Back to: Third Session of the Ad Hoc Committee
Daily summary of discussion at the third session
25 May 2004
Language versions: French
MS Word version
Volume 4, #2
May 25, 2004
Commenced: 10:20 AM
Adjourned: 12:50 PM
ARTICLE 4: GENERAL OBLIGATIONS (CONTINUED)
China suggested new language for Article 4.1: “States
Parties undertake to
adopt legislative or administrative and other measures to ensure the
realization of all human rights and fundamental freedoms for all
individuals within their jurisdiction without discrimination of any
on the basis of disabilities. With regard to economic social and cultural
rights, States Parties shall undertake such measures to the maximum
of their available resources and, where needed, within the framework
international cooperation.” China went on to suggest an amendment to
4.1(a), “to amend, repeal, or nullify any laws or regulations and
discourage customs or practices that are inconsistent with this
Convention.” The Chinese amendments to Article 1 will be distributed
Ireland, speaking for the EU, responded to the comments
made regarding the
EU’s proposals for Article 4, and stated that it was not the EU's
intention to turn the Convention into one about non-discrimination.
the December (2003) meeting, the EU proposed a text of the Convention
aimed at producing a strong document that will be implemented and ratified
by the widest possible sector of the international community so that
can enjoy rights already guaranteed to them by international law. The
advocates four basic principles -- non-discrimination, equality of
opportunity, autonomy, and participation/inclusion -- which must remain
the core of the final Convention. Non-discrimination is an essential
element that needs to be reflected in the Convention, which is why the
proposed strengthening this language. The intent is not to dilute Article
4, and the EU fully respects both the Article and the Working group.
EU reasoned that non-discrimination is essential because existing
international human rights instruments already apply to PWD, but PWD
face denials of rights to which they are entitled, and states can bring
about situations where PWD can enjoy full rights without discrimination.
The EU affirmed that all human rights will apply to PWD, not just the
rights stated in this Convention.
The EU also stated that later it will suggest that Articles 18 and 19
moved further up in the draft and that Article 4.2 (with amended language)
be moved to Article 25.
The EU read this amendment during the present discussion, without
prejudice to where it might eventually be placed: “States, when developing
and implementing policies and legislation to give effect to this
Convention, shall take appropriate measures to ensure adequate
consultation with, and involvement of, PWD and their representative
Morocco stressed that in the body of Article 4 the
question of progressive
achievement of political, social, and cultural rights must be addressed
order to enable countries to achieve the purposes of Convention under
best possible circumstances.
Yemen, on behalf of the Arab Group, urged the AHC
not to omit discussion
of the Preamble, and suggested that certain articles discussed in haste
could require further consideration later. Yemen also stated its desire
remain as close as possible to the Working Group text, as the WG
considered numerous views. Amendments should be limited to explanatory
notes or legal angles. The WG's draft of Article 4 should be preserved.
India agreed that the EU proposal deserves some attention.
order to reconcile various aspects of the Convention, India proposed
what is now Article 7.3 be moved to Article 4 after the discrimination
clause. India proposed an amendment to 7.2, to delete the words “close"
and “the active involvement of,” both of which are subjective and
unnecessary. India proposed appending “and their families" because
developing multicultural countries PWD have not reached a stage of
empowerment where they can be “spokesmen for themselves.” Families should
be included as stakeholders in all planning and policy discussions.
Next the floor was opened to interested NGOs.
Rehabilitation International stated that retaining
the Article on general
obligations is crucial, underscoring the congruity between this Convention
and other existing human rights instruments, and that there should be
direct and visible correlation between Articles 4 and 1, with the purpose
to secure full and equal enjoyment of all human rights for PWD. RI stated
that it could live without the word “effective,” but only if it is
understood that this is included in the word “equal.” RI, like Lebanon,
New Zealand, Costa Rica, and Jordan, questions whether the EU proposal
supports the underlying purposes of the Convention. Non-discrimination
describes how rights are to be delivered, but does not go to the
substantive content of these rights. It is a tool to advance the equal
enjoyment of rights but does not exhaust the equality idea, and it does
not go to the full enjoyment of human rights. RI supports a broader
conception of the role of the treaty. Non-discrimination, though perhaps
indispensable, is but a means to the ends of the Convention. RI proposes
that the chapeau read, “In order to secure the full and equal enjoyment
the human rights of PWD, parties undertake without discrimination to”
then continue from there.
