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OFFICE OF THE HIGH COMMISSIONER
FOR HUMAN RIGHTS

Accronyms used:

ICESCR: International Covenant on Economic, Social and Cultural Rights
ICCPR: International Covenant on Civil and Political Rights
CERD: Convention on the Elimination of Racial Discrimination
CEDAW: Convention on the Elimination of All Forms of Discrimination against Women
CAT: Convention Against Torture
CRC: Convention on the Rights of the Child

Draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights of Persons with Disabilities

The States Parties to this Convention,

• Recalling the principles proclaimed in the Charter of the United Nations which recognise the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world, ICESCR and ICCPR, Preamble, first and second paras: Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
  
  ICESCR and ICCPR, Preamble, first and second paras: Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
  Recognizing that these rights derive from the inherent dignity of the human person,

  CERD, Preamble, first para: Considering that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action, in co-operation with the Organization, for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion,

  CEDAW, Preamble, first para: Noting that the Charter of the United Nations reaffirms faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women,

  CAT, Preamble, first and second paras: Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
  Recognizing that those rights derive from the inherent dignity of the human person,

  CRC, Preamble, first para: Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

• Recognizing that these rights derive from the inherent dignity of the human person, ,

  CERD, Preamble, second para: Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour or national origin,

  CEDAW, Preamble second para: Noting that the Universal Declaration of Human Rights affirms the principle of the inadmissibility of discrimination and proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex,

  CRC, Preamble, second para: Recognizing that the United Nations has, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,

• Recognising that the United Nations have, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind,
• Reaffirming the universality, indivisibility and interdependence of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination,
• Reaffirming the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All forms of Racial Discrimination, the International Convention on the Elimination of All Forms of Discrimination Against Women, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families,²
• Recognising the importance of the principles and policy guidelines contained in the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities in influencing the promotion, formulation, and evaluation of the policies, plans, programs and actions at the national, regional and international levels to further equalise opportunities for persons with disabilities,
• Recognising that discrimination against any person on the basis of disability is a violation of the inherent dignity of the human person,
• Recognising the diversity of persons with disabilities,
• Concerned that, despite the efforts and actions undertaken by Governments, bodies and relevant organisations, persons with disabilities continue to face barriers in their participation as equal members of society and violations to their human rights in all parts of the world,

  CEDAW, Preamble sixth para: Concerned, however, that despite these various instruments extensive discrimination against women continues to exist,

• Emphasising the importance of international cooperation³ to promote the full enjoyment of human rights and fundamental freedoms of persons with disabilities,⁴

  CEDAW, Preamble sixth para: Affirming that the strengthening of (…) mutual co-operation among all States irrespective of their social and economic systems (…) will promote social progress and development and as a consequence will contribute to the attainment of full equality between men and women,

  CRC, Preamble, last para: Recognizing the importance of international co-operation for improving the living conditions of children in every country, in particular in the developing countries,

  On international co-operation, see also references under footnote 7.

• Emphasising the existing and potential contributions made by persons with disabilities to the overall well-being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in significant advances in the human, social and economic development of their societies and the eradication of poverty, ,

  CEDAW, Preamble sixth para: Bearing in mind the great contribution of women to the welfare of the family and to the development of society, so far not fully recognized, the social significance of maternity and the role of both parents in the family and in the upbringing of children, and aware that the role of women in procreation should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between men and women and society as a whole,

• Recognising the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices,
• Considering that persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programs, especially those directly concerning them,
• Concerned about the difficult conditions faced by persons with severe or multiple disabilities and of persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,⁵
• Emphasising the need to incorporate a gender perspective in all efforts to promote the full enjoyment of human rights and fundamental freedoms by persons with disabilities,
• Mindful of the need to alleviate the negative impact of poverty on the conditions of persons with disabilities,⁶
• Concerned that situations of armed conflict have especially devastating consequences for the human rights of persons with disabilities
• Recognising the importance of accessibility to the physical, social and economic environment and to information and communication, including information and communications technologies, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms,
• Convinced that a convention dealing specifically with the human rights of persons with disabilities will make a significant contribution to redressing the profound social disadvantage of persons with disabilities and promote their participation in the civil, political, economical, social and cultural spheres with equal opportunities, in both developing and developed countries,

Hereby agree as follows:

Draft Article 1
PURPOSE

The purpose⁷ of this Convention shall be to ensure the full, effective and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities.⁸

Draft Article 2
GENERAL PRINCIPLES

The fundamental principles of this Convention shall be:

• dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;
• non-discrimination;
• full inclusion of persons with disabilities as equal citizens and participants in all aspects of life;
• respect for difference and acceptance of disability as part of human diversity and humanity;
• equality of opportunity.

Draft Article 3
DEFINITIONS⁹

"Accessibility"¹⁰

"Communication" includes oral-aural communication, communication using sign language, tactile communication, Braille, large print, audio, accessible multimedia, human reader and other augmentative or alternative modes of communication, including accessible information and communication technology.¹¹

"Disability"¹² ”

CESCR General Comment no. 5 (Persons with disabilities), para. 3: There is still no internationally accepted definition of the term "disability". For present purposes, however, it is sufficient to rely on the approach adopted in the Standard Rules of 1993, which state:

"The term 'disability' summarizes a great number of different functional limitations occurring in any population ... People may be disabled by physical, intellectual or sensory impairment, medical conditions or mental illness. Such impairments, conditions or illnesses may be permanent or transitory in nature".

