 |
 |
|
|
|
|
Background Documents | Article 2 Background
Seventh Session | Fourth
Session | Third Session
Working Group | References
Australia
Cameroon
Chile
Kenya
Mexico
South Africa
International Disability Caucus
International Save the Children Alliance
Landmines Survivors Network
Working meeting of NGOS for People with Disabilities from Ukraine, Russia, Belarus & Moldova
World Federation of the Deaf
Draft Article 3
Definitions of ‘disability’ and ‘associate’
‘disability’ means:
a) total or partial loss of the person's bodily or mental functions; or
b) total or partial loss of a part of the body; or
c) the presence in the body of organisms causing disease or illness; or
d) the presence in the body of organisms capable of causing disease or illness;
or
e) the malfunction, malformation or disfigurement of a part of the person's
body; or
f) a disorder or malfunction that results in the person learning differently
from a person without the disorder or malfunction; or
g) a disorder, illness or disease that affects a person's thought processes,
perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
h) presently exists; or
i) previously existed but no longer exists; or
j) may exist in the future; or
k) is imputed to a person;
‘associate’, in relation to a person,
includes
a) a spouse of the person; and
b) another person who is living with the person on a genuine domestic basis;
and
c) a relative of the person; and
d) a carer of, or assistant to, the person; and
e) another person who is in a business, sporting or recreational relationship
with the person.
Back
to top
Article 3.- Définitions.
S’il est vrai qu’il faut éviter dans le cadre des conventions internationales
de s’enfermer dans des définitions étriquées, la délégation
camerounaise pense tout de même qu’il y a lieu de circonscrire, de façon
englobante et précise, certains concepts clés utilisés
dans le présent projet de convention. Il en a été ainsi
à propos notamment de la convention relative aux droits de l’Enfant et
de la convention contre la torture.
La présente convention visant essentiellement les personnes handicapées,
il serait de bonne logique que l’on s’accorde d’emblée sur les notions
de « handicap » et « personne handicapée », avant
d’aborder les autres définitions qui leur sont rattachées.
A cet égard, la délégation camerounaise propose les définitions
ci-après, qui présentent le handicap sous un angle à la
fois médical (au sens de l’OMS) et social.
• Handicap : toute limitation des possibilités de pleine participation
d’une personne présentant une déficience à une activité
dans un environne- ment donné ;
• Personne handicapée : toute personne dans l’incapacité d’assurer
par elle-même tout ou partie des nécessités d’une vie individuelle
ou sociale normale, du fait d’une déficience physique ou mentale, congénitale
ou non.
Autres définitions :
• Accessibilité
Au regard des développements faits à l’article 19 sur l’accessibilité,
la délégation camerounaise n’estime plus nécessaire qu’une
définition soit consacrée à ce concept au niveau de l’article
3.
Tout au plus pourrait-on, au début de l’article 19, mentionner que l’accessibilité
induit une double action de modification de l’environnement pour le rendre convivial
ou propice à l’usage de la personne handicapée d’une part, et
d’autre part, de réadaptation fonctionnelle de la personne handicapée
pour lui permettre de s’adapter à son environnement.
• « Discrimination fondée sur le handicap »
Il serait indiqué d’intégrer ici la définition qui est
donnée de la discrimination à l’article 7 du projet de convention.
• « Aménagement raisonnable »
cette expression semble assez imprécise et pourrait être remplacée
à chaque fois par : « aménagement approprié »
qui rendrait compte de l’adéquation recherchée entre l’aménagement
et la situation de handicap.
Dès lors, il n’apparaît plus opportun d’intégrer une nouvelle
définition dans cet article 3.
• « Conception universelle » et « conception intégratrice
».
Etant donné que ces concepts reviennent très peu dans le projet
de convention et qu’ils n’ont pas d’incidence dans la compréhension de
ladite convention, il semble superflu de s’attarder à les définir
ici.
Back
to top
ARTICLE 3 -- DEFINITIONS
Definitions should be given for points which are the most central and play the
greatest role in the Convention, to avoid arriving at an article containing
a large number of definitions which could prove to be futile. In their internal
legislation and public policies, States can define such terms, words and expressions
as they see fit in accordance with their realities and requirements, using a
greater or lesser level of detail as appropriate. We therefore believe that
the definitions should be limited to: persons with disability, discrimination
on the ground of disability, universal/inclusive design, and equality of opportunities.
Persons with disabilities:
Preliminary note: In the proposed definition, some elements contained in the International Classification of Functioning, Disability and Health (ICF) have been applied, that is, those which are useful because they integrate aspects of deficiency from a broad perspective with those which refer to the personal and social development of the individual, and in relation to his or her environment. We should lean towards a definition which does not refer only to the area of medicine, but includes the elements of the individual in his or her daily life and participation in the social sphere, in relation to surrounding factors.