World Network of Users and Survivors of Psychiatry
conceded the need for
redrafting to make the Convention clearer, but cautioned against reducing
the coverage and scope of the rights and obligations in this Convention.
WNUSP also warned that it could be dangerous to overemphasize the role
families of PWD, especially if families are not working alongside of
The participation of PWD needs to be the rule in the implementation
PWD Australia and National Association of Community Legal Centers
supported Article 4 in principle, but asserted that an explicit statement
of international obligations is crucial. Two-thirds of the 600 million
live in the developing world, and practical implementation of this Article
must involve the transfer of resources, technical assistance, and policy
advice to the developing world. Without such a transfer people in
developing countries will not benefit from this Convention. They further
stated that it is important to understand that in many cases international
cooperation will cost very little and will amount to information exchange
about technical standards and the provision of policy advice based on
domestic experience. There is already considerable resource transfer
occurring between developed and developing States, through
intergovernmental aid programs, and it is critical that these aid programs
respect the rights of PWD. They affirmed the importance of cooperation
trade and commerce standards with regards to accessibility,
telecommunications, copyrights, and so on, and they recommended an
explicit statement on these international obligations in Article 4.
Asia Pacific Forum on National Human Rights Institutions
also on behalf of National Human Rights Institutions, raised a concern
about the draft's absence of an explicit provision on remedies. In a
Convention designed to ensure the effective and practical realization
the human rights of PWD, judicial and other appropriate remedies should
included as explicit provisions of the Convention. With regard to the
progressive realization of economic, social, and cultural rights (ESCR),
he pointed out that developments in ESCR over the last 20 years have
that many of its aspects, like nondiscrimination, can in fact be
effectively and immediately realized. This was reflected in the Bangkok
and Chair’s Drafts.
Thailand supported the APF’s position that remedies
should be a core part
of the Convention. The rights of PWD continue to be violated repeatedly
and by ignoring remedies it ignores the reality that “we cannot only
into the future, we have to come back and look at the past and present.”
Thailand also expressed concern over an overemphasis on progressive
realization, even though it has been proven repeatedly that some ESCR
be immediately implemented. This was well reflected in the Bangkok draft
and should be reconsidered.
India echoed the position of Thailand and urged inclusion
of a new
paragraph from the Bangkok draft, obligating states to give immediate
effect to those aspects of those ESCR rights that are capable of immediate
Costa Rica supported the proposal that the Bangkok
text should be mentioned.
Jordan affirmed the importance of 4.2 on participation
of PWD. It also
agreed with India that the involvement and efforts of families on behalf
of PWD should not be underestimated, and text to that effect should
included in Article 4, but should not be repeated in other Articles.
Uganda supported the retention of the Article on obligations
that states understand their obligations under the Convention. Paragraph
4.1(c) should include the word “culture,” alongside economic and social,
as this is the setting where people face discrimination and
stigmatization. Uganda suggested that 4.1(f) substitute “to ensure”
“to promote,” as “ensure” is a stronger word that imposes commitments
states. Uganda offered a definition of “universally designed goods”
products, information, services and environments which are designed
such a manner that they are usable by all people including PWD with
minimal adaptation and cost. Uganda recommended that 4.2 be broadened
include families of PWD, professionals and experts.
Costa Rica reaffirmed the importance of maintaining
in the text of 4.1 the
concept of non-discrimination on the grounds of disability.
ARTICLE 5: PROMOTION OF POSITIVE ATTITUDES TOWARDS PWD
Trinidad and Tobago supported the inclusion of families
in Article 4 and
also wanted the committee to consider expanding the definition to include
“caregivers,” particularly for “persons suffering from severe
Uganda supported the inclusion of this Article because
a negative attitude
by society is a major source of discrimination and marginalization of
It proposed an amendment to 5.1(a), adding “their needs, potential and
contribution to society” after “PWD.” Uganda also suggested the addition
in 5.2(d): “and families” after "representative organizations.
