Post-Seminar E/ESCAP/EGM-PWD/Rep
4 June 2003, ENGLISH ONLY
(Not formally edited)
II. PROCEEDINGS OF THE MEETING AND SEMINAR
Pre-meeting status
The fifty-second session (1997) of the General Assembly considered both the normative
and substantive aspects of a broad human rights framework related to the advancement of
persons with disabilities and the political economy of disability on the basis of a report
of the Secretary-General on his third five-year review and appraisal of the World Programme of Action
concerning Disabled Persons (A/52/351).
In resolution 52/82 the
Assembly noted "the need to adopt and implement effective public policies and
programmes to promote the rights of persons with disabilities" and identified three
priority areas for promoting equalization of opportunities for persons with disabilities:
accessibility, social services and social safety nets, and employment and sustainable
livelihoods.
The United Nations General Assembly adopted resolution 56/168 of 19 December 2001
on a comprehensive and integral international convention to promote and protect the rights
and dignity of persons with disabilities, by which it decided to establish an Ad Hoc
Committee to consider proposals for an international convention on the rights of persons
with disabilities and called for inputs from Governments and other stakeholders to the
work of the Ad Hoc Committee through, inter alia, organizing regional meetings and
workshops.
UNESCAP, through its resolution 58/4 titled “Promoting an inclusive, barrier-free
and rights-based society for people with disabilities in the Asian and Pacific region in
the twenty-first century”, urged Governments to support and contribute to the work of
the Ad Hoc Committee on a convention on the rights of persons with disabilities.
At the regional level, the Governments, UNESCAP and NGOs worked together to implement
the Agenda for Action for the Asian and
Pacific Decade of Disabled Persons, 1993-2002.
At the end of the Decade, in 2002, UNESCAP conducted a survey of countries to assess
their achievements during the Decade. Considerable progress had been made in the areas of
national coordination, legislation and policy, training and employment and the
strengthening of self-help organizations of persons with disabilities. As more remains to
be achieved before persons with disabilities are fully incorporated into the development
process, UNESCAP members and associate members have renewed the Asian and Pacific Decade of
Disabled Persons, for the period of 2003-2012
In this regard, UNESCAP organized a high-level intergovernmental meeting in October
2002 in Otsu City, Japan, to adopt action-oriented guidelines for the renewed Decade. The
set of policy guidelines for the new Decade, entitled “the
Biwako Millennium Framework for Action towards an Inclusive, Barrier-free and Rights-based
Society for Persons with Disabilities in Asia and the Pacific (BMF)” represents a
clear paradigm shift from viewing disability as social welfare issues to a rights based
issue, in which empowerment of persons with disabilities is regarded as an important
element of socio-economic development at national and regional levels. Also, BMF
specifically urges the Governments to support and contribute to the work of the Ad Hoc
Committee at the global level.
The Biwako Millennium Framework for Action is expected to contribute to attainment of
the United Nations Millennium Development Goals and targets with reference to the
situation of persons with disabilities in Asia and the Pacific. For instance in the area
of education BMF target 7 states "at least 75 per cent of children and youth with
disabilities of school age will, by 2012, be able to complete a full course of primary
schooling". BMF target 21, on poverty alleviation, states "Governments should
halve, between 1990 and 2115, the proportion of persons with disabilities whose income and
consumption is less than one dollar a day".
Progress in the elaboration of a new comprehensive and integrated international
convention in the field of disability will need to be informed of both development issues
and trends - implementation of the Millennium Development Goals in particular and related
regional instruments - and progress in promotion and protection of the rights of persons
with disabilities on the basis of current binding as well as non-binding international
instruments.
The work would need to take into account current developments related to definitions
and classifications of disability and progress in data collection and statistics for
purposes of disability-sensitive analysis, planning and evaluation. The work also should
take into account reviews and assessments of issues and trends in national law and
legislation and of contributions that civil society institutions are making in promoting
rights-based approaches to development and advancement of persons with disabilities.
