National Council on Disability
International Watch Federal Advisory Committee
Conference Call Minutes
September 7, 2006
12:00 p.m. Eastern Time
Roll Call
Welcome
Present
Kathy Martinez
Jeff Rosen
Joan Durocher
Hans Hogrefe
Katherine Guernsey
Maria Reina
Rik Opstelten
Yerker Andersson
Cindy Lewis
Alicia Contreras
Eric Rosenthal
Chris Fotopulos
Tarini Arogyaswamy
Davis Channing
Sylvia Yee
David Shannon
Steven Estey
Janet Lord
Judy Heumann
Marca Bristo
Amend/Approve of the Agenda (Ms. Kathleen Martinez): Agenda approved.
De-briefing on 8th Ad hoc Committee on a Comprehensive and integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (International Watch Membership)
Ms. Reina reported that the 8th Ad Hoc Committee meeting was very positive. The committee finished the work they had planned to accomplish and agreed on and approved the content of the treaty. Ms. Reina stated the negotiations were rather difficult to follow for the first week during the plenary session in which participants observed and intervened but the second week consisted of several informal meetings and there was varied participation in that some of the meetings were multilateral, but at times there were bilateral conversations between countries that have had very different opinions or contradictions, issues that needed to be solved, and therefore the level of influence was limited.
Ms. Reina stated that the as she went through each article of the treaty, the principles that are going to be useful to give the general orientation on how the convention is to be interpreted are very good in the preamble and the first articles. She stated Article 1 generated a lot of discussion because many countries did not want to include the very broad definition of disability or person with disabilities, but through very intensive lobbying activities we got a definition that includes the concept of social barriers.
Mr. Rosenthal stated that the problem with the definition is that it does not include a person with a disability as someone who has a history of a disability or is perceived as having a disability that we have in the Americans with Disabilities Act. It says a person with a disability includes those who have a long-term, mental or intellectual disability that may hinder their full and effective participation in society on an equal basis with others. It was not included in the definition section specifically because there was a lot of understanding that disability needed to be defined different ways for different purposes. Mr. Rosenthal stated that there were also a fear that if we didn't get a good definition, that it might limit countries who want to create more expansive definitions. It was included in the purpose section to make sure that the convention covered at least that population but would allow countries to include or expand the definition.
Mr. Rosenthal stated that the purpose of the convention is to protect the rights of people with disabilities and so these people are included within the protections of this convention. The anti-discrimination provision and the definition of discrimination is broader so that one could argue that under the anti-discrimination provisions that a person who is perceived as having a disability or who has a record of a disability would be protected by the anti-discrimination provision, and that would hopefully make up for that limitation.
Ms. Guernsey stated that Ambassador MacKay was very clear in summing up that the convention contains no definition of disability per se because of this concept being placed in the purpose article and not in the definitions article and by rules of construction we can not say that the convention contains a definition of disability, though the fact that the concept of persons with disabilities is somewhat expressed, it provides guidance in the purpose article but does not have to be limited by that. Ms. Guernsey added that the term includes a nonexclusive listing of persons so it can be broader. She added that she thinks it is worth noting that some of the countries who were most insistent on having this clause included were delegates from countries where they have traditionally been very restrictive in their coverage of who would be considered a person with a disability, and their concern was that unless some minimum listing was included somewhere in the convention, that in their own country people might be excluded from the coverage of the convention.
Ms. Guernsey briefly described the other articles in the convention.
Mr. Rosenthal stated that he agreed with Ms. Reina on the basic view of the convention including very strong rights going well beyond what countries now protect and if many countries knew what was in it they might not want to ratify it.
Mr. Rosenthal added that the convention combines negative and positive rights. In international law there are two general types of rights. There are rights that are considered civil and political rights and rights that are considered social and economic rights. He said that the convention has a strange compromise where the civil and political rights are of immediate enforcement and the economic and social rights are of progressive enforcement but it never identifies in the convention which is which. He added that there is a positive right towards inclusion and full participation in society, which when it comes to the rights of institutionalized people, it is extremely valuable that this will now be recognized in international law.
Ms. Martinez stated that the convention does what is consistent with what other conventions have done which is to have in the general obligations article state that economic, social and cultural rights are subject to progressive realization and then not to further delineate which is which. She added that it is left to committee to determine within each article if there's any doubt about what kind of right is involved--it is the committee's determination.
Ms. Reina stated that the article on international monitoring engendered a very intense debate with many countries arguing for a treaty monitoring body which was finally agreed upon. Article 6 was achieved which mentions sex discrimination or gender issues. Article 16-freedom from exploitation, violence and abuse, Article 25-health, article 28-standard of living and social protection as well as women and girls with disabilities as particular recipients of programs regulated by this clause.
Ms. Guernsey reported that NCD held a side event during AHC8 and she wants to thank the Council, Kathy Martinez, and the panelists for being a part of and hosting the side-event. The panelists discussed implementation and there was a very good-turnout. Great examples of implementation were given from South Africa, the Phillippines and John Wodatch of the Department of Justice gave some successful examples from the United States.
Dr. Yerker Andersson asked about footnote 12 and the issues surrounding it following the AHC8.
Ms. Arogyaswamy responded that Tina Minkowitz asked Professor Kanter and her to look into the issue of the footnote. Research is being conducted as to whether there are footnotes in other human rights conventions and so far they haven’t found any and it seems that the reason is that everyone should be on the same footing, with no room for interpretation.
