UN Human Rights Treaties

United Nations A/AC.265/2006/3
General Assembly
Distr.: General
15 August 2006
Original: English
06-47135 (E) 300806
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Ad Hoc Committee on a Comprehensive and
Integral International Convention on the
Protection and Promotion of the Rights and
Dignity of Persons with Disabilities
Eighth session
New York, 14-25 August 2006
Letter dated 10 August 2006 from the Deputy Permanent
Representative of the Sudan to the United Nations addressed
to the Secretariat
In my capacity as Chairman of the Arab Group for the month of August 2006,
and on behalf of the members of the League of Arab States, I hereby attach a
statement of the Arab States’ position regarding the controversial articles of the
comprehensive and integral international convention on the protection and
promotion of the rights and dignity of persons with disabilities.
We kindly request the distribution of the present letter and its annex to the
members of the Ad Hoc Committee as a document of its eighth session.
(Signed) Omar Bashir Manis
Chairman of the Arab Group
Ambassador, Deputy Permanent Representative of
the Republic of the Sudan to the United Nations
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Annex to the letter dated 10 August 2006 from the Deputy
Permanent Representative of the Sudan to the United Nations
addressed to the Secretariat
[Original: Arabic]
Social Affairs Sector
Department of Development and Social Policies
Technical Secretariat of Arab Ministers of the Interior
Position of the Arab States with regard to disputed articles and
clauses in the draft comprehensive and integral international
convention on the protection and promotion of the rights
and dignity of persons with disabilities
The Arab States have held several meetings to discuss the draft comprehensive
and integral international convention on the protection and promotion of the rights
and dignity of persons with disabilities on the basis of the report of the Department
of Development and Social Policies regarding the seventh session held in New York
on 16 January-3 February 2006. The Arab States have agreed to the following
wordings for the articles and clauses that are still in brackets in the draft convention:
Substantive matters
I. Title of the convention
“International Convention on the Rights of Persons with Disabilities”, on the
understanding that the rest of the convention’s title will be included in article
1 (Purpose). The Arab Group supports this title because it includes the rights of
persons with disabilities and not just the rights of disabled persons, making the title
more reflective of the convention’s content.
II. Preamble
The last paragraph of the preamble, which states “[Convinced that the family,
as the fundamental group of society, should receive support, information, and
services to enable it to contribute towards the full and equal enjoyment of the rights
of persons with disabilities],” is still between brackets. The Arab Group supports the
retention of this paragraph as set out in the draft convention and the removal of the
brackets and emphasizes the necessity of retaining the words “the family, as the
fundamental group of society”.
III. Definitions
The Arab Group proposes that the definition of disability should be
comprehensive, thereby making it acceptable to all as a substantive definition. The
Arab definition of disability and persons with disabilities, set out in the Standard
Guide to Disability and Special Education Terms issued by the League of Arab
States and the Executive Office of the Council of Ministers of Labour and Social
Affairs of the Gulf Cooperation Council, is more specific and comprehensive than
the definitions proposed during the seventh session. The Arab definition also deals
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with the social, legal and health dimensions inasmuch as it includes discrimination
as one of the principal causes of disability, making it closer to and more expressive
of the convention’s contents. The proposed definition states:
“Disability is the cumulative result of the barriers and restrictions that
handicaps impose on an individual and prevent him from doing all that he is
capable of. The term disability is bound up with attitudes and trends and
indicates the difficulties in interacting with the environment that are imposed
on a person who suffers from a physical or mental disability in a particular
situation. Persons who suffer from various handicaps may become disabled not
as a result of the handicap itself but because of the negative, non-constructive
trends and the barriers that prevent them from participating in public life or
being self-reliant.”
The Arab definition is based on the health-related and social concepts of
disability and on the fact that disability is actually the result of direct or indirect
discrimination against persons with disabilities. The Group proposes the adoption of
the Arab definition of persons with disabilities because it is most expressive of the
convention’s contents and goals.