Presentation of Papers
For the agenda item 4, “towards the elaboration of an international convention on
the rights of persons with disabilities”, three papers were presented.
As a first presenter, Mr. Clinton Rapley (resource person) covered the
subject on overview of issues related to elaboration of an international convention on the
rights of persons with disabilities. Also, Mr. Rapley covered the issue of norms and
standards related to the rights of persons with disabilities and development.
First of all, Mr. Rapley explained about the history, including lessons of monitoring
implementation of the Standard Rules (1994-2002) and the background for the decision to
elaborate a comprehensive and integral international convention.
Mr. Rapley recalled that proposals on elaboration of an international convention on
elimination of all forms of discrimination against persons with disabilities were made by
an international expert meeting in 1987, at the mid-point of the United Nations Decade of
Disabled Persons. The United Nations General assembly considered proposed drafts of a
convention at its forty-second (1987) and forty-fourth (1989) sessions, and decided that
more study was required to the question. The Assembly also expressed the view that
emphasis should be accorded to equalization of opportunities of persons with disabilities
– the development objective of the World Programme of Action concerning Disabled
Persons – during the second-half of the United Nations Decade of Disabled Persons.
At its first regular session of 1990, the Economic and Social Council authorized the
Commission for Social Development to initiate work on elaboration of “standard
rules” on equalization of opportunities. These efforts culminated in the decision of
the GA to adopt by resolution 48/96 of 20 December 1993, the Standard Rules on the
Equalization of Opportunities for Persons with Disabilities. A significant feature of the
Standard Rules is the “monitoring mechanism” and the provision on appointment of
a Special Rapporteur on Disability of the Commission for Social Development. The first
Special Rapportuer, Mr. Bengt Lindqvist (Sweden) served for the period 1994-2002. During
his service, Mr. Lindqvist submitted recommendations on further development of the
Standard Rules and presented options on an approach to elaborate of an international
convention to promote and protect the rights of persons with disabilities.
The experience of the first special rapporteur for the Rules has provided useful
guidance to the convention process, in particular, the identification of key rules, such
as accessibility, education, employment, etc, the areas where further action is required,
including gender, children with disability, accessible shelter and habitat and most
importantly the situation of persons with psychiatric conditions/mental conditions. Mr.
Lindqvist, the special raporteur, also established a mechanism for cooperation between the
Commission on Social Development and the Commission of Human Rights.
At its fifty-sixth session (2001) the Honorable President Vincent Fox Quesada of Mexico
proposed that the GA consider initiating a process of elaborating a comprehensive and
integral convention on the rights of persons with disabilities. He noted the commitment of
his government to elimination of poverty and observed that the world could not become more
just if any persons were excluded from opportunities to participate in global development.
The proposal was endorsed by GA resolution 56/168, which provides the “why of the
process of elaborating a convention”.
From a policy perspective there are a number of important issues to be addressed, which
include (1) who should be covered by the convention, which introduces consideration of
definitions of persons with a disability that are comprehensive, clear and consistent for
purpose of international law: (2) what is the context of the proposed convention,
particularly since persons with disability are absent from the “Millennium
Declaration” of the United Nations or often are represented as a special population
group in other development instruments rather than development agents and beneficiaries;
and (3) the need to be realistic in proposals related to elaboration of the convention and
to identify priorities in this work to achieve progress and consensus in the formulation
and consideration of a convention preamble and in its basic and specific articles.
Also, he covered several detailed issues concerning the definition such as including
the substantive approach to equality, the need to include a failure to accord reasonable
accommodation as a part of definition, clarification of the positive measures, the need to
include protection for associations with persons with disabilities against discrimination,
etc.
