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Article
5 - Equality and non-discrimination
Background
Documents | Article 5
Background
Seventh Session | Fifth Session | Fourth
Session | Third Session
Working Group | References
Governments
UN System organizations
National Human Rights Institutions
Non-governmental organizations
Australian NGOs
Bizchut
European Disability Forum
Indian NGO Consultative Meeting
International Save the Children Alliance
Japan Disability Forum
Landmine Survivors Network
Physical Disability Council of Australia
World Blind Union
World Network of Users and Survivors of Psychiatry
Comments, proposals and amendments submitted electronically
Governments
EUROPEAN UNION
Draft Article 7
EQUALITY AND NON-DISCRIMINATION
EU Proposal: Delete this Article. Subsumed in new 3 bis
1.
States Parties recognise that all persons are equal before the law and are
entitled without any discrimination to the equal protection of the law. States
Parties shall prohibit any discrimination on the basis of disability, and
guarantee to all persons with disabilities equal and effective protection
against discrimination. States Parties shall also prohibit any discrimination
and guarantee to all persons with disabilities equal and effective protection
against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth, source or type of disability, age, or any other status.
2.
(a) Discrimination shall mean any distinction, exclusion or restriction which
has the purpose or effect of impairing or nullifying the recognition, enjoyment
or exercise by persons with disabilities, on an equal footing, of all human
rights and fundamental freedoms.
(b) Discrimination shall include all forms of discrimination, including direct,
indirect and systemic, and shall also include discrimination based on an actual
or perceived disability.
3. Discrimination does not include a provision, criterion or practice that
is objectively and demonstrably justified by the State Party by a legitimate
aim and the means of achieving that aim are reasonable and necessary.
4. In order to secure the right to equality for persons with disabilities,
States Parties undertake to take all appropriate steps, including by legislation,
to provide reasonable accommodation, defined as necessary and appropriate
modification and adjustments to guarantee to persons with disabilities the
enjoyment or exercise on an equal footing of all human rights and fundamental
freedoms, unless such measures would impose a disproportionate burden.
5. Special measures aimed at accelerating de facto equality of persons with
disabilities 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; those measures shall be discontinued when the
objectives of equality of opportunity and treatment have been achieved;
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KENYA
Draft Article 7
EQUALITY AND NON-DISCRIMINATION
Insert the word ‘health’ between the word ‘age’ and ‘or’ in 1 so that it reads:
1. States Parties recognise that all persons are equal before the law and
are entitled without any discrimination to the equal protection of the law.
States Parties shall prohibit any discrimination on the basis of disability,
and guarantee to all persons with disabilities equal and effective protection
against discrimination. States Parties shall also prohibit any discrimination
and guarantee to all persons with disabilities equal and effective protection
against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth, source or type of disability, age, health or any other status.
Insert the phrase ‘consistent with international human rights law’ after the
word ‘necessary’ in 3 so that it reads:
3. Discrimination does not include a provision, criterion or practice that
is objectively and demonstrably justified by the State Party by a legitimate
aim and the means of achieving that aim are reasonable and necessary and consistent
with international human rights law;
Delete the phrase ‘unless such measures would impose a disproportionate burden’
in 4 after the word ‘freedoms’ so that it reads:
4. In order to secure the right to equality for persons with disabilities,
states parties undertake to take all appropriate steps, including by legislation,
to provide reasonable accommodation, defined as necessary and appropriate
modification and adjustments to guarantee to persons with disabilities the
enjoyment or exercise on an equal footing of all human rights and fundamental
freedoms.
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UN System organizations
ILO
Draft Article 7
Equality and Non-Discrimination
- The ILO welcomes the emphasis in this draft article on equal opportunity,
equal treatment and non-discrimination, and the provision for reasonable accommodation
and affirmative action in the form of special measures.
- Suggests that guidance on reasonable accommodation and affirmative action
be provided either in a form of an annex to the Convention or in
guidelines to be drawn up to accompany the Convention.
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OHCHR
See references to international human rights conventions and jurisprudence
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WHO
Article 7 - Equality and non-discrimination
Discrimination can manifest itself in inadequately targeted health programmes
and restricted access to health services. Hence, the article on equality and
non-discrimination needs to ensure that persons with disabilities do not receive
different treatment from their peers without disabilities. In this context,
WHO recognizes the importance of the provision on reasonable accommodation
and would like to reiterate that in discussing appropriate services the principle
of reasonable accommodation for persons with disabilities should serve as
a guiding principle.