Mr. Rosenthal explained the footnote issue in more detail. He stated that the language in Article 12 was a hotly contested issue. It was adopted at the last minute and therefore the footnote was added extremely late in the process without full discussion. Mr. Rosenthal stated overall Article 12 is one of the more radical parts of the convention in that it calls for countries to have a paradigm shift away from guardianship, it essentially recognizes that all people with disabilities enjoy legal capacity on an equal basis with others. He added that it obliges countries to take appropriate measures to allow people to exercise their legal capacity and to provide them with supported decision-making to help them do it so that instead of countries taking away their ability to make decisions about themselves, they help them make decisions for themselves.
Mr. Rosenthal stated that there are safeguards such that there is a general obligation to move towards this new approach and to create safeguards to protect against conflict of interest and it requires any safeguards to be proportional and tailored to the person's circumstances and to apply for the shortest time possible for review by an independent and impartial body. The footnote in question says that in Arabic, Chinese and Russian languages the word legal capacity means capacity to exercise rights as opposed to legal capacity to act. He added that it greatly expands what this section is about, and broadens and calls into question whether someone with an intellectual disability has the legal capacity to exercise any of the rights under the convention at all.
Mr. Rosenthal added that there are no other human rights conventions that have footnotes. The convention is considered equally authentic in six or seven different UN languages recognized, and there's a principal of interpretation in international law that the four corners of the document stand on their own and that in each language you can interpret the convention based upon what is in the text and you don't have to go to any other sources. It is extremely peculiar to have an interpretation based on a language in the text of the convention and the meaning that they chose is really inconsistent with what the general purpose was supposed to be. Substantively, it is extremely troublesome, and procedurally it was raised at the very last minute. We were running out of time on Friday, and a compromise was struck with absolutely no discussion whatsoever and so now there is an effort essentially after the fact to challenge this footnote, and there’s a procedural drafting committee that’s not supposed to make any substantive changes to the convention but only polish up the language of the convention to make it consistent.
Ms. Martinez said she would like to move on in the agenda and stated that the Council has reauthorized International Watch to continue for two more years. The Council has a new chair and three new members and old members will be eventually replaced. Ms. Martinez stated that her role a as Council member is to monitor the US position ratifying this convention.
Ms. Durocher asked if Ms. Guernsey could report out on the next steps with respect to the convention, ratification, for the benefit of the membership.
Ms. Guernsey reported that there is a drafting committee meeting which is like the ad hoc committee made up of interested members of the general assembly. The drafting committee is being lead by a representative of the country of Liechtenstein. The representative is very capable and skilled in international law and human rights. Once the drafting committee has completed its work, it will submit a report to the ad hoc committee. If there are issues of substance that were raised during the drafting committee meeting, and the footnote may be one of those, it may be left to the ad hoc committee to sort that out. Assuming that there are no changes or other problems, the committee will then submit the final proofread text to the general assembly for formal adoption. It is anticipated that the convention will be adopted by the general assembly as early as December, at which point it will be open for signature, and ratification by countries.
Ms. Guernsey stated that in terms of adoption, she does not have any indication that the United States will cause any problems in allowing the general assembly to adopt the convention. In terms of the US becoming a party, up until the convention enters into force (when it becomes legally activated after 20 countries sign and ratify) countries are in a position to sign and then take their time in deciding whether or not to ratify. If a country signs it is indicating that it agrees with the object and purpose of the convention, and this is something that the US would be in a position to do.
Ms. Hogrefe stated that his boss was the ranking member of the house international relations committee and has taken a long interest in the drafting process and the whole idea of the convention and it is his understanding that the US has no intention of signing or obviously ratifying the convention.
Ms. Martinez stated that she met briefly with Mark Lagon who was a delegate at the UN and works at the State Department and he stated that the US might not ratify and she added that she feels as though they are adverse to treaties in general, and expects they're not going to sign unless something radical changes.
Mr. Rosenthal suggested that there needs to be long-term strategy to try and get the disability community in particular on board to make this an issue, publicize it. Mr. Hogrefe stated in the meantime the interest on Capitol Hill is to basically put some pressure on the administration to at least move in the right direction or to at least indicate to them that there is significant political support for this convention on Capitol Hill which ultimately will impact the thinking within the administration and possibly move this.
Ms. Martinez stated that we need to encourage the United States to sign as a show of support for the convention which would not entail any onerous legal obligations on the US, and to do so quickly before the opportunity closes.
Mr. Rosenthal stated the day after the convention a meeting was hosted by the United States International Council on Disabilities (USICD) in conjunction with Rehabilitation International (RI). It was a full day discussion of what next steps could be taken to bring attention to the convention and to work on its implementation. A report will be produced from that meeting and once completed can be distributed to members on the call.
Announcements
Mr. Rosenthal stated that there will be a hearing on human rights and disability in Romania at the Dirksen Senate Office Building September 13th at 2:00 p.m. with Senator Brownback as chair. Romania is being considered for joining the European Union and the decision is to be made by September 26th.
Mr. Rosenthal stated that countries have to meet certain political requirements which include the enforcement of basic human rights. He added that his organization published a report last May showing very serious human rights abuses, particularly against children with disabilities, in orphanages, psychiatric facilities, and other institutions. It is a critical opportunity for not just placing pressure on Romania, but for educating the European Union about disability as part of the human rights framework.
Adjournment
The meeting adjourned at 1:00 p.m. |