He concluded his presentation by listing future policy considerations including (i) the
nature of definition of disability such as WHO-ICF (who will be covered by the
Convention?); (ii) the issue of context of the Convention (why we elaborate the Convention
now?) within the broader framework of various international meeting outcomes and mandates
(e.g. United Nations Millennium Development Goals, International Conference for Financing
for Development, World Submit for Sustainable Development, etc.) and (iii) the issue of
priorities in the elaboration of the Convention, including determination of an appropriate
structure and formulation of preamble, basic and specific articles, implementation and
monitoring mechanisms.
Professor Andrew Byrnes (Center for Public and International Law,
Faculty of Law, Australian National University) outlined from a human rights perspective,
a number of issues (strategy, substance and institutional framework that would need to be
addressed in the negotiation of a new international convention). He argued that it was
important to continue to demonstrate the need for a new convention (in particular, how
even an increase in attention to disability issues would be insufficient), given
skepticism about the need to avoid undue proliferation and duplication with the United
Nations human rights treaty system. The study by Quinn + Degener provided powerful support
for the case that existing treaties and mechanisms did not and could not do the job.
Professor Byrnes highlighted some of the issues that would need to be addressed,
including how can a human rights approach match with a social development approach, how to
avoid reproducing the traditional divide between (i) civil and political, and (ii)
economic, social and cultural rights. It was important to draw on existing treaties, but
not to be limited by them; innovation where desirable and avoiding duplication of existing
standards were important goals.
He referred to the Convention on the Rights of the Child and Migrant Workers’
Convention as possible starting models for a new convention and referred to issues that
needed to be addressed such as the definition of disability, discrimination, coverage of
private actors, the status of the Standard Rules, etc.
He concluded with comments on an appropriate monitoring mechanism, supporting a new
treaty committee similar to existing ones but whose members might be chosen by more
transparent and participatory procedures. He concluded with the reflection that, whatever
limitations a convention might have when finally adopted, it would be a major advance in
itself and would also stimulate action on disability issues on other human rights bodies.
Ms.Yukiko Nakanishi, the Representative of Asia Disability Institute,
coved the issue on an International Convention and the Standard Rules on the Equalization
of Opportunities for People with Disabilities. She highlighted some vital features of the
Standard Rules on the Equalization of Opportunities for Persons with Disabilities and key
lessons learned from the Rules. First of all, she explained the contents of the Rules and
its 22 rules.
She emphasized that the Rules provided a basis with the Governments for drafting new
national laws for persons with disabilities from a rights-based perspective. She shared
with the participant’s information about several good practices of national laws in
the ESCAP region, including the Law of China, 1991 Act of Thailand, the Magna Carta in the
Philippines, and related national laws in Sri Lanka, Vietnam and Bangladesh.
She emphasized the continuous need for training workshop and capacity building of
people with disabilities and other stakeholders as the most effective measures to promote
and monitor the implementation of the Standard Rules.
She concluded her presentation by stressing the importance and timeliness of the ESCAP
Biwako Millennium Framework in considering the content of the International Convention,
and the absolute necessity for elaboration of a new thematic Convention (with binding
power) for people with disabilities, based on the Standard Rules and other mandates such
as BMF, in order to ensure the Member States’ obligations and full compliance.
For the agenda item on rights-based approaches to development and advancement of
persons with disabilities in the mainstream, a few persons presented a paper on this
utmost important issue.
Mr. Nicholas Howen, Regional Representative for Asia-Pacific for the
Office of the High Commissioner for Human Rights, began his address by reaffirming that
the High Commissioner for Human Rights, Mr. Sergio Vieira de Mello, strongly supports the
drafting of a convention on the rights of persons with disabilities. Mr. Howen went on to
say that the convention should be shaped by a strong voice from people with disabilities
living in Asia-Pacific about the reality of their lives, about the discrimination they
face and the obstacles to enjoying the rights that belong to all. He encouraged the
disabilities movement and the human rights movement in Asia-Pacific to draw expertise from
each other and work even more closely together.
Mr. Howen said that the drafting of a convention should be one of several strategies.