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National Human Rights Institutions
NATIONAL HUMAN RIGHTS
INSTITUTIONS
Interventions made at the Third Session:
Article 7
Thank you, Madam Chair.
The National Human Rights Institutions would like to suggest the deletion
of Article 7(3) from the current Working Group draft.
Primarily because it allows for too much discretion to the State.
Also Chair, we note that this paragraph as referred to in footnote 26 does
not appear in any of the core international human rights treaties and therefore
see no justification for its retention.
In Article 7(4) the thrust of the provision is to secure the right to equality
for people with disabilities and makes reference to the taking of appropriate
steps. However, the wording “Unless such measures would impose a disproportionate
burden” would substantially allow States to renege on the obligation to secure
equality, which we argue should not be qualified.
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ONTARIO HUMAN RIGHTS COMMISSION
Article 7: Equality and non-discrimination
7.1 re protection against discrimination on any ground
See the Commission’s comment above under paragraph (m) of the Preamble of
the Draft Convention.
7.2. (a) Discrimination shall mean any distinction, exclusion or restriction
which has the purpose or effect of impairing or nullifying the recognition,
enjoyment or exercise by persons with disabilities, on an equal footing, of
all human rights and fundamental freedoms;
The Commission agrees with the meaning of discrimination set out in this paragraph.
In addition, the Ad Hoc Committee might wish to consider the three broad inquiries
set out in the Commission’s Disability Policy, as suggested by the Supreme
Court of Canada, for determining if discrimination has taken place:
(1) Differential Treatment
Was there substantively differential treatment, either because of a distinction,
exclusion or preference, or because of a failure to take into account the
complainant's already disadvantaged position within Canadian society?
(2) An Enumerated Ground
Was the differential treatment based on an enumerated ground?
(3) Discrimination in a Substantive Sense
Finally, does the differential treatment discriminate by imposing a burden
upon, or withholding a benefit from, an individual? The discrimination might
be based on stereotypes of a presumed group or personal characteristics, or
might perpetuate or promote the view that an individual is less capable or
worthy of recognition or value as a human being or as a member of Canadian
society who is equally deserving of concern, respect and consideration. Does
the differential treatment amount to discrimination because it makes distinctions
that are offensive to human dignity?
(b) Discrimination shall include all forms of discrimination, including direct,
indirect and systemic, and shall also include discrimination based on an actual
or perceived disability.
The Commission would agree that setting out forms of discrimination is important
to forward a full understanding of rights and obligations. At the same time,
discrimination in all its forms has the same effect and individualized accommodation
for persons with disabilities will still be necessary. As a result of two
landmark decisions of the Supreme Court of Canada,10 the distinction between
direct discrimination and adverse effect discrimination has become of much
less practical significance in Canada.
With respect to the inclusion of “perceived” disability, the Commission is
supportive of this broad understanding, which is also reflected in Ontario’s
Human Rights Code and in jurisprudence from the Supreme Court of Canada as
noted above in the Commission’s comments under draft Article 2 on the definition
of disability.
7.3 Discrimination does not include a provision, criterion or practice that
is objectively and demonstrably justified by the State Party by a legitimate
aim and where the means of achieving that aim are reasonable and necessary.
The Commission would recommend qualifying or revising this exception or defence
with the notion of the duty to accommodate short of undue hardship (see the
Commission’s comment under subparagraph 7.4 below). In this regard, the Commission
would recommend consideration of the three-step inquiry set out in the Commission’s
Disability Policy, as suggested by the Supreme Court of Canada in Meiorin,11
for determining whether prima facie discrimination can be demonstrably justified
and the duty to accommodate has been met. If prima facie discrimination is
found to exist, the person responsible for accommodation must establish on
a balance of probabilities that the standard, factor, requirement or rule:
(1) was adopted for a purpose or goal that is rationally connected to the
function being performed;
(2) was adopted in good faith, in the belief that it is necessary for the
fulfillment of the purpose or goal; and
(3) is reasonably necessary to accomplish its purpose or goal, in the sense
that it is impossible to accommodate the claimant without undue hardship.
