supported other delegations expressing concern regarding 23(1)(a), and in particular the bracketed portion “[experience their sexuality].” This para constituted considerable concern for Libya, and it requested that thought be given to deleting it, because (b) is more appropriate and sufficiently caters to the needs mentioned in (a).
The session was adjourned for lunch.
Article 23 (Respect for the Home and the Family) contd.
Canada supported inclusion of “on an equal basis with others” in 23(1) and the reference to equality in 23(1)(a), as this convention is not intended to create new rights but to ensure equality of existing rights. It is hoped that inclusion of such language could help to allay the concerns of some delegations regarding this article. It supported inclusion of “experience their sexuality,” as this language encompasses more than just having sexual and other intimate relationships. It supported deletion of “in accordance with national laws, customs and traditions of general application” from 23(1)(a). It proposed using more positive language in 1(a), such as “persons with disabilities have the equal opportunity to experience their sexuality …” instead of “persons with disabilities are not denied the equal opportunity to…” It supported the use of “persons” with disabilities instead of “men and women” in 23(1)(b). It supported the bracketed text up to “fertility,” in 23(1)(c), and suggested deleting “to the extent that these are permitted by national laws of general application.” It supported amending 23(2) to use anti-discrimination language, such as “Parents or guardians with disabilities should not be discriminated against on the basis of disability in legal, administrative and other processes associated with parenthood,” as it is not clear in the current formulation how states could “ensure” responsibilities of parents. It also sought clarification as to the meaning of the phrase “appropriate assistance” in this article. It expressed concern that the language in 23(3), involving official determinations as to whether a child should be separated from his or her parents, does not adequately link to the concept of the best interests of the child. It proposed the wording, “In this determination, the existence of a disability of either the child or one or both of the parents should not be considered justification for separation of a child from his or her parents.”
New Zealand supported the existing text, with some of the brackets removed, as well as an additional sub-paragraph. It appreciated the intention of inclusion of “in accordance with national laws, customs and traditions of general application,” but preferred for it to be deleted, as it could be misinterpreted to allow continuance of discriminatory national customs. However, it was flexible on this point, and could possibly agree to the language, since the phrase “general application,” in addition to “equal opportunity,” indicates a reference only to laws, customs and traditions that do not differentiate with respect to persons with disabilities. It preferred retention of this language if it would provide the necessary comfort for other delegations to agree not to delete some of the language currently in square brackets. It emphasized the importance of the bracketed language, particularly that in 23(1)(c), as many persons with disabilities are denied the right to found a family either medically, such as through forced sterilization, or through lack of information. It preferred “persons” instead of “men and women” although it was flexible on this point. It did not object to the U.S. proposal to add “age appropriate” before “information” in 23(1)(c), nor did it object to Canada’s proposed amendments. It proposed the addition of a new sub-paragraph 3(bis) to address the important issue of orphaned, abandoned or rejected children with disabilities under protection of the State, which would read “States Parties shall undertake that where the immediate family is unable to care for a child with disabilities, to make every effort to provide alternative care within the wider family, and failing that within the community in a family setting.” This is identical to an IDC proposal but with “in a family setting” at the end. It noted the need to ensure that children with disabilities are also guaranteed the right to experience family life, a right which is implicit in several provisions of the CRC (Articles 5, 9 and 18), but which needs specific mention in this convention, as children with disabilities are more vulnerable than other children to placement in institutions rather than with families. It was flexible on placement of the language, noting that it might be relevant to Article 7, but strongly supported its inclusion somewhere in the convention. Generally, it stated that the current text, plus the bracketed language was important, as it is detailed enough to ensure States do not put up barriers with respect to the equal opportunities of persons with disabilities in family life and personal relationships.
Qatar supported deletion of the bracketed text “experience their sexuality” and the text “sexual and other intimate relationships” in 23(1)(a), as it cannot recognize sexuality and intimate relations outside of marriage. Retention of this language might give rise to “susceptibilities.” It proposed the inclusion of a single reference to “national laws of general application” in the chapeau of 23(1) that would cover all subparagraphs in the article, thereby eliminating the need for repetition of the concept in the subparagraphs. It also supported the inclusion of “national laws of general application” in Article 2 on definitions.