"Persons with disability"¹³ CESCR General Comment no. 5 (Persons with disabilities), para. 4: In accordance with the approach adopted in the Standard Rules, this General Comment uses the term "persons with disabilities" rather than the older term "disabled persons". It has been suggested that the latter term might be misinterpreted to imply that the ability of the individual to function as a person has been disabled.

"Discrimination on the ground of disability"¹⁴

CESCR General Comment no. 5 (Persons with disabilities), para. 15: …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.

"Language" includes oral-aural language and sign language.¹⁵

"Reasonable accommodation"¹⁶ Cfr. CESCR General Comment no. 5 (Persons with disabilities), para. 15: …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.

"Universal Design", and "Inclusive design".¹⁷

Draft Article 4
GENERAL OBLIGATIONS ^{18, 19}

• States Parties undertake to ensure the full realisation of all human rights and fundamental freedoms for all individuals within their jurisdiction²⁰ without discrimination of any kind on the basis of disability. To this end, States Parties undertake:
  
  ICESCR, Article 2(1): Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
  
  ICCPR, Article 2(1): Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
  
  CEDAW, Article 3: States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.
  
  CRC, Article 2(1): States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
  
  • to adopt legislative, administrative and other measures to give effect to this Convention, and to amend, repeal or nullify any laws and regulations and to discourage customs or practices that are inconsistent with this convention;
    
    ICCPR, Article 2(2): Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
    
    CERD, Article 2(1)(c): Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;
    
    CEDAW, Article 2, (b), (f) and (g): States parties (…) undertake: … (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; … (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women.
    
    CAT, Article 2(1): Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
    
    CRC, Article 4, first sentence: States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.
    
  • to embody the rights of equality and non-discrimination on the ground of disability in their national constitutions or other appropriate legislation, if not yet incorporated therein, and to ensure, through law and other appropriate means, the practical realisation of these rights;
    
    CEDAW, Article 2(a): To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;
    
    CRC, Article 2(2): States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
    
    See also Article 5 CERD (infra, sub draft Article 7)
    
  • to mainstream disability issues into all economic and social development policies and programmes;
  • to refrain from engaging in any act or practice that is inconsistent with this convention and to ensure that public authorities and institutions act in conformity with this Convention;;
    
    CERD, Article 2(1)(a): Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to en sure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;
    
    CEDAW, Article 2, (d): To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;
    
  • to take all appropriate measures to eliminate discrimination on the ground of disability by any person, organisation or private enterprise;
    
    CERD, Article 2(1)(d): Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;
    
    CEDAW, Article 2, (e): To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;
    
  • to promote²¹ the development, availability and use of universally designed goods, services, equipment and facilities. Such goods, services, equipment and facilities should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities.²²
• In the development and implementation of policies and legislation to implement this convention, States Parties shall do so in close consultation with, and include the active involvement of, persons with disabilities and their representative organisations.
  
  CESCR General Comment no. 5 (Persons with disabilities), para. 14: [P]olicy-making and programme implementation in this area should be undertaken on the basis of close consultation with, and involvement of, representative groups of the persons concerned. For this reason, the Standard Rules recommend that everything possible be done to facilitate the establishment of national coordinating committees, or similar bodies, to serve as a national focal point on disability matters. In doing so, Governments should take account of the 1990 Guidelines for the Establishment and Development of National Coordinating Committees on Disability or Similar Bodies.

  CRC, General Comment no. 5 (General measures of implementation of the Convention on the Rights of the Child), para. 12: The development of a children’s rights perspective throughout Government, parliament and the judiciary is required for effective implementation of the whole Convention and, in particular, in the light of the following articles in the Convention identified by the Committee as general principles:
  
  (…) Article 12: the child’s right to express his or her views freely in “all matters affecting the child”, those views being given due weight. This principle, which highlights the role of the child as an active participant in the promotion, protection and monitoring of his or her rights, applies equally to all measures adopted by States to implement the Convention. Opening government decision-making processes to children is a positive challenge which the Committee finds States are increasingly responding to. Given that few States as yet have reduced the voting age below 18, there is all the more reason to ensure respect for the views of unenfranchised children in Government and parliament. If consultation is to be meaningful, documents as well as processes need to be made accessible. But appearing to “listen” to children is relatively unchallenging; giving due weight to their views requires real change. Listening to children should not be seen as an end in itself, but rather as a means by which States make their interactions with children and their actions on behalf of children ever more sensitive to the implementation of children’s rights.