Sections 3.2 and 3.3 of the Commission’s Disability Policy set out a number
of considerations for the application of this framework.
Footnote 26: The Working Group discussed three options for the consideration
of the Ad Hoc Committee: (a) The paragraph should not appear in the text at
all; (b) the paragraph should be included only as an exception to the specific
prohibition on indirect discrimination; and (c) the paragraph should apply
to all forms of discrimination.
The Commission recognizes that the inclusion of subparagraph 7.3 is intended
to strike a balance between the legitimate aims of the State and the needs
of persons with disabilities. At the same time, the Commission is of the view
that, as with Ontario’s Human Rights Code, such a balance should be struck
on the basis of the notion of duty to accommodate short of undue hardship
described above.
And, for the reasons the Commission set out under paragraph 7.2(b) above,
including the landmark decisions of the Supreme Court of Canada cited in this
regard, subparagraph 7.3 should apply to all forms of discrimination and not
be limited to indirect discrimination.
7.4: … reasonable accommodation, defined as necessary and appropriate modification
and adjustments to guarantee to persons with disabilities the enjoyment or
exercise on an equal footing of all human rights and fundamental freedoms,
unless such measures would impose a disproportionate burden.
The Commission agrees in principle with a balanced definition of “accommodation”,
though arguably, the definition of the term “reasonable” used in this draft
Article may not set a sufficiently high standard, particularly without any
test for undue hardship. Ontario’s Human Rights Code states that there is
a duty to accommodate the needs of persons with disabilities, short of undue
hardship. The Commission’s Disability Policy sets out the Commission’s interpretation
of this provision of the Code:
The duty to accommodate requires that the most appropriate accommodation be
determined and then be undertaken, short of undue hardship.
The most appropriate accommodation is one that most respects the dignity of the individual with a disability, meets individual needs, best promotes integration and full participation, and ensures confidentiality. … [I]t will result in equal opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges experienced by others or if it is proposed or adopted for the purpose of achieving equal opportunity…
The “appropriateness” of an accommodation is a determination that is distinct
and separate from whether it would then result in “undue hardship”. It should
be viewed as a process and as a matter of degree along a continuum, rather
than an all-or-nothing proposition. Undue hardship might be avoided by implementing
next best alternatives or providing accommodation at a later date or phasing
it in over time.
The Code prescribes three factors for determining whether undue hardship exists:
cost; outside sources of funding, if any; and health and safety requirements,
if any. Human rights jurisprudence in Canada has set a high threshold for
demonstrating undue hardship. The Supreme Court of Canada has said that, "one
must be wary of putting too low a value on accommodating the disabled. It
is all too easy to cite increased cost as a reason for refusing to accord
the disabled equal treatment".
Section 4 of the Commission’s Disability Policy sets out a number of considerations
for understanding and applying the undue hardship defence.
7.5: Special measures aimed at accelerating de facto equality of persons with
disabilities 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; those measures shall be discontinued when the
objectives of equality of opportunity and treatment have been achieved.
The Commission supports this provision, including the notion that measures
shall be discontinued when the objectives of equality of opportunity and treatment
have been achieved. Similarly, Ontario’s Human Rights Code sets out a provision
for “special programs”. The Commission’s Guidelines on Special Programs elaborate
on its understanding of this provision.
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Non-governmental organizations
AUSTRALIAN NGOs
Article 7
Intervention by (Australian) National Association of Community Legal Centres,
People with Disability Australia Incorporated, Australian Federation of Disability
Organisations
Mr Chairman:
Thank you for this opportunity to address the Ad Hoc Committee.
We have three points to make in relation to this article.
Firstly, we note the EU’s proposal that references to equality be removed
from article 7. In our view, substantive equality of people with disability
is critical to the realisation of human rights and must have a central position
in this convention. Equality is an ethical standard, which is given effect
through non-discrimination mechanisms. That being the case, we would support
the removal of references to equality from article 7 only on the basis that
equality is incorporated into article 4 as a general state obligation or that
a stand alone article is developed and expressed so as to apply to all other
articles of the convention.
Secondly, the current structure, clarity and scope of the article could be
significantly improved. In our view, the article ought to commence, as it
does, with a paragraph that provides a clear and comprehensive prohibition
of discrimination on the ground of disability. The next paragraph ought to
then set out a clear obligation on States to ensure that the participation
requirements of people with disability are reasonably accommodated. This paragraph
ought also to require states to compel reasonable accommodation by State and
non-State actors. The paragraph ought to clearly set out that failure to provide
reasonable accommodation amounts to discrimination on the ground of disability.