Yemen, representing the Arab Group, expressed misgivings
committee could leave out some important aspects of the text of Article
and proposed an amendment to 5.1(c), replacing the words “commit
ourselves” with the word “promote,” which the Arab Group considers to
Japan accepted the Article as it is in its entirety,
but welcomed positive
improvements to the draft.
Kenya expressed concern at the negative attitudes
toward PWD, especially
in Africa, and suggested new language for Article 5.1(b): “States Parties
undertake to adopt immediate and effective measures to combat practices,
whether cultural, religious or other, which discriminate PWD.”
Ireland/EU proposed that Article 5 be amalgamated
with Article 4. The
chapeau of Article 5 would not be needed, as it would be covered in
previous chapeau in the combined Article. It proposed appending to 5.1(a),
“and foster respect for the rights of PWD,” as it believes that it is
important that raising awareness be done from the positive perspective.
The EU also proposed moving 5.2(c), without changes, up under this heading
because 2(a) and 2(b) already are covered by 1(a) and 1(b) if the EU
proposal is accepted. The EU suggested that 2(d) is already covered
current Paragraph 2 which deals with the participation and involvement
PWD in implementation, and to streamline the Convention 2(d) could be
deleted. The EU also sought clarification from the Chair on the
methodology of the compilation of the proposals that have been made
this first reading of the Articles.
Jordan emphasized the importance of the paragraph
on attitudes, as
attitudes influence behaviors. Jordan suggested reordering subparagraphs
in the interest of logical progression of behaviors, listing knowledge
first in 5.1(a) because proper knowledge is a building block for proper
attitudes. Next should come raising awareness, and then combatting
stereotypes. 5.1(b) should be 5.1(c), and so on.
Canada supported Article 5 and offered changes of
an editorial nature. In
the title, Canada suggested changing the word “to” to “towards” and
5.1(b) agreed with the EU on the additional text. In 5.1(c) Canada would
delete the words “promote an image of” and substitute “portray.” In
5.2(a), “initiating and maintaining” should be replaced with “promoting,"
and the words “awareness” and "receptiveness" should be removed.
word “nurture,” the words “awareness of and respect for” should be added.
Finally, in 5.2(c) Canada recommended replacing “project an image of”
“portray,” adding “in a manner” after “disability,” and removing “with
Argentina affirmed that it was important to foster
positive attitudes and
that the scope and visibility of the text should be appropriate for
Starting with the chapeau, Argentina expressed concern that “immediate
measures” might imply that some measures are more important than others,
so it suggested that “immediate” be included in brackets.
Australia suggested that “immediate and effective”
is too detailed and
would be difficult to evaluate without significant benchmarking, and
suggested adding “by appropriate and active means.”
Philippines suggested appending to 5.1(a) “foster
respect for the rights
and dignity for PWD,” and adding to 5.1(c) “rights, freedoms, and
responsibilities.” Philippines also suggested substituting “receptiveness”
with “respect and protection.”
South Africa expressed concern that the title of Article
5 does not allow
for promotion of rights which is the cornerstone of Convention, and
proposed adding “creating and raising awareness” to the provisions.
also proposed that 5.2(b) be moved to the section on education. SA
suggested a minor amendment to 5.1(a), to insert after “disability”
words “raise awareness throughout society regarding disability as part
humanity as a human rights issue.” SA also suggested that in 5.1(c)
word ”image” is a labeling one and suggested instead to use language
talks about the promotion and understanding of PWD as people first and
contributing members of society. SA further suggested that in 5.2(a)
“nurture receptiveness” should be replaced with “promote the rights
PWD,” as it would be more useful to have positive language in this
provision. It also suggested rephrasing 5.2(b) to read, “develop and
maintain programs on awareness” that would allow a focus on children
can be very cruel, especially in interactions with children with
Costa Rica stated the importance of making society
aware of the human
rights of the disabled and suggested adding “and the human rights"
5.1(a). They also suggested adding “policies designed to nurture” to
5.2(a) and suggested adding “in the population” after “promoting
awareness” in 5.2(b).
