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Daily Summary related to Draft Article 7 -
EQUALITY AND
NON-DISCRIMINATION
Prepared by Landmine Survivors Network
Volume 3, #1
January 5, 2004
Afternoon Session
Commenced: 3:08 PM
Adjourned: 6:08 PM
GUARANTEE OF EQUALITY AND NONDISCRIMINATION
Ireland pointed out that its elements paper, which was handed out at
the last Ad-Hoc Committee meeting, highlights the need for a definition
of direct and indirect discrimination, which is referred to on page 61
of compilation text in Article 3 of the EU Proposal and based on the EU
Directive on Equality in Employment.
The World Network of Users and Survivors of Psychiatry called for attention
to how direct and indirect discrimination are distinguished from each
other and questioned the need to separate them from each other. She pointed
out the problem in Chair and Bangkok drafts because these texts allow
for the possibility of indirect forms of discrimination if the aim is
justified and creates a loophole for allowing discrimination. This concern
of pretextual language is of particular concern to those with mental or
psychiatric disabilities.
The Coordinator asks for further comment on this issue and pointed out
the language is quite narrow on page 32, paragraph 21 of the compilation
text. He asked the previous speaker to identify the problem in the Bangkok
draft (page 8, Article 2 of that draft).
The World Blind Union indicated the need to be clear on what is meant
by indirect discrimination. She highlighted this WG, and the need to use
documents not previously seen and two headsets as indirect discrimination
against those with visual disabilities.
In response, the Coordinator points out that unless members can reach
agreement on one text, they were condemned to be proceeding in this wat
and that he suspected everyone was being discriminated against, though
some more than others.
The World federation of the Deaf indicated that in some HR conventions,
they say that non-discrimination is forbidden and that in the compilation
text, there is no mention of discrimination of PWD on basis of language,
which is a form of direct discrimination. This was highlighted in the
Bangkok draft and called for language discrimination to be forbidden in
the text, or all deaf people would be discriminated against.
Ireland pointed out that their proposal recognized indirect and direct
discrimination and said that indirect discrimination would be forbidden
unless there was a valid reason to justify its use, which would only be
a limited exception. It pointed out that all the proposals eliminate all
forms of discrimination.
World Federation of the Deaf and Blind agreed with the previous statement
on language discrimination and asks if it would be possible for those
making interventions to read part of document when referring to a specific
article, as this would make the working method easier.
The World Network of Users and Survivors of Psychiatry referred back
to their previous statements and said she was referring to specific proposals,
not general comments in the draft compilation (which were put on the screen
in the meeting room). It surmised that Article 2 in the discrimination
section of the Bangkok draft and recommendations was “worse than the EU
proposal” with regard to indirect discrimination. It asked for clarification
on CEDAW and CERD and if they were understood to include indirect discrimination.
The Coordinator said he had difficulty in following the objective of
the previous statement and said that he thought Bangkok Draft was “preventing
that” (indirect discrimination). He then indicated that a discussion on
this issue might best take place “in corridors with delegates” on an “informal
basis” to resolve the issue.
Thailand said that when dealing with discrimination, the members need
to come up with the terms regarding positive or special measures. We need
to find clear way of expressing this or there will be a long debate on
whether the word choice should be considered neutral and/or negative.
He said as a non-English speaker, “discrimination” seemed to be a negative
word and highlighted the need to clarify whether it is meant to mean/be
neutral or negative.
The Coordinator said that if there is no provision for positive discrimination
or affirmative action, it can seem to be discrimination in other contexts.
Canada asked for clarification of indirect and direct discrimination
and caution against dividing the two, with a caveat only applying to that
which is indirect. It indicated also that Article 3 of the Bangkok texts
was a “high hurdle to overcome for states” because it deals with attitudinal
issues, which are hard for states to guarantee and highlighted the need
for flexibility for states in due to budgets which might call for prioritization
of needs. He agreed with the general conception of this part.
Sierra Leone referred to the EU draft and asked that drafters make as
simple as possible for PWD and everyone to understand “what we are trying
to do.” He referred to China’s discrimination definition on page 60 and
called it an option for discrimination definition. He emphasized the need
to make the definition general and to use “specific measures to imply
what is meant.”
China explained definition for discrimination in their text on page 35
(not page 60, as referred to by the previous speaker). They called for
the definition to be concise because if it is too long, it could lead
to different perspectives. They called the Bangkok draft definition too
long, “as if it is a textbook.” They proposed to merge the definition
found in the EU and Bangkok drafts with the one found in the China, Mexico,
and Venezuela drafts.
Disability Australia Limited surmised that the principle of discrimination
and non-discrimination has been emphasized by all stakeholders and recalled
that in the Ad-hoc Committee meeting in June 2003, the majority wanted
a holistic treaty, while a small majority wanted a non- discrimination
treaty, modeled on CEDAW and CERD. It called for a balance in preventive
and promotive aspects and the introduction of positive measures. They
cautioned that although a discussion of this principle of non-discrimination
could take more space in the convention than “some of us would like,”
this is a central issue.
