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Post-Seminar E/ESCAP/EGM-PWD/Rep
4 June 2003, ENGLISH ONLY
(Not formally edited)
Bangkok Recommendations on the Elaboration of a Comprehensive and
Integral International Convention to Promote and Protect the Rights and Dignity of Persons
with Disabilities
We, the participants in the Asian and Pacific regional expert group meeting on an
international convention to promote and protect the rights and dignity of persons with
disabilities, met from 2-4 June 2003 in Bangkok.
As experts from governmental and non-governmental organizations, national disability
and human rights institutions and independent experts, we have formulated these
recommendations in response to the invitation by the General Assembly in Resolution 57/229
to "make available to the Ad Hoc Committee suggestions and possible elements to be
considered in proposals for a convention."
We are convinced that a new international human rights treaty is necessary to ensure
that persons with disabilities enjoy all their human rights.
A. BACKGROUND AND GENERAL APPROACH
1. While international human rights standards require that people with disabilities
should enjoy the same basic human rights as all other human beings, persons with
disabilities throughout the world are subjected to widespread violations of their human
rights. These violations include malnutrition, forced sterilisation, sexual exploitation,
the denial of educational and vocational training opportunities, inaccessible public
services, institutionalisation, and the denial of voting rights, rights to communication,
and the right to participate in policy-making.
2. There is a pressing need for the elaboration of a new international convention on
the human rights of persons with disabilities. A coherent, integrated and focused approach
to disability in international law cannot be developed under the present treaty system.
Therefore, an exclusive convention is necessary to give "status, authority and
visibility" to disability issues, which cannot be achieved through the process of
reform of existing international instruments and monitoring mechanisms.
3. A single comprehensive treaty would enable the States Parties to understand their
obligations to set targets for the development of disability-inclusive infrastructure and
processes. Adding a new treaty would complement existing international standards for the
rights of the disadvantaged.
4. A new convention should be a human rights treaty, which reaffirms that human rights
and fundamental freedoms apply to all human beings, including persons with disabilities,
thus reflecting the movement from a social welfare approach to a rights-based model
embodied at the international level in documents such as the World Programme of Action
concerning Disabled Persons and the Standard Rules for the Equalization of Opportunities
for Persons with Disabilities. A new human rights convention would play a critical role in
enhancing the advancement of persons with disabilities in the context of all aspects of
development.
5. A new convention should reaffirm and build on human rights norms laid down in the
existing United Nations human rights treaties (including treaties adopted by the
specialised agencies such as the International Labour Organisation) and other norms (such
as the Standard Rules). A new treaty should in no way diminish existing guarantees of
rights under those treaties, but should supplement existing guarantees as appropriate and
address issues of particular concern to persons with disabilities.
6. A new convention should include guarantees of both civil and political and economic,
social and cultural rights, and should provide for appropriate remedies at the
international and national levels for violations of all the rights it guarantees.
7. The adoption of a new convention should be one part of a multi-track approach to the
fulfilment of the human rights of persons with disabilities and the achievement of the
goals of human and social development. In particular:
- existing human rights bodies and mechanisms should increase their efforts to address
issues of disability that arise within the scope of their activities;
- there should continue to be strong support for the work of the Special Rapporteur on
Disability of the Commission for Social Development (and the panel of experts) in
monitoring the implementation of the Standard Rules on the Equalization of Opportunities
for Persons with Disabilities;
- governments, international organizations, and civil society groups (including disabled
people organizations and non-governmental organizations) should continue to work to
implement the Standard Rules, as well as to implement other instruments or programmes
which address disability issues, such as the World Programme of Action and the Biwako
Millennium Framework for Action towards an Inclusive Barrier-free and Rights-based Society
for Persons with Disabilities in Asia and the Pacific.
The Meeting noted the importance of the role of national institutions in realising the
human rights of persons with disabilities and the need for governments to establish
national human rights institutions and other appropriate bodies to give effect to those
rights at the national level.
8. Member States and the United Nations system should take steps to ensure the full
participation of representative disability groups and persons with disabilities,
especially those from developing countries, in the process of elaboration of a convention.
