Update on the UN Convention on the Rights of People with Disabilities

November 24, 2004

Lex Frieden, Chairperson

Introduction
In December 2001 the General Assembly of the United Nations (UN) established an Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities. The Fourth Ad Hoc Committee met from August 23 – September 3, 2004 in New York City . This briefing paper relates developments during the last session.

Recent Developments
Because the Third Ad Hoc Committee did not complete an initial reading of the draft, that undertaking was first on the Fourth Ad Hoc Committee’s agenda. At this time States had the opportunity to propose textual and structural changes to the document, as well as complete the Preamble.

Although nearly all of the first reading consisted of proposing textual changes rather than detailed substantive discussion, some delegations also used the first reading to discuss philosophical matters. These included whether the draft fell under the category of a non-discrimination treaty or whether it was a more comprehensive text, and whether or not definitions should be included in the treaty. Because States exhibited divergent views on these issues, it was agreed that their discussion would be postponed until significant progress was made on the body of the draft.

In the second reading the Committee was able to discuss Articles 1 through 7. The emphasis of the discussion centered on Articles 2 (General Principles), 4 (General Obligations), and 7 (Equality and Non-Discrimination), although Articles 5 (Promotion of Positive Attitudes to Persons with Disabilities) and 6 (Statistics and Data Collection) were also discussed in great detail. Coordinator Mackay, Ambassador from New Zealand, facilitated in-depth discussion in an effort to reach consensus. Some of the more complex issues included concepts such as reasonable accommodation and what constitutes discrimination. More technical matters, including whether or not definitions will be included in the treaty, were held for discussion at a later date.

The U.S. Government’s treaty position remained the same since June 2003. That is, the U.S. still has no plans to sign or ratify the treaty, as it believes national legislation is the most effective way to ensure non-discrimination. Nevertheless, the U.S. was notably more active in the Fourth Ad Hoc meeting. The U.S. delegation made interventions on issues of international law and practice, as well as continued its role, based on instructions from earlier sessions, of sharing examples of national legislation regarding the rights of people with disabilities.

In particular, the U.S. intervened in discussions regarding the preamble, general principles, the right to life, non-discrimination, international cooperation, and a treaty-monitoring body. During the discussion of Article 8 (Right to Life), the U.S. delegation suggested language to be added at the end of the Working Group’s draft text. The delegation also vocally supported a non-discrimination interpretation of the treaty, as non-discrimination is a fundamental human right, and this specific terminology in the disability context calls for positive measures of change. During the second reading of the draft, the U.S. delegation suggested that Article 7 (Equality and Non-Discrimination) is so important that it should come directly after the section on General Obligations. Further, it opposed any differentiation between the unlawfulness of direct and indirect discrimination. The delegation also frequently objected to adding specific provisions regarding armed conflict in various articles, and often supported proposals made by the EU, Canada, and New Zealand.

In response to the suggestion of several NGOs at the Third Ad Hoc Committee, the U.S. delegation sponsored a seminar the first week of this session (August 26) in which panelists discussed means of political and civic access in the U.S., the U.K., and Australia. The panel, moderated by Chris Fotopulos and Gilda Brancato, consisted of John Wodatch, Chief, DOJ Disability Rights Section (U.S.), Graeme Innes, Deputy Disability Discrimination Commissioner, Human Rights & Equal Opportunity Commission (Australia), Liz Tillett, Head of Disability Unit, Department for Work & Pensions (U.K.), and Patricia Morrissey, Commissioner, Developmental Disabilities, HHS Administration for Children and Families (U.S.). The United States delegation also conducted a briefing and outreach session for U.S. NGOs on August 27, 2004, which was widely attended and addressed a range of disability issues.

For the first time, the U.S. delegation included a person with a disability. Members of the U.S. delegation included Patricia Morrissey (Department of Health and Human Services), Gilda Brancato (Department of State), Carl Fox (United States Mission to the United Nations), Chris Fotopulos (Department of Justice), John Wodatch (Department of Justice, and Joseph Bracken (Department of State).

The participation of NGOs remains controversial. As during the Third Ad Hoc Committee, NGOs were permitted to be present, but, unlike during the third session, were not allowed to participate, in plenary discussions. NGOs remain free to participate in small group informal meetings. None of these informal sessions ran parallel, as states with smaller delegations have trouble sending staff to each meeting. Thus, NGOs have continued to have a relatively active role in the Convention. It should be noted that the role NGOs can play in the Ad Hoc Committee sessions may once again be negotiated prior to the Fifth Ad Hoc Committee meeting.

Future Developments
The Fifth Ad Hoc Committee is scheduled to meet in New York from January 24-February 4, 2005, and the Sixth Ad Hoc Committee is tentatively scheduled to meet from July 24-August 4, 2005. The Committee will continue to read and amend the draft. Chair Gallegos, Ambassador to the UN from Ecuador, aims to have the treaty completed by the end of 2005.