  CRC, General Comment no. 5 (General measures of implementation of the Convention on the Rights of the Child), para. 56: Implementation is an obligation for States parties, but needs to engage all sectors of society, including children themselves. The Committee recognizes that responsibilities to respect and ensure the rights of children extend in practice beyond the State and State-controlled services and institutions to include children, parents and wider families, other adults, and non State services and organizations. The Committee concurs, for example, with general comment No. 14 (2000) of the Committee on Economic, Social and Cultural Rights on the right to the highest attainable standard of health, paragraph 42, of which states: “While only States are parties to the Covenant and thus ultimately accountable for compliance with it, all members of society - individuals, including health professionals, families, local communities, intergovernmental and non-governmental organizations, civil society organizations, as well as the private business sector - have responsibilities regarding the realization of the right to health. States parties should therefore provide an environment which facilitates the discharge of these responsibilities.”

Draft Article 5
PROMOTION OF POSITIVE ATTITUDES TO PERSONS WITH DISABILITIES

• States Parties undertake to adopt immediate and effective measures to:
  • Raise awareness throughout society regarding disability and persons with disabilities;

    CRC, Article 42: States Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike.

    Cfr. CERD, Article 7: States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.

    Cfr. CEDAW, Article 3: States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to en sure the full development and advancement of women , for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.

  • Combat stereotypes and prejudices about persons with disabilities;

    Cfr. CERD, Article 7: States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.

    Cfr. CEDAW, Article 5(a): To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

    See also CEDAW, Article 10(c): States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women: … (c) The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim and, in particular, by the revision of textbooks and school programmes and the adaptation of teaching methods;

  • Promote an image of persons with disabilities as capable and contributing members of society sharing the same rights and freedoms as all others and in a manner consistent with the overall purpose of this Convention.
• These measures shall include, among others:
  • initiating and maintaining an effective public awareness campaign designed to nurture receptiveness to the rights of persons with disabilities;

    CRC, Article 42: States Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike.

  • promoting awareness, including in all children from an early age and at all levels of the education system, to foster an attitude of respect for the rights of persons with disabilities;
  • encouraging all organs of the media to project an image of persons with disabilities consistent with the purpose of this Convention;
  • working in partnership with persons with disabilities and their representative organisations in all measures taken to give effect to the obligations contained in this article.

Draft Article 6
STATISTICS AND DATA COLLECTION²³

In order to formulate and implement appropriate policies to protect and promote the rights of persons with disabilities, States Parties should encourage the collection, analysis, and codification of statistics and information on disabilities and on the effective enjoyment of human rights by persons with disabilities. The process of collecting and maintaining this information should:

CRC, General Comment no. 5 (…), para. 48: Collection of sufficient and reliable data on children, disaggregated to enable identification of discrimination and/or disparities in the realization of rights, is an essential part of implementation. The Committee reminds States parties that data collection needs to extend over the whole period of childhood, up to the age of 18 years. It also needs to be coordinated throughout the jurisdiction, ensuring nationally applicable indicators. States should collaborate with appropriate research institutes and aim to build up a complete picture of progress towards implementation, with qualitative as well as quantitative studies. The reporting guidelines for periodic reports call for detailed disaggregated statistical and other information covering all areas of the Convention. It is essential not merely to establish effective systems for data collection, but to ensure that the data collected are evaluated and used to assess progress in implementation, to identify problems and to inform all policy development for children. Evaluation requires the development of indicators related to all rights guaranteed by the Convention.

On statistics and data collection see:

CERD General Recommendation no. XXIV (Information on the demographic composition of the population)

CEDAW General Recommendation no. 9 (Statistical data concerning the situation of women)

• respect the right to privacy, the dignity and the rights of persons with disabilities, and the information collected from persons with disabilities should be on a voluntary basis;
• be kept only in a statistical format without identifying individuals and should be kept secure to prevent unauthorised access or misuse of information;
• ensure that the design and implementation of data collection is done in partnership with persons with disabilities, their representative organisations and all other relevant stakeholders;
• be disaggregated according to the purpose of the collection of information and should include age, sex and type of disability;
  
  CRC, General Comment no. 5 (…), para. 48: Collection of sufficient and reliable data on children, disaggregated to enable identification of discrimination and/or disparities in the realization of rights, is an essential part of implementation…
  
• include detailed information on their access to public services, rehabilitation programs, education, housing and employment;
• adhere to established ethics regarding respect for anonymity and confidentiality in the collection of statistics and data.

Draft Article 7
EQUALITY AND NON-DISCRIMINATION

• 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.
  
  ICCPR, Article 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons 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 or other status.

  ICESCR, Article 2(2): The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

  ICCPR, Article 2(1): Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

  CERD, Article 5: In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (omissis)

  CEDAW, Article 2: States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (omissis)

  CEDAW, Article 3: States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.

  CRC, Article 2(1): States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

• • 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.
    
    CESCR General Comment no. 5 (Persons with disabilities), para. 15: 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.
    
    See also CERD, Article I(1): In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
    
    See also CEDAW, Article I: For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
    
  • Discrimination shall include all forms of discrimination, including direct, indirect²⁴ and systemic, and shall also include discrimination based on an actual or perceived²⁵ disability.
• 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.²⁶
• 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,²⁷ 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.
  
  Cfr. CESCR General Comment no. 5 (Persons with disabilities), para. 15: 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
  
• Special measures²⁸ 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
  
  CERD, Article 1(4): Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.
  
