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Daily summary of discussions related to Article 7

GENERAL PRINCIPLES

UN Convention on the Rights of People with Disabilities
Fourth session of the Ad Hoc Committee - Daily Summary
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Volume 5, #3
August 25, 2004

AFTERNOON SESSION

ARTICLE 7: EQUALITY AND NON-DISCRIMINATION

There was general support for proposals to replace the term “on an equal footing” with the phrase: “on a basis of equality with others” in 7(2).

Mexico reiterated its AHC3 observations distinguishing between equality and non-discrimination and suggested addressing these two concepts in separate articles. Article 7 would address equality before the law and non-discrimination and a new article would address equality of opportunities, specifically, positive measures to prevent and fight against discrimination. The content of Article 7 depends on the final formulation of Articles 4 and 9. The Committee’s review of Articles 4, 7 and 9 could be facilitated if they could be grouped together.

Chile supported Mexico’s suggestions as well as the comments of Canada, the African Group and Kenya to include in 7(1) “other aspects of vulnerability and age as well,” to which Chile proposes to add a reference to people living with HIV/AIDS. There needs to be a definition of discrimination, and Chile suggests incorporating the Inter-American Convention’s definition, including the concept of preventing cancellation of rights as well as removing barriers to the enjoyment of rights. It proposes adding a new paragraph addressing sanctions to be applied against those discriminating against PWD. It also proposes new language addressing acts not intended to be covered by the prohibition against discrimination in 7(3). This language would read: “The concept of discrimination does not include the provisions, practices, or criteria objectively and demonstrably justified by the State Party by a legitimate aim, and where the means of achieving that aim are reasonable and necessary and consistent with international human rights law.”

Ghana (on behalf of the African Group) supported the Canadian proposals in 7(1) specifying “persons are equal before and under the law” having the “equal protection and benefit of the law.” It supports the WG formulation in 7(1) referencing “any discrimination” and opposes the Japanese proposal to amend this to “all forms of discrimination.” Despite the hesitation of States to list grounds of discrimination, it supports retaining the list, with the additions proposed by Canada (“ethnic”) and the African Group (health, marital status, belief, culture). In 7(2) it supports the New Zealand proposal to add a reference to “additional obligations or burden” and to the articulation of discriminatory barriers that impede the enjoyment of rights by PWD, as reflected in the proposal by Israel, adding “condition, act or policy.” In 2(b) the African Group supports the Yemeni proposal to reference both direct and indirect disability. It supports the retention of 7(3). In 7(4) it agrees with the proposed amendments from Israel providing guidance on determining when a burden is disproportionate, and from China referencing “unreasonable difficulties.” In supports the Canadian proposal to replace “special measures” with “positive measures” in 7(5), and recommends deleting the second half of the paragraph after the word “Convention” as it is redundant. It supports 7(bis) as proposed by Colombia, with the replacement of the term “affirmative action” with “positive measures.” The African Group supports incorporating in Article 7 elements of the EU’s proposal for Article 3 bis (5)(c) and (d).

The EU declared that it was now prepared to accept a separate article on equality and non-discrimination, moving it to Article 3 and deleting current Article 3 on Definitions. It maintains its AHC3 recommendations to move the text in 7(1) on multiple forms of discrimination to the Preamble. Its alternative texts for 7(2) and (3) provide clearer definitions of direct and indirect discrimination. Its suggested rewording of 7(4) on reasonable accommodation stresses this is an individualized concept, hence the need for the qualification “where needed.”

Venezuela stressed the need to incorporate the concept of duty or obligation before the law. The Committee should discuss the placement of the definition of discrimination when it considers Article 3 (Definitions).

Canada favored retaining language on the prohibited grounds of discrimination in Article 7 and opposed its placement in the Preamble. PWD may experience discrimination on multiple and intersecting grounds, and recognizing that the list is non-exhaustive it recommends adding “sexual orientation” as a prohibited ground, as proposed by the EU and Brazil in the Preambular paragraph (m). The New Zealand proposal to add “additional obligations or burdens” in 7(2)(a) strengthens the definition of discrimination. It opposes the proposal of Australia to reference “or by association with a person with a disability” in 7(2)(b) as it may detract from the ultimate focus of the convention which is PWD and not families or support persons. With a minor amendment it supports the Australian proposal to amend “disproportionate burden” to read “undue hardship.” Canada opposes the creation of different State obligations for direct and indirect discrimination. The difficulty of distinguishing between the two can lead to undue focus on whether an act constitutes direct or indirect discrimination.

Australia supported combining Articles 4, 5 and 7 into Article 3bis, in line with the EU proposal. The reference to equality before the law in 7(1) is addressed in Article 9, so this should instead reference equality of opportunity. The definition of discrimination should be moved to a section on definitions, as this would apply throughout the convention. It supports references to discrimination against associates of PWD in 7(2)(b), notwithstanding concerns expressed. 7(3) should be deleted. Reasonable accommodation should be included in the convention as a broad term that should be used broadly and in relation to individuals. It accordingly supports the text in 7(4). It supports the deletion of 7(5) subject to other changes in the Article that might warrant its inclusion.

Mexico clarified that it did not propose merging Articles 7, 9 and 4, rather, the analysis around those articles should take place at the same time.

New Zealand noted that 7(1) is repetitive and supported efforts to streamline the text. It queried the necessity of listing the grounds of discrimination, noting that any such language should be consistent with ICCPR without attempting to create an exhaustive list. Should there be additional grounds, however, sexual orientation should be added. In 7(2)(a), the term “recognition” should be deleted as it makes no sense in English. A simple formulation in 7(2)(b) can avoid problems with direct and indirect discrimination and differentiation between grounds for discrimination: “discrimination shall include all forms of discrimination.” With regard to the differences of opinion on 7(3), New Zealand notes that no other anti-discrimination convention contains such a provision and suggests referencing General Comment 18 of the Human Rights Committee. It supports the retention of 7(5) as drafted by the WG.

Norway questioned whether a listing of the prohibited grounds of discrimination should be included in 7(1). It supports the EU proposal for 7(1), though reserves the right to comment further. There should be a reference to indirect discrimination as this is often the type of discrimination that PWD frequently confront.

Serbia Montenegro supported the EU proposal to merge 4, 5 and 7 into 3bis with some minor qualifications. It supports the Canadian proposal to use to term “positive measures” in place of “special measures” in 7(5). It stresses the importance of linking the concept of reasonable accommodation to discrimination – a failure to provide reasonable accommodation should be seen to constitute discrimination.

Japan noted that there is no precedent for language in 7(3) in other conventions, and it if this is to be maintained the qualifying phrase “consistent with human rights law” should be added. It opposes the final phrase on the discontinuation of measures when objectives of equal opportunity are achieved in 7(5).

China reiterated its AHC3 recommendations, to delete the following: the definition of discrimination as this is covered in Article 3 and repetition should be avoided; the listing the prohibited grounds of discrimination; the references to direct and indirect discrimination in 7(2)(b) as in many countries it is not possible to distinguish between them; the concept of “perceived disability” in 7(2)(b); para 7(3) as suggested by Japan and the African Group. It supports in 7(1) the addition by Canada of the term “under” and the concept of “unreasonable difficulties” in 7(4). It opposes the EU’s Article 3bis.

The US noted that equality and non-discrimination are “overarching principles of human rights law” and, in line with the EU position, the article should be placed early in the convention. The US endorses in principle the WG text. In 7(2)(b), “a record of disability” should be added as this may broaden the basis of protection in the text. Direct and indirect discrimination is important and the WG text in 7(2)(b) sufficiently captures the points that both direct and indirect discrimination should be unlawful. However, it does not support the EU proposal to ascribe different legal criteria or consequences based on a distinction that, in some jurisdictions, does not exist.

The Holy See noted the difficulties inherent in including lists in treaties, and was gravely concerned with the Canadian proposal to introduce “sexual orientation” in 7(1). This is inconsistent with any juridical instrument in international law and cannot be supported.

Thailand noted that parts of Article 7, including (2), (3) and parts of (5) describe what discrimination means as opposed to describing what States must do to combat discrimination and promote equality. Thailand supports 7(1) and 7(4), but if there is to be an article on definitions, then (2), (3), and (5) should appear in that article.

India supported the deletion of the list in 7(1), as proposed by some delegations. It supports references to both direct and indirect discrimination, however, it will reflect further on the New Zealand proposal to simplify the text with the following: “discrimination shall include all forms of discrimination.” India is concerned with the concept of perceived disability in 7(2)(b), as it is hard to define, evaluate and operationalize, as noted by China.

National Human Rights Institutions stressed that a general article on equality and non-discrimination is “crucial.” It supports a definition of discrimination that is broad enough to encompass all forms of treatment that would impair the full enjoyment of rights and freedoms. In 7(2)(a), the reference to “distinction, exclusion, or restriction” focuses on the different treatment of PWD and the discrimination that may result, but does not address the equally important dimension of discrimination that identical treatment of PWD often involves. Therefore, it proposes the addition of the following language after “restriction”: ”any act, criterion, provision, practice, policy, rule, arrangement or other treatment.” The definition of discrimination should appear in the article on definitions as the concept of discrimination appears in many articles of the convention text. The convention must clearly state that the right to equality and non-discrimination creates State obligations in the public and private spheres. Positive measures as a means to achieve substantive equality for PWD must be included.

International Disability Caucus welcomed the EU decision not to insist on merging Articles 4, 5 and 7, agreed with it that Article 7 should be moved towards the beginning of the Convention and called on the Committee to determine its full scope. The Caucus has proposed language to make clear that the failure to provide reasonable accommodation constitutes discrimination, consistent with General Comment 5 of the Committee on ESCR. Reasonable accommodation is an individualized concept and requires a clear definition. It is also a new concept to many States. The relationship between reasonable accommodation and accessibility more generally also needs clarification. Discrimination should include both direct and indirect discrimination, and while this reference should be made in the text, no further attempt should be made to define them. Discrimination on the ground of disability should cover actual, perceived, past, imputed or future disability as well as discrimination based on association with PWD. Article 7 should refer to multiple forms of discrimination and sexual orientation should be included, as proposed by Canada and the EU. The Caucus would support a separate paragraph on preferential measures as long as it is understood that measures for preferential treatment do not mean separate or unequal standards and they would not be imposed on PWD. If the article is to cover substantive equality, then other measures relating to PWD should be covered such as crisis hostels for those with psycho-social disabilities, assistive devices, for example. These are not preferential treatment measures or affirmative action measures and no sunset clause should be imposed on such measures. It supports a reversal of the burden of proof in relation to non-discrimination, consistent with EU policy.