Japan supported the Canadian proposal to delete the last part of 23(1)(c) after “fertility.” It proposed adding “on an equal basis with others, except …” to 23(3), after “against their will” to emphasize compatibility with the CRC.
Trinidad and Tobago supported deletion of references to national legislation in 23(1)(a) and (c) to avoid situations where States may hide behind lagging national laws as a means of not honoring their obligations under this convention. It noted that international conventions typically require states to bring their national laws in line with the obligations under the convention, and it suggested that if States were not comfortable with the obligations as set forth in this convention then they could exercise their sovereign right not to become States Parties. It also noted a drafting error in 23(2), suggesting that “disabled persons” should be amended to “persons with disabilities.”
El Salvador supported discussion on this article as reflective of the integration of human rights and social development perspectives. It supported redrafting 23(1)(a) to reflect a more positive approach consistent with the other sub-paragraphs. It proposed instead, “the rights of persons with disabilities are respected, on an equal footing with others, in the enjoyment of a full and satisfactory life, including sexual and intimate relationships.” It intentionally omitted the reference to “experience parenthood” in this broad language because the element is reflected implicitly in 23(1)(c) and its elaboration of rights to decide freely and responsibly the number of spacing of children. It supported replacing “men and women” with “persons” in 23(1)(b) to avoid qualifying who is covered and generating unnecessary debate on an issue dealt with specifically throughout the UN system. It emphasized also that it omitted “in accordance with national laws…” in its proposal for 23(1)(a), but noted that the language could be included at the end of 23(1)(b) to address the concerns of various delegations regarding the institutions of marriage and founding of family. It supported the deletion of bracketed language in 23(1)(c) as its content is addressed elsewhere in the convention and thus would be redundant.
Norway supported New Zealand and Canada’s interpretation of this article as relating to equality of rights. It favored more “positive language” in 23(1)(a), and supported Canada’s proposal to replace “are not denied” with “have,” to stress the equal rights of persons with disabilities to have a home and found a family. It supported deletion of “experience their sexuality” because, as noted by the International Disability Caucus, it may underline the stereotype of persons with disabilities as asexual beings. It also supported deletion of “in accordance with national laws, customs and traditions of general application.” It supported replacing “men and women” with “persons” in 23(1)(b), and it proposed deletion of “spouses should be equal partners” as that should “go without saying.” It supported deletion of the bracketed language in 23(1)(c), it supported Canada’s proposed amended language for 23(3), and it supported New Zealand’s proposed additional paragraph 23(3)(bis) regarding support for parenthood and maintaining a family.
Mexico suggested a new article title of, perhaps, “Marriage and the Family,” as “home” is not an appropriate term to reference here. It supported deletion of references to “personal relations” in 23(1) while retaining references to marriage, and family in the chapeau of 23(1). It proposed simplifying the concepts in 1(a), 1(b), and 1(c), emphasizing a “gradual approach” with: 1(a) focusing on sexuality, 1(b) focusing on the right to marriage and family, and 1(c) focusing on the number and spacing of children and other issues related to children. Based on this approach, the retention of “experience their sexuality” is very important. Mexico emphasized the concept of the actual experience of parenthood as distinct from merely the legal obligations and responsibilities of parenthood. In this regard, it again supported the inclusion of “experience their sexuality” as well as the proposal to rephrase 23(1)(a) in more positive language with a reference to “have” rather than “are not denied.” It also supported the draft language proposed by El Salvador for 23(1)(a). It supported the use of “persons” instead of “men and women” in 23(1)(b), and supported the proposal by the EU to include the concept of equality between spouses, suggesting that 23(1)(b) read “The right of all persons with disabilities be respected who are of marriageable age to marry and to found a family on the basis of the free and full consent of intending spouses, and that spouses shall be equal partners.” It noted potential support for a reference to national laws, but stated it needed further consideration of the issue as it is covered in other articles. One approach might be to later include a more general reference in the convention to respect for national laws. It supported inclusion of the concept of right of access to information in 23(1)(c) to enable people to exercise their right to parenthood on an equal basis with others, but proposed utilizing broader terms than that currently in the brackets. It also emphasized the importance of including an explicit reference to banning forced sterilization in 23(1)(c), though noted that this issue could also be revisited in the discussion of Article 17 (integrity of the person). Thus, it proposed to amend 23(1)(c) to read “The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children, and to have access to information which will enable them to experience parenthood on an equal footing, banning forced sterilization,” thereby deleting the rest of the language in square brackets in the chair’s proposed text. It had no objections to 23(2) or 23(3) in the chair’s text.