• In the paragraph on discrimination, the phrase “[and direct and indirect
discrimination]” is still between brackets and may be deleted as the text
already contains the phrase “all forms of discrimination”, which includes
direct and indirect discrimination. Consequently, retaining or deleting this
phrase will not affect the meaning of the text. For that reason, the Arab Group
is not against retaining the words “direct and indirect discrimination” nor does
it object to deleting them.
• A subsequent paragraph on national laws of general application is still between
brackets. The Arab Group would like to strengthen the text by adding other
social dimensions to it so that the text reads [National laws, customs and
traditions of general application]. It is not only laws that are relevant to
disabilities. Values, customs and traditions are also relevant; restricting the
matter to laws alone will not achieve the goal of social integration for persons
with disabilities. A text that includes customs and traditions is more suited to
the spirit of the convention than a text that includes laws only and excludes
other factors.
IV. Operative articles
As far as the paragraphs on women with disabilities and children with
disabilities are concerned, the Arab Group supports having articles dedicated to
women and children in order to focus on their situations which require special
attention. Women’s and children’s issues are mentioned in the convention’s other
articles whenever appropriate. There is no dispute about the text on these subjects.
The Arab position is flexible vis-à-vis the formal contradictions related to wording
of the articles and is based in this regard on the Arab Decade for Disabled Persons,
which dedicated special themes to women and children. Consequently, there is
nothing to prevent having a separate article for each. The Arab Group agreed that
article 7, paragraph 4, on the protection of children should be deleted because it is a
repetition of many other articles and clauses in the convention. For example, the
protection of children is addressed in article 18, paragraph 2, and in paragraphs 3,
4 and 5 of article 23.
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As for article 11 of the draft convention, the Arab Group reiterates the position
which it expressed during the proceedings of the seventh session, and maintains its
call for the incorporation in the article of the wording it proposed:
“States parties shall take, in accordance with their obligations under
international law, including international humanitarian law and international
human rights law, all necessary measures to ensure the safety and protection of
persons with disabilities under foreign occupation and that institutions which
provide them with care and rehabilitation are not targeted or placed in danger.”
The Arab Group would like to point out that there is no justification for saying
that there is no basis for singling out foreign occupation in article 11 because it is
mentioned in the preamble. Many of the matters addressed in the convention are
referred to in the preamble, yet they are more specifically emphasized in the
convention’s operative paragraphs. Therefore, there is nothing that prohibits
specifically defining armed conflict and including foreign occupation in that
definition, particularly since armed conflict by itself does not, in any case, mean
foreign occupation. The mechanisms for ending armed conflict and the related
international laws are also different from the mechanisms on decolonization and the
international charters calling for the elimination of its manifestations.
The other issue is that the convention does not address at all the dangers faced
by institutions that provide care and rehabilitation for persons with disabilities. Nor
does it contain any language that refers to persons with disabilities living under
occupation, which lessens its credibility. Thus the convention that is supposed to
end discrimination against persons with disabilities actually discriminates against
them by excluding persons with disabilities living under occupation from its
provisions, which is a contradiction of the letter and spirit of this convention and
other international conventions. It does not make sense to issue an international
convention that protects persons with disabilities and preserves their dignity while
completely ignoring the daily threats persons with disabilities face under occupation
as well as the destruction of the institutions that provide them care and
rehabilitation.
• Article 12, particularly subparagraphs 2 (a) and (b), refers to the “[legal
capacity]” of persons with disabilities on an equal basis with others in all
fields. The Arab Group is opposed to this paragraph as a matter of principle
because, in practice, legal capacity on an equal basis with others in all fields is
a negation of the rights of persons with certain types of disabilities, especially
those who are mentally disabled and whose disability does not allow them to
enjoy legal capacity, particularly in matters of inheritance or finance. To
stipulate legal capacity in an absolute manner will lead to the exploitation of
persons with certain types of mental disabilities. Legal capacity also means
legal responsibility before a court. Thus in criminal cases persons with certain
types of disabilities that lead them unknowingly to commit criminal offences
would be subject in practice to the law because they would be considered
legally capable and responsible for their actions. This constitutes a blatant
negation of the rights of those persons who might commit acts without
comprehending the gravity of their liability. The text, therefore, exposes these
persons to the danger of being treated as the equals of persons without
disabilities who commit the same crime and, consequently, being subject to the
same penalty. This is an anomaly in terms of law and custom and cannot be
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accepted. The principle that must be adopted is that of the equality of persons
with disabilities before the law and not that of their legal capacity.