DPI supported the Caucus recommendations including the need for the Convention to address the rights of PWD subject to multiple forms of discrimination, and protect people with prior imputed or perceived disabilities as well as people associated with PWD.

Volume 5, #8
September 01, 2004

MORNING SESSION: INFORMAL CONSULTATIONS

EQUALITY AND NONDISCRIMINATION - ARTICLE 7

The US reiterated that this is “the core and seminal” article in this treaty, and is a basic principle enshrined throughout human rights treaties. It should accordingly be moved up to Article 5 following General Obligations, as the first and foremost of the fundamental specific obligations. As a basic charter for nondiscrimination, it endorses in principle the WG text. There are many difficult issues embedded in this Article but it strikes a balance between when to be specific about certain definitions and when to use broader language about obligations. The US endorses references to all forms of discrimination, direct and indirect in 7(2)(b), and notes that this is further captured in 7(2)(a) by reference to the “purpose and effect” of impairing or nullifying rights. However, the US agrees with Canada and other delegations that attempts to give disparate legal definitions and disparate consequences to direct versus indirect discrimination could lead to tremendous confusion in implementation for those States who do not have this sort of jurisprudence in their national law.

China agrees that this Article should be moved to Article 5 given its importance. If there is to be no separate article for definitions, then this would be the right place to define discrimination. China reiterates its WG position opposing distinct references to direct and indirect discrimination. It opposes including the concept of “perceived” disability as this Convention seeks to protect people based on real and actual disability, not what may be perceived by a group of people. 7(3) is repetitive and should be deleted. The text after “but shall in no way” in 7(5) should be deleted.

The EU agrees with the US on the need to move this article to a more prominent place in the Convention, and proposes placement in Article 3. The last sentence in 7(1) on multiple forms of discrimination should be moved to the Preamble, not because the EU opposes this language but because it is misplaced in an article dealing with discrimination on the basis of disability. The EU deals with direct and indirect discrimination with a proposal based on EU law, and, for this reason references to “systemic” discrimination and “perceived” disability should not be retained. Given the definition of discrimination provided in the EU’s proposed text which also covers the justification of discrimination, 7(3) should be deleted. It proposes alternative text in 7(4) on the concept of reasonable accommodation which, as suggested by the Caucus, should appear in an Article on nondiscrimination. 7(5) is left intact.

Japan agreed with China’s proposal for 7(5), noting that the second half of this Article is both unnecessary and harmful. There are many measures that strictly speaking constitute unequal treatment for PWD, like employment quotas, but this is necessary in order to maintain their employment at a certain level. Japan believes that this is a good system, and therefore should not be subject to a sunset clause.

Ghana (on behalf of the African Group) favored shifting the article up to either Articles 3 or 5, given its importance. The African Group takes note of the fact that there are a number of definitions in this Article, and will wait for a final decision on this.

The Coordinator noted proposals, for example from the EU and Kenya, to include certain elements in the Preamble, and called on the Committee to keep these in mind. The Coordinator announced informal contact groups for the afternoon: Article 5 facilitated by Sierra Leone followed by Article 6 facilitated by the Philippines, scheduled so that they do not overlap. The plenary discussion of Draft Article 7 will resume tomorrow morning.

Volume 5, #9
September 02, 2004

MORNING SESSION: INFORMAL CONSULTATIONS

EQUALITY AND DISCRIMINATION – ARTICLE 7 (Contd)

Japan, represented by Mr. Yushiro, a Member of its House of Representatives and the Honorary Chair of the Asia-Pacific Regional Council of Disabled People’s International, made a statement. As a PWD he noted, “self determination is our highest priority.” PWD are not looking for pity. They may have different kinds of jobs and different ways of living but the critical issue is that they be able to make their own choices. If there are barriers to the visions and choices of PWD it is the responsibility of the State to remove those barriers. The voices of PWD must be listened to. PWD at this meeting are experts on disability issues and their lived experience is essential for this Convention to not become another paper. “We are the lucky ones who can meet here, and we must not forget those who don’t.” This Convention is an opportunity to create a space for PWD to make greater contributions to their community.

Thailand accepted in principle the WG text with the following concerns: [1] it questioned, as it had consistently done in the WG and in AHC3, the legitimacy of 7(3) which should not be in this Article; [2] the text on reasonable accommodation needs to be strengthened, and should be included in a definition of discrimination that should include a denial of reasonable accommodation; [3] the definition of discrimination should not treat direct and indirect discrimination separately and should cover both.

The Coordinator proceeded with a line-by-line reading of the Article, incorporating selected proposals into the WG text as reflected in the Compilation of Modifications to the Draft Articles dated Aug 30. In 7(1) the first sentence was accepted with the Canadian amendments, which had gained wide support. The Japanese proposal was made in the event that there was not going to be a reference to direct and indirect discrimination, and was therefore withdrawn. The second sentence was accepted in the original WG language. Regarding the third and last sentence, the Coordinator cautioned against “drawing up exhaustive and exhausting lists.” There have been lists in other Conventions but it is not possible to list all of the grounds for discrimination, which in the practice of the Human Rights Committee adds 20 more. The more that is added to these lists, the greater the controversy, eg. sexual orientation. One way forward would be to cite relevant human rights conventions, like CEDAW and CERD.

Mexico suggested 2 ways forward: [1] move all references to specific kinds of discrimination to the Preamble as proposed by the EU. While a final discussion of its formulation could be left for when the AHC gets to the Preamble, the text could incorporate an inclusive list of treaties that already exist, thus making it clear that this treaty is seeking to guarantee rights that are already guaranteed elsewhere; [2] Given this suggestion Mexico recommends considering the recently distributed New Zealand proposal as a better alternative to the last sentence of the WG text: “Prohibit any discrimination on the grounds of disability, and guarantee to all PWD equal and effective protection against discrimination on the grounds of disability or on any other grounds.”

New Zealand informed the AHC that its proposal was not formally distributed, but was available for delegations seeking a more concise expression of Para (1). New Zealand is willing to accept the WG text in its current formulation whether in this Article or in the Preamble. It would prefer not to see a list in this para of all the grounds of double discrimination but can accept a list in this para or in the Preamble of those that are already identified in existing Conventions. Its interventions on this paragraph will be restricted to drawing attention on points where it believes the intent of the AHC has not been fully brought out or to avoid fruitless and time consuming debates.

Ukraine proposed replacing reference to “source” of disability with “cause” or “reason.”

Ghana (on behalf of the African Group) agreed with delegations on the need to avoid lists, and supported language that includes “or any other status” at the end.

Yemen opposed the reference to causes of disability in this para, but suggested adding a footnote that its inclusion in the Preamble would be considered.

Canada continued to see the significance of retaining a list in the third sentence, as well as adding its proposed reference to “ethnic” which it noted was inadvertently overlooked. This appears in some of the standard lists of other human rights treaties including CRC Article 2. Recognising the need for flexibility, Canada withdraws its proposal on sexual orientation. The NZ proposal could be a middle ground with respect to lists; alternatively there could be a standard list as per Article 2 of the ICCPR.

Australia supported the NZ proposal; alternatively if there were to be a list it should substitute an already existing one, either in this para or in the Preamble.

China supported Australia and Israel and proposed moving the third sentence elsewhere - in the Article, the section on Definitions, in the Preamble, or elsewhere in the treaty. Its current formulation is acceptable, however this sentence substantively repeats the obligations in the preceding first and second sentences which, respectively, “protect” and “prohibit” PWD from “any discrimination.” Therefore this sentence is redundant in this paragraph.

Norway favored moving the third sentence to the Preamble or adopting the NZ language as an alternative.

Serbia and Montenegro supported the NZ proposed language for the third sentence. The existing sentence can be moved to the Preamble, and if a listing is necessary, as per Canada’s suggestion, the CRC’s list should be used as this convention is universally accepted.

The Holy See recalled its intervention from last week and allied itself with other delegations that would prefer to avoid lists. If there is a need to be specific, existing instruments can provide guidance: the CRC, the CCPR, CESCR, and some regional Conventions. It supported the WG text formulations for the first and second sentences.

Israel reiterated that the third sentence is not relevant to a Convention on the rights of PWD. Discrimination on other grounds is and should be dealt with by other human rights Conventions. If the AHC cannot agree to deleting this sentence then in the interests of flexibility Israel proposes moving it to the Preamble, using CEDAW’s list as a precedent. A third option is to accept the shortened NZ proposal, prohibiting discrimination “on any other grounds.”

India agreed with Israel’s first and second options.

The Coordinator reflected the sense of the room that [1] a list does not belong in this para; [2] if there is to be a list, it should be in the Preamble, in which case it should not go beyond existing human rights conventions. Norway drew the Committee’s attention to the fact that Preambular para (m) already addresses this. New Zealand alerted the Committee to the connections between the second and third sentence for drafting purposes. Taking these interventions and his conclusions on the sense of the room into account, the Coordinator recommended the facilitator’s group re-draft this para without changing the substance as it has been agreed to so far. The second and third sentences could be merged, NZ’s proposal could be considered and a footnote cross- referencing the Preamble and noting the above points could be added.

The Committee moved to a consideration of Para 2.

China reiterated its proposed amendments to this Article made yesterday. It clarified its position regarding 7(2), in response to the Coordinator’s question, that it opposed references to direct and indirect discrimination since the language already prohibits “all kinds of discrimination.” These concepts cannot be legally defined nor can the prohibition against them be implemented. The definition of discrimination, which is the purpose of 7(2)(a), should specify that it applies to discrimination “against PWD,” and 7(2)(a) and (b) should be merged. The formulation of the last sentence of para (a) should parallel its equivalent in CEDAW and CERD.

