International Disability Caucus

Dear Government Delegate to the Ad Hoc Committee,

The International Disability Caucus (IDC) would like to draw your attention to a very important issue, which was raised during the last session of the Ad Hoc Committee on the Convention on the Rights of Persons with Disabilities.

You will remember that when article 12 was presented for adoption ad referendum, the Chair read out the text and indicated that there was a footnote to the term "legal capacity" in paragraph 2 of that article.

This announcement took the vast majority of Government delegates (and all delegates from civil society) by surprise, as this footnote had not been part of any of the versions of article 12 that had circulated during AHC VIII.

Canada quickly reacted to this information and raised the question to the Chair about what would be the final status of this footnote, to which the Chair replied that it would remain in the text. The speed of the process did not allow for any more reflection before the article was adopted ad referendum.

During the final round of statements, the European Union, speaking also on behalf of Canada and Australia, raised their concern about the footnote and the need to look at its implications and come back to it, if needed. The IDC also noted this issue in its final statement and supported the proposal made by the European Union to address this issue during the reconvened AHC VIII.

We would kindly ask and strongly urge your delegation to reflect about the implications of keeping the footnote in the final Convention text. In this respect, we would like to share with you how the IDC evaluates this footnote.

The first concern that such a footnote raises is the fact that a core human rights treaty will include a footnote. There is no precedent for such a situation and it is a precedent that should not be set for any future human rights Convention. Undoubtedly, it would be a black mark on this Convention to have a footnote, whatever the content of such a footnote is.

Second, the content of the footnote is confusing, and gives rise to problems in implementation. As draft final article 50 states, the six linguistic versions of the Convention are equally authentic. A basic law of treaty interpretation is that a text has to be separate and entire. How can an English text purport to say the "Arabic, Chinese, Russian" text says "XXX" when the new "Arabic, Chinese, Russian" text is complete in all its four corners and should not look to an English text for interpretation.

There are established ways of dealing with a situation when a future State Party has concerns about certain elements of a Convention. These options are interpretive statements or reservations. While the IDC would not like to see States Parties making use of these options, these are available to States Parties to any Convention. Moreover, these can be withdrawn at a later stage, thus allowing States Parties to gradually commit themselves to certain obligations included in a Convention. However, a footnote will stay in the Convention text forever!

Finally, let us look more closely at the implications of such a footnote. As the IDC stated in the closing session of AHC VIII, the footnote prevents people with disabilities from enjoying legal capacity in many parts of the world. There can be no doubt that limiting legal capacity to the legal capacity for rights without the capacity to act, means taking away all relevant dimensions of the concept of legal capacity.

Article 15 of CEDAW was drafted in such a way that both dimensions of legal capacity, where legal systems make this distinction, are provided equally to all women. When some Government delegates stated the difference between the two concepts in many legal systems (like the Spanish speaking ones) in the Ad Hoc Committee, the solution proposed and agreed was to base the wording of article 12 on the CEDAW wording. There was no need to reinvent the wheel.

Legal capacity without the capacity to act is meaningless and harms the whole Convention, which is based on the interaction of legal capacity with other Convention rights. The freedom from torture, namely the protection from medical and scientific experimentation without the free and informed consent and the right to health which is based on informed consent, the protection from forced sterilisation of women and men with disabilities, are just some of the examples of articles which are left meaningless for those persons with disabilities affected by the footnote.

Legal capacity is not just one right, it is the entry door to all the other rights. If we close this door to people with disabilities in some parts of the world, the Convention will have failed.

The IDC was committed to finalising the negotiation process of the Convention at AHC VIII, because 650 millions of persons with disabilities urgently need this Convention. But, we also made it clear that finalising the process could not be done at any price. We have indicated our flexibility on many issues and have accepted that not all our demands could be met. However, the harmful impact of the footnote is far too high a price to pay.

But, we also need to be careful when seeking to solve this issue. The deletion of the footnote can in no way be meant to extend the interpretation in the footnote to the whole world, neither by a change in the main text in the article, nor by a general interpretive statement.

The IDC needs to be part of the process to find a solution, as we have been part of the whole process. "Nothing about us without us" needs also to be applied to this final stage of the process.

We therefore kindly ask you to use the coming weeks to state that your delegation cannot accept the Convention with the footnote. This must be settled with the active involvement of state and civil society, without sacrificing anything of the agreed text of the whole Convention. We all have the responsibility to get this right.

If you would like to exchange your views on this issue, please approach the IDC on the following email: tminkowitz@earthlink.net.

Yours sincerely,

International Disability Caucus and Project South