Governments which are in a position to do so are urged to make contributions to the United
Nations Voluntary Fund on Disability for this purpose. All governments in the Asia-Pacific
region should ensure that they consult DPOs for their views on the issue of a convention,
facilitate the participation of DPOs in the discussions of the Ad Hoc Committee
established by General Assembly resolution 56/168, and should include persons with
disabilities from DPOs in their official delegations to the Ad Hoc Committee.
B. ELEMENTS OF A CONVENTION
NATURE OF THE CONVENTION
9. The Convention should be comprehensive, containing an explicit restatement of the
rights contained in existing human rights instruments, including the Universal Declaration
of Human Rights, the International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights, and other relevant
instruments. The Convention should thus go further than a simple statement of the right to
equality and non-discrimination in the enjoyment of human rights and fundamental freedoms.
STRUCTURE
10. The Meeting considered that a Convention should include the following elements:
- Preamble
- Statement of objectives and general principles
- Scope/Definitions (including definitions of disability and discrimination)
- General obligations of States Parties to respect and ensure the rights guaranteed in the
Convention
- Guarantee of equality and non-discrimination (generally and in the enjoyment of the
rights guaranteed in the Convention; statement of gender equality)
- Guarantees of specific rights (drawing on the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, the International Covenant on
Economic, Social and Cultural Rights, and other instruments, expanded by reference to
disability perspectives)
- Other State obligations
- Monitoring mechanisms
- Miscellaneous provisions
PREAMBLE
11. The Meeting considered that the following matters might be usefully addressed in a
Preamble:
- Recognition of the value of international human rights guarantees in existing United
Nations human rights instruments
- Recognition of international and regional disability-specific instruments, declarations,
norms, and guidelines to promote human rights and non-discrimination against people with
disabilities
- Recognition of the continuing widespread denial to persons with disabilities of their
internationally guaranteed human rights and fundamental freedoms
- Recognition of the fact that, despite the increase in emphasis placed on disability
issues by mainstream human rights institutions, the adoption of a new convention is
necessary to ensure that the human rights of persons with disabilities and their
representative organizations receive adequate attention and action;
- Recognition of the relevance of the Standard Rules to the interpretation and
implementation of the Convention;
- Recognition of the efforts, achievements and obstacles during the Asian and Pacific
Decade of Disabled Persons (1993-2002)
- Reaffirmation of disability-focused documents such as the Biwako Millennium Framework,
the Manila Declaration on Accessible Information and Communication Technologies, the
report of the World Summit for Information Society, and other regional instruments.
STATEMENT OF PRINCIPLES AND OBJECTIVES
12. It would be important to set out clearly the objectives of the Convention and the
basic principles underlying its interpretation and application. The statement of
principles and objectives of the Convention might include reference to an affirmation of
dignity, autonomy, equality, solidarity, and representative participation as overarching
values underpinning any convention.
13. The Convention should:
- be a "rights-based" instrument built on international human rights norms and
standards of social justice, citizenship and well-being. Standards below already existing
human rights standards must not be accepted;
- ensure that that all persons with disabilities, without exception, are entitled to the
full benefit and enjoyment of all fundamental human rights and freedoms on the principles
of equality, dignity and autonomy and without any discrimination;
- stress that the situation of all disability groups and the diverse conditions related to
gender, race, colour, age, ethnicity and other considerations must be taken into account,
and recognize the impact of dual disadvantage and multiple discrimination faced by
individuals such as, women, children or indigenous people with disabilities;
- ensure that the principles of non-discrimination and equal opportunity apply to persons
with disabilities and their organizational issues;
- acknowledge that the lack of provision of reasonable accommodation and/or positive
actions to eliminate barriers to full participation is a form of discrimination;
- primarily contain rights that are enforceable, and should incorporate measures to enable
persons with disabilities to exercise their human rights and fundamental freedoms;
- provide for a mechanism for the participation of organizations of persons with
disabilities in the monitoring and implementation of the treaty;
- promote international cooperation to support national efforts;
- promote cooperation between governments and DPOs at the national level and ensure
recognition of the successful initiatives of DPOs;
- promote an inclusive and barrier-free society; and
- promote the participation and proper representation of persons with disabilities in
policy- and decision-making.