Mexico stressed the importance of this Article, and
stated that it should
be separate from other articles. Mexico supported the title amendment
South Africa, as it would contribute to a culture of respect and
inclusion. It also agreed with the EU proposal, but would like to add
the EU amendment for 5.1(a) “foster a culture of respect” to align it
the title and essence. Mexico advocated keeping the chapeau, which follows
the example of other human rights instruments.
Trinidad and Tobago supported Kenya’s amendment to
include a new
subparagraph on different kinds of cultural practices. An alternative
amendment to 5.1(b) could read, “combat negative stereotypes, negative
cultural practices, and prejudices about PWD.” Some families hide their
children with disabilities out of shame. In discussing 5.2(c), Trinidad
and Tobago suggested an amendment that would encourage the mass media
use proper terminology when describing PWD, so that they would no longer
refer to PWD as being “crippled,” “deaf and dumb,” or “blind.” It
suggested appending to 5.2(c), “through, inter alia, the use of proper
Swaziland supported Costa Rica’s proposals, but suggested
“disability” in 5.1(a) as it is repetitive.
New Zealand agreed with Canada that in 5.1(c) and
5.2(c) “image” should be
replaced with “portray.” Also, 5.2(d) should be moved to Article 4.
Norway voiced support for the EU's proposed amendment
to 5.1(a), and
supported the deletion of 5.2(d) since it is covered elsewhere.
Morocco defended the language in 5.1(a), “disability
and PWD,” and
asserted that this was not redundant and suggested maintaining it in
At this time the Chair gave the floor to NGOs
Save the Children Alliance supported the adjustments
by Canada, South
Africa, and Uganda and stressed the importance of this Article for
children and young people. They emphasized the intrinsic value and
contribution of all children and adults with disabilities, irrespective
their ability to socialize and their level of self-reliance. They stressed
the importance of ensuring the inclusion of severe and multiply disabled
persons. They proposed changes to 5.1(c), substituting “children and
adults” for “persons,” and “valuable” for “capable,” and “in their own
respect” inserted after “society.” They also suggested a new subparagraph,
5.1(d), “combat patronizing, bullying and neglect on the basis of
perceived incapacity of disabled children and adults in public services
and society overall." Save the Children wished to ensure that governments
work with children with disabilities, as well as adults, and suggested
adding “including children” to the text of 5.2(d), to be inserted after
European Disability Forum suggested that the title
of Article 5 be changed
to make reference to “awareness raising.” It also proposed a paragraph
families, while recognizing that families can play both positive and
negative roles in the lives of PWD.
World Blind Union suggested that below 5.1(b) there
should be an
additional paragraph concerning cultural diversity within the disabled
community, using language such as “promote cultural diversity of PWD.”
Thailand stated that it would have liked to bring
attention in this
instrument to people with “severe and multiple disabilities,” but having
heard from colleagues that specific disabilities should not be singled
out, Thailand now supports the inclusion of the phrase “irrespective
types, severities, and complexities of disabilities” in 5.1(c).
ARTICLE 6: STATISTICS AND DATA COLLECTION
Kenya supported the inclusion in Article 6 of data
emphasized its role in helping governments make decisions about the
allocation of resources.
Uganda supported the inclusion of Article 6, which
is appropriate and
useful in providing for the rights of PWD. They proposed changing the
title to “Collection and protection of statistics and data” to allay
about the misuse of data.
Colombia stressed the importance of this Article to
community. It also echoed concerns about the privacy of data and would
like the title changed to a reformulation of “Collection and Protection.”
South Africa supported this Article, especially the
provision on respect
for the right to privacy.
Japan in general supported the Article, but expressed
dictating the statistical categories into much detail, as in 6(d) and
6(e), because each government has different concerns about information.
Decisions about data should be left to individual countries.
Lebanon added that statistics should include at least
age and sex, and
suggested deleting type of disability and adding “and other relevant
areas” at the end of 6(e) so as not to limit data collection to sectors
that have been mentioned. After 6(d), in accordance with the move from
medical to a social model, Lebanon suggested “States should move away
statistical investigations that merely enumerate impairments that may
become a statistical means of patronizing PWD.” Lebanon also proposed
adding a paragraph reading, “States Parties should include disability
figures among the indicators to assess the development of the country
reflecting the close link between poverty and disability when relevant,”
but it acknowledged that the paragraph might be included elsewhere in
Convention as well.