It will suffice to make a broad reference to deficiencies from the viewpoint
of corporal structures and functions, which will make it possible to consider
many persons whose limitations do not fall strictly within the physical, sensory,
mental and psychic spheres.
We believe that a broad definition permits full understanding as to the conceptualization
of the subject of law, enabling States to adopt this multifocal approach in
their domestic legislation.
We are even more convinced that there should be agreement between the definition
of the subject of law of this Convention and the proposed classification which
is tending to be implemented increasingly in many countries at the worldwide
level (ICF).
We believe it is unnecessary to define "disability" in the abstract
sense, since that should be left to other instruments, but not in an International
Convention on the Rights of Persons with Disabilities. The condition described
does not present itself independently from the subject who is experiencing it
and who is the holder of the rights and freedoms promoted and protected by this
Convention.
- Persons with disabilities: Those persons who, as a result
of one or more deficiencies in their bodily structures or functions, experience
limitations in everyday activities and/or restrictions on their participation
in the various areas of social life; those circumstances may have been created
or worsened by the various factors and environmental factors surrounding the
individual."
Discrimination on the ground of disability: Its definition
is dealt with in article 7, on equality and non-discrimination.
Universal design and inclusive design: Original design and
configuration of spaces, items, products and technologies taking into account
the diversity of the conditions of users and of the situations they experience
throughout their lives, in order to provide better quality of life for all persons.
Accessibility: A condition fulfilled by an environment (space),
element, product or technology which is usable by all persons, safely, comfortably
and with the greatest possible independence.
The ability to independently enter, remain, pass through and exit from spaces
and use items, products and technologies with an appropriate level of safety,
independence and comfort.
Equality of Opportunities: Those measures, actions or exemptions,
as appropriate, which tend to place persons with disabilities in a position
to be able to enjoy and fully exercise their human rights and fundamental freedoms.
Back
to top
Draft Article 3 : Definition of Disability
1. States Parties to this Convention shall:
a) seek to remedy the economic, social, cultural, material and personal disadvantages
experienced by persons with disabilities by measures that include the implementation
of this Convention;
b) recognize that all ages and any population or group of people can experience
disability;
c) interpret broadly all clauses in this convention in order to assist people
with disabilities who require its protection, taking into account their diversity
and individuality;
d) define a person with a disability as an individual whose capacity
to lead an inclusive life in the community of his/her choice is limited by the
cumulative impact of physical, economic, social and cultural
environments and personal factors that arise from physical, sensory, psycho-social,
neurological, medical, intellectual or other conditions that may be permanent,
temporary, intermittent, perceived or imputed;
e) recognise that no individual shall be considered a person with a disability
contrary to his or her own choice;
f) ensure that any definition of disability that is applied in their countries'
courts of law is at least as inclusive and broadly based as the definition contained
in this Convention, and takes full account of the physical, economic, social
and cultural environments and personal factors that create disabling conditions;
g) recognize that an individual may claim rights under this Convention if she
or he can be considered a person with a disability or has experienced a past
disability, within the terms of the legal definition of disability that is applied
in her/his country of residence and if such a definition does not exist, or
if the person can be considered a person with a disability under Paragraph d)
of this Article, the definition in this Convention shall be applied.
Back
to top
Draft Article 3 - DEFINITION
Person with disability
A person that presents a physical, mental, intellectual or sensorial impairment;
whether congenital or acquired, temporary or permanent that limits his/her capacity
to perform some essential activities of daily life and that requires specific
support to achieve his/her full development, integration and inclusion in the
social, cultural, political and economic fields.
Back
to top
Article Three: Definitions
The South Africa delegation wishes to align itself to the proposal made by one
of the previous delegations that proposed that definitions be done by respective
countries that will ratify to the Convention. However we are also of the opinion
that some guidelines and framework is necessary in order to ensure that member
states follow the proper protocols when they develop working definitions for
their particular needs. To this end chair, the SA delegation wishes to propose
the following guidelines as a means of providing framework to other member states.
Accessibility:
Accessibility shall include aspects and/or services that are inclusive, equal,
appropriately used or readily reached and benefit people with disabilities,
including promoting safe, healthy and barrier free access to physical environments
and public transportation as a standard. These aspects include, social and economic
empowerment, information, communication and assistive technologies, universal
design and adaptation.
Communication:
Communication shall include oral-aural communication, sign language, tactile
communication, Braille, large print, audio, accessible multimedia, human reader
and other augmentative or alternative modes of communication, including accessible
information and communication technology.