Rehabilitation International opined that discrimination, in reality,
is rarely overt and direct, but is usually more indirect; this is addressed
in the EU text. He opined that there is no justification for direct discrimination
and asked for a different term for special measures in EU text, as well
as clarification on the issue of reasonable accommodation from the EU.
Sweden went back to a previous Canadian statement regarding activities
of the government and other actors in the Bangkok and Chair texts, in
that these ask governments to to take all kinds of measures, which should
not be seen as direct HR violations. It defended the EU ``draft on this
point and the expected differences in what can be expected of governments
in terms of policy, legislation, and reasonable accommodation in this
regard. It asked for more time on this issue as this is the part of the
Convention that the WG should spend the most time on.
Germany asked if Ireland could answer RI’s question first before they
intervened.
Ireland said that the question put forth by RI has been discussed at
length in the EU. It stated that reasonable accommodation is a means to
overcome discrimination; that is, it is a means to an end. This is important
in a legally binding instrument.
Germany said that the Convention should not undermine existing HR instruments,
and definitions in this treaty should not be less than those rights in
the Covenant on Economic, Social, and Cultural Rights. It opined that
the notion of reasonable accommodation is captured best in the EU draft.
Morocco said they would not go into detail regarding discrimination,
because they were interested in the broadest possible concept. They agreed
with Canada that the process to change attitudes is necessary although
lengthy, and must be started, given its importance.
Thailand agreed with the Bangkok draft (Article 9) which has a “positive
and productive attitude toward disability.” Changed attitudes, then, means
both positive measures as well as eliminating negativity. The delegate
noted that some target groups are not well addressed enough in the draft
texts, particularly PWD in urban slums minority tribes, and minority ethnic
groups, as well as those with profound and severe disabilities.
Volume 3, #2
January 6, 2004
Morning Session
Commenced: 10:15 am
Adjourned: 1 pm
GUARANTEE OF EQUALITY AND NONDISCRIMINATION (cont)
Discrimination and its various types were explored in depth, with a focus
on direct and indirect discrimination, as well as other forms of discrimination
variously described as covert / hidden and overt, intentional and unintentional,
passive and active, positive and negative. Members discussed whether and
how these differences should be articulated and their relationship to
each other. The Chair’s and EU drafts were primary points of reference.
India circulated its draft convention; the Secretariat circulated a paper
on General Principles that reflected the discussion from the previous
day. Page numbers refer to the Compilation.
India selectively supported adoption of Article 2 of the Chair’s draft,
Parts 1 and 2 (a), and the deletion of Part 4 because this could potentially
lead to much litigation in what should be a justiciable provision. It
recommended against separating discrimination between direct and indirect
forms. Canada noted that defining discrimination by its consequences may
be helpful, with the purpose of ensuring that those consequences don’t
come to fruition. The
WNUSP elaborated on its concerns in Article 2 (p 44) as raised in the
previous session that “discrimination on the ground of disability” is
different from language prohibiting discrimination “explicitly based on
disability”. Different and conflicting standards are being applied to
the same practice and the latter allows governments to justify a challenged
practice. NGOs may draft alternative language on this issue.
WFD “felt strongly” that there must be recognition of indirect discrimination,
as this was both “very common” and has the effect of excluding PWD from
society. It also expressed concerns that linguistic rights were not acknowledged
in the relevant parts of the Compilation.
RI was “heartened” to see that the BKK and India drafts, as with the
Chair’s draft (pg 44), provide that the failure to make reasonable accommodation
constitutes discrimination.
Japan asked for examples of indirect discrimination to which the Coordinator
responded with the case of stairs, which were meant to be used by everybody,
yet exclude people in wheelchairs. A sign that said “no access for people
in wheelchairs” on the other hand would constitute direct discrimination.
Another element of the difference between direct and indirect as reflected
in the EU draft (pg 61) is that the former is not permissible in any situation,
but the latter can be permissible where it is objectively justified by
a legitimate aim.
The WNUSP noted that in addition to the BKK draft there may be a problem
with the EU language as well in that it referred to “an apparently neutral
provision” but with no description on what that meant. A case could be
made that buildings without ramps are directly discriminatory because
“someone made the decision to construct it that way”. There is a need
therefore to define terms. The Coordinator further clarified that situations
of direct discrimination would be stated as such. On the other hand the
“apparently neutral provision” in Art 3 (b) refers to all people, not
just PWD, in situations where treating everyone equally results in fact
in PWD being indirectly discriminated against.
Korea noted that indirect discrimination, while common, is difficult
to quantify and measure, and suggested that developing a methodology would
be helpful.
WBU emphasized that both direct and indirect forms of discrimination
exist, the latter being situations where the guarantee of equality exists
but the practical denial of rights continues nonetheless. This was demonstrated
in the discrimination still experienced by women, including in industrial
countries, in the workplace. Precision in the text on this issue is important.
Sierra Leone questioned whether unintentional discrimination the same
as indirect discrimination as seemingly reflected in the DPI Japan draft
(p 40). One way to elaborate on this term could be in relation to measures
that states parties can take to eliminate such discrimination.
