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Article
5 - Equality and non-discrimination
Background
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Background
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Fifth Session
Consolidation of proposals submitted by the Facilitator
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apply to “outdated” measures, since they can no longer accelerate equality.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.