A distinction must also be made between legal responsibility and the principle
of equality. Legal responsibility means responsibility for an action and for its
consequences. It is inappropriate to suggest adding a paragraph that stipulates that
this should be in accordance with national law. If the general trend is to retain legal
capacity, it is vital to define legal capacity as the ability to act and discriminate in
order to protect the persons whose disability does not allow them to assume
independent legal capacity because of their inability to discriminate.
Accordingly, the Arab Group supports the text found in article 12, paragraph
2 ter,* and which states that legal capacity must be “[proportional and tailored to the
person’s circumstances]”.
• Article 17, paragraph 4, on the protection of the integrity of the person: The
Arab Group is flexible as to the proposed wordings and would be amenable to
any amendments that are in keeping with the contents of the draft convention.
• Article 23 on respect for the home and family: Paragraph 1 (a) states that
“Persons with disabilities have the equal opportunity to [experience their
sexuality,] have sexual and other intimate relationships and experience
parenthood.” The Arab Group believes that this paragraph represents great
dangers for persons with certain types of disabilities some of whom may be
subjected to sexual exploitation and that the article will provide a means of
defence for exploiters. It would be appropriate to completely delete
subparagraph (a) and to add the phrase “experience parenthood” to
subparagraph (b) so that it reads: “The right of all persons with disabilities
who are of marriageable age to marry, to found a family and to experience
parenthood on the basis of free and full consent of the intending spouses is
recognized.”
• Article 24: The Arab Group believes that the phrase “[In order to meet
adequately]” is inappropriate to the text of the convention and is incompatible
with its goal. It would be appropriate to delete this phrase and to remove the
brackets from the second phrase as general education systems may not meet
the individual needs of persons with disabilities. The essential principle is the
inclusion of persons with disabilities in the general education system.
However, the general education system may not be appropriate for persons
with certain types of disabilities, particularly mental disabilities, and may even
destroy their capabilities in some instances. The position of the Arab Group is
therefore that the first phrase should be deleted from the paragraph and that the
brackets should be removed from the second phrase.
• Article 25: The Arab Group has been sufficiently flexible with regard to this
article and supports the text subject to the addition of the phrase “which are
not against the national law”. This wording is found in chapter VII of the
Programme of Action of the International Conference on Population and
Development adopted by the International Conference on Population and
Development. The addition of this phrase may be a means of resolving the
dispute surrounding this text and would also be in keeping with the
explanatory footnote on this matter found in the draft convention.
* The Arabic text refers here, incorrectly, to paragraph 2 bis.
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• Article 27 on work and employment states: “To ensure that persons with
disabilities are able to exercise their labour and trade union rights [on an equal
basis with others and in accordance with national laws of general
application].” The Arab Group supports the removal of the brackets
surrounding this text. It is important to retain the text as it stands because the
organization of trade unions is subject to national laws that vary from country
to country. The principle at the centre of this article is the right of persons with
disabilities to exercise their trade union rights and not the trade unions
themselves, and it is important to retain the paragraph without any
amendments and remove the brackets.
• Article 28 on adequate standard of living and social [protection]: The Arab
Group would like to emphasize that the concept of social protection is more
inclusive and comprehensive, whereas social security is part of a set of social
protection policies. Social protection includes social security and various
safety nets and microcredit schemes as well as social integration programmes
and packages and poverty reduction policies. These things all fall under the
umbrella of social protection. Social protection is what is customarily referred
to in social development literature and used by the United Nations and other
organizations in their documents. The Arab Group is therefore in favour of
retaining the concept of social protection.