RI emphasized that if a distinction is to be made creating a category
of indirect discrimination then “we are in effect allowing for a certain
degree of permissible indirect discrimination, in which case it is exceptionally
important to tightly circumscribe the defense. This underlines “the importance
of drawing a clear link between a failure to implement reasonable accommodation
and discrimination whether direct or indirect. If there is a defense to
indirect discrimination whatever content that defense may have, it should
only become “live” after all efforts have been made to reasonably accommodate
the difference of disability.
Ireland explained the value of having the distinction explicitly stated
in EU draft. Direct discrimination is clearly unacceptable. It would be
quite possible to have a law that applied to everybody, was not specifically
designed to exclude PWD, but could certainly have that effect. The exclusion
of PWD is allowed in this language to pursue a “legitimate aim” such as
a driving test, which is justifiable. But in all cases the burden of proof
is always on the state, not on the individual concerned and the presumption
is that indirect discrimination is prohibited and it is up to the state
to justify it.
Canada cautioned that the distinction is creating confusion. Furthermore
States may be encouraged to push the entire discussion on discrimination
into the indirect realm and thereby not have the same obligations they
would in the direct realm. Finally, Canada believed strongly that the
qualifications should apply to discrimination generally, not just to indirect
discrimination, as they have encountered concrete examples where they
have needed to adjust their policies “due to unforeseen circumstances,”
for example “an overriding societal consideration, which may indeed turn
out to be detrimental to the PWD in question”. The test should be the
effect and impact of a law, policy or practice – has the disabled person
been denied a benefit or access they would otherwise enjoy? In this regard
the examples raised of direct and indirect discrimination are not as clear
cut – is denying blind people drivers licenses an example of direct discrimination?
Slovenia supports retention of the distinction given that this is based
on a broader definition of discrimination, thereby leading to a wider
understanding of this in relation to PWD. It also supports RI’s suggestion
that there be a strong linkage with reasonable accommodation.
The Inter American Institute on Disability (IAID) also supported the
distinction, and suggested using interpretation found in human rights
as a guide. “Active discrimination” is carried out with the agency of
the State, and “passive” discrimination is de facto, without any express
intent. When individuals are not allowed to hold public office, for example,
this is direct discrimination. However in societies shaped by perceptions
of individuals with disabilities, indirect discrimination is prevalent.
He disputed that steps are an example of indirect discrimination against
PWD – when laws mandate public buildings to be accessible, the failure
to implement constitutes direct discrimination. Indirect and passive forms
of discrimination exist in the social and cultural environment and this
needs to be changed by educating society at large, not by approaching
public officials.
Colombia noted that the New Zealand draft also refers to “hidden” discrimination,
and that, along with passive and active, seem to be yet another form of
discrimination. It is also possible that in the future other forms of
discrimination may develop. For this reason they support Canada’s proposal
that distinctions be avoided, and instead ensure a broad and open definition
of discrimination that could encompass all these forms.
World Federation of the Deaf (WFD) reiterated the prevalence of indirect
discrimination, eg, as well as direct. For example, fire alarms in drills.
Discrimination against deaf or disabled people include not being allowed
to hold office in parliament, vote, be eligible for insurance and others.
Inclusion International noted that an inability to communicate is one
of the reasons that PWD are discriminated against but full inclusion is
about making life’s choices.
Mexico highlighted the importance of specifying the elimination of both
forms of discrimination given the problem of hidden discrimination. They
fully supported the conceptual position of the delegate from the Inter
American Institute on Disability. The distinctions between negative and
positive discrimination including affirmative action should be clarified.
Mexico hoped that that the representative from the Office of the High
Commissioner for Human Rights could provide guidance on language here.
Thailand dissociated its position from discrimination when it has a positive
purpose focusing on how “indirect discrimination leaves room for people
to justify discrimination.” It urged that positive measures be approached
“in a different way” so as not to cause confusion with this category of
discrimination.
Lebanon recommended that unless there is a concrete definition of indirect
discrimination it should not be included in the Convention as it can create
confusion in the monitoring process. It recommends a WG proposal to “further
analysis of this issue be taken by all the parties in order to come up
with the precise indicators and measures to be discussed at the AHC.”
In reviewing examples of discrimination, they will help come to a more
concrete understanding of indirect discrimination. Finally Lebanon will
revisit the issue of positive discrimination later.
World Federation of the DeafBlind described how “we live in a society
that is not made for us.” He added that we may be confusing discrimination
with exclusion, which is a result of discrimination.
Disabled Peoples International (DPI) called for concrete parameters to
determine what constitutes indirect and direct discrimination. In some
cases there is no awareness that PWD are even being discriminated against;
in other cases discrimination is the result of good intentions for what
is perceived as a valid reason. For this reason this Convention must address
indirect discrimination.
Serbia – Montenegro called for the coverage of all aspects of discrimination
including indirect and direct discrimination. With regard to qualifications
in relation to indirect discrimination it noted that the basis for interpretation
must start with the principle of international law that states parties
implement the Convention “in good faith” so as to ensure that states do
not exploit this exception.