The Chair noted that the reference in 23(1)(c) to “the equal opportunity to retain their fertility” is intended to include an implicit ban on forced sterilization, though in less direct terms than that suggested by Mexico.
Jamaica supported the overall language of the chair’s text in Article 23 with minor amendments. It supported deletion of language in both brackets in 23(1)(a), and supported Canada’s proposal to amend the provision in more positive terms. It supported replacing “men and women” with “persons” in 23(1)(b). It proposed replacing “to found a family” with “to form” or “to establish a family” which would be less “awkward” terms. It supported deletion of all bracketed language in 23(1)(c), as it includes concepts, such as access to information, that are already covered elsewhere in the convention.
The Chair noted that the language “to found a family,” while admittedly quaint in today’s age, comes from ICCPR Article 23(2).
Chile supported redrafting 23(1)(a) in more positive terms as proposed by El Salvador, and supported use of the term “sexual life” instead of “sexuality” in the bracketed text in 23(1)(a). It supported replacing “men and women” with “persons” in 23(1)(b). It supported a reference to the issue of parenthood in 23(1)(c). It noted the need to use “paternity and maternity” in order to convey in the Spanish translation the concept in English of “parenthood.” It also noted concerns with the language “intending spouses” as “intending” does not adequately convey that they individuals are betrothed and are going to be married. It supported deletion of the bracketed language in 23(1)(c) referring to access to information, preferring to address issues of procreation and parenthood in 23(1)(c). It supported inclusion of a specific reference to banning forced sterilization in 23(1)(c), regardless of repetition of other articles in the convention and implicit inclusion in language of “retain their fertility,” as the issue of forced sterilization is serious enough to warrant references enshrining the concept. It also supported the inclusion of gender-specific language in 23(1) as well as 23(2), as women with disabilities may suffer from discrimination by institutions under existing national law. It supported including a reference to the adoption of children, as in the CRC, to avoid discrimination by omission. It emphasized the importance of including at the end of 23(3) “in no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents.” It objected to “or other forms of administrative review as established by law,” citing to CRC article 9 and stating that a decision of such import as the separation of children from parents should be subject to review only through the judiciary, not merely an administrative body. The goal here is to keep children from being separated from parents because of disability.
The Chair noted Chile’s point regarding judicial review and potential inconsistency with CRC Article 9(1). The discrepancy is one that should perhaps be addressed to ensure consistency with the CRC, and avoid a different standard for people with disabilities whereby review of a separation could be conducted by a body other than a judicial body. He also noted that the reference to “disabled persons” in 23(2) was a typographical error that would be corrected.
The United States supported reference in 23(1)(a) to persons with disabilities having the opportunity to experience parenthood and family life “on an equal basis with others” to emphasize the nondiscrimination and equal treatment objectives of the treaty. It supported the IDC’s proposed deletion of the “vague” phrase “experience their sexuality” as it is redundant; the objective of combating the asexual stereotype associated with persons with disabilities is achieved through reference to the right to have sexual and other intimate relationships. Noting the value of the language to some delegations, it nevertheless supported deletion of “in accordance with national laws, customs and traditions of general application” as unnecessary language that may be misinterpreted to justify injurious or discriminatory practices. It supported El Salvador’s proposed amendment for 23(1)(a) and, noting El Salvador’s reference to the concept with regard to 23(1)(c), it supported reformulating 23(1)(a) in more positive language to perhaps include the concept of experiencing parenthood. It supported use of “have” rather than “are not denied,” in order to emphasize the equality basis of the treaty. It further supported deletion of “spouses as equal partners” from 23(1)(b). It proposed the addition of “bearing in mind parental responsibility over their minor children in this regard” to 23(1)(c), highlighting the essential responsibility of parents in their children’s upbringing especially with regard to education. It also proposed adding “age-appropriate” before “information” based on its experiences with educational programs of this nature, and the need to provide age-appropriate information for children regardless of disability. It supported deletion of “national laws of general application” as it is unnecessary. It supported retention of “equal opportunity to retain their fertility” as a very strong statement tantamount to the idea that persons with disabilities shall not be subjected to forced or coerced sterilization or other methods of controlling or precluding fertility. The reference to “equal of opportunity” also renders reference to national laws unnecessary and undesirable. It supported Mexico’s proposal to also include explicit reference to banning forced sterilization. It supported Canada’s proposed redraft of 23(2) because of its emphasis on equality of treatment. It strongly supported reference in 23(3) to the role of the family because it is the most important form of support for PWDs, and in some cases may be the only form of support. It proposed insertion of language from UDHR Article 16(3), “recognizing that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” It supported the spirit of the concepts in the IDC’s proposed new 23(4), regarding the right of children to a family life, though noted it was still reviewing the language as well as New Zealand’s proposal incorporating part of that language.