DEFINITIONS
14. The convention should include definitions of disability, discrimination, and
accessibility.
Disability
15. There is a range of definitions of disability adopted at the international level.
This reflects different purposes as well as changes in the understanding of disability.
The meeting noted that the WHO-ICF definition might be taken as a starting-point, but also
noted that there were concerns about some definitions currently employed, particularly in
relation to survivors of mental illness or users and survivors of psychiatry.
16. The Convention should contain a definition of disability that reflects an
understanding of disability as something which is the result of social and environmental
factors. A definition of disability should not be restrictive. For example it should cover
physical, sensory, intellectual, psychiatric and multiple disabilities. It should
acknowledge that disability can be permanent, temporary, episodic and perceived.
17. In elaborating the definition of disability, it should be recognized that, while
individuals have impairments, disability is not an individual pathology. It has a range of
implications for social identity and behaviour, and largely depends upon context.
Disability may also be a consequence of discrimination, prejudice and exclusion.
Discrimination and equality
18. With regard to the definition of "discrimination" the Convention should
address all forms of discrimination including direct, indirect, intended and unintended,
hidden, and systemic discrimination. The convention should contain a definition of
discrimination on the basis of disability which draws on existing international
definitions but which modifies them to reflect the particular nature of equality and
discrimination in relation to persons with disabilities.
19. There is a consistent approach taken to the definition of discrimination by the
Convention on the Elimination of All Forms of Discrimination against Women, the
International Convention on the Elimination of All Forms of Racial Discrimination, ILO
Convention No 111 on Discrimination in Occupation and Employment, and by the Human Rights
Committee and the Committee on Economic, Social and Cultural Rights. Discrimination exists
where there is "any distinction, exclusion or restriction on the basis of a
prohibited characteristic (i.e. disability) which has the purpose or effect of impairing
or nullifying on a basis of equality the recognition, enjoyment or exercise of human
rights"..
20. A definition of discrimination should:
- cover direct (disparate treatment), indirect (disparate impact), hidden and systemic
discrimination, including all arrangements, practices, and social structures that lead to
the denial of rights and freedoms;
- include a failure to accord reasonable accommodation as discrimination (as does the
Committee on Economic, Social and Cultural Rights in its General comment 5), and should
include a definition of reasonable accommodation;
- clarify the different types of "positive measures" that may be required to
ensure equality (some continuing, some which may need to be only temporary) and the
relationship of these "positive measures" to the definition of discrimination;
- provide that affirmative action or special measures to reduce or remove barriers to full
participation and to provide enabling environments in order to achieve equality of
opportunity and equality of treatment should not be regarded as discriminatory;
- equality of opportunity requires that any relevant restrictions or limitations caused
directly or indirectly by a disability should be remedied by appropriate modifications,
adjustments or assistance;
- recognize that discrimination can result where different treatment is based on multiple
grounds including disability (intersectionality) - for example, women with disabilities,
indigenous people with disabilities - and that there can also be discrimination where
different disabilities are treated differently and where in relation to different
treatment there is a disparate effect on an individual or group;
- include protection for associates of persons with disabilities against discriminatory
treatment because of their association; and
- provide protection against discrimination where disability is suspected, assumed or
perceived, or where the discrimination is based on a past disability.
21. The definition of equality should recognize that equality of opportunity requires
that any relevant restrictions or limitations caused directly or indirectly by a
disability should be remedied by appropriate modifications, adjustments or assistance and
requires affirmative action, reasonable accommodation or special measures to provide
barrier free access in all spheres for full participation and to provide enabling
environments, where necessary, in order to achieve equality of opportunity and treatment.
Such action or measures should not be regarded as discriminatory. The Meeting raised the
issue of whether the concept of equality to be adopted was one of equality of opportunity
or equality of outcome/result.
Accessibility
22. The concept of accessibility, which was a critical component of any convention,
needs to be defined carefully. The following definition was proposed: [1]
"Accessibility" means the measure or condition of things and services that
can readily be reached or used (at the physical, visual, auditory and/or cognitive levels)
by people including those with disabilities, which could be achieved, through design and
adaptation irrespective of any types of disabilities. The term "accessibility",
as commonly used in the disability-related field, may include but is not limited to:
(i) access to physical/built environments and public transport;
(ii) access to information and communications, including information, communications
and assistance technology.