European Disability Forum (EDF) believes that both indirect and direct
discrimination will need to be covered. However defining indirect discrimination
will lead to the exceptions, which will in turn legitimize discrimination.
Therefore they support the view that there should be no distinction. The
EDF also supports the view that the failure to implement reasonable accommodation
constitutes discrimination.
South Africa cited an outcome of the African regional consultative conference
that for the full integration of persons with disabilities a clear distinction
providing for the elimination of all forms on discrimination was needed.
Some forms of discrimination are masked in cultural practices and put
forward as positive discrimination. Others are clear forms of discrimination,
like women with mental disabilities who are forcibly sterilized.
Mali warned of the problem of a text with too much detail. This might
in turn lead to reservations, like CEDAW. Therefore they support the Canadian
proposal allows for broad definition of all forms.
Rehabilitation International (RI) noted that intent is not the marker
of the distinction between direct or indirect discrimination. There are
many forms of indirect discrimination that can be both intentional and
non-intentional. An employer who consciously sets job requirements such
that PWD are screened out is practicing intentional indirect discrimination
(the “disparate treatment” branch of indirect discrimination). Or an employer
may unthinkingly choose a qualification that operates to screen off PWD
(the disparate impact branch of indirect discrimination, or passive discrimination).
The utility of indirect discrimination is that it enables one to challenge
such covert forms of discrimination whether intentional (active) or not
(passive). There are many examples of laws and policies that are supposed
to support the right to health but that are widely used as a pretext to
exclude PWD. A concept of indirect discrimination helps us to challenge
those. Medical testing is routinely used to screen out PWD – a form of
intentional indirect discrimination. A fine balance needs to be struck
between broadening our concept of discrimination to include indirect discrimination,
precisely to get at covert forms of discrimination. This would come at
a price of allowing a defense, no matter how circumscribed. RI believes,
tentatively at least, that this is a price worth paying so long as the
defense is tightly circumscribed, objective, with “no hint of subjectivity”,
provided that there is a link drawn between reasonable accommodation and
discrimination, and sufficient space can be carved out for positive action
measures.
Venezuela called for the establishment of nondiscrimination as a General
Principle. Because of the many different types of discrimination it was
impossible to establish a definition. Therefore they recommend that nondiscrimination
instead should be identified in broad and general terms without specifying
any particular forms. Discrimination is also a cultural issue. Venezuela
cited reference to Article 2 (b) on the principle of nondiscrimination.
It also noted that Article 1 of the Chair’s draft did not include elements
from the Chinese, Mexican, Venezuelan proposals as well as the Quito draft
and called on the Coordinator to bear in mind these proposals.
WNUSP stated that making the distinction between indirect discrimination
and direct discrimination including covert forms of indirect discrimination
“is not worth the price” of having a defense. “Purposeful and intentional
forms of covert discrimination should not be subject to any caveat” the
delegate emphasised.
China suggests that rather than further clarify terms such as covert,
direct, indirect, etc - which could make the issue further complicated
and perhaps lead to further discrimination – that there should be no distinction
The Coordinator noted that there was broad consensus for as broad a definition
of discrimination as possible. Some countries support a more detailed
description of discrimination. The differences in approaches that have
been identified will be encapsulated and presented to the AHC.
Volume 3, #4
January 8, 2004
Afternoon Session
Commenced: 3:12 PM
Adjourned: 6:02 PM
PROPOSED TEXT OF ARTICLE 5: “EQUALITY AND NON-DISCRIMINATION”
Andrew Begg of NZ Mission explained in the morning session that this
text aimed to capture the essence of the WG discussion that had taken
place earlier in the week, reflected in the footnotes and in the working
note underneath Article 5.2 (c), as well as incorporating the initial
thoughts of those participating in the informal consultation the night
before.
• Paragraph 1 is based on Article 6 of the Chair’s draft.
• Paragraphs 2 (a) and (b) are based on both Article 3 of the European
Union draft and on the definition from the Chair’s draft.
• Paragraph 2 (c) is taken from the Chair’s definition, however it was
not intended that this paragraph offer a definition of disability. The
caveat included in Article 5.2 (c) stipulates that what is said is only
intended to cover acts of discrimination and not to raise the issue of
defining disability. The WG will have to address at a later stage the
issue of defining disability as well as whether to even include a definition
in the convention.
• Paragraph 3 is based on the Chair’s definition and on Article 3 (b)
of European Union draft.
• Paragraph 4 comes from Article 5 (d) of the European Union text as well
as some elements from the Chair’s definition.
• Paragraph 5 is based on the Chair’s definition and Article 4 of the
European draft.
• Paragraph 6 comes from Article 8 of the Chair’s draft. In addition,
paragraph 1 is similar to Article 26 of ICCPR.
The Coordinator noted that many of these paragraphs draw from existing
treaties and jurisprudence. Paragraph 2 (a) is similar to Article 1.1
of CERD and Article 1 of CEDAW. Article 5.3, as the representative of
OHCHR has pointed out, comes from jurisprudence of the Human Rights Committee.