  CEDAW, Article 4(1): Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.
  
  CESCR General Comment no. 5 (Persons with disabilities), para. 18: Because appropriate measures need to be taken to undo existing discrimination and to establish equitable opportunities for persons with disabilities, such actions should not be considered discriminatory in the sense of article 2 (2) of the International Covenant on Economic, Social and Cultural Rights as long as they are based on the principle of equality and are employed only to the extent necessary to achieve that objective.
  See also CEDAW General Recommendation no. 25 (Temporary special measures)

Draft Article 8
RIGHT TO LIFE³⁰

States Parties reaffirm the inherent right to life of all persons with disabilities, and shall take all necessary measures to ensure its effective enjoyment by them.³¹

ICCPR, Article 6(1): Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

CRC, Article 6(1): States Parties recognize that every child has the inherent right to life.

See also ICCPR, General Comment no. 6, para. 5: [T]the right to life has been too often narrowly interpreted. The expression "inherent right to life" cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures. In this connection, the Committee considers that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.

Draft Article 9
EQUAL RECOGNITION AS A PERSON BEFORE THE LAW

States Parties shall:

• recognise persons with disabilities as individuals with rights before the law equal to all other persons;

  ICCPR, Article 16: Everyone shall have the right to recognition everywhere as a person before the law.
  
  ICCPR, Article 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.

  CERD, Article 5(a): In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (a) The right to equal treatment before the tribunals and all other organs administering justice (…)

  CEDAW, Article 15 (1): States Parties shall accord to women equality with men before the law.

• accept that persons with disabilities have full legal capacity on an equal basis as others,³² including in financial matters;

  CEDAW, Article 15 (2): States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.

• ensure that where assistance is necessary to exercise that legal capacity:
  • the assistance is proportional to the degree of assistance required by the person concerned and tailored to their circumstances, and does not interfere with the legal capacity, rights and freedoms of the person;
    
    Cfr. CRC, Article 12: 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
    2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
    
  • relevant decisions are taken only in accordance with a procedure established by law and with the application of relevant legal safeguards;³³
• ensure that persons with disabilities who experience difficulty in asserting their rights, in understanding information, and in communicating, have access to assistance to understand information presented to them and to express their decisions, choices and preferences, as well as to enter into binding agreements or contracts, to sign documents, and act as witnesses; ³⁴
  
  Cfr. CRC, Article 40(2)(b)(vi): Every child alleged as or accused of having infringed the penal law has at least the following guarantees: … (vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;
  
• take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs, and to have equal access to bank loans, mortgage and other forms of financial credit; CERD, Article 5(d): States Parties undertake (…) to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: … (v) The right to own property alone as well as in association with others; (vi) The right to inherit;

  CEDAW, Article 13(b): States Parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular: … (b) The right to bank loans, mortgages and other forms of financial credit;

  CEDAW, Article 15 (2): …In particular, [States Parties] shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.

• ensure that persons with disabilities are not arbitrarily deprived of their property.

  CEDAW, Article 15 (2): …In particular, [States Parties] shall give women equal rights (…) to administer property…

  Cfr. UDHR, Article 17:
  1. Everyone has the right to own property alone as well as in association with others.
  2. No one shall be arbitrarily deprived of his property.

Draft Article 10
LIBERTY AND SECURITY OF THE PERSON

• States Parties shall ensure that persons with disabilities:
  • enjoy the right to liberty and security of the person, without discrimination based on disability;
    
    ICCPR, Article 9(1), first sentence: Everyone has the right to liberty and security of person.

    CERD, Article 5: In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to (…) guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution;

    Human Rights Committee, General Comment no. 8, para. 1: The Committee points out that paragraph 1 is applicable to all deprivations of liberty, whether in criminal cases or in other cases such as, for example, mental illness, vagrancy, drug addiction, educational purposes, immigration control, etc. It is true that some of the provisions of article 9 ... are only applicable to persons against whom criminal charges are brought. But the rest, and in particular the important ... right to control by a court of the legality of the detention, applies to all persons deprived of their liberty by arrest or detention. Furthermore, States parties have ... also to ensure that an effective remedy is provided in other cases in which an individual claims to be deprived of his liberty in violation of the Covenant.

  • are not deprived of their liberty³⁵ unlawfully³⁶ or arbitrarily, and that any deprivation of liberty shall be in conformity with the law, and in no case shall be based on disability.³⁷
    
    ICCPR, Article 9(1), second and third sentences: No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

    Cfr. CRC, Article 37(b): States Parties shall ensure that: … (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

• States Parties shall ensure that if persons with disabilities are deprived of their liberty, they are:
  • treated with humanity and respect for the inherent dignity of the human person, and in a manner that takes into account the needs they have because of their disabilities;
    
    ICCPR, Article 10(1): All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

    CRC, Article 37(c): States Parties shall ensure that: … (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

    CRC, Article 40(1): States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

  • provided with adequate information in accessible formats as to the reasons for their deprivation of liberty;
    