South Africa emphasized that nondiscrimination against persons with disabilities on the basis of sexual orientation, gender, or marital status ensures equality in family life and the home. It supported deletion of “in accordance with national laws, customs and traditions of general application” from 23(1)(a) with either the retention of similar language in 23(3) or inclusion of such language in Article 4 (General Obligations). It supported replacing “men and women” with “persons” in 23(1)(b), as well as inclusion of “spouses should be equal partners.” It supported retention of the important reference to access to information in 23(1)(c), acknowledging that this concept is also addressed in Article 9. It supported the text of 23(2) without changes, because of its emphasis on equal treatment and equality of opportunity. It supported retention of “national laws of general application” in 23(3) with possible additional mention under General Obligations.
Israel attached great importance to the article in light of its cultural and religious traditions. It supported the United States’ proposal to include a reference to family as the natural and fundamental unit of society in 23(3). It supported proposals to reformulate 23(1)(a) in more positive language, replacing “are not denied” with “have.” It supported deletion of “experience their sexuality” because it is unclear, and deletion of “in accordance with national laws, customs and traditions of general application” in 23(1)(a) because of potential problems of ambiguity and misinterpretation that might inadvertently negate the other substance of the article. It reserved its opinion on whether “persons” or “men and women” is more appropriate for the discussion on gender and children-specific articles and references. It proposed deletion of “and that spouses should be equal partners.” It supported retention of the language in square brackets in 23(1)(c) as a necessary complement to the first part of the provision. It supported reformulating 23(3) to emphasize that the decision to separate a child from parents where disability is involved should be made in the same manner as where a disability is not involved, so that the overriding consideration is the best interests of the child. It proposed amending the language to read “…that such separation is vitally necessary in the interests of the child and on an equal basis with others.” Consequently, it supported deletion of the last sentence in 23(3) (“in no case shall a child be separated…”) because its retention would be unnecessary and confusing. It supported the new language proposed by IDC, adding that it would further amend that language in proposed new paragraph 23(4) to “recognizing the right of children with disabilities to family life, States Parties shall undertake to provide a) early and comprehensive information, services and support to children with disabilities and their families, to promote children’s optimum development, and to ensure they are able to be cared for within their family, be an active participant in family life and to enable their full social inclusion and equality of opportunity; b) where the immediate family is unable to care for a child with disabilities, to make every effort to provide alternative care within the wider family setting and, failing that, within the community; c) to provide education and support to families and other caregivers to promote positive attitudes towards disabilities, prevent concealment, abandonment and neglect of children with disabilities, and to facilitate inclusion.”
Brazil supported Trinidad and Tobago’s proposed deletion of reference to national laws from 23(1)(a) because of the potential for abuse by States to avoid their obligations and because the language “on an equal basis with others” in the chapeau makes the reference dispensable. It supported use of more positive language in 23(1)(a), replacing “are not denied” with “have.” It supported inclusion of the direct reference to “experience their sexuality” in 23(1)(a), in light of the objective in 8(2)(a)(ii) to change negative perceptions and social prejudices towards persons with disabilities in matters of sexuality. It supported inclusion of “persons” instead of “men and women” and deletion of the redundant phrase “spouses should be equal partners” from 23(1)(b). It supported inclusion of all the bracketed language in 23(1)(c) except for the language “to the extent permitted by national laws of general application.” It proposed replacing this language with “on an equal basis with others.” It proposed, like the IDC, deletion of all but the last sentence of 23(3), as the first part of the paragraph deals only with general situations and universal procedures that do not need explicit enumeration.
