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Daily summary of discussions related to Article
3
DEFINITIONS
UN Convention on the Rights of People with Disabilities
Fourth session of the Ad Hoc Committee - Daily Summary
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Volume 5, #1
August 23, 2004
MORNING SESSION
DEFINITIONS
The Netherlands (EU) opposed defining “disability” or “persons
with disabilities” as they risk becoming exclusive instead of inclusive.
Where definitions are needed they can be included in the relevant provisions.
A definition on “reasonable accommodation” is needed in an article on
non-discrimination as it is a key concept in the convention and is not
yet sufficiently defined in international law. The EU favored a strong
definition of the terms “discrimination on the ground of disability,”
which must include both direct and indirect discrimination, on which
specific proposals were made at AHC3.
China supported an article on definitions but covering
only the important terms, which at the minimum should be “disability”
and “discrimination against persons with disabilities.” China has presented
its definition of these terms in English to the Secretariat. China noted
that more time was needed to consider definitions in the Working Group
text of “communication” and “language.”
India did not support the formulation of definitions
and stressed that this should be left to States Parties to address at
the national level.
Japan stressed that any definition of disability should
be flexible to accommodate different national systems. Japan believes
that sign language is a form of language, but it is important to consider
what type of legal obligation this would entail. A number of questions
also arise in relation to defining reasonable accommodation, a concept
that has not been defined in international law.
AFTERNOON SESSION
DEFINITIONS (cont)
Yemen noted two definitions that need clarification:
reasonable accommodation and universal design.
Republic of Korea called for retaining the article,
at least in terms of defining disability and disability discrimination.
The definition of disability has evolved and ICF now embraces a broad,
social model definition.
South Africa called for the adoption of guidelines on definitions
for States Parties to follow in devising national frameworks. It submitted
some definitions to the Secretariat.
Guatemala affirmed the social approach to disability
and the elimination of the medical approach. With regard to “reasonable
accommodation”, in Guatemala there is no such concept, and further information
is therefore required. Regarding “universal design” and “inclusive design”,
it prefers “universal design.”
Cuba stated that definitions should reflect social
dimensions of disability emphasizing diversity and diverse kinds of
disability. Definitions could include those by WHO. In addition, “persons
with disabilities,” “accessibility,” “universal design,” “inclusion,”
“autonomy” and “solidarity” should be defined.
Chile recommended a focus on defining those terms of
greatest use rather than creating an article of many definitions that
are not useful. Definitions should be provided for: “Persons with disabilities,”
“discrimination on the ground of disability,” “universal design,” “inclusive
design,” “accessibility,” “reasonable accommodation,” “equal opportunity.
Canada stated that when it is necessary to include
definitions, it should be done within specific articles. Definitions
on disability tend to change and vary depending on what program they
are used for and it will be difficult to come up with a definition of
disability that stands the test of time. However, if there is a decision
to include a definition of disability, Canada will participate in the
discussion and to contribute its experience.
Norway pointed out the problem of finding one definition
of disability that will fit every context, doubted whether a definition
was necessary, and therefore suggested a focus on other aspects of the
work.
Venezuela called for retaining a separate article,
defining disability from a social standpoint. Many terms lend themselves
to different interpretations.
Australia pointed that there are few terms requiring
definition outside the relevant substantive provisions. For example,
it is not necessary to have a definition of accessibility in the convention
and if there is to be one, it should be outcome based and be able to
evolve as interpretation of technology develops. Similarly, there is
no need for a definition of communication. In defining disability, it
should be broad and inclusive and should ensure that it covers physical,
mental, intellectual disabilities as well as future, past and imputed
disabilities. The social model of disability is important, but disability
seen purely as a function of the environment would render a definition
unworkable. The people entitled to protections under the convention
need to be clearly identified. Australia has submitted proposed language
defining disability as well as “associates” to the Secretariat.
Holy See cautioned against hastily deciding at this
stage in the process whether or not various definitions were needed,
though the delegation was generally in favor of a definitions section.
Ethiopia did not see the practical importance of defining
disability. The attempt to develop a universal definition may complicate
things at the national level, where it is most appropriate to pursue
a definition of disability. However it may be possible to agree to a
definition in this Convention in relation to the social model and on
very broad terms.
Lebanon agreed on the difficulty in defining disability
but emphasized its importance in enabling each state to implement the
convention. There is a danger that some countries may have too restrictive
a definition and deny to many PWD their rights under the convention.
The article should not define disability, but should include a statement
providing guidelines on defining disability at the national level. Lebanon
supported definition within specific substantive articles, such as universal
design, accessibility and communication.
Thailand reiterated that it is essential to define
disability in a separate article, despite the inherent risks. Any definition
must be broad and based on the social model. It supports several definitions
proposed by South Africa, with slight modifications and additions.