The next paragraph ought to set out exceptions to the prohibition of discrimination,
which in our view ought to be limited to an ‘ordre public’ (public order)
exception and an ‘active (special) measures’ exception. Both exceptions ought
to be very narrowly framed, so as to ensure that other human rights obligations
continue to apply, and that while the measure itself may be excepted, all
acts done in its administration and implementation remain subject to the prohibition
on discrimination. Both ought also to be expressed as subject to the principle
of the ‘least restrictive alternative,’ and acceptance of an active measure
by a person with disability must be voluntary. The next paragraphs should
then define the key concepts on which the article turns – discrimination –
both direct and indirect; reasonable accommodation; and active (special) measures.
Thirdly, the current text of article 7 does not include a definition of indirect
or systemic discrimination. In our view, the term systemic discrimination
can be dispensed with, as systemic discrimination should be incorporated as
the major focus of the definition of indirect discrimination. We recommend
the inclusion of the definition of indirect discrimination as found in paragraph
2 of the Bangkok draft.
The definition of discrimination must include references to discrimination
on the basis of:
1. suspected, imputed, assumed or possible disability,
2. association with a person with disability (for example, paragraph 5 of
the Bangkok draft),
3. past disability or the effects of a past disability, and the characteristics
of a disability.
Thank you for the opportunity to address the Committee.
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BIZCHUT
Article 7
Suggestions for the content for a new article on Equality of opportunities.
The States Parties shall take the necessary measures to establish positive
and compensatory measures towards gaining equal access to opportunities for
persons with disabilities, such as the following:
• To promote accessible environments to facilitate access, participation and
freedom of movement;
• To endeavor their incorporation, continuance and participation in regular
educational activities at all levels;
• To promote at all levels of mandatory schooling, provision of special technical
help needed for each disability;
• To create permanent training programs for employment and promotion of labor
integration;
• To adequate facilities for recreation;
• To endeavor accessibility to public transportation;
• To promote that every public space or building and those that offer services
to the public, have the necessary physical adaptations and signs to facilitate
access, use and enough space for movement;
• To endeavor to have appropriate signs to facilitate free transit;
• To inform and advice construction professionals with regard to requirements
for facilitating access and use of buildings, and
• To promote that in all facilities of the national health and social security
systems, persons with disabilities regularly receive adequate treatment and
medication necessary for maintaining and furthering their functional capacity
and quality of life.
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EUROPEAN DISABILITY
FORUM
Article 7: Equality and non discrimination
The first discussion to be held is about the scope of the article. Equality
and non discrimination are interrelated concepts, but should not be put on
the same level.
For us, non discrimination is one of the means to achieve equality, but to
achieve equality needs to be complemented with other measures.
Therefore, this article, should include all those measures that contribute
to the equality of persons with disabilities.
Reasonable accommodation
It is a key concept in any anti discrimination legislation.
Therefore, we insist that the failure to provide reasonable accommodation
should be considered as a form of discrimination.
General Comment 5 to the ICESCR supports this view. It defines disability
based discrimination as:
For the purposes of the Covenant, "disability-based discrimination"
may be defined as including any distinction, exclusion, restriction or preference,
or denial of reasonable accommodation based on disability which has the effect
of nullifying or impairing the recognition, enjoyment or exercise of economic,
social or cultural rights.
Reasonable accommodation is not a well known concept. Therefore, it is very
important to include a definition of this concept in the Convention. The footnote
to the draft text includes many of the key elements that such a definition
should include: it should not be imposed against the will of the disabled
person, it is individualized, it has to be effective, that is, it has to ensure
the full participation of the disabled person in employment, education, access
to goods and services.
In the context of a human rights convention, it is hard to see that an obligation
which will ensure the full enjoyment of human rights can be qualified by the
concept of undue hardship or disproportionate burden. However, if this concept
is to be included, it should take into account the size of the entity, the
type of entity (public, private), the available financial subsidies which
would compensate the cost and the implications of the accommodation on the
entity. The objective has to be to limit to the maximum extent possible the
exception to the rule of providing a reasonable accommodation.