Austria, on behalf of the EU, supported inclusion of “experience their sexuality” in 23(1)(a), but called for the deletion of the reference to national laws, customs and traditions, as the inclusion of “on an equal basis with others” in the chapeau makes it unnecessary and because of the potential for this language to lead to “non-application of rights.” It supported use of the broader term “persons” instead of “men and women,” and it supported inclusion of the reference to spouses as equal partners in 23(1)(b). It supported deletion of the reference to national laws in 23(1)(c). It supported the Chair’s Text in 23(2) and 23(3), and was still considering the proposals made by Canada and New Zealand.
Nigeria supported deletion of “experience their sexuality” in 23(1)(a) and supported Canada’s proposal to replace “are not denied” with “have.” It also proposed deletion of the reference to national laws so it is not used to justify a denial of rights under the convention. It favors “persons” instead of “men and women” although it is flexible on this point. It supported replacing “spouses” with “partners” in 23(1)(b) and deleting “and that spouses should be equal partners.” It supported inclusion in 23(1)(c) of the bracketed language regarding “access to information…” despite inclusion in other articles, because it is particularly applicable to reproductive and family planning. It supported the Chair’s Text in 23(2). In 23(3) it supported inclusion of the reference to the role of the family in society, as proposed by the United States and consistent with the language of UDHR Article 16. It supported the IDC’s proposed new 23(4) in full to address specifically the concerns of children with disabilities and their families.
Uruguay supported deletion of “experience their sexuality” from 23(1)(a), as long as the reference to “sexual and other intimate relationships” is retained. It also supported deletion of the reference to national laws. It supported reformulation of 23(1)(a) into more positive language. It supported replacing “men and women” with “persons” in 23(1)(b). It supported the text of 23(1)(c), including the language in brackets up to “fertility,” proposing the replacement of “to the extent that these are permitted by national laws of general application” with “on an equal basis with others.” It suggested that 23(2) be reformulated to be consistent with the language of the CRC. It emphasized the same point with respect to 23(3), and it noted potential support for the proposal by the U.S. to include a reference in the beginning of 23(3) to the role of the family in society, reflecting the language of the UDHR.
Colombia suggested inclusion of “sexuality” after “family” in the chapeau of 23(1). It supported Argentina’s proposed deletion with respect to 23(1)(a). It supported replacing “men and women” with “persons.” It proposed amending the text of 23(1)(c) to read “The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children as well as the opportunity to retain their fertility on an equal basis with others.”
Costa Rica noted the traditional deference given to language coming from the ICCPR or the CRC. In this regard, it does not support the replacement in 23(1)(b) of “men and women” with “persons,” because the language comes from ICCPR Article 23 regarding the right of “men and women” to enter into marriage. It cited specific examples of previous discussions about other articles (specifically the Article on Liberty of Movement) where proposed amendments were rejected as inconsistent with the language of the above Conventions, and noted its concern that this rationale should be applied consistently throughout the convention. It also stated that it would not be willing to support a proposed change to the language in the Article that would be inconsistent with the ICCPR, and that would take a step in the direction of the still very controversial issue of homosexual marriage.
Yemen supported deletion of “experience their sexuality” as reference to the more general concepts of marriage and family encompasses this aspect and is more compatible with differences in national laws, customs and traditions. It expressed flexibility as to whether “persons” or “men and women” is more appropriate in 23(1)(b), although it stated a preference for “men and women” because of consistency with previous conventions; it noted that neither phrase would specifically solve the concerns expressed by Costa Rica as to interpretation, as either terminology could be interpreted to include homosexual marriage if that is the objective. It supported instead repeated references to national laws, customs and traditions as a better solution to Costa Rica’s concerns. It also expressed concern as to the formulation in 23(1)(c) involving the right to decide the number and spacing of children, noting specifically that the number of children allowed in a family is subject to limitations by Islamic culture. It proposed replacing “and” with “or” in 23(2) because adoption, guardianship and trusteeship are necessarily mutually exclusive institutions. It supported the concepts in 23(3) involving family as a fundamental nucleus of society, therefore warranting protection and care, but it reiterated objections expressed by Qatar, the Syrian Arab Republic, and Sudan, and proposed a reformulation to define the family unit as the father, the mother, and the children.