Equally important, disability groups should learn about and participate in the existing
system of UN human rights treaties and encourage the expert monitoring bodies to address
more effectively the rights of people with disabilities. The Standard Rules should still
be implemented and the work of the Special Rapporteur on disabilities of the UN Commission
on Social Development supported
Mr. Howen concluded by saying that as a human rights treaty, the convention should
provide national and international remedies to people living with disabilities for
violations of the human rights guaranteed in the convention. At the national level these
would include legal, administrative and other remedies and at the international level it
would include some form of monitoring of how states implement their obligations and
possibly a way for individuals ultimately to complain about violations to an international
body.
UNESCAP representative, Ms. Kay Nagata, made a brief power point
presentation of the Biwako Millennium Framework as a tool for mainstreaming disability
concerns. She demonstrated the use and effectiveness of the fully accessible CD ROM
version of the resource kit for this EGM. She explained 7 target areas of BMF that relate
to the rights-based approach to development, and a part of preamble about the paradigm
shift from a charity-based approach to a rights-based approach. She presented the exact
paragraphs of BMF that mandate the Governments to adopt laws and policies of
non-discrimination and human rights of people with disabilities. She concluded her
presentation by pointing out the exact paragraphs mandating the Governments’ effort
to support and contribute to the work of Ad Hoc Committee on the International Convention
and the important role of disabled persons themselves in the process of drafting such a
Convention.
Also Ms. Nagata explained the working paper on the proposed outline for the regional
input to the International Convention (prepared by UNESCAP Secretariat) and the
anticipated modality of working group discussions on the following days.
Ms. Penny Price, Mr. Clinton Rapley and other selected participants, covered the last
agenda on review of national, sub-regional and regional situation of the rights of persons
with disabilities.
Sixteen papers and short presentations were made during this session, with speakers
from Afghanistan Bangladesh, Cambodia, Japan, Indonesia, Malaysia, Nepal, Pakistan,
Philippines, Republic of Korea, Timor Leste, and Viet Nam.
The particular problems of addressing issues of disability development in post-conflict
situations were clearly articulated. In this context disability was perceived as a war
issue and a problem for the individual affected. This made it difficult for disability to
be conceptualized more broadly as the result of social barriers. The main focus tended to
be on medical rehabilitation, mobility and physical accessibility. Disabilities from other
causes, from birth or early childhood, received little attention.
Children and women with disabilities were ignored and their rights and needs not
recognized or addressed. Extreme challenges however provided new opportunities as well.
The need to develop policy and legislation were understood as priority issues, and in
Afghanistan and Timor Leste this was being undertaken by means of a participatory process.
It was perceived as international best practice of which Governments should be informed by
leadership of persons with disabilities. However organizations of persons with
disabilities and the disability sector currently lacked coherence. There was tension
between the need to provide services and the need for capacity building. There was
optimism that the participatory process being pursued was in itself leading to desirable
attitude change.
Frequent reference was made to the fact that the shift from a charity and welfare
approach to disability to viewing it within a human rights framework was slow in most
countries and territories of the Asian and Pacific region. The Agenda for Action for the
first Asian and Pacific Decade of Disabled Persons had influenced many Governments to
develop disability policy and pass legislation, as well as reviewing laws already in
place.
However it was reported that legislation did not always have enforcement mechanisms,
and specific anti-discrimination legislation was rare, although receiving increasing
attention. It was currently being considered in both developed and developing countries
within the region. The establishment of Human Rights Commissions had in some cases acted
as a catalyst to focus on issues of disability and discrimination. It was noted that
discrimination could take different forms and it was necessary to try and define
discrimination in relation to many areas of activity. It could take the form of lack of
accommodation to the needs of persons with disabilities, which prevented equity in
outcomes.