Thailand agreed with the rationale and substance of China’s amendments to the first sentence but proposed a slightly different text, referring instead to “discrimination on the basis of disability.” In response to the Coordinator’s statement noting that reasonable accommodation is defined in a following paragraph, Thailand explained that it is important to insert the concept of reasonable accommodation at the end of 7(2)(b) as well. This para defines discrimination, and reasonable accommodation, this time negatively stated, should be integrated into this definition.

New Zealand agreed with others calling for specification that 2(a) deals with discrimination against PWD, and noted that the EU text does the same. It recalled its previous drafting suggestions and reiterated its preferred simple formulation for 2(b): “discrimination shall include all forms of discrimination”. NZ can accept the current text defining discrimination, but opposes the Thai proposal to include reasonable accommodation in this definition.

Ghana (on behalf of the African Group) agreed with China’s proposed amendment and called for specifying discrimination on the basis of disability, which puts this in the right perspective. It supports the language of 2(a), which is consistent with CERD and CEDAW. The NZ proposal to add “additional obligations or burdens” is justified and realistic because PWD have to bear additional burdens simply to have access to services that are otherwise available to others, or because measures have not been put in place to enable PWD to access services. The African Group would like to see this language retained. The African Group will later provide further input on reasonable accommodation but for now it prefers that references on this remain restricted to para 4.

Thailand corrected its previous intervention noting that “denial of reasonable accommodation” should be inserted at the end of 7(2)(a), in line with CESCR General Comment #5 and not (b).

Mexico highlighted the importance of 2(a) which has the power “to establish a new standard” for this group, pursuant to General Comment #18 of the Human Rights Committee. It drew attention to the EU’s definition, and read that in the Inter-American Convention (IAC): “Discrimination on the grounds of disability means any distinction, exclusion, or restriction based on a disability, record of disability, condition resulting from previous disability, or perception of disability, whether present or past, which has the effect or objective of impairing or nullifying the recognition, enjoyment or exercise by PWD of his or her human rights and fundamental freedoms.” Without prejudice as to whether the definition belongs here or in a Definitions Article, Mexico suggests a definition that reconciles both proposed texts. The IAC definition’s inclusion of “present and past,” “perception” of disability and “record” of disability, eg medical or administrative, sets a new standard. It reiterated, as has New Zealand and Canada, that all references to “equal footing” be changed to “on an equal basis with others”.

The Coordinator invited delegations to refer to definitions in CEDAW and CERD for precedents on this issue.

Japan opposed the Thai proposal to include the denial of reasonable accommodation in the definition of discrimination. It may give too much license to bring charges of discrimination, which has serious consequences. Japan does however support the current formulation of Article 4 on reasonable accommodation. Japan’s preliminary reaction to the Mexican proposal is that it is too prescriptive, especially references to “present” and “past”, which go beyond defining discrimination to a definition of disability, on which there is yet no consensus.

India supported the chapeau of 2 (a) of the EU proposal. It opposed any references to “systemic” or “perceived” disability and therefore suggested para 2(b) follow the NZ proposal and stop at “all forms of discrimination”. India opposes the definition in the Inter American Convention, which is both “too elaborate” and “not too specific”.

Israel proposed the following amendments to para 2: [1] it agreed with previous proposals specifying discrimination as being “on the basis of disability” in the beginning; [2] it reiterated its own proposal to add “condition, act or policy” and supported NZ’s proposals as well to the same sentence. There is a need for wider language here given, for example, if a commercial entity refuses to provide services to people who might not have a driving license, thereby making one service contingent upon the existence of another when there in fact might be other ways to ensure eligibility; [3] in accordance with the jurisprudence of discrimination there must be a reference to direct and indirect discrimination, as this is one of the most insidious and also common forms of discrimination; the EU’s language is acceptable to Israel here; [3] the reference to “systemic” discrimination can be removed; [4] as proposed by Australia, and by Mexico on the IAC definition, protections against past, perceived and imputed disabilities should be incorporated. These protections are not generally included in existing instruments on the domestic and international plane, and there is a need to extend the reach of the prohibition against discrimination, beyond simply employment, for example; [4] the Thai proposal on reasonable accommodation should be incorporated, and this is not an innovation in many domestic anti-discrimination statutes, including in the US, EU, and Israel. The Thai proposal reinforces “the centrality of the denial of reasonable accommodation” to discrimination.

The EU acknowledged wide acceptance among delegations for the text of its chapeau: “For the purposes of the present convention the term ‘discrimination on the grounds of disability’ shall mean” as a starting point for the rest of the paragraph. It considered the Thai proposal on reasonable accommodation to be on “solid ground” pursuant to General Comment #5 of the CESCR. This merits serious attention and a consideration of relationship to para 4. The EU will look into possibilities to merge the IAC language with its own though its first impression is that the IAC definition is too detailed.

The Coordinator confirmed the EU’s view of the sense of Committee on its chapeau.

Serbia and Montenegro aligned itself with the EU’s text, whether referencing “on the grounds” or “on the basis” of disability. It favors retaining the concepts of direct and indirect discrimination. It supports the Thai proposal on reasonable accommodation, which deserves further consideration in light of para 4, eg, whether denial of reasonable accommodation in and of itself constitutes discrimination or whether additional criteria should be met. At first glance it seems the IAC definition can be reconciled with the EU proposal, especially with regard to references to past and perceived disability as pointed out by Israel and Australia.

Thailand reiterated its call to delegations to seriously consider its proposal to include the denial of reasonable accommodation in the definition of discrimination. This is one of the few concrete mechanisms in this Convention that will protect the rights of PWD. Otherwise discrimination will continue to be dealt with in an abstract manner. “It is almost useless to talk about accessibility and a barrier free society when we cannot even agree to a highly individualized concept of reasonable accommodation that still leaves room for a court to decide what is and is not reasonable.” This is one – very compromising – way of achieving equality through a concrete tool.

The Coordinator noted that many delegations had expressed an interest in further studying the implications of the Thai proposal, even as others had either supported or opposed it. Given its substantive nature the Coordinator suggested therefore a footnote to the end of 2(a) outlining the proposal, the relevant ICESR General Comment (GC), delegations’ response to it, and the request to ensure its further consideration intersessionally as it would not be possible to pursue this at this session.

China opposed a reference to the ICESR GC because this deals with reasonable accommodation from the perspective of the obligation to fulfill social and economic rights, and not as a definition of discrimination. Korea suggested that the phrase “denial of reasonable accommodation” might more appropriately belong after the word “restriction” towards the beginning of 2(a) rather than at the end. The Coordinator responded to both by clarifying that the footnote will only identify the inclusion of “the denial of reasonable accommodation” as an issue for further consideration, including the matter of its placement and the GC, and that he is not making a recommendation either way.

The Coordinator reflected his sense of the AHC that the following language, from the EU formulation, had enjoyed wide support for incorporation in the first sentence of 2(a): “For the purposes of the present Convention the term discrimination on the grounds of disability shall mean,”

The EU agreed with the Chair, but noted the need for consistency in drafting, using either “on the grounds of disability” or “on the basis of disability” throughout the Convention.

Israel noted there was a substantive difference between the two. Because a broad definition of discrimination is required, “on the basis” is preferable. “On the grounds” refers to reasons or motives, and the whole point behind modern jurisprudence on discrimination is to highlight the most insidious forms of discrimination, which is unintentional and indirect.

The Coordinator received the approval of the Committee to change the wording accordingly for 2(a).

China proposed the Argentine text as an alternative formulation for 2(a). This text provides a clearer definition referring directly to discrimination against PWD. Its wording is strictly consistent with existing international human rights conventions, namely Article 1 of both CERD and CEDAW. The EU text omits this wording, which China insists should be included: “in the political, economic, social, cultural, civil or any the field.” China agrees with the rest of the EU’s proposed text.

Israel agreed with the Chinese proposal but reiterated the crucial importance of adding “and requirement” to “any distinction, exclusion or restriction” in this text. This will preempt future debates about whether requirements are also included in the original list.

The Coordinator outlined the proposals currently on the table: the original text from the WG, the EU text, the Chinese proposal of the Argentine text, and the Mexican proposal of the IAC, noting that the latter 2 were more detailed.

Norway supported the EU text and stated its understanding that there were only 2 proposals on the table, from China and the EU. It highlighted the difference in meaning between the two: the addition of “made on the basis of disability” makes the Argentine text more limiting.

New Zealand agreed with Norway and highlighted the need for the Committee to make a decision on what was a substantive difference between “discrimination against PWD” and “discrimination on the basis of disability.” The former is narrower in meaning than the latter in terms of their implications.

Netherlands (EU) agreed with New Zealand and Norway and opposed the Chinese / Argentine language. This would qualify the definition of discrimination to any distinction, restriction and exclusion “made on the basis of disability,” thus limiting the scope of this definition to what was essentially only direct discrimination. There is a need to include language that would prohibit distinctions and restrictions that, even if not made on the basis of disability, would still have the effect of impairing or nullifying PWD rights. The phrase “all human rights” in the EU and WG texts already captures the more detailed summing up in the Argentine text of these rights so the purpose of this amendment is therefore unclear. Recalling the Coordinators’ recommendation from earlier today the EU “pleads for only accepting amendments whose purpose is one that we can all share.”

Mexico agreed with the Netherlands and opposed the Chinese / Argentine text as this would considerably limit the scope of the protection this Convention is seeking to provide. This text sets aside the most important part of the Mexican proposal from the IAC - everything that relates to a perception of disability, present or past. Mexico agreed with delegations that there is a substantive difference between using “on the basis of disability” and “on the grounds”.

Serbia and Montenegro supported Norway, the EU, New Zealand and Mexico regarding the Chinese proposal.

Islamic Republic of Iran favored the additional language on human rights at the end as proposed by China / Argentina.

Australia supported the text using the EU formulation as read out by the Chair. It opposed the Chinese / Argentine text because it could potentially have the effect of excluding aspects of indirect discrimination. The details on human rights at the end of the paragraph as proposed by China are from CEDAW and are acceptable, however Australia sees no purpose for these additions.

China reiterated that the Argentine proposal is based on 2 international human rights Conventions, CERD and CEDAW. Given the concerns it has heard from the Committee on the need to encompass indirect discrimination, China concedes on the qualifying Argentine language here. However China reiterates its language at the end of the sentence, based on the need to use language from existing human rights conventions and not create new rights, to retain the specific references to human rights.