Eritrea considered this an important tool in implementing
Article 4, which
calls on States to adopt legislative and administrative measures. On
issue of privacy, Eritrea suggested that 6(a) could conclude with “should
be treated with sensitivity,” while deleting “on a voluntary basis.”
Yemen clarified that when it speaks on behalf of the
Arab Group, it does
not block the members’ right to speak for themselves. Yemen stated that
the Arab Group cannot adopt measures without the availability of
statistics, but that it is important to respect the secrecy and discretion
of collection, referring to the protection of data in the title, while
respecting the privacy issues that may vary among communities. Yemen
stated that the details of disabilities should not be specified unless
is essential to have those details.
Ireland/EU questioned the need for this article, suggesting
the focus should be on the rights of persons with disabilities rather
on the policy making functions of States; however, the EU is now prepared
to make a proposal about the gathering of information. States should
simply collect information for its own sake, and suggested that the
paragraph start with “where necessary.” The EU asserted that this Article
should enable States to form policies and that it is insufficient to
a vague reference to privacy; rather, clear and legally established
safeguards are needed to respect the privacy of persons with disabilities.
The EU also affirmed that any process adopted by States should comply
international norms to protect human rights and fundamental freedoms
that such processes should be undertaken in collaboration with and
following consultations with organizations of persons with disabilities.
The EU opposed 6(d) and 6(e) for the reasons put forth by Japan.
Costa Rica agreed that this Article is important and
should be retained.
It proposed adding “and dissemination” after “codification” in the chapeau
and changing all instances of the verb “should” to the variant “shall,”
it is imperative to observe the privacy and dignity of persons with
disabilities. Because it is necessary to collect data on place of domicile
to judge the appropriateness of measures by governments, the phrase
if it is located in rural or urban areas” should be appended to 6(d).
Mexico considered it important to include this Article
so that all States
can provide for all the rights of persons with disabilities. Data
collection should be voluntary and confidential, and should include
socioeconomic and biomedical information. States should be responsible
data and statistical collection. Mexico also stressed the need to
establish mechanisms and norms to safeguard information.
Bahrain proposed that 6(d) include educational level
and social status. It
also suggested that 6(f) be redrafted so that families would be provided
information, taking into account confidentiality in data collection.
Sierra Leone supported the inclusion of this Article
with an amendment of
the title to read “Collection and protection of statistics and data.”
all tools, information can be misused, but items 6(b), 6(d), and 6(f)
contain certain principles to act as safeguards so that the tool could
be misused. Sierra Leone supported prohibiting unauthorized access,
ensuring voluntarism, confidentiality, and anonymity. It also supported
Costa Rica’s amendments as a whole, but would not insist that 6(d)
reference age, sex, or type of disability, because adding new data
requirements might open a “Pandora’s Box.”
Algeria expressed its support for keeping the Article's
except the listing of examples of other aspects of the lives of PWD.
commented that this looks like an exhaustive list, and that others could
be added, e.g., health care, social security, rehabilitation programs,
housing, employment, medical, training, etc. Algeria stated that it
preparing a proposal, which it will distribute.
India supported the EU proposal in its entirety.
Philippines proposed exchanging the words “should
encourage” with “shall
include in their data gathering program the collection of…” in the
chapeau. It recommended an additional paragraph: “States Parties should
provide a conducive environment that would encourage non-governmental
organizations and the private sector to conduct research and studies
the issues of concern to persons with disabilities.”
Egypt, responding to Bahrain, stated that families
will not receive, but
instead will provide, information.
Colombia supported amendments by Mexico and Costa
Rica and suggested
adding the recent initiative taken by Philippines regarding the role
Thailand supported the EU proposals regarding the
Article’s content but
opposed the EU suggestion to consolidate it with Article 25.
Jordan agreed with the EU that more is needed than
data and statistics,
and thus proposed moving this to Article 25 on research, monitoring,
evaluation. Jordan stated that this Article would serve all other
articles. States should include disability in their national censuses.