DEFINITION ON DISABILITY
Disability is the loss or elimination of opportunities to take part in the life
of the community; equitably with others that is encountered by persons having
physical, sensory, psychological, developmental, learning, neurological or other
impairments, which may be permanent, temporary or episodic in nature, thereby
causing activity limitations and participation restriction within the mainstream
society. These barriers may be due to economic, physical, social, attitudinal
and/or cultural factors.
Persons with Disabilities:
Are people who have long-term or recurring, physical or sensory impairment which
substantially limits the prospects of equitable participation in society.
Discrimination:
Discrimination shall mean any distinction,
exclusion, additional obligations or burdens, restrictions or acts which have
the purpose or effect of impairing or nullifying the recognition, enjoyment
or exercise by persons with disabilities, on a basis of equality with others,
of all human rights and fundamental freedoms.
Language:
Language shall include oral-aural language and sign-language.
Reasonable Accommodation:
Any modification or adjustment to an environment that will enable a person from
a designated group to have access to and/or participate equitably as part of
mainstream society.
Universal Design:
Universal design is a worldwide concept, which promotes a holistic design such
that all products, environments and communications are to designed to consider
and provide for the needs of the widest possible array of users. It is considered
as a design for all, as an inclusive design and also as a lifespan design.
Lastly chair we wish to propose a new definition of Rehabilitation. We are of
the opinion that it is important for the Convention to ensure that Rehabilitation
is not only presented in the context of medical rehabilitation but in all context.
Therefore wish to “Recovery or reintegration back into society of people with
disabilities” Therefore the Rehabilitation definition needs to be presented
within the context of health, education, employment or justice, etc.
Back
to top
Non-governmental organizations
Draft Article 3 : Definition
of Disability
1. States Parties to this Convention shall:
a) seek to accommodate personal and cultural differences and to eliminate economic,
social and material barriers experienced by persons with disabilities by measures
that include implementation of this Convention;
b) recognise that all ages and any population or group of people can experience
disability;
c) interpret broadly all clauses in this convention in order to assist people
with disabilities who require its protection, taking into account their diversity
and individuality;
d) define a person with a disability as an individual whose ability to lead
an inclusive life in the community of his/her choice is limited by the concomitant
impact of physical, economic, social and cultural environments and personal
factors that arise from physical, sensory, psycho-social, neurological, medical,
intellectual or other conditions that may be permanent, temporary, intermittent,
perceived or imputed;
e) recognise that no individual shall be considered a person with a disability
contrary to his or her own choice;
f) ensure that any definition of disability that is applied in their countries'
courts of law is at least as inclusive and broadly based as the definition contained
in this Convention, and takes full account of the physical, economic, social
and cultural environments and personal factors that create disabling conditions;
g) recognise that an individual may claim rights under this Convention if she
or he can be considered a person with a disability or has experienced a past
disability, within the terms of the legal definition of disability that is applied
in her/his country of residence, or if the person can be considered a person
with a disability under Paragraph d) of this Article.
Back
to top
Draft Article 3 - Definitions
The draft does not provide basic definitions.
Suggested changes
If it is decided to include a definition of ‘persons with disabilities; we want
to add that this includes children with disabilities.
For example:
‘Persons with disabilities’ – applies to children as well as adults,
expect where national law provides specific legislation excluding all children
from particular activities, for example, sexual relations, marriage, employment.
Suggested additional definition
The text mentions issues of diversity; we therefore recommend a definition
of diversity as all persons with disabilities are unique. This definition
needs to specify disability as an issue of difference, concretise issues of
diversity within the community of disabled people. This definition needs to
provide a comprehensive view instead of gender, ethnicity in its own and relate
diversity with risks of multi-discrimination (on the basis of race, colour,
gender, age, communication skills, level of autonomy in daily life, socio-economic
status,... )
Back
to top
DRAFT ARTICLE 3 - Definitions
SYNTHESIS OF PROPOSALS
“Disability”- In this Convention the concept of “disability” shall mean a process
rather than something which individuals possess. The process of disablement
occurs when people with impairments experience barriers to their full participation
in society and their recognition, enjoyment or exercise of human rights and
fundamental freedoms in the civil, political, economic, social, cultural or
any other field. The concept of “impairment” shall encompass the full and diverse
range of functional impairments including physical, sensory, neurological, psychiatric
and intellectual – all of which may be permanent, intermittent, temporary, or
perceived as impairment by society but not necessarily by individuals.
COMMENTS
Several delegations questioned the utility of including an article on definitions
(Canada, EU, Yemen). It would be logical though for the Convention to employ
a definitions section for those terms that appear throughout the Convention.
Indeed, many human rights treaties precede the substantive obligations with
a definitions or “use of terms” section, or other articles clarifying how terms
are to be used and aiding in the interpretation and implementation of the treaty.