Mexico brought its own proposal to the Committee’s attention, the language of which should be incorporated in the middle of 2(a) rather than at the end.

Israel stressed that wording describing the types of acts that constitute the prohibition against discrimination need to be widened as much as possible. Its original proposed amendments of adding “condition, act of policy" should be considered. Delegations need not be concerned that this would be too wide, as all acts however described would still be subject to the requirement of whether they have the “purpose or effect” of impairing the rights of PWD.

Thailand expressed its hope that its proposal as footnoted would be considered.

The Coordinator noted that the chapeau of para 2 of the EU text was, except for its first line, otherwise the same as 2(a) of the WG text, so the EU text would be a basis for further discussion. Regarding China’s proposal he recalled Australia’s flexibility and Iran’s support, and indicated the need to have further input from delegations on its inclusion at the end of this paragraph. While Mexico’s proposal on the IAC was generally seen as too detailed its language could be considered. The Israeli proposal will be considered. Given delegations’ varying positions on the Thai proposal it is unlikely this will be resolved in negotiations today; however the footnote, as with everything else, remains on the table for future discussion. While there has been progress on 7(1), 7(2) will continue to be considered in the afternoon, with the possibility of a Facilitator’s meeting if time permits.

AFTERNOON SESSION

EQUALITY AND DISCRIMINATION – ARTICLE 7 (Contd)

The Coordinator reviewed the status of negotiations so far. There is agreement on 7(1) with the Facilitator’s group tasked with combining the second and third sentences without altering the substance. The EU text with a minor change is the basis for discussion at this point for para 2(a): “For the purposes of the present Convention the term discrimination on the basis of disability shall mean any distinction, exclusion or restriction … etc”. Regarding pending proposed amendments to this text, the Coordinator requested and received from Mexico approval to discuss inclusion of the IAC in 2(b) instead. Consideration then moved to the Chinese proposal, taken from CEDAW, Article 1. Norway enquired from China as to how its proposed additional language would add to the substance of this paragraph.

China did not intend to interpret the benefit of such wording. The adoption of wording from another convention is in and of itself the benefit to this convention. China is not adding anything new, but simply would like to emphasise the importance of using language that has precedent. The Coordinator agreed that the Chinese addition did not substantively change the meaning of the paragraph. Given the importance China attached to it, however he recommended that it be accepted. This recommendation was approved by the Committee.

The Coordinator then moved to consideration of the Israeli proposal, which if incorporated would then read in the first sentence: “.. distinction, exclusion, restriction, condition, act, policy or requirement….” An alternative, to avoid the elaborate nature of this list, would be to simply say “…distinction, exclusion, restriction, act or omission….” instead.

The Netherlands (EU) noted that the Israeli proposal did not receive support from any delegation when it was first proposed, or when it was proposed a second time. The EU does not see the purpose of going into this proposal again, and would oppose such a shopping list approach. Instead as just demonstrated with the Committee’s acceptance of the Chinese proposal because of its basis in CEDAW, the language in this paragraph should similarly reflect that in existing Conventions.

The Coordinator confirmed that the existing EU text reflects CEDAW language: “… any distinction, exclusion or restriction…” The EU text will therefore remain as it is, with the option open for Israel to intervene further on this point if it wished, and this constitutes the agreed upon language for 2(a) so far. The Coordinator reviewed the sense of the Committee on 2(b), which seeks to ensure that a definition covers all forms of discrimination. A few delegations objected to references to indirect and direct discrimination, and a number of others did not wish to see these being defined separately, if mentioned. As a matter of legal interpretation, it is clear that any reference to discrimination alone would imply its broadest sense and therefore include direct and indirect. Delegations now need to resolve whether this needs to be spelled out further. There is also the Mexican proposal introducing additional text from the Inter-American Convention (IAC).

The Netherlands (EU) drew the attention of the Committee to the EU text on paragraph 2 – defining direct and indirect discrimination, with a specific proviso for justification of indirect discrimination, as reflected in EU law. In response to the Coordinator’s assessment that the EU text lacks the amplifications found in the WG text, the EU acknowledged that its text is narrower. The EU had, following the Mexican proposal, engaged in consultations in which its members’ opposition to references to systemic discrimination and perceived disability was made clear.

The Coordinator outlined the issues for further debate: is there a need for 2(b)’s amplification of the definition of discrimination; if so is there a need to specify direct, indirect and systemic; should there be an additional reference to “perceived” disability, keeping in mind the opposition of the EU, China and other delegations; should there be further additions of elements from the IAC text, like record of disability, conditions resulting from previous disability, and present and past disability.

Israel reiterated its support for specifying “perceived” or “imputed,” as the category of people who are discriminated on this basis require protection, do not receive such protection from elsewhere, and domestic statutes provide precedent for this. There are also many PWD who are discriminated against on the basis of a record of disability which is cited in the IAC. While such precedents are not universal as pointed out by the EU, they are more widely cited in national laws in the form of references to “past” discrimination. As a compromise therefore Israel is willing to accept as an alternative, a reference to “past” discrimination, given that the EU has not specifically opposed that. In addition, it is essential to include a reference to “direct” and “indirect” discrimination because the most insidious forms of discrimination are indirect and unintentional. In this respect it supports the EU text, but it does not see the necessity for their definitions to be elaborated. Finally like the EU Israel is uncomfortable with the word “systemic”.

Ghana (on behalf of the African Group) agreed that defining indirect discrimination would be a difficult task. Therefore it is preferable to leave out definitions distinguishing direct and indirect discrimination. However, there should be references to them to acknowledge the reality that discrimination exists both implicitly and explicitly. Furthermore the African Group supports a reference to “perceived” disability.

Canada agreed with Ghana and Israel that there should be an explicit reference to both direct and indirect discrimination, but definitions are best left to the jurisprudence to develop given the difficulty in distinguishing between these concepts in practice. The term “systemic” is not well known in many domestic systems, and as a category of indirect discrimination should be removed. Canada believes that terms like perceived, actual, imputed and past disability are included within the concept of disability. Canada is flexible on whether a specific reference to these terms is necessary to advance the notion of discrimination based on disability.

Mexico expressed concern that the postponement of consideration of its proposal to 2 (b) risks making it a part of a more complicated discussion. These complications are: [1] the definition of indirect discrimination, on which delegations are divided; [2] the term “systemic”, what is in Mexico’s opinion “the repetitive and recurrent nature of a violation” has no precedent in existing international instruments (unlike references to “flagrant”, or “massive” violations) and is therefore problematic; and most importantly [3] the exception clause in 7(3) of the WG text or 7(2)(b) of the EU text both of which Mexico opposes. In this context, the value added of the Mexican proposal is being lost. Mexico reiterates that its objective with its proposal was to “set a new standard” as CERD and CEDAW did. For this reason, and in light of the flexibility expressed by Israel, Australia, Ghana, and the EU, it would be more meaningful to move the consideration of the central elements of the IAC definition - perceived discrimination and present and past disability - to 2(a), or even to an Article 3.

The Coordinator responded that 2(a) can be footnoted on the need to consider further amplifying the definition to include the IAC definition, though this cannot be taken up at this session. Further input was invited from the Committee on: [1] defining direct and indirect discrimination though the Coordinator sensed there was a reasonable level of support for referring to these terms without defining them; [2] systemic discrimination; and [3] the concept of perceived disability.

Jamaica emphasized the importance of including references to discrimination on the basis of the past disability as cited in the IAC. This applies particularly to people with psychiatric disabilities whose disability may be temporary, but their past disability results in them being discriminated against.

The United States supported the need for a 2(b) identifying both direct and indirect discrimination. For the reasons stated by Canada, because of the practical difficulty in attempting to define these concepts in any particular instance, they should not be defined. The US therefore opposes the EU text linking the WG text in 7(3) with a definition for indirect discrimination. The reference to “systemic” discrimination would cover acts already covered under the more extensive concepts of direct and indirect discrimination. The concept of discrimination should be broadened as much as possible and therefore the US supports inclusion of references to past and perceived disability. Viewed from the perspective that the intent of this Convention is to end discrimination, by those who are doing the discriminating, then leaving out such concepts would be a serious omission.

Norway supported the EU text’s distinctions on, and definitions of, discrimination; however if there is no consensus on a definition, both concepts must be clearly identified, as also stated by other delegations. Norway is unfamiliar with the concept of “systemic” discrimination, this is likely covered in other concepts already mentioned in this para, and is possibly superfluous. Norway remains flexible on inclusion of “past” and “perceived”.

The Coordinator asked for input on hypothetical situations where a situation of “systemic discrimination” may not be covered under any definition of discrimination.

Venezuela was flexible on the inclusion of these concepts but noted that they may be new to many national level systems. These terms would need to be defined, so it is recommended that this Article accordingly be linked to Article 3 on Definitions.

Serbia and Montenegro saw benefit to defining direct and indirect discrimination as in the EU text, but would not insist on maintaining this position if this is an obstacle to reaching consensus on this Article. Given the developing consensus that the concept of systemic discrimination is unclear, it should be left out. Serbia is flexible on the inclusion of perceived and past disability, but unless there is consensus, these terms should be cited in a footnote.

Thailand supported retaining the text of the following: 7(2)(b) of the WG text, the idea of direct and indirect discrimination without defining the latter, and concepts of past, perceived, imputed and record, of disability.

China reiterated that a definition of discrimination should cover all forms and not be confined to direct and indirect. As mentioned by Venezuela, African Group and Canada it is hard to distinguish between indirect and direct. The focus should be on defining discrimination and not trying to find the difference between the two. Suggestions to identify both without defining them are not meaningful. Definitions of all terms related to discrimination are needed otherwise contractual parties will not know what their obligations are. Therefore 2(b) should be deleted entirely. However, if this subpara has to be retained and there has to be some content, then the language could be in the abbreviated, if meaningless, form: “Discrimination shall include all forms of discrimination.”