Are there situations where discrimination can be justified?
The EU proposal limits these exceptions only to indirect discrimination, but
the working group draft, which does not distinguish between indirect and direct
discrimination, includes paragraph 3 which provides for exceptions to all
forms of discrimination.
We consider this not acceptable and propose therefore that paragraph 3 should
be deleted.
Should we distinguish between indirect and direct discrimination?
Being familiar with the distinction made in the EU between direct and indirect
discrimination, the EU proposal is quite good.
The main problem we see is that it will be difficult to apply this definition
in a Convention and understand that many countries will not want to make this
distinction.
From that point of view, the working group proposal which refers to both concepts
(as well as systemic), without attempting to define them, seems to be a good
compromise.
Reversal of the burden of proof
A key concept in EU anti discrimination legislation is the concept of the
reversal of the burden of proof.
This means, that when a disabled person can provide prima facie evidence that
he/she has been discriminated, it will be on the public organization, employer
to prove that this has not been the case. This concept strengthens significantly
anti discrimination provisions.
Who should be covered by anti discrimination?
The most advanced national anti discrimination legislations protect not only
persons with disabilities, but also, persons who are perceived (by others)
as being disabled, persons who have had a disability in the past, persons
who are predisposed to have a disability in the future and persons who are
associated to a person with disability.
We think that the Convention should be in line with this.
Multiple discrimination. The definition resulting from the January
working group (second sentence of paragraph 1) was not very clear. We should
propose a better definition, but definitely maintain this protection against
multiple discrimination.
Finally, the issue of special measures.
While temporarily limited positive action measures are a key concept in the
context of gender and race, it is not a concept which is very much used in
the context of disability. One of the few examples would be employment quotas.
However, there are many measures, included in the present draft text, which
are key to ensure the full inclusion of disabled people. Examples could be
assistive technologies (wheel chairs), respite care centers, crisis hostels.
These are not measures that are temporary. These measures are required in
a permanent way and are crucial to achieve the equality of persons with disabilities.
So, either we remove the reference to the temporary nature of these measures
in the current paragraph or we include a new paragraph with these measures.
In any case, it should be made clear that these measures should not be imposed
against the will of the disabled person.
EDF Position paper:
Draft Article 7 Equality and non-discrimination
EDF suggests to include a specific reference to effective equality in this
article, which is to be obtained through a combination of non-discrimination
and positive action measures.
EDF welcomes that the article clearly states that disabled people should be
protected from all forms of discrimination and welcomes a specific reference
to direct, indirect and systemic discrimination. The recognition of the reversal
of the burden of proof acknowledged in recent EU legislation should be included
in this article.
EDF supports the inclusion of the provision stating that the failure to provide
a reasonable accommodation is to be considered as discrimination, as also
reflected in General Comment 5 of the ICESCR. If a reference to disproportionate
burden is to be maintained, this needs to be qualified taking into account
different elements like: the size of the organisation, the existence or not
of financial incentives to compensate partly or totally these costs.
The exception clause included in paragraph 3 causes great concern to EDF.
It should be deleted.
EDF strongly supports the idea reflected in paragraph 5. The Madrid Declaration
adopted in 2002 clearly referred to the fact that a combination of non discrimination
and positive action measures are needed to obtain the final objective of full
participation of disabled people. We suggest to replace the word “special
measures” by “positive action measures”. It should be stated that these measures
should not be imposed against the will of the disabled person.
The article should also include a specific reference to multiple discrimination.
The reference to the other forms of discrimination in paragraph 1 attempts
to do this, but is not clear enough.
The Convention should also protect persons who are perceived (by others) to
have a disability and who have had a disability in the past.
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INDIAN NGO CONSULTATIVE
MEETING
Draft Article 7
14. As regard article 7 para 3, additional text is suggested to tightly guard
abuse of the provision. The modified text for para-3 should read “Discrimination
does not include a provision, criterion or practice that is objectively and
demonstrably justified by the State Party by a legitimate aim and the means
of achieving that aim are reasonable, necessary and are consistent
with international human rights laws.”
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INTERNATIONAL SAVE THE CHILDREN ALLIANCE
Draft Article 7 – equality and non-discrimination
The text includes ‘age’ as a ground for non-discrimination. However we wish
to ensure a full coverage of the concept of discrimination as currently described
in the text.