The significant role that was played by NGOs in promoting disability development and
service provision was noted. However it was also noted that many of these organizations
did not encourage persons with disabilities to take leadership roles. Organizations of
persons with disabilities reported growth and increase in strength and influence during
the period of the first Asian and Pacific Decade.
It was clear that organizations of persons with disabilities, other NGOs and non-state
actors of civil society were playing an increasingly important role in influencing
Government policy and programme implementation. Organizations of persons with disabilities
however still lacked the resources necessary for their full development. They needed
extensive opportunities for capacity building, access to higher education and diverse
qualifications, in order for them to fulfill their important leadership functions. The
situation of women with disabilities was described as doubly discriminated in most
countries, with very limited access to basic services and opportunities for development.
The role of organizations of persons with disabilities was particularly critical in
countries where Government was not addressing disability issues.
Extreme concern was expressed about the link between disability and poverty, disability
being both a cause and consequence of poverty. Persons with disabilities in rural areas
were seen to be particularly at risk, with limited access to any basic services, and
seldom included in poverty alleviation measures. The gains achieved during the first Asian
and Pacific Decade of Disabled Persons did not extend to this large, un-served sector of
persons with disabilities. The lack of reliable data on persons with disabilities was
noted as a widespread problem that contributed to their exclusion from development in any
form.
A tangible reflection of the shift from a welfare approach towards a human rights
approach to disabilities was the situation reported by some Governments that disability
was being regarded as a development issue. It was seen as the duty of Governments to
provide human rights and the right of citizens to receive them, with the obligations that
full citizenship imposes. There was reference to ‘positive measures’, being
accommodations and measures that are good for everyone and not only persons with
disabilities. Both of these aspects were reflected in the Biwako Millennium Framework for
Action, the document formulated to guide policy development in the second Asian and
Pacific Decade of Disabled Persons.
It was expected that further progress would be made during the period of the second
Decade towards consolidation and widespread acceptance of disability as a development
issue.
The importance of regular and comprehensive monitoring and evaluation of progress was
emphasized, as countries and territories of the Asian and Pacific region moved towards
recognition of the human dignity of persons with disabilities and the development of
inclusive communities. This trend would be strengthened by the elaboration of an
international convention to protect and promote the rights and dignity of persons with
disabilities.
Summary of Discussions
 The presentations were rich and diverse,
representing the enormous historical, cultural and economic differences in the region.
Participants provided useful background information and insights in deliberating the
purpose of the Meeting and Seminar.
The matter of available resources in a given
country was raised. Some experts said that human rights of people with disabilities should
not be limited to the socio-economic level of the county and should not be constrained by
financial constrains. Others said that in trying to achieve human rights of PWD through
the Convention, we must be mindful of a given country’s economic ability, with
emphasizing the rights to development.
There was a consensus about seeing disability
as a development issue, and statements were made and supported to ensure that the right to
development is seen as a component of human rights for PWD.
The issue related to “reservations of
specific articles” by a signatory country was raised, as a mechanism to gain
consensus and acceptance by Governments.
Some participants said that our deliberations
on the Convention should be broad and not too specific.
Country presentations began from war-torn
nations that gave post conflict reconstruction, conciliation and survival at national
priority action agenda. In spite of the challenging situation, national measures sensitive
to disability issues, and protecting the rights of disabled people were already evolving.
In war torn countries, human rights for people with disabilities are seen as the right to
survival (as No.1 priority).
National policies with emphasis on
participatory planning with full inclusion of PWD and data based information were
reported. Since the first Asian and Pacific Decade, international cooperation within the
region has greatly increased, with many countries now having developed national laws
(sectoral laws, or comprehensive laws) for protecting the rights of PWD.
There was a consensus about positives steps
and measures towards full integration of PWD also benefit other people (such as universal
design or inclusive education). We must consider our visions and the principles of
”why we need the new convention and who benefits?”