Australia did not believe that it is strictly necessary to include references to direct and indirect discrimination but did see the value to highlighting that both of those forms are covered. It is not helpful to attempt to define these terms, which in many instances overlap. There is a difference between the terms “imputed” – which Australia had proposed - and “perceived”; Australia prefers inclusion of the latter word. It agrees that “systemic” has no shared meaning, and therefore should be left out. Concepts of past and future disability, which are related to the notion of discrimination on the basis of a record of disability, should be taken into account eg in situations where a person has a degenerative disease but is being discriminated now on the basis of that potential disability. However, incorporating them into this Article would pose a problem as they first need to be understood in the context of a definition of disability itself, rather than one on discrimination. The scope of the definition of disability, and whether it extends to people with past and potential disabilities, needs to be defined separately first.

Netherlands (EU) will reconsider its position defining direct and indirect discrimination given the Committee’s general opposition to this. If the EU’s text in this area is not included then it is likely that the EU’s opposition to the justification of discrimination in 7(3) of the WG text will be strengthened, as under EU law there is never a justification for direct discrimination. The EU shares delegations’ opposition to the word “systemic”, which adds no clear value and should be left out. The notion of “perceived” disability meets with strong objections from some EU members. Regarding the IAC definition, in which this concept is included, the EU notes that there are several elements to it, and it is unlikely they would all be adopted by this Committee. This should be kept in mind by those members of this Committee who are party to the IAC and therefore subject to its provisions in their entirety. Perhaps silence on the IAC in this Convention process is advisable, in the interests of encouraging the IAC’s own jurisprudence and case law to develop towards inclusion of certain concepts.

Mexico noted it will be up to States Parties of the IAC to make a decision on the ramifications of a selective inclusion of its provisions in this Convention, and whether that might weaken the legal regime established by the IAC. However Mexico would be interested in meeting bilaterally with the EU on this point and to discuss those aspects of the IAC definition that would be acceptable to the EU and could be incorporated in this Convention.

Costa Rica outlined the structure of the article in response to the Chinese proposal that 7(2)(b) should be deleted. The distinction between 2(a) and 2(b) is that the first prohibits discrimination and the second defines discrimination, so logically they are both needed. 7(2)(c) would be superfluous if the definition of discrimination in (b) can encompass all its elements, including (c) and the proposal by Israel. This would streamline the text.

Israel emphasized the importance of including protection of people with past disability within the scope of this treaty, even if a footnote is the only solution at this stage. Without such a provision a person who used to have a psychiatric disability would not be protected from discrimination. There are 2 basic elements to the IAC definition, one relating to past disability, and the other relating to imputed disability. Both categories should be protected and are not covered elsewhere, but the former is the more relevant to disability, and the latter can be dealt with elsewhere. This cannot be left to jurisprudence as the EU has suggested, because jurisprudence will draw conclusions from the omission of this term by this Committee in developing its case law. If past disability is not expressly included this provision, it will be read to refer only to people with present disabilities. It should be noted that NGOs and NHRIs call for the inclusion of this term. Israel supports 7(3) very strongly and will intervene then regarding its proposed amendments on the types of acts covered by the prohibition on discrimination.

Netherlands (EU) strongly differed from the Israeli legal interpretation and clarified that not mentioning elements such as past, present, perceived does not mean that they are not included in the definition. Thus EU member states already prohibit discrimination based on past disability. The real risk lies in legitimizing a reasoning that absence of elements means their exclusion from coverage. If the Committee starts picking things from the IAC for inclusion in this Convention then it risks engaging in such “contrarian” reasoning. The conclusion will be drawn that those elements from the IAC that are not selected for this text are not meant to be covered.

The Coordinator reviewed the discussions so far. [1] He identified Mexico’s proposal on the broad ranging IAC text as an issue that requires further discussion. A footnote will be added to 2(a) to indicate this outstanding proposal and strong views from member states both supporting and opposing it: “a number of delegations considered that other aspects should be included in the definition, as found in the IAC definition, such as “disability, record of disability, conditions resulting from previous disability, perception of disability, present or past.” [2] It will not be possible at this session to resolve these issues at this session. [3] There is sufficient support for a reference to direct and indirect discrimination and sufficient opposition to defining them. [4] The use of the word “systemic” clearly presents major problems for many delegations. [5] The latter part of 2(b) will be addressed in the footnote in 2(a). The merging of 2(a) and (b) as proposed by Costa Rica would be considered only if this covers both direct and indirect discrimination and can be addressed later. This is ultimately a drafting issue rather than a matter for substantive debate. The Coordinator concluded with the following new text for (b): “Discrimination shall include all forms of discrimination, including direct and indirect discrimination.” The Coordinator then outlined the issues related to Article 7(3) as stated in Footnote 26, noting that even though its option (b) was not supported in the context of the EU proposal, such an option could still be considered.

Thailand reiterated its consistent opposition to this paragraph, which paves the way for PWD to be discriminated against. It can be used to justify acts where PWD are unintentionally discriminated against.

India asserted that the para does not justify discrimination, and is needed in the interests of “harmonizing resource constraints and the need for positive discrimination.” In situations where specific steps are taken for affirmative action, as happens in India, this language takes on board certain criteria of reasonableness to govern acts of positive discrimination. The motive is not to dilute the effectiveness of the treaty but to recognize that in countries where there are clear resource constraints, the commitments relating to positive discrimination can be harmonized with those constraints. It should be noted that any such provision has to be objectively and demonstrably justified, has to have a legitimate aim, and the means of achieving those aims have to be both reasonable and necessary. Therefore sufficient safeguards have been built in to the para to ensure that the interests of PWD are not lost sight of. It is essential that this remains as a separate para especially if the Committee adopts the view that, as India favors, 2(b) only defines discrimination as all forms of discrimination.
The Coordinator requested India’s and the Committee’s input on the best way forward to deal with the resource issue, a major issue for all countries and in particular developing countries. Currently these issues are being addressed in several ways in this Convention, this paragraph being one of them, and in the absence of a single text on progressive implementation perhaps this multiple approach is necessary. Recalling the discussion on progressive implementation of obligations under the Convention in General Obligations earlier this week, it may be possible to agree on language that covers the resource constraint concerns of India and other delegations. In that situation the Coordinator enquired whether it would it be acceptable to India to have this paragraph deleted.

Ghana (African Group) supported 7(3), which is not a limitation clause but a tacit recognition that discrimination, while on the face of it may be unfair, has some positive aspects to it. States should be given a clear ambit for provisions, criteria and practices that are justifiable under international human rights law. Para 3 provides such a framework.

The Coordinator enquired of Ghana the same question it asked India, that if the Convention has a provision giving sufficient protection to states making it clear that obligations in the ESC area require progressive implementation rather than immediate realization, would Ghana still support retention of this article?

Serbia and Montenegro opposed this article for the reasons put forth by Thailand. If on the other hand everyone else in the Committee reaches consensus that this language should be retained, and in the interests of flexibility, Serbia would then wish to see such an exception linked to indirect discrimination only, whether or not this term is defined. Furthermore, as a country in transition Serbia favors the principle of progressive implementation, and would be satisfied with a provision on this in the General Obligations Article, therefore negating the need for this paragraph.

Israel asserted its own understanding that this provision did not have a resource-related purpose, though there might have been a number of intentions behind this para. Resource constraints should be rightfully dealt with in the General Obligations Article, adopting standard language that has been used in other human rights instruments. This provision does however need to address situations where for example, there is what is known in the employment context as “a bona fide occupational qualification,” or where “disability is an objective bar to performing the job or providing the service.” Eg: not employing a blind person for a job that requires driving, not making some accommodations in a gym or fitness center because of the nature of the disability. This provision should strive to provide for the rights of PWD to the maximum extent possible. It is also important, as reflected in Israel’s legislation, to get all stakeholders in both the international and domestic legislative spheres to strike a balance that is both explicit and implicit. “No system provides for absolute rights but for a system of checks and balances” and there are circumstances where certain cases of prima facie discrimination is justified. For this reason this provision is necessary, but it should be reformulated to cover “discrimination of the kind which is essential to the service or job occupation in relation to which discrimination is alleged.” There is precedent for this in domestic legislation. The language in 7(2)(a) on “distinction, exclusion or restriction” needs to be made consistent with the reference in 7(3) on ”provision, criterion or practice.” Furthermore Israel reiterates the need to include “requirement” or “condition” in this list, so that it would appropriately cover situations where, eg, a particular job requires a certain level of physical fitness. Accordingly Israel suggests, as has the NHRI, that the drafting of this section of 2(a) could be made broader to refer to “acts or omissions.”

The Coordinator enquired as to existence of domestic legislation that covers the situations that Israel has just exemplified. He recalled that this provision, originating from the discussion in the WG, was in fact meant to cover such situations of “occupational qualifications.” It was not intended to be a blanket exclusion of the sort that delegations are concerned about, nor was it intended to be a provision relating to resources. The question, therefore, is whether the Committee can formulate narrower language that covers the issues that have been identified by Israel and that are clearly already in existence in some domestic legislation. In this regard, perhaps language from the General Comment of the ICCPR can help: “Finally the Committee observes that not every differentiation of treatment will constitute discrimination if the criteria for such differentiation are reasonable and objective and the aim is to achieve a purpose which is legitimate under the Covenant.” It is clear also what the Committee does not want to achieve: a loophole States can use to discriminate against PWD under a blanket exemption clause.

Thailand emphasized its concerns with this paragraph - the list of qualifications can go on and on, and “who is to decide that such qualifications have not in fact arisen from stereotypes?” In some cases, before their origins in stereotypes can even be realised, these qualifications have become law. Thailand is not convinced that these qualifications can be objectively and demonstrably justified. The fact remains that they would ultimately have to be based on another’s perception of the capacity of a PWD.

Republic of Korea opposed this para for reasons already provided by other delegations. Determining whether a PWD is qualified for a job, and the process of justifying their discrimination if they are not, should be left up to the PWD, ie the person who is to be discriminated against, not just the state. In addition therefore the para is fundamentally in conflict with the concept of PWD self representation and the Convention’s cross cutting idea that states should work in close consultation with PWD in all matters that concern them.