The Meeting also noted the elaboration of accessibility with reasonable accommodation
contained in the Manila Declaration on Accessible Information and Communications
Technology adopted by the United Nations Interregional Seminar and Demonstration Workshop
on Accessible ICT and Persons with Disabilities (Manila, 3-7 March 2003). That meeting was
organized in response to General Assembly resolution 57/229, which inter alia calls for
accessibility with reasonable accommodation in United Nations facilities and documents.
GENERAL OBLIGATIONS
23. The Convention should contain a clear statement of the obligations of a State Party
to implement its provisions, in particular the obligations to respect, ensure and provide
remedies for violations of the rights set out in the Convention. States Parties should be
obliged to take legislative, programmatic and policy actions to implement the provisions
of the Convention, in particular the obligations to respect, ensure and provide
enforcement mechanisms for violations of the rights set out in the convention. These
measures should include specific constitutional or legislative guarantees of the rights of
persons with disabilities to enjoy human rights and fundamental freedoms without
discrimination. States should be obliged to ensure an enabling environment and a
barrier-free society.
24. The convention should clearly set out the obligations of States Parties in relation
to the acts of non-State actors which involve the denial of the human rights of persons
with disabilities.
25. States Parties should provide guarantees of equality of opportunity and of
non-discrimination, both generally and in the enjoyment of rights guaranteed in the
convention.
GUARANTEE OF EQUALITY AND NON-DISCRIMINATION
26. The Convention should contain a general guarantee of equality and
non-discrimination in the enjoyment of the rights set forth in the Convention, as well as
a free-standing guarantee of equality and non-discrimination as set out in article 26 of
the ICCPR.
27. The Convention should make specific reference to the right of women and men to
equality and non-discrimination in the enjoyment of human rights and fundamental freedoms.
GUARANTEES OF SPECIFIC RIGHTS
28. The Convention should reaffirm the entitlement of persons with disabilities to the
enjoyment of all human rights and fundamental freedoms. It should therefore contain a
statement of specific rights guarantees, drawing on the rights contained in the UDHR,
ICCPR, ICESCR and other instruments. These rights should be supplemented by more detailed
elaborations of what is required for persons with disabilities to enjoy those rights on
the basis of equality, or by new formulations that reflect the perspectives of persons
with disabilities. The Convention on the Rights of the Child and the Convention on the
Rights of All Migrant Workers and Members of Their Families may provide useful
starting-points for developing such an approach.
29. The Meeting noted that all rights could be further elaborated to ensure that
persons with disabilities enjoyed them on an equal basis. A number of specific examples
were given:
- the linguistic rights of persons with disabilities (as illustrated by the rights of deaf
persons to use sign language to communicate, to have interpretation services in sign
language and education in sign language as well as effective access to all systems of
communication; or by the right of persons with visual impairment to use Braille), which
might be derived from various rights including the rights to freedom of expression;
- the rights to respect for private and family life, and to freedom of expression might be
relied on to underpin the right to sexuality of persons with disabilities;
- right to liberty and security of the person and to freedom from cruel, inhuman or
degrading treatment could be drawn on in relation to forced intervention, and
institutionalization;
- the right to non-discrimination in relation to nationality and immigration might be
drawn on to support the rights of persons with disabilities to immigrate to join family
members (a field in which some countries discriminate); and
- the rights to freedom of association, freedom of expression, and of political
participation could be drawn on to ensure the full representation of DPOs in
decision-making.
30. The meeting also noted that the implications of some rights for persons were
contentious. The example of the right to life and its implications for the use of genetic
counselling, or rights of access to abortion was mentioned. It was recognized that a
convention would not necessarily resolve debates over these contentious issues.
31. In addition to specific interpretations of existing human rights guarantees,
participants identified a number of additional perspectives or aspects of existing rights
that might be considered for explicit inclusion in a convention. These included:
- Right to participation and right to inclusion;
- Right of access to the physical environment (including access to places, services and
facilities) right to a barrier-free society;
- Right of access to information and to communication (which should reflect the specific
modifications necessary for effective access);
- Right to enjoy resources;
- Right to personal self-determination and to independent living in the community [2];
- Right to freedom from violence and abuse;
- Right of access to basic economic resources, including safe food and water; and
- Provisions recognizing that the position of persons with disabilities living in rural
areas may be different in important respects to that of persons living in urban areas.