Bahrain called for the deletion of a separate article
and the inclusion of definitions within the substantive articles.
Costa Rica suggested leaving definitions up to States,
though certain elements may be defined as the negotiations proceed.
However this is not the appropriate time.
Kenya submitted a proposed definition of “persons with
disabilities” to the Secretariat but noted that many other definitions
could be defined within their substantive articles.
New Zealand agreed it was premature to propose a separate
article on definitions, but noted that as negotiations proceed if terms
are used more than once they can be defined separately. Any definition
should be in keeping with the spirit of the convention and should be
as broad as possible.
Mali stated that definitions are important and necessary.
Argentina agreed on the importance of definitions and
submitted proposals on “disability” and “discrimination against persons
with disabilities,” citing the Inter-American Convention on the Elimination
of Discrimination against Persons with Disabilities.
El Salvador called for a meaning somewhere in the convention
of “persons with disabilities.”
Mexico submitted a proposed definition of “persons
with disabilities” to the Secretariat.
Sierra Leone referenced the footnotes in document 265.
“Accessibility” has been addressed in Article 19, discrimination has
been addressed in Article 7, reasonable accommodation has been addressed
in Article 7, communication could be addressed in another article, so
we are left with the need to define disability and persons with disabilities
which could be addressed in a separate article, whereas others could
be addressed within the separate articles.
Inter-Governmental Organizations
International Labour Organization (ILO) supported defining
concepts that appear throughout the text early on in the convention.
A definition of “persons with disabilities” should be: 1. focused on
the reduction in prospects for participation arising from duly recognized
physical, sensory, intellectual or mental impairment, referencing ILO
Convention 159 and the ILO Code of Practice on Managing Disability in
the Workplace; 2. include direct and indirect discrimination; 3. specify
that affirmative actions are allowable to combat discrimination. Reasonable
accommodation should also be defined. A definition of disability would
be limiting, but if a decision to incorporate this in the convention
was made, the definition should be broad, inclusive, and reflect the
social dimension of disability. The ILO submitted proposed language.
Non-Governmental Organizations
PWDA called for a broad and inclusive definition, encompassing
all impairment groups, including people with disabilities resulting
from health conditions like HIV/AIDS, and recognizing that disability
may be permanent, temporary, episodic or transitory.
WBU referenced the consensus in the International Disability
Caucus that certain terms must be defined, including language, reasonable
accommodation, universal design, accessibility, communication, discrimination,
persons with disabilities.
WFD called for a definition of “language” covering
spoken and sign languages, and submitted proposed text. Deaf people
should be able to use sign language on the same basis that others in
society use their language.
WNUSP emphasized the need to ensure that people with
psychosocial disabilities are recognized as persons protected, and able
to assert their rights, under this convention. Therefore a definition
may be necessary, whether it is referred to as such or couched in another
form. Any definition should ensure that people with psychosocial disabilities
need not be recognized by a medical professional in order to be defined
as such, as this would require them to seek services they may not want.
WNUSP rejects defining disability in terms of the need for support.
People with disabilities may choose to seek support, and they may also
“choose to accommodate themselves in their everyday life.” WNUSP rejects
the Argentine proposal referencing the Inter-American Convention.
DPI rejects any definition of disability that excluded
people with disabilities from protection under the convention. Many
States do not have working definitions of disability in their legislation
and many have definitions grounded in the medical model, that exclude
people who face barriers to inclusion in society. States must adopt
an understanding of disability that is drawn from the social model.
European Disability Forum (EDF) supported defining
reasonable accommodation and discrimination in Article 7. EDF supported
the statement of WFD regarding recognition of sign language as a language.
There may be merit in defining accessibility and universal design in
a specific article as these terms will be used in many articles. Any
definition of disability should be broad and based on the social model.
There is merit to having a definition. If there is no definition there
would be certain groups of disabled people in the EU who would not be
covered because there are countries that do not, for example, include
people with psychosocial disabilities in their legislation.
Save the Children Alliance supported defining disability
in the convention which will be important for data collection and monitoring
and implementation. It must be broad and inclusive. It supports the
definition of disability found in the Landmine Survivors Network Legal
Analysis. Save the Children proposed defining diversity, reasonable
accommodation, and communication including language proposed by WFD.
National Human Rights Institutions supported defining
disability, discrimination, and accessibility. Discrimination and accessibility
may be defined within particular articles. The definitions contained
in the Chair’s draft are helpful definitions. A definition of disability
must be broad and inclusive and based on the social model. There is
a danger in not defining disability – States may refuse to ratify the
convention if its meaning and obligations are uncertain, it would fail
to provide a template for national law and policy and for guiding disability
awareness, and states which lack legal or policy protections for some
types of disability would not be stimulated to develop more inclusive
policies.
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