    ICCPR, Article 9(2): Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

    ICCPR, Article 14(3), (a) and (f): In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; … (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

    CRC, Article 40(b), (ii) and (vi): … States Parties shall, in particular, ensure that: … (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: … (ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians… (vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;

  • provided with prompt access to legal and other appropriate assistance to;
    
    ICCPR, Article 14(3), (b), (d) and (f): In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: … (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;… (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; … (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

    CRC, Article 37(d): States Parties shall ensure that: … (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance…

    CRC, Article 40(b), (ii) and (vi): … States Parties shall, in particular, ensure that: … (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: … (ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians… (vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;

    • challenge the lawfulness of the deprivation of their liberty before a court or other competent, independent and impartial authority (in which case, they shall be provided with a prompt decision on any such action);
      
      CRC, Article 40(b)(iii): … States Parties shall, in particular, ensure that: … (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: …(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;
    • seek regular review of the deprivation of their liberty;
      
      ICCPR, Article 14(5): Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

      CRC, Article 37(d): States Parties shall ensure that: … (d) Every child deprived of his or her liberty shall have (…) the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

      CRC, Article 40(b)(v): … States Parties shall, in particular, ensure that: … (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: …(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;

  • provided with compensation in the case of unlawful deprivation of liberty, or deprivation of liberty based on disability, contrary to this Convention.
    
    ICCPR, Article 9(5): Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

    ICCPR, Article 14(6): When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

Draft Article 11
FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

• States Parties shall take all effective legislative, administrative, judicial, educational or other measures to prevent persons with disabilities from being subjected to torture or cruel, inhuman or degrading treatment or punishment.
  
  ICCPR, Article 7, first sentence: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

  CAT, Article 2(1): Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

  CAT, Article 4(1): Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

  CAT, Article 16(1): Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity…

  CRC, Article 37(a): States Parties shall ensure that: … (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment…

  Human Rights Committee, General Comment no. 20 (Replaces general comment 7 concerning prohibition of torture and cruel treatment or punishment), para. 2: The aim of the provisions of article 7 of the International Covenant on Civil and Political Rights is to protect both the dignity and the physical and mental integrity of the individual. It is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity.

  Human Rights Committee, General Comment no. 20 (Replaces general comment 7 concerning prohibition of torture and cruel treatment or punishment), para. 5: The prohibition in article 7 relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim. In the Committee's view, moreover, the prohibition must extend to corporal punishment, including excessive chastisement ordered as punishment for a crime or as an educative or disciplinary measure. It is appropriate to emphasize in this regard that article 7 protects, in particular, children, pupils and patients in teaching and medical institutions.

• In particular, States Parties shall prohibit, and protect persons with disabilities from, medical or scientific experimentation without the free and informed consent of the person concerned, and shall protect persons with disabilities from forced interventions or forced institutionalisation aimed at correcting, improving, or alleviating any actual or perceived impairment.³⁸
  
  ICCPR, Article 7, second sentence: In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

  Human Rights Committee, General Comment no. 20 (Replaces general comment 7 concerning prohibition of torture and cruel treatment or punishment), para. 7: … The Committee also observes that special protection in regard to such experiments is necessary in the case of persons not capable of giving valid consent, and in particular those under any form of detention or imprisonment. Such persons should not be subjected to any medical or scientific experimentation that may be detrimental to their health.

Draft Article 12
FREEDOM FROM VIOLENCE AND ABUSE

• States Parties recognise that persons with disabilities are at greater risk, both within and outside the home, of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse. States Parties shall, therefore, take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse.
  
  CRC, Article 19(1): States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

  CRC, Article 32(1): States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development.

  CRC, Article 34: States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse…

  CESCR, General Comment no. 5 (Persons with disabilities), para. 32: Children with disabilities are especially vulnerable to exploitation, abuse and neglect and are, in accordance with article 10 (3) of the Covenant (reinforced by the corresponding provisions of the Convention on the Rights of the Child), entitled to special protection.

• Such measures should prohibit, and protect persons with disabilities from, forced interventions or forced institutionalisation aimed at correcting, improving, or alleviating any actual or perceived impairment, and abduction.
• States Parties shall also take all appropriate measures to prevent violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse, by ensuring, inter alia, support for persons with disabilities and their families, including the provision of information.
• States Parties shall ensure that all facilities and programmes, both public and private, where persons with disabilities are placed together, separate from others, are effectively monitored to prevent the occurrence of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse.
• Where persons with disabilities are the victim of any form of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse, States Parties shall take all appropriate measures³⁹ to promote their physical and psychological recovery and social reintegration.
  
  CRC, Article 39: States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.
  
• States Parties shall ensure the identification, reporting, referral, investigation, treatment and follow-up of instances of violence and abuse, and the provision of protection services and, as appropriate, judicial involvement.

Draft Article 13
FREEDOM OF EXPRESSION AND OPINION, AND ACCESS TO INFORMATION

States Parties shall take appropriate measures to ensure that persons with disabilities can exercise their right to freedom of expression and opinion through Braille, sign language,⁴⁰ and other modes of communication⁴¹ of their choice, and to seek, receive and impart information, on an equal footing with others, including by:

ICCPR, Article 19 (1): Everyone shall have the right to hold opinions without interference.