In addition, Paragraph.5 draws from Article 1.4 in CERD and Article 4
of CEDAW, while Paragraph 6 is similar to Article 5.1 of CEDAW.
Ireland noted that was, in general, a good text because it took into
account disparate views. He noted that he was committed to paragraph 1
as a principle, as it was based on Article 6 of the ICCPR, and asked members
to consider the precise location of it. He had no difficulty with 2(a)
because it drew on existing definitions and was close to the EU Draft
and said that the inclusion of the word “systemic” did not add to the
text in 2(b). It would be simpler and clearer to link 2(c) with 2(d) and
said that the word “perceived”, contained in 2(d), might be too ambiguous
for a legal document and offered that members might look at a clearer
word and consider the use of the word “assumed.” With regard to paragraph
3, although the idea was also part of the EU Draft, it was intended to
be an exception and not as a principle, as it appears to be in this text.
He said that there is no justification for direct discrimination and had
a strong preference to relate this paragraph to indirect discrimination.
He supported paragraph 4 and 5, but said that wording of paragraph 5 could
be altered (in reference to the word “special”) though it had a history
in human rights instruments. He added his delegation would work with Mexico
on paragraph 6.
Morocco asked for the source of the word “systemic” in 2(b) to better
understand its context. It supported the wording in paragraph 4/footnote
2. Andrew Begg explained the word came from debate amongst delegates and
not from a written source from the Coordinator. There was general agreement,
he said, that it was a good concept. Colombia proposed to include it as
a broad term, so as to cover all forms of discrimination.
India said that the inclusion of “direct, indirect, and systemic” in
2(b) was unnecessary because of the phrase “discrimination shall include
all forms of discrimination.” For the same reason, South Africa concurred
that it was not necessary to list some forms of discrimination.
Venezuela said discrimination should spoken of in broad and general terms
in 2(b) and called for the inclusion of “all forms of” to the end of the
last sentence of paragraph 1.
Sierra Leone proposed the deletion of 2(b) and the addition of “all forms
of discrimination” to the end of the last sentence of paragraph 1.
Ireland said there was a significant advantage in including indirect
and direct discrimination in 2(b) and that the explicit inclusion of indirect,
in a human rights text, would be a step forward in understanding what
is meant the term. He noted that in many ways, indirect discrimination
was more likely to occur than direct discrimination and that although
“all forms” would also refer to indirect discrimination, the deletion
of the term could make it easier for it to be “swept under the carpet.”
The Coordinator said that this issue (2b) was not likely to be resolved
in the WG and proposed the inclusion of a footnote that stated the two
views/options on this issue so it could be considered further by the AHC.
He noted that small groups could consider it next week if there was time,
and asked the next speakers not to come back to the issue.
Sierra Leone supported a footnote on 2(b) and called for a footnote on
the meaning of “perceived” in 2(c) and the legal implications of this
concept for the AHC to consider.
Thailand asked for further elaboration on paragraph 3 as to who would
give the justification for discrimination and asked if this would make
it justifiable for states or state agencies to conduct any act.
Rehabilitation International (RI) recalled the consensus on the purpose
of the Convention, that the non-discrimination idea while critically important,
did not alone exhaust all the “action orientations needed” to fulfill
this purpose. Paragraph 1 “neatly encapsulates” both the “instrumental
and ontological” purposes of this idea – as a means to secure the higher
end of full and equal enjoyment of all human rights and as an end and
right in and of itself. The nondiscrimination concept needs to get at
both the ugly forms of discrimination as well as the more insidious, “smiling”
forms of discrimination. With regard to Paragraphs 2(a) and 2(b), they
can peacefully coexist. 2 (a) brings us closer to existing human rights
doctrine and holds greater potential for cross-fertilisation between this
convention and existing ones. The inclusion of the word “systemic” in
2 (b) was a novel extension of the discrimination idea and made this provision
“alive in the context of disability.” 2 (c) reflected the philosophy of
the Canadian delegation to “avert our gaze from the taxonomy of discrimination
and look to the phenomenon of discrimination”. The discrimination concept
needs to be cast quite broadly to cover persons who both have a record
of a disability as well as those who are “attitudinally disabled” - those
who have disability imputed to them by the attitudes of others. Article
1, paragraph 2(a) of the Inter-American Convention on Disability has useful
language in this regard. With regard Paragraph 3, he questioned whether
“its proponents are comfortable that this ratchets up the rights by circumscribing
the let-outs?” He added that there is a need for a general article somewhere
in the Convention that it in no way detracts from existing human rights
standards and that the mention of some rights and not others is without
prejudice for the general application of all human rights for PWD. His
concerns with Para 4 was based on the fact that reasonable accommodation
is generally interpreted “not as a species of positive action, but as
a direct corollary of the discrimination idea”. He cited US and other
laws in this regard, reminded delegates of the need to make existing rights
effective and avoid creating new rights, and highlighted the opportunity
“to draw out a much clearer link between discrimination and the obligation
to reasonably accommodate”. This is “what adds value”, and provides “the
most valuable tailoring” to the discrimination idea in the disability
field. The fact that this Paragraph leaves this link to the imagination
is a problem. In addition, this paragraph’s language on “the right to
non-discrimination” needs to be redrafted. Finally, he called for more
clarity on the term “disproportionate burden” given that sufficient scope
for “the balancing act” of States’ many pressing allocational priorities
can be found within the concept of reasonable accommodation itself, since
by definition the accommodation has to be reasonable. The concept of progressive
achievement also would kick in to allow for enough leeway to balance state
priorities in situations related to financing. If “disproportionate burden”
is retained then clarity is needed on whether and how it applies to public
authorities and private entities and their relationship to each other.