The Chair noted that the provision involving number and spacing of children is not meant to overrule State policies (such as those limiting the number of children people may have) in this subject area, so long as the policies are nondiscriminatory. The Chair also noted with respect to 23(2) that CEDAW Article 16(1)(f) uses “and” in its language about adoption, guardianship and trusteeship; that either “and” or “or” could be used in the English text; but that care should be taken to ensure consistency with other languages.
The Russian Federation supported using more positive language in 23(1)(a) and favored deletion of “experience their sexuality.” It was flexible regarding the various proposals to retain or amend the language referencing national laws. It was also flexible as to whether “men and women” or “persons” would be more appropriate, noting that it could support the inclusion of “persons” as long as it is clear that the language is not creating any new rights or duties for Member States. It was concerned with the bracketed language in 23(1)(b) involving spousal equality, supporting the basic principle but noting that the language should be consistent with ICCPR 23 so as not to introduce new, unexpected elements. It noted specifically the series of factors enumerated in ICCPR 23(4) referring to the equality of rights and duties of spouses with regard to marriage during the duration of the marriage and upon dissolution of the marriage. It also noted that ICCPR 23(4)(j) contained language regarding defending and protecting the rights of children that could also be relevant to all persons with disabilities. It therefore proposed a 23(1)(b)(bis), which would read, “That the equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution, are recognized.” It was open to discussion on this proposed language. It supported the United States’ proposal for 23(1)(c). It noted confusion regarding the translation of “experience of parenthood” into the Russian text, and suggested language referring to obligations, rights and duties of parents instead. It queried, noting issues with Russian translation, whether in 23(2) there might be certain situations where an individual is, because of disability, unable to carry out the duties and responsibilities of parenthood, and that individual’s right to adopt could be restricted by the competent State authorities and organs in the best interests of the child. It also noted concern with the language involving “States Parties shall ensure the responsibilities of persons with disabilities,” as it was unclear how States can ensure responsibilities. It suggested, instead, including language to the effect that “States Parties shall take all appropriate measures to ensure that persons with disabilities can have the rights and responsibilities, with regard to the factors in 23(2), on an equal basis with others.” It suggested alignment of 23(3) with CRC Article 9. It proposed adding “subject to judicial review” after “except when competent authorities,” consistent with the CRC. It supported the U.S. proposal for 23(3) arising out of ICCPR 23(1). It supported deletion of the last sentence in 23(3), citing reasons similar to those expressed by Israel.
China supported proposals to change the title of Article 23 to “Respect for the Family” because the term “home” is “vague.” It supported the deletion of 23(1)(a), citing concerns about the controversial nature of the provision stemming from differing national legal systems and cultures. It noted that the essential concepts of marriage, parenthood and family are also included in 23(1)(b) and thus would not suffer by deletion of 23(1)(a). It supported retention of the bracketed text in 23(1)(c) in light of the Chair’s letter of, October, 2005, noting the provision was not meant to influence the policies and regulations set by national laws of general application.
The Chair reiterated that the convention is not meant to change State policies regarding the number of children that families can have, but is only intended to ensure that persons with disabilities have the same rights involving family and children as other citizens of a country; thus, the language in the chapeau “and shall ensure on an equal basis with others” should help to clarify this point.
Morocco supported retention of the bracketed language “in accordance with national laws…” in 23(1)(a) as long as the laws, customs and traditions do not discriminate against persons with disabilities. It strongly supported the U.S. proposal to include, in 23(1)(c), aimed at ensuring the responsibility of parents towards their minor children. It also supported the U.S. proposed reference to family at the beginning of 23(3).
Qatar, citing statements by Sudan, Syria and Yemen, strongly supported retention of language referring to national laws, customs or traditions of general application.
Libya noted its flexibility regarding 23(1)(a), suggesting either complete deletion of the provision, or retention of the provision with inclusion of the language regarding national laws in the beginning of 23(1) as suggested by Yemen and a concurrent deletion of “experience their sexuality.” It also supported retaining “men and women,” with removal of other brackets in 23(1)(b), and replacing “and” with “or” in the phrase regarding “free and full consent of intending spouses.”