ICCPR, Article 19 (2): Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

CERD, Article 5(d)(viii): In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to (…) guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:… (viii) The right to freedom of opinion and expression;

CRC, Article 12(1): States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

CRC, Article 13(1): The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice.

CRC, Article 17: States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States parties shall: (omissis).

• providing public information to persons with disabilities, on request, in a timely manner and without additional cost, in accessible formats⁴² and technologies of their choice, taking into account different kinds of disability;
• accepting the use of alternative modes of communication by persons with disabilities in official interactions;
• educating persons with disabilities to use alternative and augmentative communication modes;
• undertaking and promoting the research, development and production of new technologies, including information and communication technologies, and assistive technologies, suitable for persons with disabilities;
• promoting other appropriate forms of assistance and support to persons with disabilities to ensure their access to information;⁴³
• encouraging⁴⁴ private entities that provide services to the general public to provide information and services in accessible and usable formats for persons with disabilities;
• encouraging the mass media to make their services accessible to persons with disabilities.

Draft Article 14
RESPECT FOR PRIVACY, THE HOME AND THE FAMILY

• Persons with disabilities, including those living in institutions, shall not be subjected to arbitrary or unlawful interference with their privacy, and shall have the right to the protection of the law against such interference. States Parties to this Convention shall take effective measures to protect the privacy of the home, family, correspondence⁴⁵ and medical records of persons with disabilities and their choice to take decisions on personal matters.

  ICCPR, Article 17:
  1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
  2. Everyone has the right to the protection of the law against such interference or attacks.

  CRC, Article 16:
  1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
  2. The child has the right to the protection of the law against such interference or attacks.

• States Parties to this Convention shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage and family relations,⁴⁶ and in particular shall ensure:
  • that persons with disabilities are not denied the equal opportunity to experience their sexuality, have sexual and other intimate relationships, and experience parenthood;
    
    CESCR General Comment no. 5 (Persons with disabilities), para. 31: Women with disabilities also have the right to protection and support in relation to motherhood and pregnancy. As the Standard Rules state, "persons with disabilities must not be denied the opportunity to experience their sexuality, have sexual relationships and experience parenthood". The needs and desires in question should be recognized and addressed in both the recreational and the procreational contexts. These rights are commonly denied to both men and women with disabilities worldwide. Both the sterilization of, and the performance of an abortion on, a woman with disabilities without her prior informed consent are serious violations of article 10 (2).
    
  • the right of all men and women with disabilities who are of marriageable age to marry on the basis of free and full consent of the intending spouses, and to found a family;
    
    ICESCR, Article 10(1), last sentence: …Marriage must be entered into with the free consent of the intending spouses.

    ICCPR, Article 23(2) and (3):
    2. The right of men and women of marriageable age to marry and to found a family shall be recognized.
    3. No marriage shall be entered into without the free and full consent of the intending spouses.

    CERD, Article 5(d)(iv): In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to (…) guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:… (iv) The right to marriage and choice of spouse;

    CEDAW, Article 16(1), (a) and (b):
    1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
    (a) The same right to enter into marriage;
    (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;

    CESCR General Comment no. 5 (Persons with disabilities), para. 30: In the case of persons with disabilities, the Covenant's requirement that "protection and assistance" be rendered to the family means that everything possible should be done to enable such persons, when they so wish, to live with their families. Article 10 [Protection of the family and of mothers and children] also implies, subject to the general principles of international human rights law, the right of persons with disabilities to marry and have their own family. These rights are frequently ignored or denied, especially in the case of persons with mental disabilities…

  • the rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children ⁴⁷ on an equal basis with other persons⁴⁸ and to have access to information, reproductive and family planning education, and the means necessary to enable them to exercise these rights;
    
    CEDAW, Article 16(1)(e): 1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: … (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;

  • the rights of persons with disabilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation. For the purpose of guaranteeing these rights, States Parties shall render appropriate assistance to disabled parents in the performance of their child-rearing responsibilities;⁴⁹
    
    CEDAW, Article 16(1)(f): 1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: … (f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;

  • that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. The child shall not however be separated from parents with disabilities on the basis either directly or indirectly of their disability;⁵⁰
    
    CRC, Article 9(1): States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child
    
  • the promotion of awareness and the provision of information aimed at changing negative perceptions and social prejudices towards sexuality, marriage and parenthood of persons with disabilities.

Draft Article 15
LIVING INDEPENDENTLY⁵¹ AND BEING INCLUDED IN THE COMMUNITY

• States Parties to this Convention shall take effective and appropriate measures to enable persons with disabilities to live independently and be fully included in the community, including by ensuring that:
  • persons with disabilities have the equal opportunity to choose their place of residence and living arrangements;
    
    ICCPR, Article 12(1): Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
    
    CERD, Article 5(d)(i): In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to (…) guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:… (i) The right to freedom of movement and residence within the border of the State;
    
    CEDAW, Article 15(4): States Parties shall accord to men and women the same rights with regard to the law relating to the movement of persons and the freedom to choose their residence and domicile.
    