Suggested changes
We are concerned that the text will allow misunderstanding and inappropriate
use. If any distinction needs to be made, this needs to be on the basis of
required skills instead of perceived disability. We therefore recommend to
remove article:
3 ‘Discrimination does not include a provision, criterion or practice that
is objectively and demonstrably justified by the State Party by a legitimate
aim and the means of achieving that aim are reasonable and necessary’
We recognise the need for preparatory or supportive measures in order to,
and as long as this is necessary for children and adults with disabilities
to address equal rights and to enable full participation. However we wish
to emphasise that any such measures need to promote inclusion and prevent
segregation of disabled children and adults as such. We therefore recommend
a revision of article:
5 ‘Special measures aimed at accelerating de facto equality of persons with
disabilities 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; those measures shall be discontinued when the
objectcives of equality of opportunity and treatment have been achieved’
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JAPAN DISABILITY FORUM
<Draft Article 7> Equality and non-discrimination
* 7-2 (b): Please refer to the above Comment 2 on Article 3.
JDF’s proposed Amendment
Addition of ( c ) to 7-2:
Noting General Comment 5 on the International Covenant on Economic, Social
and Cultural Rights (ICESCR) made in 1993, it should be clearly stipulated
that “a denial of ‘reasonable accommodation’ constitutes discrimination on
the ground of disability.” (See the comment on draft Article 3 “Discrimination
on the ground of disability”)
<General Comment 5 (para. 15) on the ICESCR>
"… disability-based discrimination" may be defined as including
any distinction, exclusion, restriction or preference, or denial of reasonable
accommodation based on disability which has the effect of nullifying or impairing
the recognition, enjoyment or exercise of economic, social or cultural rights….”
Original Text of the Draft
3 Discrimination does not include a provision, criterion or practice that
is objectively and demonstrably justified by the State Party by a legitimate
aim and the means of achieving that aim are reasonable and necessary.
JDF’s proposed Amendment
Delete Article 7-3
Reason
In draft Article 7-3, reasons for justification of discrimination are specified
in general terms. It is feared that this provision may water down the Convention
itself that aims at prohibiting discrimination against and guaranteeing rights
of persons with disabilities. With our judgment that absence of this provision
does not cause any harm, we suggest not to include it in the Convention.
Original Text of the Draft
4 In order to secure the right to equality for persons with disabilities,
States Parties undertake to take all appropriate steps, including by legislation,
to provide reasonable accommodation, defined as necessary and appropriate
modification and adjustments to guarantee to persons with disabilities the
enjoyment or exercise on an equal footing of all human rights and fundamental
freedoms, unless such measures would impose a disproportionate burden.
JDF’s proposed Amendment
the 6th line should read: “provided that when such measures would impose a
disproportionate burden, a provider of such measures shall demonstrate
that it cannot bear the disproportionate burden, to persons with disabilities
as well as to a third party that is responsible for examining its disproportionateness.”
Reason
While draft Article 7-4 stipulates, “to take all appropriate steps, including
by legislation, to provide reasonable accommodation…” it also stipulates,
“unless such measures would impose a disproportionate burden.” It is feared
that it may lead to approval of disadvantageous consequences against persons
with disabilities or discriminations, as they are. In case that concerned
parties cannot appropriately cope with “disproportionate burden,” they are
accountable for demonstrating the disproportionateness of such measures. Also,
the lack of provision of reasonable accommodations, including the lack of
proof of disproportionate burden, should be defined as discrimination.
Original Text of the Draft
5 Special measures aimed at accelerating de facto equality of persons with
disabilities 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; those measures shall be discontinued when the
objectives of equality of opportunity and treatment have been achieved.29
JDF’s Comment to this part
As stated in Footnote 29, it should be “limited in time”.
Reference: Draft text Footnote 29
The Ad Hoc Committee may wish to discuss whether special measures in the
disability context should be limited in time or more permanent.
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LANDMINES SURVIVORS NETWORK
DRAFT ARTICLE 7 COMMENTS
Equality and non-discrimination are not only core principles of this convention,
they are fundamental principles relating to the protection of human rights.
