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Facilitators Proposed Modifications on Draft Articles

Article 7-
Equality and Non Discrimination
Facilitator proposal as of 31 January 2005

After discussions with many delegations and NGO representatives the Facilitator on Article 7 would like to make the following proposal to move forward on Article 7 para. 5:

[Positive] Measures aimed at accelerating de facto equality of persons with disabilities shall not be considered discrimination on the basis of disability. , but shall in no way entail as a consequence the maintenance of unequal or separate standards; those measures shall be discontinued when the objectives of equalitiy of opportunity and treatment have been achieved.

Explanation:
Delegations have expressed differing views on the second part of the current draft and have expressed concerns mainly with respect to two issues:

1.) Temporary measures: The previous draft included a sentence taken from Art. 4 (1) CEDAW (cf. below), which stipulates that temporary measures to accelerate de facto equality must be discontinued when the objectives have been achieved. The measures looked at in the context of disability are, however, better comparable to those outlined in Art 4 (2) CEDAW, relating to maternity. It follows that it is not necessary to specify in this Convention when measures should be discontinued. In addition, the opening phrase clearly states that only “measures aimed at accelerating de facto equality of persons with disabilities” are covererd by this paragraph, which would thus not apply to “outdated” measures, since they can no longer accelerate equality.

2.) Unequal or separate standards: Discussions have revealed great differences in the interpretation of “unequal or separate standards”, which was interpreted by some as restricting too much States’ ability to adopt certain desirable measures, in particular for groups of persons with disabilities with very specific needs. Other delegations were concerned that the deletion of this phrase would allow States to adopt measures whose consequences could amount to segregation (e.g. in schools). Once again, a comparison with Art. 4 (2) CEDAW seems appropriate, which does not mention “unequal or separate standards”. The concern that States might adopt measures which lead to segregation should be covered on the one hand by the opening phrase “measures aimed at accelerating de facto equality of persons with disabilities”, as well as by the many substantial standards established throughout the convention, relating to education, health, work, social inclusion. These two elements should provide enough safeguards against counterproductive measures, be they even well-intended.

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

Article 4
1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.
2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.

Article 9
Equal Recognition as a Person before the Law
Facilitator proposal as of 2 February 2005

1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as a person before the law.

2. States Parties shall recognize that persons with disabilities are entitled to enjoy legal capacity, on an equal basis with others, in all fields, and shall:

a) ensure that, where support is required in order to exercise that capacity, it is proportional to the degree required, is tailored to the person's circumstances, does not undermine the rights of the person, respects the will and preferences of the person, and is free from conflict of interest and undue influence;

b) ensure that where support requires, as a matter of last resort, the appointment of a personal representative then such action shall only be taken in exceptional circumstances prescribed by law and its use shall be minimized through the active promotion of alternatives;

c) ensure that persons with disabilities have access to effective mechanisms to review arrangements for support, including periodic review and, where appropriate, review by a competent, impartial and independent authority.

Article 12 -
Freedom from violence and abuse
Facilitator proposal as of 31 January 2005

1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities (and their families - at 28 Jan session taken out) both within and outside the home, from all forms of exploitation, violence and abuse (- at 28 Jan session decided to put in), including abandonment, violence, injury or mental or physical abuse, abduction, harassment, neglect or negligent treatment, maltreatment or exploitation, including economic and sexual exploitation and abuse.

1bis. In particular, States Parties shall protect persons with disabilities from all forms of medical or related interventions, carried out without the free and informed consent of the person concerned.

1ter. Where person lacks the capacity to give or withhold informed consent, an intervention may only be carried out where the consent of his or her legal representative or a competent court or authority has been obtained prior to the intervention.

1quat. This shall not prejudice any such intervention necessary to prevent an imminent danger to the life or health of the person concerned or to the life or safety of others.

1quin. All such interventions shall be carried out in the best interest of the person concerned, in accordance with the procedures established by law and with the application of appropriate legal safeguards.

2. States Parties shall also take all appropriate measures to prevent violence and abuse by ensuring, inter alia, appropriate forms of assistance and support for persons with disabilities and their caregivers, including through the provision of information and education on how to avoid, recognize and report instances of (violence and abuse) above.

3. Special attention shall be paid to measures reflecting particular vulnerability of persons with disabilities in situations of emergency, inter alia during armed conflicts or foreign occupation.

4. States Parties shall ensure that all facilities and programs, both public and private, where persons with disabilities are placed together, separate from others, live or access services are effectively monitored in coordination with civil society by independent authorities, which include persons with disabilities and which make monitoring reports available to public in order to prevent the occurrence of violence or abuse.

5. Where persons with disabilities are victims of any form of violence or abuse, States Parties shall take all appropriate measures39 to promote their physical and psychological recovery, rehabilitation and social reintegration including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, self respect, dignity and autonomy of the person.

6. States parties shall put in place effective policies and legislation to ensure that instances of violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted and that protection services are available in such cases.

Article 13 -
Freedom of Expression and Opinion, and Access to Information
Facilitator proposal as of 1 February 2005

States Parties shall take appropriate measures to ensure that persons with disabilities can exercise their right to freedom of expression and opinion and to seek, receive and impart information on an equal basis with others and through appropriate modes of communication of their choice, including sign languages and augmentative and alternative means of communication, including by:

States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise their right to freedom of expression and opinion including the freedom to seek, receive and impart information and ideas on an equal basis with others and through sign languages, and Braille and augmentative alternative communication and all accessible means, modes and formats of communication of their choice, including by:

a) Providing official public information to persons with disabilities, in a timely manner and without additional cost and in accessible formats and technologies appropriate to different kinds of disabilities;

b) Accepting and facilitating the use of sign languages, and Braille and augmentative alternative communication and all other accessible means, modes and formats of communication of their choice in official interactions;

c) Promoting opportunities for training to use sign languages, and Braille and augmentative alternative communication and all other accessible means, modes and formats of communication of their choice;

d) Promoting and where appropriate, undertaking the research, development and production of new technologies and systems, including information and communication technologies, and assistive technologies, that are suitable for, accessible to and affordable by persons with disabilities and in consultation with them;

e) Promoting other appropriate forms of assistance and support to persons with disabilities to ensure their access to information, including supporting and where appropriate, developing training programs for assistants, intermediaries, interpreters, note takers and readers;

f) Urging private entities that provide services to the general public to provide information and services in accessible and usable formats for persons with disabilities;

g) Urging the mass media to make their services accessible to persons with disabilities;

h) [Developing/recognizing/promoting a national sign language;]

i) Promoting access for persons with disabilities to the new communication technologies and systems;

j) Providing accessible information to persons with disabilities about mobility aids, devices and other forms of assistive devices and technologies;

k) Taking all appropriate measures to ensure that accessible information and communication technologies be designed, developed, produced and distributed at an early stage so that the information society becomes inclusive at minimum cost.