• Article 28, paragraph 2 (e): “[To ensure equal access by persons with
disabilities to retirement benefits and programmes].” This text is still
completely enclosed in brackets. The Arab Group believes that removing these
brackets would be more in keeping with the wording of this article.
• The same applies to article 29 as to article 27. The phrase “[on an equal basis
with others in accordance with national laws of general application]” is still
between brackets. The Arab States support the removal of the brackets and the
retention of the phrase because this will bring the paragraph more into line
with the world’s various political and economic systems as far as participation
in political life is concerned.
• Article 32 on international cooperation: The Arab Group supports the text
proposed by China which states: “[States Parties recognize further that while
international cooperation plays a supplementary and supportive role, each
State Party undertakes to fulfil its obligations under the present Convention.]”
The delegations of the Arab States believe that the other text, which states that
“[Each State Party undertakes to fulfil its obligations under the present
Convention, irrespective of international cooperation],” is inappropriate as
well as being a wording that is not found in international conventions. How
can international cooperation be disregarded in an international convention
when an international convention’s role, in principle, is to regulate
international cooperation? If this cannot be overcome, the convention could no
longer become international. Consequently, international cooperation must be
specified as a primary supporting element for the implementation of the
convention, particularly since the mechanisms required by this convention are
a principal component of international cooperation.
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• Article 33 on national implementation and monitoring: The Arab States believe
that the convention should be separated from the implementation and
monitoring mechanisms, that the independence of national monitoring and
follow-up committees should be guaranteed and that these committees should
be broadly based so as to ensure the representation of the various parties. This
should be specified in the convention through the inclusion of the phrase
“independent national mechanism” instead of the phrase “national mechanism”
currently found in the draft convention.* The goal is to make the text flexible
so as to allow all States to establish this mechanism in accordance with the
regulations and laws currently in force in each State. The Arab Group also
believes that paragraph 3 of the article should be re-worded because the
current text which refers to the participation of civil society in monitoring
mechanisms at all levels is too general. A replacement text should be drafted
defining more precisely the parties that will participate in this mechanism and
the levels at which they will participate. The participation of organizations that
represent persons with disabilities must be clearly specified.
The Arab Group also would like to emphasize the necessity of separating the
monitoring and follow-up mechanism from the implementation mechanism. The
implementation mechanism should be addressed in a separate article of the
convention and not be combined with the monitoring mechanism. The Arab Group
would like to emphasize that it does not object to the draft text so long as it contains
the right of each State to develop the mechanism that suits it. The text should also
include the principal monitoring elements, which are follow-up on the
implementation of the convention, a direct link between organizations of persons
with disabilities and this mechanism, and a link between the national and
international mechanisms.
The Arab Group also supports the three paragraphs in the draft convention
because they serve the desired purpose; any further additions to them might lead to
protracted discussions and pointless differences of view. The Group believes that it
is best to be satisfied with what is set out in the draft convention and to improve the
wording as explained above.
• As for article 34, the Arab Group believes the monitoring and follow-up
mechanisms relating to disabilities should be different from those employed
for human rights and other international conventions. The Group supports, in
principle, the proposal presented by Costa Rica to establish an international
monitoring and follow-up mechanism as a sound basis for discussion and its
further development through additions to or deletions from the text. The
proposal, overall, is constructive inasmuch as it takes into account the
problems related to disabilities and adds a new dimension to this mechanism.
Certain paragraphs refer to the relation of the proposed mechanism to existing
mechanisms within the United Nations system as well as the cooperation of
this mechanism with the United Nations system and other international
organizations. It would also be appropriate to take advantage of the chair’s
proposal and harmonize the two texts in order to create a capable and efficient
international monitoring and follow-up mechanism.
* Translator’s note: The term “national mechanism” does not appear in this article in either the
English or the Arabic text. Moreover, the reference to the establishment “at the national level [of]
an independent mechanism” in the existing text seems to be consistent with the purpose of the
amendment that is being proposed and to make the amendment unnecessary.