The vision on the Convention should be
anchored in existing international treaties of human rights but expanded into a new
convention to clearly mandate the rights of PWD. This could be done by adopting clauses
from existing treaties and expanding them to meet specific conditions. In particular,
similar monitoring mechanisms, etc. to the existing treaties may be adopted.
Noting possible limitations and shortcomings,
the move towards a new international convention for PWD will have positive effects on
Governments in the region and their development of national laws and policies for
protecting and promotion of the rights of PWD.
Barrier-free physical infrastructure and
universal designs were initiated at the beginning phase of reconstruction and this issue
was regarded as a basic state obligation upon ratification and signatory of the
Convention.
A paradigm shift from welfare based approach
to a rights based approach to disability issues was reported from almost all
presentations; however, with a varying degree of differences in implementation.
Organizations of persons with disabilities,
other NGOs and non-state actors of civil society started playing an increasingly important
role in influencing Government policy and programme implementation.
In presentations from more developed
economies, critical changes were reported in terms of legislative measures, and measures
dealing with discrimination against PWD. Such measures included a comprehensive review of
all existing legislation to identify and remove any that contained discriminatory
elements. Special legislation was also enacted, or in the process of being drafted to deal
with discrimination.
Enforcement of anti-discrimination legislation
(for PWD) was another issue identified. The first question raised was “which
mechanism and at what level with central government should be charged with the
responsibility of developing anti discrimination legislation --- within the
government’s social service/welfare portfolio or at a high level commanding the
involvement of all related ministries.
The reported paradigm shift correlated with a
dynamic interaction and partnership among governments, NGOs and the private sector. In
some instances, active advocacy was reported from the civil society in engineering the
paradigm shift.
The role and functioning of national
coordination mechanisms were reported in a number of presentations, with features
involving cross-ministries, cross-departments, NGOs and disabled people’s
organization in development and monitoring. DPOs were highlighted as priority in building
new capacity to guarantee full participation at all levels, local, national and regional.
Poverty and development issues were recurring
matters across the region. The challenging situations of people with disabilities were
reported in all presentations. Measures to elaborate and protect the rights of PWD were
essential in poverty alleviation and development priorities, as well as affirmative
policies in providing remedies to equal opportunities to PWD.
The situation of people and children with
hearing impairment was noted as an examples of deaf people being denied the right to
schooling, equal opportunities to higher education, adequate and appropriate sign
language, support to deal with communication barriers.
Models of international and regional
cooperation were reported. In particular the Asia and the Pacific first and second
Decades, and the Biwako Millennium Framework were commended and their effective impacts on
national measures, supporting full participation and a rights based non-discriminatory
measures was raised. A critical and challenging issues concerning regional cooperation was
raised, which was to identify effective models whereby developed and developing economies
would work together in true partnership protecting and supporting the rights of PWD.
The presentations provided a regional reality,
setting the context in seeking what models or mix of models (among the existing treaties),
to follow in elaborating an the new convention on protecting the rights and dignity of
persons with disabilities.
Working Group Sessions
On the second day, participates formed the following three working sessions to discuss
each issues and elaborate the group recommendations to be synthesized into the set of
recommendations of the Meeting and Seminar. This process is the main dimension of seminar
part of this event, with full participations of individuals to share the ownership of this
Meeting and Seminar.
Group 1: Purpose, benefits, context, organization and structure of an
international convention on the rights of persons with disabilities in the light of Asian
and Pacific regional experience in policy options, norms, standards and legislation
related to disability (Key words: rationale and development setting for an international
convention of the rights of persons with disabilities, non-discrimination, socio-economic
rights and civil-political rights, etc.)
Group 2: Rights based approaches to development and advancement of
persons with disabilities in the mainstream (Key words: social inclusion, empowerment,
accessibility and reasonable levels of accommodation in the environment, etc)
Group 3: Popular participation, institutional development and
organizations of persons with disabilities (Key words: strategies, policies and programmes
to strengthen national capacities and institutional capacities to promote right of persons
with disabilities)
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