Egypt supported inclusion of language referring to national laws as an important safeguard, but was flexible as to placement of the language. It supported deletion in 23(1)(a) of “experience their sexuality.” It noted flexibility in the issue of “persons” versus “men and women,” as well as the issue of equity of spouses. It supported the U.S. proposal to add “age appropriate” and a reference to the responsibility of parents for their minor children to 23(1)(c), but called for retention of the reference to national laws. It also supported the U.S. proposal to include a reference to family in 23(3).
Ethiopia supported retention in 23(1)(a) of the bracketed language referring to national laws, traditions and customs. It also supported U.S. proposals with regard to 23(1)(c). It noted concern with 23(3), particularly the phrase “competent authority,” as this could include executive bodies within the government. It stated that a decision regarding the separation of a child from the parents is one that should be made through the judiciary only, not executive agencies, and in this context it was not comfortable with the language of 23(3).
Jordan proposed combining 23(1)(a-c) into one simplified “positive” subparagraph with the language “that persons with disabilities have the opportunity to marry, found a family, have children and experience real parenthood.”
The IDC supported deletion of both brackets in 23(1)(a). It noted concern with “experience their sexuality” as potentially strengthening the stereotype of persons with disabilities as asexual beings. It stated that the reference to national laws is unnecessary as the phrase “on an equal basis with others” encompasses the same ideas. However, it noted that this debate should be revisited in light of the strong feelings on both sides of the issue. It stated further that the particular language referencing national laws could be misinterpreted to the detriment of persons with disabilities—that the tolerance threshold in Article 4 is much higher than in CEDAW Article 2(f); thus, the IDC supported deletion of the phrase. It supported replacing “men and women” with “persons” and deleting “spouses should be equal partners” in 23(1)(b). It supported deletion in 23(1)(c) of the bracketed text “to have access to information…” It supported replacing the reference in 23(1)(c) to “the extent permitted by national laws…” with “on an equal basis with others.” It supported specific mention in this provision of forced sterilization as proposed by the U.S., so that the following languages would be added: “In no case shall persons with disabilities be subjected to compulsory sterilization.” It noted the need to further consider Canada’s proposal with respect to 23(2). It suggested deletion in 23(3) of “States Parties in the best interests of the child” as it merely repeats well-established concepts in children’s rights law and thus gives the impression that this is more important for persons with disabilities. The appropriate obligation is found in the CRC and thus is not necessary here. It noted interest in the Canadian proposal for 23(3), which might address some of the IDC’s concerns. It explained the rationale for the IDC’s proposed 23(4), namely that the proposal was formulated after close consultation with children with disabilities who stated that the lack of understanding by parents about the nature and causes of disability, of awareness of the rights to education and health care, of training, or of an ability to communicate on the part of parents of children with disabilities often leads to rejection or exclusion of these children. Thus, education and support for the family, as in proposed 23(4), is essential.
National Human Rights Institutions supported deletion of “in accordance with national laws, customs and traditions” in 23(1)(a), as suggested by the EU and the IDC, because it could be misapplied to allow for discrimination. It strongly supported an explicit prohibition in this article on forced sterilization because of its central relationship to dignity, although it was flexible as to placement. It supported the general approach in the Chair’s Text in 23(2), consistent with CRC 20(3), which appropriately recognizes diversity in family institutions under comparative laws in different countries, while ensuring overall nondiscrimination against persons with disabilities in any of these institutions.
The Arab Organization of Disabled People noted its concern specifically with the language in 23(1)(a) and 23(1)(b) referring to “customs” and “traditions” as these concepts are more difficult to define and may vary not only between countries but also in different regions and cultures within a particular country. Thus, it suggested including a reference only to “laws” in these provisions.
The Chair proposed to provide a summary of the discussions the following morning. He noted that discussions for Article 23 had exceeded the estimated two hours, but this seemed appropriate given the cultural sensitivities of the issues involved. He also noted that the next two articles for discussion, (Article 24, Education and Article 25, Health), were quite lengthy, but given the extensive nature of prior discussions he hoped that debate could be kept as brief as possible so as to complete discussions on both articles in one day.
The session was adjourned.
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