Given the need for the convention to clearly articulate these rights and avoid
ambiguity, it may be more appropriate to elaborate them in separate articles,
as has been done in other contexts. (Cf. International Covenant on Civil and
Political Rights, Articles 2 & 26; Convention on the Elimination of All
Forms of Discrimination Against Women, Articles 1, 2 & 15)
The articulation of what constitutes discrimination, provided in Draft Article
7(2)(a), is consistent with formulations in other treaties. (Cf. Convention
on the Elimination of All Forms of Racial Discrimination, Article 1(1); and
Convention on the Elimination of All Forms of Discrimination Against Women,
Article 1) In describing prohibited forms of discrimination in Draft Article
7(2)(a), it may be helpful to expand the concept of “actual or perceived disability”
to include, for example, “a suspected, imputed, assumed or possible future
disability, perceived disability, a past disability or the effects of a past
disability, or the characteristics of a disability.” (Cf. Bangkok Draft, Article
1 definition of discrimination) With regard to Footnote 24 and whether “indirect”
discrimination should be specifically referenced, it is worth nothing that
the concept of indirect discrimination is expressly referenced in some domestic
anti-discrimination legislation. (Cf. Australian Disability Discrimination
Act, 1992, Part 1 (6); Canadian Human Rights Act, Part 1(7); and Irish Employment
Equality Act, Part IV, S.31)
Footnote 26 references the provision in Draft Article 7(3), and notes that
such a provision has never before been included in a core international human
rights convention. In its General Comment on Article 26 of the ICCPR, the
Human Rights Committee stated that it “not every differentiation of treatment
will constitute discrimination, if the criteria for such differentiation are
reasonable and objective and if the aim is to achieve a purpose which is legitimate
under the Covenant.” (Cf. Human Rights Committee, General Comment No. 23 (Article
26), 1989, para. 13) Although similar, the standard articulated by the Human
Rights Committee differs from that included in Draft Article 7(3), because
the Committee included the proviso that the differentiation must aim to achieve
a purpose “legitimate under the Covenant.” There is no such restrictive language
in Draft Article 7(3) and thus it is unclear what standard would be used to
determine whether the State’s discrimination fulfilled a legitimate aim. The
inclusion of such a standard is of critical importance, as is the qualifier
that the means of achieving the aim are reasonable, necessary, and consistent
with international human rights law. Both requirements could be addressed
with language such as, “ … by a legitimate aim consistent with international
human rights law and the means of achieving that aim are reasonable and necessary
and consistent with international human rights law.” One example of a permissible
provision by a State Party in this regard might be the use of qualifications
tests, e.g. to drive a car. (For an example of this in domestic legislation,
Cf. Mexican Federal Act for the Prevention and Elimination of Discrimination,
Article 5(II).)
Draft Article 7(4) addresses the provision of “reasonable accommodation,”
and the understanding of that concept as expressed by members of the Working
Group is accurately set forth in Footnote 27. In determining whether to specify
that a denial of reasonable accommodation constitutes discrimination, the
Ad Hoc Committee may wish to consider the conclusion of the Committee on Economic,
Social and Cultural Rights that “For the purposes of the Covenant, ‘disability-based
discrimination’ may be defined as including any distinction, exclusion, restriction
or preference, or denial of reasonable accommodation based on disability which
has the effect of nullifying or impairing the recognition, enjoyment or exercise
of economic, social or cultural rights.” (Cf. Committee on Economic, Social
and Cultural Rights, General Comment 5, “Persons with Disabilities”)
Draft Article 7(5) addresses “special measures,” the use of which is widely
supported as a means to “diminish or eliminate conditions which cause or help
to perpetuate discrimination.” (Cf. Human Rights Committee, General Comment
No. 23 (Article 26), 1989, para. 10) As highlighted in Footnote 28, the Ad
Hoc Committee may wish to consider the use of an alternative term, because
in the disability context, “special” has sometimes had a derogatory meaning.