Mexico emphasised that this provision has nothing to with progressive realization and in this respect agrees with Israel. Such issues belong in Article 4 keeping in mind that, as suggested by New Zealand, the rights subject to progressive realisation should be distinguished from those obligations that are to be immediately implemented. Mexico agrees that the examples given by Israel correspond to the practice in virtually all countries. However if this provision were to be adopted, the Committee of Experts for this treaty would have a lot of work to do identifying whether any objective is real and whether the means available are suitable. Furthermore legitimacy is an elastic term, “reasonable” brings in concepts of proportionality and other concepts here pertain more to international humanitarian law. With regard to Israel’s point on absolute rights, Mexico asserts that some core human rights are absolute, from which there can be no derogations and no exceptions. The principle of nondiscrimination is in this category. The IAC in a celebrated international opinion declared recently that nondiscrimination is a principle that has Jus Cogens status. Mexico cannot accept that via an exception such as in this Article, this hard won principle now well established in the international civil and political rights area and the various case law surrounding that can be undermined. With respect to the question of how a country might establish criteria for types of work or activity, this should be left up to the national level. The burden of proof should be on the state to demonstrate that the criteria is not discriminatory. Inserting this provision will weaken rather than strengthen this Convention. Finally, this provision seems to have led to some confusion with progressive realization, as well as with paragraph 5. This provision does not belong in this article or anywhere else in this Convention.

Costa Rica agreed with Mexico and noted this provision “is an escape clause” that could lead to a violation of the very rights the Convention is trying to protect. This complex issue should be dealt with in the framework of case law instead, and developed over time. As specified in the Footnote this provision does not appear in any other human rights instrument and should be deleted.

Canada affirmed the Coordinator’s recollection of the genesis of this provision, and noted WG discussions around the CCPR’s General Comment. This paragraph is trying to represent the important concept that not every differentiation in treatment is discriminatory. Canada agrees with Israel “that job qualifications that may make a distinction in either purpose or effect with respect to different groups of people yet indeed correspond to the actual merits and capabilities of that individual or to what is required for the job.” Perhaps the concepts and language of the General Comment needs to be reflected more faithfully in this para. In addition, India’s concerns regarding actions taken to ameliorate the situation of PWD, like positive measures and affirmative action programs, are already captured in para 5. Para 5 states explicitly such measures will not be considered discrimination, but perhaps this idea can also be represented in para 3.

The Coordinator asked delegations to consider the General Comment language in their interventions.

New Zealand recalled the WG recommendation that an answer to the problems of this para could be to draw more closely from the General Comment. While the existing WG text is not inconsistent with NZ’s domestic legislation, it is conscious “of the need not to codify and freeze in place the case law, which is still developing” and to which Israel referred. Another more recent impulse from NZ was to suggest deleting this para and thereby prevent this development from continuing. However in the interests of flexibility NZ is willing to consider redrafting this article along the lines of the General Comment in order to give some guidance at least, to States.

Netherlands (EU) informed the AHC the source of Para 3 is Council Directive 2000/78/EC of 27 November 2000, which has exactly the same language with one exception – the Council text starts with a reference to indirect discrimination. Given the Committee’s opposition to this qualification, however, the EU opposes inclusion of para 3.

The Coordinator recalled he had earlier invited the Committee to deal in another way with the content of the EU proposal by inserting a reference to indirect discrimination in Para 3, but there had been no response.

Norway highlighted the risks associated with this para, even though it would not contradict its own domestic legislation. This para could expand the scope for exceptions to the nondiscrimination principle, unnecessarily expand the scope for differentiation of treatment, and create discrepancies between the nondiscrimination rule of this Convention and other international human rights treaties. It agrees that case law and jurisprudence, which has been a decisive factor in the past, is dynamic and constantly evolving. Therefore States should be cautious about codifying this concept in this Convention. However if the Committee is moving towards a consensus to retain this para, then Norway seconds Canada’s proposal that the para should closely heed the General Comment wording.

Israel cautioned that it would be hasty to simply delete this paragraph. This is a complex issue and the Convention should both maximize protection for PWD but also be a balanced instrument. The General Comment of the HRC has to be given consideration. It is obviously necessary as Canada has pointed out to find language that clearly indicates that this is an exception to the general rule of nondiscrimination. This is what has happened in domestic legislation, where the language is narrow, and narrowly construed by the courts. As is indicated in the language of the General Comment there are requirements of reasonableness and objectivity. The subjective opinion of the provider or employer is not relevant. It is the objective validity of the requirement which is relevant. Finally, it should be noted that silence is not the only way of letting case law develop. It is possible to relate to this issue while still leaving room for the development of the case law. There are other kinds of formulations, whether in the Council Directive or in the leading anti discrimination legislation of the US, Canada, New Zealand, that reference “bona fide occupational qualifications,” “genuine occupational qualifications,” or “requirements which are essential to the service provided.” This para is relevant to situations where “employers or providers will have what can be called legitimate concerns, and where people who are not employed or admitted may rightfully believe they have a right to be employed or be provided a service.”

The Coordinator summarized that it is unlikely the current language in para 3 will attract consensus. At the same time a number of delegations support language to cover the concerns Israel refers to. It is clear that what is intended in this para is much narrower than what appears at first sight and a solution here is to draft a provision that follows General Comment #18. Other delegations advise that this issue is best left to national legislation given its evolutionary nature. Delegations may be agreeable to addressing this issue if it would not do the sort of damage to the text that they have been concerned about. A way forward might be to insert a provision in the Preamble drawing attention to General Comments of the Human Rights Committee on the differentiation of treatment in relation to discrimination, without referring to #18 specifically as there may be other General Comments to follow in the future. This will provide “a hook,” making clear the drafters of this Convention had in mind the type of issues the HRC has pronounced upon in its General Comment #18. A second option would be to address this issue in the Final Report. However such insertions tend to become overlooked, so the Preamble would be a better location. The Coordinator surmised that it is likely debate on this provision could take a great deal of time, with the also likely outcome being language no one would be comfortable with. Those who are concerned that the Article would be abused would still read into it the possibility of abuse. Those who want to protect the rights of states to undertake activities that differentiate but are not discriminatory would be uneasy as well. The Coordinator recommended a general reference in the Preamble that would respect the interests of both parties.

Thailand clarified its objections to the language in para 3. It is not that this language “might” be abused or “may” lead to harm towards PWD. Historically it has been proven to cause harm to PWD. It is always the non-disabled people who with “goodwill and misunderstanding set these criteria that later on prove incorrect,” only to be followed by apologies and corrections. Meanwhile these criteria and qualifications have been copied, have spread, and later turned down by lawmakers who themselves were initially unaware of their existence. It is not only the fear of what may happen in the future but what has been proven to have happened in the past that delegations need to be aware of.

Jamaica supported the Canadian position and would support a redraft based on the General Comment wording to be inserted into the Preamble.

Mexico opposed both options proposed by the Coordinator. A treaty, unlike a resolution, is subject to the rules of interpretation laid down by the Vienna Convention, which are clear. In addition this convention is derogating from CERD where only one differentiation can be made which would not constitute discrimination - between citizens and non-citizens. The Human Rights Committee does not according to a treaty have any power to interpret that treaty, and this is up to States Parties only. Once terms move from a General Comment to a treaty they acquire an entirely different value. It is not clear to Mexico for example what the Human Rights Committee means by “reasonable,” “objective” and “legitimate” and inserting them in the Preamble does not solve this problem. The Preamble has less legal significance than the body of the text but is still part of the treaty text and has to be interpreted. In this sense the Committee is simply putting off the problem rather than resolving it. One suggestion would be to return to it when Reservations are discussed. While Mexico opposes permitting Reservations, there may be an opportunity at that time for a state party signing the convention to make an “interpretative declaration.” There is also the possibility at that time for the Chairman to make an “interpretative declaration” on behalf of the body adopting the instrument. Mexico therefore recommends that this wording should not be inserted in a Preamble, but instead in a footnote.

Israel supported the Coordinator’s recommendation, which reflected a balance between the essential nature of the equality and nondiscrimination provisions while putting the justification for discrimination on a different normative level. The language in the Preamble would not be of the same status as the prohibition on discrimination. This could allay fears that any exception could be widely construed or open to abuse. Israel is not convinced by Mexico’s concerns that introducing a General Comment into the Preamble could be a violation of the Vienna Convention or any other Convention.

The Coordinator concluded with the recommendation that para 3 be deleted, given the clear sense of the Committee that its language in its present form was inappropriate, but with a footnote in the title that will clearly retain this issue as a matter of further discussion: “A number of delegations are of the view that provision should be incorporated along the lines of General Comment #18 of the HRC that: [quote GC #18].” In response to Sierra Leone, the Coordinator clarified that this Footnote would replace existing Footnote 26, the options in which have now been considered by the Committee. The Coordinator also informed delegations they could suggest specific references from ILO Conventions to add to the Footnote, as suggested by Sierra Leone, should they think this will be helpful in the Committee’s deliberations tomorrow.

India was prepared to accept, in the interest of flexibility and moving forward, “reintroducing the concept of indirect discrimination, which takes care of the wording in para 3.”

The Session was adjourned.

Volume 5, #10
September 03, 2004

MORNING SESSION: INFORMAL CONSULTATIONS

EQUALITY AND NONDISCRIMINATION – ARTICLE 7 (Contd.)

The Coordinator introduced paragraph 4 on Reasonable Accommodation (RA) by drawing the Committee’s attention to the issues raised in Footnote 27. Its lengthy nature reflects an extensive discussion in the main WG as well as open ended discussion in small groups of experts in this area. In addition to the Footnote the following issues need to be considered: [1] abbreviations to the paragraph, keeping in mind that the chapeau may not be value added, and that States are expected to implement their obligations through legislation as already stated in Article 4 on General Obligations; [2] the definition of reasonable accommodation; [3] the qualification to that definition at the end of the paragraph, keeping in mind the already existing qualifying language within the definition itself, of “reasonable,” “necessary” and “appropriate.”

The Netherlands (EU) outlined 4 differences between the EU text, drawn entirely from EU Directive 2078, and the WG text. [1] the objective in the opening should be “to guarantee compliance with the principle of equal treatment” rather than “to secure the right to equality”. However to avoid a possibly difficult debate and given the Coordinator’s recent remarks, the EU is open to deleting this opening altogether. [2] States Parties cannot provide reasonable accommodation as they are obligated to do in the WG text. In most cases it will be private enterprises that will be thus obligated, and not the State. The State’s role therefore is to “ensure that reasonable accommodation is provided”; [3] the EU text inserts “where needed in a particular case” to address the individuality of RA as highlighted in the footnote and acknowledged by delegations; [4] as a matter of drafting, the reference to “guarantee to PWD” should be changed “to ensure to PWD.”

