NGO
Comments on the draft text
Draft article 7 - Equality and non discrimination
INTERVENTION BY EUROPEAN DISABILITY FORUM ON ARTICLE 7
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.
Intervention on Equality and Non-discrimination prepared by
Landmine Survivors Network
Given the historic exclusion and marginalization of people with disabilities,
Landmine Survivors Network, like many of our colleagues, welcomes the
inclusion of a specific article on equality and non-discrimination,
as set forth in Draft Article 7 of the Working Group Draft text.
We believe that the equality and non-discrimination framework set forth
in Draft Article 7 is, on the whole, a strong one, and largely consistent
with formulations found in other treaties, such as the Convention on
the Elimination of All Forms of Racial Discrimination, and CEDAW. However,
LSN would like to highlight 2 important changes that we feel should
be made to Article 7:
1) We support our colleagues in EDF in believing that the concept of
indirect discrimination (raised in FN 24) should be explicitly articulated
in the convention, as an aid to states seeking to fight discrimination
against people with disabilities. If the Committee should choose to
include a definition of “indirect discrimination” we find the language
from the first part of EU New Article 3 bis, para 2(b) a helpful contribution.
It reads “Indirect discrimination shall be taken to occur where an apparently
neutral provision, criterion or practice would put a person having a
disability at a particular disadvantage compared with other persons.”
2) The second change we recommend regards Article 7(3), in support
of the recommendations on this paragraph by Australia and Costa Rica.
We believe that para 3 should be deleted. As noted in FN 26, such a
standard of review has never before been included in a core international
human rights convention, and to do so here would be a departure from
that precedent. Consistent with prior practice, we believe that the
development of standards of review in relation to non-discrimination
should be left up to the relevant treaty review body. If the Committee
should choose to retain this paragraph, which in our opinion is unnecessary,
we would support the language amendments proposed by Japan, Canada,
Yeman and EDF, which we believe better reflect existing precedent on
this matter.
To conclude on a lighter note, Landmine Survivors Network would like
to commend the sensitivity of the Canadian delegation regarding Article
7(2)(a), which uses the term “equal footing.” Maybe it comes from Canada’s
historic leadership in the elaboration of the Landmine Ban Treaty. Landmine
Survivors and amputees around the world – who don’t have “equal footing”
appreciate the re-formulation of paragraph 2(a), changing the wording
to “on a basis of equality with others.”
Thank you.
Intervention by (Australian) National Association of Community
Legal Centres, People with Disability Australia Incorporated, Australian
Federation of Disability Organisations
Mr Chairman:
Thank you for this opportunity to address the Ad Hoc Committee.
We have three points to make in relation to this article.
Firstly, we note the EU’s proposal that references to equality be removed
from article 7. In our view, substantive equality of people with disability
is critical to the realisation of human rights and must have a central
position in this convention. Equality is an ethical standard, which
is given effect through non-discrimination mechanisms. That being the
case, we would support the removal of references to equality from article
7 only on the basis that equality is incorporated into article 4 as
a general state obligation or that a stand alone article is developed
and expressed so as to apply to all other articles of the convention.
Secondly, the current structure, clarity and scope of the article could
be significantly improved. In our view, the article ought to commence,
as it does, with a paragraph that provides a clear and comprehensive
prohibition of discrimination on the ground of disability. The next
paragraph ought to then set out a clear obligation on States to ensure
that the participation requirements of people with disability are reasonably
accommodated. This paragraph ought also to require states to compel
reasonable accommodation by State and non-State actors. The paragraph
ought to clearly set out that failure to provide reasonable accommodation
amounts to discrimination on the ground of disability. The next paragraph
ought to set out exceptions to the prohibition of discrimination, which
in our view ought to be limited to an ‘ordre public’ (public order)
exception and an ‘active (special) measures’ exception. Both exceptions
ought to be very narrowly framed, so as to ensure that other human rights
obligations continue to apply, and that while the measure itself may
be excepted, all acts done in its administration and implementation
remain subject to the prohibition on discrimination. Both ought also
to be expressed as subject to the principle of the ‘least restrictive
alternative,’ and acceptance of an active measure by a person with disability
must be voluntary. The next paragraphs should then define the key concepts
on which the article turns – discrimination – both direct and indirect;
reasonable accommodation; and active (special) measures.
Thirdly, the current text of article 7 does not include a definition
of indirect or systemic discrimination. In our view, the term systemic
discrimination can be dispensed with, as systemic discrimination should
be incorporated as the major focus of the definition of indirect discrimination.
We recommend the inclusion of the definition of indirect discrimination
as found in paragraph 2 of the Bangkok draft.
The definition of discrimination must include references to discrimination
on the basis of:
1. suspected, imputed, assumed or possible disability,
2. association with a person with disability (for example, paragraph
5 of the Bangkok draft),
3. past disability or the effects of a past disability, and
the characteristics of a disability.
Thank you for the opportunity to address the Committee.
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