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Inclusion International Responds to New UN Convention Text
[Last updated Friday, November 18, 2005]
1) LEGAL CAPACITY
Legal capacity is the single most important issue for people with intellectual disabilities and their families. Without the acknowledgement of the right to decide for oneself, this Convention becomes irrelevant to people who cannot speak or articulate their choices independently. We applaud the chair’s text as follows: 1) States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities have [legal capacity] on an equal basis with others in all fields and shall ensure, to the extent possible, that where support is required to exercise
We support the removal of section 2 b) of the chair’s text as the appointment of a personal representative referred to in this section implies the transfer of rights and decision making to a second party other than the individual.
II would support reference to a personal assistant as this would not imply the transfer of rights but rather a support to decision making by the individual.
2) FAMILIES
Families play a unique role in the lives of persons with an intellectual disability providing lifelong support and relationships. Families also often experience discrimination because of their association with a person. This discrimination ranges from being denied access to public places, such as playgrounds and restaurants; the economic discrimination of being excluded from the labour market because of the need to care for the family member who has a disability; or restricted mobility because of exclusion from transportation or denial of visas.
The role that families play in the realization of human rights for people with intellectual disabilities already is recognized in:
The International Covenant on Civil and Political Rights (1966) Art.23:
“The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.”
UN Standard Rules on The Equalization of Opportunity for Persons with Disabilities
Article 9 Family life and personal integrity
States should promote the full participation of persons with disabilities in family life. They should promote their right to personal integrity and ensure that laws do not discriminate against persons with disabilities with respect to sexual relationships, marriage and parenthood.
1. Persons with disabilities should be enabled to live with their families. States should encourage the inclusion in family counselling of appropriate modules regarding disability and its effects on family life. Respite-care and attendant-care services should be made available to families which include a person with disabilities. States should remove all unnecessary obstacles to persons who want to foster or adopt a child or adult with disabilities.
UN Convention on the Rights of the Child
Preambular statements:
Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,
Article 9 of the UNCRC refers specifically to the role of families in the context of children.
Drawing from these human rights instruments, Inclusion International proposes the following wording to be included in the Preamble to the Convention:
“Recognizing the role that families play in advancing the full inclusion and
securing the rights of their family members with disabilities, and mindful
of the need for families to receive supports and services that promotes an
individual’s dignity, equality and potential;”
We also propose that a distinction be made between support provided to families of adults with intellectual disabilities and to families of children by ensuring that and article on children is included in the Convention.
II also supports the addition of Article 23 by the Chair which refers to the right to start ones own family.
3) Living Independently and Being Included in the Community
Inclusion International supports the overall approach that the Chairman took to this article focusing on the individual’s right to choose where they live and the obligation of the State to provide support.
It is important to continue to underline the importance of this article for people with intellectual disabilities and their families. The experience of institutionalization over the past several centuries has in many countries resulted in exclusion from economic, social and political participation. Frequently, the need for support or assistance is used to argue that placement in an institution is necessary, or that the person is ineligible to live in the community in the living arrangement of their choice. it is not the level of disability or ability that determines whether a person can live in the community but rather the key determinant is the supports to which they have access.
„« States Parties therefore need to be pro-active in offering possibilities for people with intellectual disabilities to live in the community.
The right to decide where and with whom you live and with the supports you require are fundamental for people with intellectual disabilities.
„« For this Article to respond to the needs of persons with an intellectual disability and their families this article must in addition provide more recognition of the individual’s right to supports and choice and control over them.
Families are recognised by various Human Rights treaties as “the natural and fundamental group unit of society” and are a major source of support for people with intellectual disabilities.
„« This Article must ensure that “in-home, residential and other community support services” are also supportive of the family of the disabled person.
It is also critical that an article on children underline the importance of supports to families to ensure that children are not institutionalized.
4) Education
Inclusion International applauds the chairman’s efforts to recognize the right to inclusive education along with the specific requirements of some groups to receive specialized services. By focusing on the purpose of education and making clear that education is for the development of the whole person text provides a solid basis for the provision of quality inclusive education.
Some issues of concern that remain include:
1) The need for a definition of inclusive education:
Inclusion International supports UNESCO’s definition of Inclusive Education as “a process of addressing and responding to the diversity of needs of all learners through inclusive practices in learning, cultures and communities and reducing exclusion within and from education. It involves changes and modifications in content approaches structures and strategies, with a common vision which covers all children of the appropriate age range and a conviction that it is the responsibility of the regular system to educate all children.” (UNESCO, Guidelines for Inclusion: Ensuring Access for All)
2) The phrases “reasonable accommodation” and “In exceptional circumstances where the general education system can not adequately meet the support needs of persons with disabilities, States Parties shall ensure that effective alternative support measures are provided” risk creating situations where a lack of proper investment in the regular system to support inclusion means that individuals with a disability do not get the supports they need and there would be rationale to provide education to them in specialised and segregated settings.
Inclusion International supports the removal of the clause “In exceptional circumstances..”
5) Children
Inclusion International supports the inclusion of a separate article on the rights of children with disabilities on the basis that the legal status of children with disabilities raises particular issues affecting their human rights and because currently the UN Convention on the Rights of the Child does not sufficiently address these issues.
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