Thailand supported the Coordinator’s proposal to delete the chapeau so the paragraph begins with “States Parties.” It supports the EU’s suggestion to add “to ensure that RA is provided” as governments generally provide more broad based infrastructure and public facilities that are geared to all people in an inclusive manner. In the case of private entities it is difficult to expect universal design for all, hence the need for RA. Nevertheless in some cases the State is obligated to provide some RA directly. The qualification at the end of this paragraph after “unless …” should be integrated into the definition of RA itself.

Costa Rica supported the EU text with Thailand’s suggestion to delete language at the end of the paragraph because the additional qualification here is redundant. If accommodation is reasonable, necessary and appropriate then by definition it cannot be disproportionate. There is the additional safeguard in the EU text applying the obligation to an individual case. Finally, given the requirement of the chapeau, to secure human rights, this qualification is even more unnecessary, and may imply that the human rights referred to in the chapeau is a relative and conditional, rather than absolute, concept.

Israel generally supported the EU text. However the EU’s language of “equal treatment” reflects requirements of formal equality and is not appropriate in the context of RA. RA is not about treating PWD the same way that everyone else is treated. The EU approach is fundamentally at odds with the requirements of de facto, substantive equality for PWD, which includes the duty to reasonably accommodate as a main element. The purpose of this paragraph is to define RA as part of the duty not to discriminate, that is, as part of equality. Once that definition is made clear then the chapeau of this paragraph becomes unnecessary. Following the precedent of domestic statutes, the paragraph then only needs to define RA. The duty to reasonably accommodate would already be made clear in the context of the prohibition on discrimination. Israel agrees with the EU language that States should “ensure that RA is provided” as it is clear that States themselves do not have the control of all employment frameworks and services to undertake this obligation entirely themselves. The private sector, which is on the increase in many countries, must be included where States parties have an obligation to “promote and ensure” to achieve de facto equality for PWD. For this reason there is a need to specifically reference enacting legislation, despite the overriding obligation of states to legislate as stated in Article 4. There is no other way States Parties can ensure that the duty to reasonably accommodate can be fulfilled by the private sector. Israel supports the EU’s language on meeting individualized needs of PWD. Finally, in response to Costa Rica, the paragraph needs to be redrafted so that the qualification at its end is integrated into the definition of RA, ie. RA is accommodation that does not impose a disproportionate burden. The notion of a “disproportionate burden” should be retained because it addresses the resource implications of the obligation to reasonably accommodate. Different entities have different levels of resources and there is a need to match the obligations of the employer / service provider with the level and extent of its resources and with the PWD. Accordingly Israel has proposed language further defining “disproportionate burden”, and relating it to the test of the level of state resources, as mentioned in the footnote. However Israel is flexible on the inclusion of this point.

The Coordinator enquired of Israel whether the retention of “including by legislation” may pose a problem of interpretation. This may create a negative implication for the other parts of the Convention where States are similarly obligated to take steps but without the additional obligation to legislate specified. The Coordinator again highlighted the fact that the obligation to legislate would be in Article 4. On reconsideration Israel agreed that the phrase could be omitted given that States’ obligations in this paragraph would be read in conjunction with the obligation to enact legislation in Article 4.

Serbia and Montenegro reiterated its support of the EU proposal, including the language obligating states “to ensure” rather than to provide RA, and the language to individualise RA. It welcomes the EU’s flexibility on the chapeau, which should be deleted. Debates about this opening text could be lengthy with little value added to the outcome. Serbia and Montenegro supports the Coordinator’s interpretation of the ramifications of retaining “including by legislation” and this too should be deleted. The last part of the paragraph on “disproportionate burden” could in fact be read to be a part of the definition, and should be retained, if necessary with the drafting changes to address concerns of Israel and Thailand. RA is one of the key concepts relating to PWD, like accessibility, and is drawn from a considerable body of comparative legislation. This concept should be spelled out in a way to ensure that it would remain in the Convention and that would encourage the maximum number of States to adhere to this Convention.

Norway had been agreeable with the WG text, but now supports the EU’s proposed amendments as they add nuance and precision to the original draft. The paragraph should begin simply with “States Parties” without the chapeau. The amendment proposed by Israel to relate this obligation to the availability of State funding is unnecessary and can be interpreted within the notion of proportionality already in the paragraph.

Canada agreed with the Coordinator’s proposal to delete the chapeau. It supports EU language ensuring RA is provided for the reasons given by Thailand and EU. It agrees with Israel on the need to retain the concept of “disproportionate burden”. However this language needs significant strengthening and for this reason Australia’s alternative language of “unjustifiable hardship” is preferable. Canada has no strong views on the inclusion of “including by legislation.” The idea of State funding is already captured within the definition of RA and the notion of “unjustifiable hardship,” so, like Norway, Canada considers the Israeli proposed language here unnecessary.

The Coordinator drew the attention of the Committee to the Australian language of “unjustifiable hardship,” as well as African Group text of “unreasonable difficulties” as alternatives to “disproportionate burden”. The objective is for the term to balance situations where accommodation is not reasonable with those situations where RA can and should be provided but States are given an easy way out.

The Netherlands (EU) had a strong preference for the WG wording of “disproportionate burden” but will consider the alternatives that have been proposed once it has a better sense of the rationale behind them. In response to Costa Rica, the EU asserts that the notion of proportionality is value added. It is possible for accommodation to be “necessary and appropriate” but still not be provided because it is disproportionate.

India proposed replacing the word “take” with “endeavor to ensure” so the sentence after the chapeau would now read “States Parties undertake to endeavor to ensure…” India supports the Coordinator’s proposal to delete “including by legislation” as this is incorporated in Article 4. It also supports replacing “reasonable” with “adequate,” as proposed by Costa Rica, as this latter word satisfies the criteria of reasonableness. India would support both the WG text’s wording of “disproportionate burden,” or Canada’s suggested alternative of “unjustifiable hardship”. With regard to “appropriate modifications and adjustments” it is preferable to use language to “ensure” rather than “guarantee.”

Ghana (African Group) would be the only dissenting voice calling for the retention of the chapeau, which the Group believes clearly sets out the fundamental reasons why RA should be provided for PWD. However the African Group will consider the alternative chapeau suggested by the EU. The Group believes that among all other measures legislation is an important measure to rely on to ensure that RA is addressed. The Group agrees that some caveats need to be incorporated into the notion of RA and hence the need to account for “unreasonable difficulties”.

Thailand was flexible on mentioning “including by legislation”. Either the language of “disproportionate burden” or “unreasonable difficulties” needs to be more clearly integrated into the definition of RA. As has been voiced by many disability organizations “equal footing” needs to be replaced with “on an equal basis.”

The Coordinator recalled Mexico’s previous interventions that called for the general replacement of the term “equal footing,” which has no legal meaning to “on a basis of equality with others,” and this will be considered. The Coordinator enquired from Thailand as to how the caveat to the obligation to reasonably accommodate can be integrated into the definition.

Thailand recommended that the measures that could be considered to constitute RA should be clarified to mean those that are individualized, interactive, without imposing unjustifiable hardship or disproportionate burden on the provider. The Coordinator proposed the following reformulation of this sentence with the deletion of the last phrase beginning with “unless”: “.. reasonable accommodation, to be defined as necessary and appropriate modifications and adjustments, not imposing a disproportionate burden, where needed in a particular case, to ensure to PWD the enjoyment or exercise ….” This changes the order of placement of the terms without changing the substance. Thailand agreed with these changes but asserted that they do lead to a change in the substance as now the notion of disproportionate burden is not an additional “external condition”, outside of the term reasonable accommodation itself.

New Zealand was comfortable with the WG draft with this paragraph but now also supports what it acknowledges are useful improvements that have been proposed to it. The chapeau can be deleted. The EU’s language “to ensure that RA is provided” will cover more cases where RA should be provided. “Guarantee” should be changed to “ensure.” The EU’s rephrasing of this paragraph is preferred because the second part can be moved if necessary in its entirety to a separate Article on Definitions. New Zealand supports the Coordinator’s proposed reformulation of the paragraph addressing Thailand’s concern; however purely as a drafting matter, the phrase “where such modifications and adjustments are needed” needs to be added after “disproportionate burden” to restore the flow of this sentence. Also as a drafting matter, New Zealand reiterates its support for what was Canada’s original proposal to replace “on an equal footing’ as raised by the Coordinator.

Australia agreed that the chapeau should be deleted; if retained Australia would oppose its EU formulation citing “equal treatment” since “in this context, equal treatment is not necessarily the outcome we are seeking.” Other amendments in the EU proposal improve the text: changing the obligation of States Parties to “ensure” rather than “provide” RA, and adding the phrase “where needed in a particular case”. The concept of “unjustifiable hardship” is stronger than that of “disproportionate burden” and is therefore preferred. Either way the concept is brought directly and much more clearly into the definition of RA in the Coordinator’s reformulation of it. Therefore Australia supports that reformulation with possibly some minor drafting changes. It is not necessary to specifically mention legislation in this paragraph for the reasons stated by the Coordinator, that this could give rise to negative implication in other Articles where this term is not used. While state funding is important, this paragraph is not the appropriate place to refer to this issue.

Jordan agreed that the chapeau and the mention of legislation should be deleted. The reference to “exercise and enjoyment” in the definition should be replaced with “protection or enjoyment.” Jordan is flexible on either “disproportionate burden” or unjustifiable hardship”. It supports the EU’s proposal to change “provide” to “ensure”.

The Netherlands (EU) responded to Thailand’s concerns by noting the differences between the WG text on which Thailand’s objections seem to be based, and the EU text. In the former the definition of RA is separated by 2 commas followed by the phrase “unless such measures … “ where it could be argued that the last phrase is separate from the definition. In the latter there is a semi-colon breaking up the second half of the paragraph dealing with the definition, within which the same phrase also falls, and this is the only way this phrase can be interpreted. The EU would oppose the reformulation proposed by the Coordinator because it sends a wrong signal to begin a definition with an exception. This phrase is an exception, and it must remain as an exception.