He suggested that useful language for paragraph 6 could be found in the
Malaga Declaration adopted by the Council of Europe.
The World Network of Users and Survivors of Psychiatry (WNUSP) agreed
with RI’s positions. She emphasised reasonable accommodation must be individualized
and not forced, as one person’s accommodation could be undesirable for
another, so there should be some reference to the idea that reasonable
accommodation could not be imposed on PWD who did not want it. WNUSP also
suggested mentioning that reasonable accommodation is a social measure
and not a measure to change an individual. Since Paragraph 3 lacks precedent
in existing human rights instruments it could create a perception that
it was more permissive to discriminate on the basis of disability, than,
for example, gender, or race. On the issue of indirect and direct discrimination,
she noted that all examples of indirect discrimination could also be understood
as discrimination of effect, and added that if they were introduce a new
concept, it needs to be further defined.
Canada said that paragraph 3 was important and recalled the issue of
balance between the safety of the collective and individual in this regard.
He said, for example, in Canada, blind people are not issued driver’s
licenses. These were not issued for reasons of public safety, but could
be considered individual discrimination. He did not support the separation
of indirect and direct discrimination in 2(b) given how difficult it was
to separate the two; given that they would not support a qualification
that only applied to one.
Coordinator recalled that footnote 1 referred to paragraph 3 said that
this was an issue for the AHC to discuss in detail/in-depth.
European Disability Fund (EDF) concurred with Ireland on the issue of
indirect and direct discrimination and proposed that “special” be deleted
from paragraph 5. He noted that paragraph 4, on reasonable accommodation,
should be written as a positive action measure for states and recalled
that failure to provide reasonable accommodation was discrimination.
Mexico noted that it would provide a suggestion for paragraph 6 shortly
and expressed the view that the text should also reference the discrimination
faced by doubly vulnerable groups (those who are multiply discriminated
against on the basis/grounds of disability, race, and/or poverty). It
also enquired it the article could also include elements on equal opportunity
and equality, as a discussion of these issues would be well placed in
this article, or another one. It noted, as it had previously, that it
would like to see some balance in reference to non-discrimination and
promotion of the rights and equality of PWD.
China said that the principles of non-discrimination should both be embodied
in the text and that this article should be coordinated with text on general
principles and definitions to avoid duplication and noted the inclusion
of a definition in paragraph 2, which might also be stated in another
article. It noted that the concept of equality was only touched upon in
paragraph 2 and reminded members that a Convention only focused on non-discrimination
would be too passive and negative and that it needed to be able to enable
implementation of rights. He called for the addition of “with disability”
after the word “persons” in the first line of paragraph 1 and of “against
PWD” after the first word in the first sentence of 2(a). China noted that
2(a) used wording found in CEDAW and reiterated that non-discrimination
was not a right, as stated in paragraph 4, but a principle. He called
this a wording issue that had to be addressed.
Germany cautioned against the suggestion that “with disabilities” be
included in “all persons are equal before the law” in Paragraph 1 because
it could lead to difficult legal questions. She emphasized that language
was extremely important in relation to discrimination and for this reason
its unprecedented use in the justification clause, Paragraph 3, should
be either closely linked to indirect discrimination or be left out. She
noted that 2(c) should be moved to 2(b), as Ireland had stated previously,
to ensure that the text not be about defining disability but about putting
PWD on equal footing with those who are protected by CEDAW or CERD. It
is about outlawing these basic acts. It concurred that “assumed” or “perceived”
could be used in 2(c) and agreed with RI that the denial of reasonable
accommodation should be referenced as discrimination. She noted this concept
has explanatory power in recent studies and national legislation, and
should be understood also in relation to the economic and social rights
covenant.
Japan was not familiar with the term reasonable accommodation given that
no other human rights conventions used it. It asked for clarification
on who would measure what is reasonable, adequate, or who would be obligated
to provide this, as this was an interpretation issue. Paragraph 5 was
too one-sided and recalled the Japanese quota system for employment for
PWD, and noted that some special measures should continue even after their
objective had been met.
Colombia, like Mexico, asked delegates to bear in mind the question of
equal opportunity as it relates to non-discrimination and noted that equal
opportunity and equality were separate issues and should be separated
into different paragraphs. She noted that in Spanish, it was easy to draw
a distinction between equal opportunity and equality. The Coordinator
responded that this distinction could also be drawn in English and asked
members to think about whether equal opportunity should be addressed in
this article or in another, as this idea had only been generally fleshed
out thus far.