  • persons with disabilities are not obliged to live in an institution or in a particular living arrangement; ⁵²
  • that persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance, necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;⁵³
  • community services for the general population are available on an equal basis to persons with disabilities and are responsive to their needs;
  • persons with disabilities have access to information about available support services.

Draft Article 16
CHILDREN WITH DISABILITIES⁵⁴

• States Parties undertake to ensure that each child with a disability within their jurisdiction shall enjoy, without discrimination of any kind on the basis of disability, the same rights and fundamental freedoms as other children.
  
  CRC, Article 2(1): States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
  
• States Parties recognise that children with disabilities should enjoy a full and decent life, in conditions that ensure dignity, promote self-reliance and autonomy, and facilitate the child's active participation in the community.
  
  CRC, Article 23(1): States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.
  
• States Parties recognise the right of children with disabilities to inclusive care, which shall include:
  • early provision of appropriate and comprehensive services;
  • the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child;
    
    CRC, Article 23(2): States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child.
    
• Recognising the needs of children with disabilities, assistance extended in accordance with paragraph 3 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child and shall be designed to ensure that a child with a disability has effective access to and receives education, training, health care services, comprehensive [re]habilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development;
  
  CRC, Article 23(3): Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development
  
• Children with disabilities and their parents or other persons caring for or legally responsible for the child shall be provided with appropriate information, referrals and counselling, and information made available in these ways should provide them with a positive view of their potential and right to live a full and inclusive life.

Draft Article 17
EDUCATION⁵⁵

• tates Parties recognise the right of all persons with disabilities to education. With a view to achieving this right progressively and on the basis of equal opportunity, the education of children⁵⁶ with disabilities shall be directed to:⁵⁷
  
  ICESCR, Article 13(1), first sentence: The States Parties to the present Covenant recognize the right of everyone to education.

  CEDAW, Article 10: States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education…

  CRC, Article 28(1): States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (omissis)

  • the full development of the human potential and sense of dignity and self worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity;
  • enabling all persons with disabilities to participate effectively in a free society;
  • he development of the child's personality, talents and mental and physical abilities to their fullest potential;
  • take into account the best interests of the child, in particular by individualising education plans;

ICESCR, Article 13(1), second sentence: [The States Parties] agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

CRC, Article 29(1): States Parties agree that the education of the child shall be directed to:
(a) The development of the child's personality, talents and mental and physical abilities to their fullest potential;
(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;
(c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;
(d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;
(e) The development of respect for the natural environment.

See also CERD, Article 5(e)(v): In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to (…) guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:…(v) The right to education and training;

CERD, Article 7: States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.

• In realising this right, States Parties shall ensure:
  • that all persons with disabilities can choose inclusive and accessible education in their own community (including access to early childhood and pre-school education);⁵⁸
    
    CESCR, General Comment no. 5 (Persons with disabilities), para. 35: School programmes in many countries today recognize that persons with disabilities can best be educated within the general education system. Thus the Standard Rules provide that "States should recognize the principle of equal primary, secondary and tertiary educational opportunities for children, youth and adults with disabilities, in integrated settings"…
    
  • the provision of required support, including the specialised training of teachers,⁵⁹ school counsellors and psychologists, an accessible curriculum, accessible teaching medium and technologies, alternative and augmentative communication modes, alternative learning strategies, accessible physical environment, or other reasonable accommodations to ensure the full participation of students with disabilities;
    
    CRC, Article 23(3): Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education (…) in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.
    
    CESCR, General Comment no. 5 (Persons with disabilities), para. 35: …States should ensure that teachers are trained to educate children with disabilities within regular schools and that the necessary equipment and support are available to bring persons with disabilities up to the same level of education as their non-disabled peers. In the case of deaf children, for example, sign language should be recognized as a separate language to which the children should have access and whose importance should be acknowledged in their overall social environment.
    
  • that no child with disabilities is excluded from free and compulsory primary education on account of their disability.
    
    ICESCR, Article 13(2)(a): The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right: (a) Primary education shall be compulsory and available free to all;
    
    CECR, General Comment no. 13 (Right to education), para. 31: The prohibition against discrimination enshrined in article 2(2) of the Covenant is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination. The Committee interprets articles 2(2) and 3 in the light of the UNESCO Convention against Discrimination in Education, the relevant provisions of the Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child and the ILO Indigenous and Tribal Peoples Convention, 1989 (Convention No. 169)…
    
    CECR, General Comment no. 13 (Right to education), para. 37: States parties must closely monitor education - including all relevant policies, institutions, programmes, spending patterns and other practices - so as to identify and take measures to redress any de facto discrimination. Educational data should be disaggregated by the prohibited grounds of discrimination.
    
• States Parties shall ensure that where the general education system does not adequately meet the needs of persons with disabilities special and alternative forms of learning⁶⁰ should be made available. Any such special and alternative forms of learning should:⁶¹
  • reflect the same standards and objectives provided in the general education system;
    
    CECR, General Comment no. 13 (Right to education), para. 33: In some circumstances, separate educational systems or institutions for groups defined by the categories in article 2 (2) shall be deemed not to constitute a breach of the Covenant. In this regard, the Committee affirms article 2 of the UNESCO Convention against Discrimination in Education (1960).
    