An alternative term could be “positive action.” (Cf. “Prevention of Discrimination:
The concept and practice of affirmative action,” Final report submitted by
Mr. Marc Bossuyt, Special Rapporteur, in accordance with Sub-Commission resolution
1998/5, E/CN.4/Sub.2/2002/21, para. 5) On the issue of whether the treaty
should specify that such measures be limited in time (Footnote 29), it should
be noted that in the opinion of the Human Rights Committee, “as long as such
action is needed to correct discrimination in fact, it is a case of legitimate
differentiation under the Covenant,” which implies that temporal restrictions
need not be placed on the use of positive measures if the conditions warrant
the continued use of such measures. (Cf. (Cf. Human Rights Committee, General
Comment No. 23 (Article 26), 1989, para. 10)
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PHYSICAL DISABILITY COUNCIL
OF AUSTRALIA
Equality & Non-Discrimination: Draft Article 7
The second part of Section 1 of this Draft Article currently reads:
“States Parties shall also prohibit any discrimination and guarantee to
all persons with disabilities equal and effective protection against discrimination
on any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth, source or type
of disability, age or any other status.”
PDCA fully supports this statement as it will allow people from different
cultural backgrounds with disability full protection under this Convention.
Current domestic legislation (i.e. Disability Discrimination Act and the Racial
Discrimination Act) has difficulty coping with the intersection between ethnicity
and disability. We support the statement that ethnicity and disability are
interdependent and one can not be valued over the other.
However, the draft text will in fact allow for more complete protection of
the rights of people from non English speaking background with disability.
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WORLD BLIND UNION
EQUALITY AND NON-DISCRIMINATION
Article 7:
In the “shopping list” are indigenous people not included.
Both direct and indirect discrimination should be targeted.
Interesting to discuss the issue whether discrimination should apply to PWD’s
and their opinions and experiences of discrimination or the society’s perception.
Para 3, of this Article should be deleted.
Reasonable accommodation is important and could be defined under Article 3,
Definitions.
This convention should not limit the definition of reasonable accommodation
as it is extremely important for PWD.
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WORLD NETWORK OF USERS AND SURVIVORS OF PSYCHIATRY
From Draft Article 7, Equality and Non-discrimination:
3. Discrimination does not include a provision, criterion or practice that
is objectively and demonstrably justified by the State Party by a legitimate
aim and the means of achieving that aim are reasonable and necessary.
This paragraph comes after a paragraph defining discrimination in the standard
way adopted by the Human Rights Committee.
The provision could be interpreted as meaning that deprivation of human rights
and fundamental freedoms of people with disabilities will not be recognized
as discrimination if a State Party can justify it by a legitimate aim achieved
by reasonable and necessary means.
Those of us preparing this Convention know that perpetrators of discrimination
have often attempted to justify deprivation of our most precious rights (such
as life, liberty, mental and bodily integrity, right to vote) by devaluing
the existence and humanity of people with disabilities compared with non-disabled
people.
To give governments a loophole like the one presented in the draft text is
simply unacceptable since it will push us backwards from rights and interpretations
of rights that we already have.
Draft Article 7
3. [DELETE: Discrimination does not include a provision,
criterion or practice that is objectively and demonstrably justified by the
State Party by a legitimate aim and the means of achieving that aim are reasonable
and necessary.]
4. In order to secure the right to equality for persons with disabilities,
states parties undertake to take all appropriate steps, including by legislation,
to provide reasonable accommodation, defined as necessary and appropriate
modification and adjustments to guarantee to persons with disabilities the
enjoyment or exercise on an equal footing of all human rights and fundamental
freedoms [DELETE: , unless such measures would impose a disproportionate
burden].
WNUSP COMMENT:
Paragraph 3 should be deleted, as argued elsewhere in more detail. Briefly,
the commentary in footnote 26 is inaccurate when it states that General Comment
18 of the Human Rights Committee has included this identical language. The
Human Rights Committee stated that not all “differential treatment” will constitute
discrimination, if its purpose is legitimate under the ICCPR, and if “the
criteria for such differentiation are reasonable and objective.” This is very
different from defining discrimination as deprivation of human rights or fundamental
freedoms based on disability, and then creating an exception that would allow
some instances of such deprivation to continue.
Paragraph 4 should be amended to delete the phrase “unless such measures would
impose a disproportionate burden,” for a similar reason. In national legislation,
reasonable accommodation may be defined in ways that make it less onerous
to balance the needs of people with disabilities with economic cost of our
accommodations. However, if reasonable accommodation is defined as that which
is necessary to ensure our enjoyment of human rights and fundamental freedoms
on an equal footing with others, such language is inappropriate and represents
a retreat from the standard articulated in ICCPR article 2(1) and ICESCR article
2(2), which guarantee the equal exercise of civil, political, economic, social
and cultural rights without discrimination of any kind.
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