Thailand responded that its concerns on the exception have been voiced by other delegations. The inclusion of “unless” creates 2 sets of content, one set of conditions for determining what RA is and “another condition for whether RA should be ensured or not.” This could cause confusion in practice. The exception should be a part of the definition.

The Coordinator suggested a full stop completely separating the first and second half of the paragraph could be considered. However this may not address Thailand and other delegations’ concerns, which are primarily based on the exceptionalism that is created by locating the phrase with the terminology of “unless …” at the end of the sentence.

Lebanon emphasized that “reasonable” induces measures that put limitations on the accommodation. In addition the notion of reasonable applies not just to the provider but also to the PWD. In this regard RA is inherently individualized, and is not the same as “accessibility for all.” For this reason Lebanon proposes adding the phase “for the best interests of the person.” Lebanon also prefers the phrase “unjustifiable hardship” as this better represents the interests of the PWD as well. From an employers perspective the measures may always be a disproportionate burden.

China supported the original WG text; it noted also that were its chapeau removed the first part of this paragraph would sound incomplete. It opposes the language of the chapeau of the EU text, agrees with the EU language “to ensure” rather than provide RA, supports the WG language after that, and supports the EU text after “unless”. While acknowledging that a decision on the Definitions article has not been made China noted that such technical points should not be in Article 3.

Serbia and Montenegro supported the Coordinator’s reformulation of the definition of RA. It also suggested breaking paragraph 4 into subparagraphs (a) as far as the semi colon in the EU text, and (b) for the rest of the paragraph. This might make confusion over interpretation less likely. Likewise it approves replacing “on an equal footing.”

Japan, like Australia, would not accept the notion of equal treatment in the EU chapeau, but can accept wording based on the principle of equality. Concepts like “unreasonable difficulties” should be incorporated in such a way they do not imply that new conditions are being attached to something that has already been defined, but are an inherent part of the definition of RA itself.

Cuba expressed concern that the notion of “disproportionate burden” could apply to other areas of life as well, potentially inhibiting the integration of PWD. It suggested alternative translation of the term “accommodation” from what was reflected in the Spanish texts before them. The Coordinator suggested conferring on this point with other Spanish speaking delegations.

The Philippines shared the concerns of Thailand and other delegations regarding the placement of “disproportionate burden”. Perhaps this clause can be brought further up into the sentence following “modifications and adjustments.” Alternatively the word “unless”, which connotes conditionality, could be replaced with “without imposing …”

Jamaica cautioned that the Committee should ensure a loophole free Convention. It should avoid exception clauses that could be misinterpreted or allow States Parties or private entities to find justifications for not accommodating PWD, especially in terms of employment or education. Therefore the reference to disproportionate burden should be moved further up in the text, as suggested by the Philippines. Jamaica further posited that perhaps the concept of “reasonable” already incorporated the notion that this would not entail a disproportionate burden. Accordingly a definition of this word could be included in a separate Article so as to apply to other parts of the Convention as well. Finally Jamaica feels strongly about retaining the mention of legislation as this is in line with its own domestic legislation.

Yemen did not see the need to retain the chapeau of this paragraph given the overall purpose of Article 7 is to promote equality and nondiscrimination. It supported the proposal of Jordan. Yemen supports changing the terminology of “reasonable” accommodation to “acceptable” accommodation.

The United States sought to clarify the definition of RA and in this regard supported the Philippines proposal, which would apply the exception to the adjustments themselves. There may be situations where an accommodation would be necessary and appropriate in terms of granting access to the PWD, but may still constitute, as in U.S. law, “undue hardship” for a particularly small employer. The Philippines proposal merits strong consideration.

Uruguay agreed that the chapeau to this paragraph was not necessary. The exception at the end of the sentence should be deleted. It is contrary to the purpose of the convention itself, which is to promote the rights of PWD and not the interests of the State.

Israel reiterated the concept of “reasonableness” is in and of itself too vague. States need the additional guidance and clarification that comes with reference to “disproportionate”, as this applies to resources. Israel disagrees with the Australian and Canadian alternative language of “unjustifiable hardship”, which sounds “too apologetic.” The Indian suggestion of endeavoring to undertake unnecessarily weakens states obligations in a sentence which already contains the right checks and balances. It agrees that “guarantee” should be replaced by “ensure” because the former may be a little too ambitious an expectation of States Parties.

The Syrian Arab Republic shared delegations concerns with the exception at the end of the paragraph because it dilutes the strength of States’ obligations. The exception could be used to negate the obligation. Syria proposes deleting this last part of the para with the following alternative language: “ … right to equality for PWD, States Parties undertake to take all appropriate steps including by legislation, to provide / guarantee to the extent possible” or “to the maximum possible …” This would avoid imposing unbearable burdens on the State while also ensuring that the State would do all that it can do to promote the rights of PWD.

The Coordinator reviewed his sense of the room on the EU text, which had been the basis of negotiations over the WG text: [1] a great many delegations supported deleting the chapeau, over which delegations expressed concerns both in the WG and EU versions. The paragraph would begin with States Parties. The African Group did not agree to this deletion, however it is reconsidering this position, and if it wishes, this can be noted in a footnote. [2] many delegations were comfortable with deleting of “including by legislation” on the understanding that it will be replicated in General Obligations Article 4. The first part of the paragraph would then read as follows: “States Parties would undertake to take all appropriate steps to ensure that RA is provided.” [3] “on an equal footing” would be replaced with “on a basis of equality with others”; [4] keeping in mind that the EU’s text did not satisfy the concerns many delegations had with the exception at the end of the second sentence, the Coordinator suggested the following alternative formulation: “RA to be defined as necessary and appropriate modifications and adjustments, not imposing a disproportionate burden, where needed in a particular case, to ensure to PWD the enjoyment and exercise on a basis of equality with others, of all human rights and fundamental freedoms.” The Coordinator asked the Committee for its approval to move forward on the basis of this text with the caveats as indicated for the chapeau and mention of legislation.

The EU requested that the footnote proposed by the Coordinator on the chapeau refer to the EU’s preference for its retention. The EU believes a specific reference to the objective of “equal treatment” for PWD is necessary precisely because RA is often perceived as constituting unequal treatment. The Coordinator assured the EU that the footnote will highlight that several groups of states wish to reflect further on the need for an introductory paragraph.

Jamaica sought clarification whether there is a general approach regarding definitions given that RA will be mentioned in other parts of the Convention. The Coordinator replied that it was not possible to reach conclusions on this point, keeping in mind China’s objections to including what it considered to be technical terms in the Definitions. The matter of placement could be addressed in negotiations about the structure of the Convention.

Lebanon enquired why the alternative language of “unjustifiable hardship” was not incorporated. The Coordinator noted that on balance more delegations were in support of the existing WG phrase, and moreover this terminology fits better in the altered context in which this phrase has now been incorporated into the sentence.

Costa Rica agreed to the Coordinator’s summing up of the negotiations but with some caveats. It reiterated its objections to the term disproportionate burden. There are “more than enough safeguards” already incorporated in the existing concepts of “reasonable”, “necessary”, “appropriate”, applicable in a specific case, and with a defined objective.

Furthermore including “disproportionate burden” weakens fundamental human rights obligations and drags the Committee into further negotiations. The exception clause could be addressed in the same way as the chapeau in the Coordinator’s review, as both of these had raised objections from delegations. The exception clause likewise could be deleted with an explanatory footnote added.

The Coordinator stressed the difference of views on this issue was both fundamental and various. As reflected in his discussions with Thailand and other delegations the Coordinator has sought to get at the fundamental problems that delegations were having with this provision, and this is the best compromise that could be reached. There are a number of qualifications in this provision; however in the Coordinator’s interpretation these qualifications apply to the type and nature of modifications and adjustments being made and their linkage to the disability in question as noted by “where needed in a particular case.” So this part of the provision could be read as “modifications…. which are necessary and appropriate to the disabled person in question.” It seemed that a number of delegations wanted some balancing language that “accepts that in some circumstances it may not be reasonable to require for those modifications to be made.” That is, all of the modifications that may suit the PWD may not, bearing into account all other things, be appropriate in the circumstances, and they may impose a disproportionate burden.

Costa Rica acknowledged that while “necessary and appropriate” applies to the PWD, the notion of “reasonableness”, which the Coordinator himself had mentioned, already exists to meet the concerns of States. If the concerns of States need to be reiterated, then the qualifying language can simply repeat the word “reasonable” after “necessary and appropriate.“ Or another word synonymous with the word “reasonable” - which “disproportionate burden” is not - can be used, and the Committee can open a different set of discussions on what that should be. Or, conversely, the term that is being defined,’ ie “reasonable accommodation” needs to be changed. Costa Rica again noted that it will not let its concerns obstruct progress in the current negotiations.

The Coordinator pointed out part of the problem with interpretation as highlighted by Costa Rica and other delegations could lie in the fact that the term reasonable accommodation in this paragraph is not in inverted commas. This may cause some confusion in that “reasonable” in reasonable accommodation could be interpreted as a qualifier in and of itself. In the Coordinator’s own view “reasonable accommodation” is a single term that is being defined. The Coordinator noted the sense around the room that this issue is not yet settled and Costa Rica’s concerns can be cited in a footnote.

Cuba seconded Costa Rica’s concerns on the inclusion of the term “disproportionate burden” and would like its own “serious reservations” here to be recorded in a footnote. It shared Jamaica’s concerns regarding Definitions. The Coordinator affirmed that Footnote 27 would be maintained from the original WG text.

Norway announced new concerns that both the WG and EU texts could be misconstrued as introducing new reasons for states to derogate from their obligations on civil and political rights, beyond those reasons that already exist in the Covenant. This could be “a very unfortunate consequence of this language”. Norway would like to flag this concern and think a bit more about how notions of RA can be introduced into the sphere of civil and political rights before a final formulation of this para is agreed upon.

Before closing the informal consultations, the Coordinator thanked delegations for their cooperation. He looked forward to the work being continued at the next round of informal consultations, which hopefully will allow the Committee to complete discussion of the first half of the Convention, through Article 15.