Back to: Third Session of the Ad Hoc Committee
NGO Comments at the third session

Comments by NGOs at the Third Session
European Disability Forum

Draft Article 4
General Obligations

Proposals for amendments to the current text of article 4 are largely based on the EDF contribution.

Paragraph a) should also include by-laws, rules and EDF suggest to replace the word ?discourage customs? by ?counter customs?.

EDF proposes to add to paragraph c) a reference to international cooperation, which would oblige both the donor and the recipient of development cooperation funds to take into account persons with disabilities.

EDF also considers it very important that a paragraph on remedies is included in this article, as suggested in footnote 22.

EDF also suggests to add a reference to positive action measures to paragraph e) of this article.

EDF suggests a reference to the use of public procurement and public funds in paragraph f) as a way of promoting Universal Design in goods, services, equipment and facilities.

When implementing the General State Obligations, special attention should be given to those disabled people more in danger of exclusion and discrimination, including women with disabilities, disabled people from ethnic or indigenous minorities, disabled people living in rural and remote areas.

Paragraph 2 of this article is considered of vital importance. It could be strengthened through a reference to the concept of partnership and to the provision of measures which would strengthen the role and capacity of representative organisations of persons with disabilities to play an active role in the implementation of the Convention. EDF also supported the proposal of New Zealand on this paragraph.

Secondly, EDF reacted to the EU proposal and stated our concern on proposed limitation of chapeau to non discrimination.

EDF also stated their concern about the last words in the paragraph on mainstreaming, as disability specific plans and programmes are still needed. Not everything can be mainstreamed. A twin-track approach is required.

Finally, moving paragraph 2 to article 25 will depend on final wording of article 25. A better alternative would be to include references in both.

Article 7: Equality and non discrimination

The first discussion to be held is about the scope of the article. Equality and non discrimination are interrelated concepts, but should not be put on the same level.

For us, non discrimination is one of the means to achieve equality, but to achieve equality needs to be complemented with other measures.

Therefore, this article, should include all those measures that contribute to the equality of persons with disabilities.

Reasonable accommodation

It is a key concept in any anti discrimination legislation.

Therefore, we insist that the failure to provide reasonable accommodation should be considered as a form of discrimination.

General Comment 5 to the ICESCR supports this view. It defines disability based discrimination as:

For the purposes of the Covenant, "disability-based discrimination" may be defined as including any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights.

Reasonable accommodation is not a well known concept. Therefore, it is very important to include a definition of this concept in the Convention. The footnote to the draft text includes many of the key elements that such a definition should include: it should not be imposed against the will of the disabled person, it is individualized, it has to be effective, that is, it has to ensure the full participation of the disabled person in employment, education, access to goods and services.

In the context of a human rights convention, it is hard to see that an obligation which will ensure the full enjoyment of human rights can be qualified by the concept of undue hardship or disproportionate burden. However, if this concept is to be included, it should take into account the size of the entity, the type of entity (public, private), the available financial subsidies which would compensate the cost and the implications of the accommodation on the entity. The objective has to be to limit to the maximum extent possible the exception to the rule of providing a reasonable accommodation.

Are there situations where discrimination can be justified?

The EU proposal limits these exceptions only to indirect discrimination, but the working group draft, which does not distinguish between indirect and direct discrimination, includes paragraph 3 which provides for exceptions to all forms of discrimination.

We consider this not acceptable and propose therefore that paragraph 3 should be deleted.

Should we distinguish between indirect and direct discrimination?

Being familiar with the distinction made in the EU between direct and indirect discrimination, the EU proposal is quite good.

The main problem we see is that it will be difficult to apply this definition in a Convention and understand that many countries will not want to make this distinction.

From that point of view, the working group proposal which refers to both concepts (as well as systemic), without attempting to define them, seems to be a good compromise.

Reversal of the burden of proof

A key concept in EU anti discrimination legislation is the concept of the reversal of the burden of proof.

This means, that when a disabled person can provide prima facie evidence that he/she has been discriminated, it will be on the public organization, employer to prove that this has not been the case. This concept strengthens significantly anti discrimination provisions.

Who should be covered by anti discrimination?

The most advanced national anti discrimination legislations protect not only persons with disabilities, but also, persons who are perceived (by others) as being disabled, persons who have had a disability in the past, persons who are predisposed to have a disability in the future and persons who are associated to a person with disability.

We think that the Convention should be in line with this.

Multiple discrimination. The definition resulting from the January working group (second sentence of paragraph 1) was not very clear. We should propose a better definition, but definitely maintain this protection against multiple discrimination.

Finally, the issue of special measures.

While temporarily limited positive action measures are a key concept in the context of gender and race, it is not a concept which is very much used in the context of disability. One of the few examples would be employment quotas.

However, there are many measures, included in the present draft text, which are key to ensure the full inclusion of disabled people. Examples could be assistive technologies (wheel chairs), respite care centers, crisis hostels. These are not measures that are temporary. These measures are required in a permanent way and are crucial to achieve the equality of persons with disabilities.

So, either we remove the reference to the temporary nature of these measures in the current paragraph or we include a new paragraph with these measures. In any case, it should be made clear that these measures should not be imposed against the will of the disabled person.

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