Jordan asserted that 6(a) and 6(f) refer to norms and ethics of research,
and that they can be combined into a general statement; and that 6(c)
6(d) are redundant and could be deleted.
Canada supported the substance of the EU proposal.
The Chair concluded the delegates' discussion of Article
6 and moved on to
International Rehabilitation Center supported moving
the Article to the
end of the text where there are concrete provisions. It underlined the
importance of data gathering not only to develop policies but also to
support following up on those policies. Data collected should be made
accessible. The Convention should specifically address privacy concerns.
Disabled peoples’ organizations should always be involved in the design,
gathering, and follow-up of statistical activities. While several
delegations believe this data should be broken down by sex and age
categories, IRC believes that indigenous peoples should also be included.
International cooperation should be encouraged on this issue so as to
generate uniformity in states efforts.
Disabled Peoples' International stressed the importance
of Article 6, as
too often countries fail to implement programs beneficial to persons
disabilities because of a lack of supporting data. This is noted in
13 of the Standard Rules, and by the Convention on the Rights of the
Child, in its reporting guidelines to States Parties. DPI stated that
particular 6(c) needs to stress working in partnerships. DPI suggested
that 6(a), 6(b) and 6(f) be grouped together in order to avoid repetition.
DPI also suggested that this Article be moved further down in the treaty
to better reflect its character as an implementation measure.
Commenced: 3:20 PM
Adjourned: 5:59 PM
ARTICLE 6: STATISTICS AND DATA COLLECTION (CONTINUED)
International Labor Organization welcomed the provision
on statistics and
data collection. It accepted the addition of the word “information”
long as it is clear that information will be used for planning and
resource allocation and not solely for monitoring. The introduction
call on States Parties to ensure to the extent possible that national
population censuses, and labor force and other household surveys should
gather information on PWD. It should also include a provision for the
dissemination of statistics. Like DPI, it suggested that 6(a), 6(b),
6(f) be combined because they are interrelated. Confidentiality and
anonymity is important not only in data collection, but in dissemination.
The second phrase of section 6(a) should be deleted because census
participation is mandatory in many States. Section 6(d) should require
internationally comparable categories.
PWD Australia/NACLC/Australian Federation of Disability Organizations
supported Article 6, but statistics and data collection are not human
rights; they are operational and should therefore appear at the end
Convention. Statistics are important for policy development, planning,
evaluation. The opening paragraph needs to reference planning and
evaluation, making it clear that States are obligated to collect, analyze
and codify statistics on disability. A requirement should be added for
making disability statistics publicly available. Another new paragraph
should promote the development, through international cooperation, of
consistent statistic collection methodologies.
The UN Special Rapporteur for Disability emphasized
the importance of
statistics, without which decision-makers may choose simplistic approaches
to the treatment of PWD. The term “promote” in the first paragraph is
strong enough to create awareness. Awareness should be strengthened
through suitable policies.
World Network of Users and Survivors of Psychiatry
provisions to protect data collection in 7(a) and 7(b), rather than
EU’s language. Clause 7(c) needs to say the preferred method of design
data collection is in partnership with PWD because this not only creates
better data, but also this helps create disability movement.
National Human Rights Institutions supported the EU
language because it
has more legal safeguards for privacy and confidentiality. It suggested
amendment to delete “where necessary” from the chapeau, because it allows
too much discretion. It proposed an amendment to 6(c) reading: “to ensure
that the collection of information is done in partnership with PWD,
respective organizations, and all other relevant stakeholders.” It also
supported retaining this as a separate article.
Yemen clarified that there is no consensus in the
Arab Group regarding the
consolidation of Article 6 and Article 25.
ARTICLE 7: EQUALITY AND NONDISCRIMINATION
Mexico supported the EU proposal because the WG’s
Article 7 deals more
with non-discrimination than equality; separating the two issues is
essential as is done in CEDAW. Non-discrimination guarantees equality.