(Cf. CERD, Article 1; CEDAW, Article 1; CRC, Article 1; CAT, Article 1) However,
at this stage in the negotiations the Ad Hoc Committee’s decision to delay consideration
of the definitions section until all the treaty provisions have been finalized,
seems appropriate. At that point it will be easier to identify which terms have
specific meaning in the disability context, are consistently used, and should
be addressed in the definitions section, and which terms should be defined in
the specific article(s) in which they are used.
Several delegations also questioned the appropriateness of including a definition
of disability (EU, Russian Federation, Canada, Japan). Yet failure to provide
a definition of disability would be highly problematic. Many countries do not
currently have working definitions of disability in their legislation, leading
to ambiguity about who is covered by certain programmes or policy frameworks.
Alternatively, some countries use definitions grounded in the medical model
of disability, which focus on the person’s physical characteristics and serve
to exclude people not considered as possessing the ‘right’ kinds of impairments
but who nevertheless face societal barriers and discrimination. By defining
the concept of disability in broad and inclusive terms, and as a social construct
based upon the social model of disability, the Convention will be able to offer
a template for those States engaged in national law and policy reform, and help
to ensure that domestic disability programming and protections are truly inclusive.
The draft language, provided opposite, is intended to provide just such a definition
of the concept of disability – one that focuses not on an individual’s physical
attributes, but on the interaction between the person and society. It is drawn
heavily from the paper “New Zealand’s View of a Convention on the Rights of
Disabled People” submitted to the Working Group, as well as the CEDAW, Article
1. As well as characterizing disability as a process, the definition avoids
the concept of “substantially limited in major life activity” which is used
in many domestic contexts, and which can cause those applying the definition
to focus on the physical characteristics of the individual, rather than the
barriers or discrimination that they face. (Cf. Submission by the Asia Pacific
Forum of National Human Rights Institutions to the third session of the Ad Hoc
Committee, May 2004, para. 59, p. 24)
Back to top
Article 3
Definitions
To make amendment to the definition: “Communication” includes oral-aural communication,
communication using sign language, tactile communication, Braille, large print,
to add: communicative symbols, audio, accessible multimedia, human reader
and other augmentative or alternative modes of communication, including accessible
information and communication technology.
Note 12: definition of disability should not be based on medical model
of disability, but on the social one.
This Article should contain full definition of “disability” and “people with
disabilities”
Back
to top
Draft Article 3 in this document relates
to ‘Definitions’. Among the possible definitions to include is a definition
of ‘language’. Article 3, Footnote 15 states that: “Some delegations were of
the view that the separate draft articles of the Convention specify that language
included sign language, and questioned the need for this definition in the present
article. Others expressed the view that the definition was needed.”
The World Federation of the Deaf (WFD) strongly asserts that a definition of
language is needed. In the event that members at the 4th Ad Hoc Committee meeting
agree to include such definition, WFD has consulted a number of linguists in
different parts of the world. With their support the following is proposed as
the definition to be included:
Language: the systematic use of sounds, signs, or written symbols to represent things, actions, ideas and states, shared and understood by members of linguistic community.
Following the above definition, linguists consider sign language a natural language.
Further information on sign languages used in the Member States of the United
Nations (UN) can be found in the most comprehensive list of the world’s languages,
Ethnologue (www.ethnologue.com), in
which some 6,700 spoken languages and 115 sign languages are listed. Sign languages
are listed on par with spoken languages, AS INDEPENDENT LANGUAGES. (Note: The
list does not include all sign languages of the world because research information
on many sign languages is not yet available.)
The phrases “modes of communication” and “means of communication” are not adequate.
Sign languages are languages, with the full richness of syntax and grammar,
not merely ‘modes’ or ‘means’ of communication. Only by defining language, and
accepting sign languages place among the languages of the world, will Member
States ensure the rights of people who use sign languages.
Currently only a small percentage of the world’s 70 million Deaf people have
the possibility to use their sign language with their family, or in education,
interaction with society and for access to information. Only a few UN Member
States provide sign language interpreting for Deaf people to enable them to
participate equally and receive services in their society. Because of this,
the majority of Deaf people in the world face barriers in their learning, development,
participation and opportunity to function as equal citizens.
Linguistic rights are guaranteed in numerous UN conventions and recommendations.
These rights must also apply to sign languages if human rights are to be attained
for Deaf people.
The UN Convention on the Protection and Promotion of the Rights and Dignity
of Persons with Disabilities will be effective in the fulfilment of the rights
of Deaf people only if linguistic rights are included. Mention of language should
be included in several Articles, as per the attached Annex.
Draft Article 3: Definitions
Language: the systematic use of sounds, signs, or written symbols to represent
things, actions, ideas and states, shared and understood by members of linguistic
community