32. There was some discussion of whether the concept of reasonable accommodation should
be seen as involving a separate right or whether it was better understood as part of the
concept of discrimination. Some consideration was also given to whether third generation
rights, such as the right to development, should appear in the Convention. The consensus
of the Meeting was that, given the complexities of introducing such a collective right
into the proposed convention, it might be more appropriate to focus on guaranteeing
enjoyment of individual rights as a means to enhancing the participation of persons with
disabilities in the development process and ensuring that they enjoy the benefits of
development, rather than including the right to development as such in the body of the
convention.
OTHER STATE OBLIGATIONS
33. The Convention should also contain provisions dealing with other measures to be
taken by States Parties, which could include:
- provision for national institutional frameworks to monitor and promote compliance with
the convention, in which national human rights institutions can play a role;
- provisions requiring that national governments ensure that the responsibility for
matters relating to upholding the rights of persons with disabilities should be allocated
to a specific focal point within Government with authority for implementation;
- provision for setting clear targets for the development of disability-inclusive
infrastructure and processes;
- provisions requiring States Parties to provide and promote accessibility for all persons
with disabilities and their associates;
- provision for collection of statistics and other data for reporting and monitoring
purposes;
- provision requiring States Parties to promote awareness of the Convention; and
- provisions requiring States Parties to set aside specific resources to implement the
Convention and to provide support for the activities of DPOs.
MONITORING MECHANISMS
International and regional
34. The Meeting considered that there were a number of international, regional,
sub-regional and national level mechanisms that might be used to monitor the
implementation of the Convention. The establishment of an independent committee of experts
similar to that established under other United Nations human rights treaties was seen as a
central component of a Convention, though it was recognized that monitoring also needed to
take place at the regional and national levels.
35. The Meeting considered that there should be established a new human rights treaty
body, consisting of independent experts in the field of disability, to oversee the
implementation by States Parties of the provisions of the Convention. Such a new committee
should have a general monitoring function, as well as being empowered to consider
allegations of violations of rights where the national system concerned has failed to
provide a remedy. Any monitoring system should involve an independent assessment of
implementation by State Parties.
36. The committee should perform the functions of reviewing reports submitted by State
Parties, have competence to receive individual complaints alleging violations of the
rights guaranteed in the convention, and should have the power to initiate an inquiry into
the situation in a State Party where it appears that serious or systematic violations of
the Convention are occurring. The committee might also be given the competence to consider
complaints by one State Party against another alleging violation of obligations under the
Convention.
37. Membership of that committee should include persons with disabilities, and ways of
involving DPOs in the selection of the members of the committee should be explored.
Information concerning the Convention produced by governments and the United Nations
should be made available in formats which are available and accessible to all.
38. In addition to the establishment of a new treaty committee, regional
intergovernmental organizations should be encouraged to monitor implementation of the
rights of persons with disabilities, and existing or future regional human rights charters
and mechanisms should expressly incorporate the rights of persons with disabilities.
Particular mention was made of the Biwako Millennium Framework monitoring system as having
the potential to monitor the implementation of a new Convention and to provide input into
the work of a new treaty committee.
National mechanisms
39. The Convention could also include specific obligations relating to national
institutional frameworks, in particular providing that States Parties should use national
institutions to monitor and promote compliance with the Convention, in which national
human rights institutions can play a role. There should be provision for handing of
complaints, and for promotion, litigation, monitoring and reporting functions. There
should be enforcement mechanisms, including provision of remedies, within institutional
and/or judicial systems. The Meeting considered that such national frameworks should be
adequately resourced. The Meeting also noted the importance at the national level of the
establishment of consultative bodies incorporating persons with disabilities and DPOs.
Notes:
[1] Taken from the seminar on ICT accessibility for persons with
disabilities in the Asia and Pacific Region held in Bangkok from 20-22 June 2002
[2] It was noted that this term would need clarification or definition
in the text of a convention.
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