Disability Australia Limited (DAL) endorsed the view that failure to
provide reasonable accommodation was discrimination. It had reservations
on the term “disproportionate burden” in paragraph 4 as it was an unclear
concept and was dangerous in that it imposed a higher cost on states (increased
number of appeals for exemption). She noted that the clause only covered
the private sector and proposed that this be eliminated so as to give
states more flexibility. She said that reference to “systemic” in 2(b)
should be retained because it was justifiable and needed to be addressed
by active implementation of the provision.
World Federation of the Deaf (WFD) said that there could be different
views on what is meant by reasonable accommodation in paragraph 4 and
members had a responsibility to define the concept at some level. It opined
that it meant providing a barrier-free society and agreed with RI that
reasonable accommodation should be strongly linked to the notion of non-discrimination.
It called for financial measures and state budgets be addressed with regard
to reasonable accommodation because this was only one part of state budgets
and “no state would go into bankruptcy” for it and noted that the whole
society, as well as the individual with a disability would benefit from
reasonable accommodation as it allowed the individual to be a productive
asset to society and also protected his/her individual human rights. In
this regard, it would ‘cost money” not to provide for reasonable accommodations.
The Coordinator noted that many delegates wanted the text on reasonable
accommodation to be either better defined or more refined and said the
issue should be considered further. He proposed that interested delegations
get together on an informal basis to further refine the concept/provision.
He asked Gerald Quinn of RI, who had expertise on this matter, to convene
this small group meeting. Ireland intervened that Quinn’s views were well
known and that although it did not share his views, it would be happy
to meet with him. He questioned whether, given the plethora of small meetings,
if it would be possible to devote an hour of the regular meetings to informal
discussions. The Coordinator said it was a good idea and that implementation
of that proposal of procedure would depend on the progress made. Lebanon
proposed that members come back to reasonable accommodation in the 12th
session on definitions because the Bangkok Draft discussed the concept
in its section on definitions. The Coordinator called this another good
proposal and proposed that the issue be dealt with in the provision on
definitions. Canada intervened that their small group was almost done
with their discussion, and proposed that Quinn’s group meet at the 9 am
slot they are currently using, on Monday. The Coordinator proposed that
the group follow Canada’s proposal and if that was not possible, Lebanon’s
proposal would be used.
South African Human Rights Commission called paragraph 6 too restrictive
and called for a broader formulation because the text limited the number
of fields that could adopt appropriate measures to combat stereotypes
and prejudices. The Coordinator replied that it should consult with Mexico
and Ireland on this issue.
Landmine Survivors Network (LSN) asked when the group would discuss vulnerable
groups, an issue that Mexico had raised previously. The Coordinator said
this point could be covered by way of footnote and said it went back to
the question of including the issue of equality, not just non-discrimination,
in this text.
India supported Canada’s view on paragraph 3 and said that the inclusion
of “disproportionate burden” in paragraph 4 was relevant to developing
countries. It called the phrase after the semi-colon in paragraph 5, unnecessary
and the inclusion of the word “teaching” redundant in paragraph 6. It
wanted “educating the community” to be deleted from paragraph 6. The Coordinator
replied that it should discuss paragraph 6 with Ireland and Mexico.
Disabled People International (DPI) supported RI’s input on reasonable
accommodation.
The Republic of Korea (ROK) called accommodation a traditional way of
thinking and challenged the members to modify the terminology to “reasonable
adaptation” as a new idea for the future.
Slovenia expressed concern that paragraph 3 gave too many justifications
for discrimination and agreed with Germany that it should either be deleted
or linked specifically to indirect discrimination.
Venezuela asked for clarification on what is meant by reasonable accommodation.
The Coordinator said it should be read in relation to the second part
of the paragraph 4; it basically meant what one had to do to ensure that
particular result provided it is reasonable. He said he hoped it would
be clarified in the small group meeting that Gerald Quinn would convene.
Thailand recalled a GA resolution on reasonable accommodation and proposed
that it be used in relation to accessibility and universal design to make
it less difficult. He reminded members some people preferred “reasonable
adaptation” during the Bangkok discussions and recalled that reasonable
accommodation had been used a lot in the Americans with Disabilities Act
(ADA). He encouraged the input of people who had knowledge of this term,
especially in relation to ADA and noted that it was “interesting” that
few people had supported his intervention on paragraph 3.
The Coordinator noted that the United States was present as an observer
at the meeting and had experience with regard to the term. The United
States said that the term was reflected in both ADA and the Rehabilitation
Act, in the context of the employment of PWD. It noted that the term has
been specifically applied to the concept of employment (allowing PWD to
work in a job setting) though the same principle has been applied to other
situations such as in a college setting (though using a different term).
It reiterated the limitations on reasonable accommodation, such as fundamental
changes in a program and costs for small businesses. It noted that it
would be happy to cooperate with Mr. Quinn’s meeting on this issue. The
Coordinator asked the delegates to participate in the small group meeting,
as their input would be helpful and suggested that Thailand get together
with the United States to flesh out issues it had on this issue. Thailand
asked for clarification. The Coordinator said that he thought Thailand
wanted more information on reasonable accommodation, from the U.S. context
and Thailand replied that it was seeking assistance from the United States
as a whole, with regard to this issue, not just one specific issue they
had.