Equality before the law is formal, requiring equal treatment. No one
should be treated differently because of disability. Non-discrimination
a duty to refrain from something, whereas equality in dignity, rights
social opportunities is a part of democratic society. Non-discrimination
is an obligation to provide positive measures. Mexico asked whether
non-discrimination and equality should be two separate articles, and
whether non-discrimination is incorporated in other Articles. It asked
EU whether the chapeau should include references to gender, race,
language, etc., and whether or why this reference should be moved to
preamble which is legally weaker. Mexico also asked the about the EU’s
proposed new chapeau regarding direct and indirect discrimination. It
asked for more clarification regarding the concept of direct and indirect
discrimination. It noted that States may establish criteria which is
legitimate and justified, and therefore not discriminatory; but raised
concern about the possibility of States abusing that discretion. Mexico
suggested that 7(4) should be in a separate article dealing with all
aspects of equality. It suggested adding provisions for compensatory
measures, similar to provisions in other human rights documents.
Ireland answered Mexico's questions. The EU proposal
would delete other
discrimination categories. It suggested instead that problems of multiple
discrimination be recognized in the Preamble.
Direct and indirect discrimination need to clear. There can be no
exceptions to the prohibition against direct discrimination, but the
Article 3 could allow direct discrimination. There are circumstances
a neutral provision may have a discriminatory impact, but it has a
legitimate aim. It stressed that an exception to indirect discrimination
must be limited, have an objective, legitimate purpose, and means which
are appropriate and necessary.
Reasonable accommodation (RA) must have a clear definition because
is confusion about this term. Reasonable accommodations are “necessary
appropriate modification and adjustments, where needed in a particular
case, to ensure to PWD the enjoyment or exercise on an equal footing
all human rights and fundamental freedoms, unless such measures would
impose a disproportionate burden.” It is an individualized concept.
private institutions, there may be limited exceptions to the duty to
provide reasonable accommodations, if the costs are too high. Ireland
supported special measures aimed at accelerating de facto equality as
apply in other Conventions.
South Africa and the African Group will submit proposed
Japan suggested changing the WG language in 7.1 from
to “all forms of discrimination.” In 7.2(b), it sees no difference between
direct and indirect discrimination, nor actual or perceived
discrimination. In 7.3, it suggested adding at the end of the sentence
“and consistent with international human rights law.” Regarding 7.5,
pointed out that although other Conventions' provisions have a sunset
clause, some provisions do not -- for example, the instrument on maternity
in CEDAW does not have a sunset clause. It wants no sunset clause in
China suggested deleting the last sentence in 7.1
because all other kinds
of discriminations are covered by other Conventions and could cause
Canada suggested in 7.1 adding “and under the law”
after the word “before”
and adding “and equal benefit of the law,” after “equal protection.”
would add "ethnic" to the list of prohibited discrimination,
as in Article
2.1 of CRC. Change the words “on an equal footing” in 7.2(a) to “on
basis of equality with others.” The definition of perceived disability
7.2(b) should be based on society’s perception. After “systemic,” the
following words should be inserted: “and shall also include discrimination
based on an actual disability or a disability that is perceived or
attributed by society.” It supported Japan's proposal for 7.3. In 7.5,
“special measures” could be changed to “positive measures.” Regarding
EU proposal regarding direct and indirect discrimination (7.3), it is
very difficult distinction to make in practice. If this section stays,
should apply to both kinds of discrimination to avoid focusing on
differences between the two.
Israel suggested adding to 7.1, “such” before “discrimination”
so it is
clear it relates to disability discrimination. It also supported deleting
the second sentence of 7.1 because it may infer that PWD are not entitled
to rights under human rights instruments. To 7.2(a), after “exclusion
restriction,” add “condition, act, or policy” because it needs to include
all acts which may discriminate. In addition, past disability needs
included by adding “past” after “actual.”
In 7.4 change the term “to provide” to “to ensure” because in the private
sector the State has no direct control, but States may still legislate.