  • be provided in such a manner to allow children with disabilities to participate in the general education system to the maximum extent possible;⁶²
  • allow a free and informed choice between general and special systems;
  • in no way limit the duty of States Parties to continue to strive to meet the needs of students with disabilities in the general education system.
• States Parties shall ensure that children with sensory disabilities may choose to be taught sign language or Braille, as appropriate, and to receive the curriculum in sign language or Braille. States Parties shall take appropriate measures to ensure quality education to students with sensory disabilities by ensuring the employment of teachers who are fluent in sign language or Braille.⁶³
  
  CESCR, General Comment no. 5 (Persons with disabilities), para. 35: …States should ensure that teachers are trained to educate children with disabilities within regular schools and that the necessary equipment and support are available to bring persons with disabilities up to the same level of education as their non-disabled peers. In the case of deaf children, for example, sign language should be recognized as a separate language to which the children should have access and whose importance should be acknowledged in their overall social environment.
  
• States Parties shall ensure that persons with disabilities may access general tertiary education, vocational training, adult education and lifelong learning on an equal basis with others. To that end, States Parties shall render appropriate assistance to persons with disabilities.
  
  ICESCR, Article 13(2)(c): The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:… (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;
  

Draft Article 18
PARTICIPATION IN POLITICAL AND PUBLIC LIFE

States Parties recognise the political rights of persons with disabilities, without discrimination, and undertake to:

• actively promote an environment in which persons with disabilities can effectively and fully participate in political and public life, directly or through freely chosen representatives, including the right and opportunity of citizens with disabilities to vote and be elected, and by ensuring that voting procedures and facilities:
  • are appropriate, accessible and easy to understand;
  • protect the right of citizens with disabilities to vote by secret ballot; and
  • allow, where necessary, the provision of assistance in voting to citizens with disabilities;
    
    ICCPR, Article 25, (a) and (b):
    Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
    (a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
    (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

    CERD, Article 5(c): In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to (…) guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:…(c) Political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage…

    CEDAW, Article 7(a): States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right: (a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies;

    Human Rights Committee, General Comment no. 25 (The right to participate in public affairs, voting rights and the right of equal access to public service):
    4. Any conditions which apply to the exercise of the rights protected by article 25 should be based on objective and reasonable criteria. (…) For example, established mental incapacity may be a ground for denying a person the right to vote or to hold office.
    10. The right to vote at elections and referenda must be established by law and may be subject only to reasonable restrictions, such as setting a minimum age limit for the right to vote. It is unreasonable to restrict the right to vote on the ground of physical disability…
    11. States must take effective measures to ensure that all persons entitled to vote are able to exercise that right…
    12. …Positive measures should be taken to overcome specific difficulties, such as illiteracy, language barriers, poverty, or impediments to freedom of movement which prevent persons entitled to vote from exercising their rights effectively. Information and materials about voting should be available in minority languages. Specific methods, such as photographs and symbols, should be adopted to ensure that illiterate voters have adequate information on which to base their choice. States parties should indicate in their reports the manner in which the difficulties highlighted in this paragraph are dealt with.
    20. An independent electoral authority should be established to supervise the electoral process and to ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the Covenant. States should take measures to guarantee the requirement of the secrecy of the vote during elections (…) Assistance provided to the disabled, blind or illiterate should be independent. Electors should be fully informed of these guarantees.

• actively promote an environment in which persons with disabilities can effectively and fully participate in the conduct of public administration, and shall encourage, as appropriate, their participation in public affairs, including to:⁶⁴
  • participate on a basis of equality in the activities and administration of political parties and civil society;
  • form and join organisations of persons with disabilities to represent persons with disabilities at national, regional and local levels;
    
    ICCPR, Article 25, (c): Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: … (c) To have access, on general terms of equality, to public service in his country.
    
    CERD, Article 5(c): In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to (…) guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:…(c) Political rights, in particular the right (…) to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;

    CEDAW, Article 7(b) and (c): States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right: …(b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government; (c) To participate in non-governmental organizations and associations concerned with the public and political life of the country.

• to ensure that persons with disabilities and their organisations participate, on an equal basis to others, in all decision-making processes, in particular those concerning issues relating to persons with disabilities.⁶⁵

Draft Article 19
ACCESSIBILITY

• States Parties to this Convention shall take appropriate⁶⁶ measures to identify and eliminate obstacles, and to ensure accessibility for persons with disabilities to the built⁶⁷ environment, to transportation, to information and communications, including information and communications technologies, and to other services,⁶⁸ in order to ensure the capacity of persons with disabilities to live independently and to participate fully in all aspects of life. The focus of these measures shall include, inter alia:
  • the construction and renovation of public⁶⁹ buildings, roads and other facilities for public use, including schools, housing, medical facilities, in-door and out-door facilities and publicly owned workplaces;
  • the development and remodelling of public tran