Colombia read a definition of reasonable accommodation from online consultants
and pointed out that the term would go beyond adapting the environment
and would go toward facilitating access to all PWD.
Ireland commented that reasonable accommodation was also found in EU
legislation in connection to employment, in addition to U.S. legislation
and pointed out that the delegates from RI and Germany were experts on
this term. It said that there were discussions in the EU as to whether
or not this term had to be defined in the text, because everyone knew
what it meant. A definition was included, though, in the text, he said,
and noted that delegates from the EU would draft language on the scope
of this concept on the basis of EU legislation.
Coordinator intervened that this was not an easy task and that if the
issue was not possible to resolve in the small group meetings, it could
be left to the AHC.
South Africa said the text minimized elaboration on the question of equality,
though it was referenced in the title of the article. It opined that the
concept should be a fundamental part of the Convention and that elements
of the Bangkok Draft could be considered in the explicit elaboration of
the concept. It also noted that the definition of reasonable accommodation
in paragraph 4 was similar to the one used in the South African context,
but its definition was more encompassing to all aspects of life.
Sierra Leone said at this point, the article should be referred to the
AHC and called attention to number 7 of the Standard Rules, specifically
3(a), as a way of expressing these issues being discussed.
WNUSP said the definition of reasonable accommodation, as written would
be difficult and confusing for PWD to understand and that it was important
that PWD knew what it applied to. It raised the question who decided what
is reasonable for PWD and encouraged a positive approach to dealing with
it, which must be included in the Convention as a concept.
ROK proposed the addition of “adjustment or adaptation” in regards to
reasonable accommodation and encouraged members to look at the broader
issue.
Volume 3, #8
January 14, 2004
Morning Session
Commenced: 10:19 AM
Adjourned: 1:03 PM
REASONABLE ACCOMODATION
At the request of the Coordinator, Rehabilitation International (RI)
reported on the small group meeting on the concept of reasonable accommodation.
There was widespread agreement on the core ingredients of the concept
and no objections to the elements as framed in the EU text or the Chair’s
text. The group did not focus on one text but on what reasonable accommodation
was and what it should do. Ireland explained the EU position on the status
of reasonable accommodation and its place in a future Convention, which
rests on an understanding of the limits of public international law that
micromanages how states discharge their obligations domestically. The
concept needed to be pitched generally and flexibly to have a high positive
transfer value from sector to sector (education, employment, or otherwise).
The meeting agreed that RI draft a footnote bringing together the consensus
on the nature and function of reasonable accommodation and leave to the
AHC the issue of the status of reasonable accommodation within the concept
of non-discrimination. The footnote would then be discussed among WG members.
Volume 3, #9
January 15, 2004
Afternoon Session
Commenced: 3:34pm
Adjourned: 6:00 p.m.
REASONABLE ACCOMMODATION
RI raised several key points regarding the text. There was general agreement
that such a concept was needed in the convention. There was also agreement
to remain general and flexible, so that the text would reflect the various
legal traditions, and be useful in several contexts. There was further
consensus that the process for determining what constitutes a ‘reasonable
accommodation’ should be “individualised” (centered on the needs of the
individual) and “interactive” (between the PWD and the entity affected).
There was also consensus that an entity does not have the power to force
the PWD to accept a reasonable accommodation but at the same time, the
PWD does not necessarily have the right to choose which accommodation
he or she prefers if the range of accommodations available are all deemed
reasonable. There was agreement that the notion of disproportionate burden
should not be available to an entity if that entity could have accessed
State aids and resources.
South Africa sought clarity how this footnote would fit into the whole
draft. The representative drew attention to the definition of reasonable
accommodation at the beginning of the Coordinator’s draft and asked what
was intended in presenting the definition as a footnote. RI responded
that the draft text will not be altered, but the footnote included for
clarification.
Thailand noted that the reasonable level of accommodation is defined
at the “need level,” not the “wish level.” If the accommodation provided
is considered reasonable than the person does not have the right to choose
something else.
Uganda noted that the term reasonable accommodation is used more than
once in the convention and explored whether it is appropriate to treat
this elaboration as a definition. As such, wherever the term “reasonable
accommodation” is found the text on the table would constitute the accepted
definition. This is preferred to simply including it as a footnote in
the Article on Equality and Non-Discrimination.
The Coordinator noted that paragraph 4 of the Coordinator’s proposed
article on Equality and Non-Discrimination contains a definition of reasonable
accommodation. Perhaps with the inclusion of the footnote, it would be
appropriate to delete the section of paragraph 4 in so far as it attempts
to define reasonable accommodation. The reference to States Parties’ obligations
to provide reasonable accommodation would remain, but there would be no
attempt to define it.
Lebanon clarified that the footnote does not address the definition,
but paragraph 4 of the Article on Equality and Non-Discrimination does
outline a definition of reasonable accommodation.
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