Also in 7.4, after “disproportionate burden,” the following words should
be added: “In determining whether the burden in question is
disproportionate, consideration should be given to all relevant factors
including the availability of state funding for the purpose of making
accommodations.” It agreed with the balanced formulation of 7.5, but
suggested adding “affirmative action” or “positive discrimination.”
the end of 7.5, “Nothing in this article shall prevent limiting the
of special measures on a rational basis in accordance with the severity
Lebanon supported deleting the sunset provision from
New Zealand suggested adding, along with distinction,
restriction, the discriminatory nature of additional obligations or
burdens on people with disabilities. This is included in New Zealand's
Columbia stated that if special measures are mentioned,
this should refer
to affirmative action.
Thailand expressed concern that 7.3 is too blurry
and may tend to
legitimate discrimination so it suggested deletion. It favored the term
affirmative action rather than positive discrimination.
Australia agreed that the last sentence of 7.1 should
be deleted. In
7.2(b), it suggested adding “imputed” before “perceived” and after
“disability"; and adding “or by association with PWD.” It agreed
should be deleted. Under 7.4, replace “disproportionate burden” to “unless
such measures would impose an unjustifiable hardship.” Equality is the
goal, but it is given effect by non-discrimination.
Jordan suggested that 7.2(a) and (b), because they
are definitions, should
be moved to Article 3. Because 7.4 is similar to 4.1(a), general
obligations, it should be moved there.
China supported keeping 7.3 and if necessary merging
7.3 and 7.5 into one
paragraph. The term “disproportionate burden” is not clear; it prefers
using “unreasonable difficulties.”
Argentina pointed out that Articles 7 through 18 and
Article 24 of the WG
draft are re-writes of other treaties which are ratified. It proposed
adopting general principles and State obligations as was done in CEDAW.
Specifically in 7.2, this is the language in CEDAW which could be used:
“For the purpose of the present Convention the term discrimination against
PWD shall mean any distinction, exclusion, or restriction made on the
basis of disability which has the effect or purpose of impairing or
nullifying the recognition, enjoyment or exercise by PWD on a basis
equality of human rights and fundamental freedoms in the political
economic, social, cultural civil or any other field.”
Yemen opposed linking Article 4 (general obligations)
and Article 7
(measures to protect PWD from discrimination). No distinction should
made between direct and indirect discrimination because there are too
interpretations of these terms. Footnote 26 could be placed as a final
paragraph in Article 7. In 7.4, add the term “commitment.” The last
of 7.5 should be deleted.
Costa Rica agreed with Canada and Argentina. It suggested
Argentina’s “fields,” public, private, and family. It supported deleting
7.3. Reasonable accommodation corresponds to individuals and the term
“adequate” should be added to “appropriate.” Disproportionate burden
should not be added because this would add an economic element which
be counter to the rights of PWD. It supported the EU proposal which
replaces 7.1 if, after “discrimination” was added “in every field
including multiple discrimination.” If RA is linked to economic
considerations, this may nullify protections from discrimination.
NGOs were then heard regarding Article 7.
EDF / WBU / WNUSP spoke about the difference between
non-discrimination. Non-discrimination is a means to equality. The AHC
needs to decide if one or two Articles are needed. A failure of RA is
discrimination as in the ECSR (comment 5). RA needs a clear definition.
cannot be imposed on PWD, it is individualized, and must be effective
its purpose. Disproportionate burden is a difficult concept because
could be used to discriminate; therefore RA needs to be qualified by
of entity, size of entity, financial capacity and the cost of the RA.
Convention needs to limit the exceptions to RA.
The issue of exceptions to direct and indirect discrimination becomes
complicated due to the two proposals on the table. The EU's definition
workable for some countries, but not for all. The compromise in WG was
mention, but not define these terms. Defining direct/indirect
discrimination could cause more problems. The burden of proof must be
the public entity to prove that it has not discriminated. A separate
paragraph is needed about who is covered by anti-discrimination; this
should include people perceived as having a disability, people associated
with PWD, people with a past history of disability, and those who are
genetically predisposed to disability. Special measures may need to
dealt with differently for people with disabilities than for other groups.
While some positive action measures, such as quotas, may be short term,
there are many measures which are not temporary. For example assistive
technology and respite care are not temporary, and do lead to equality.
Rehabilitation International supported the WG draft's
original title for
Article 7, “Equality and non-discrimination.” Non-discrimination is
for equal enjoyment of rights. RI does not support the EU's alternative.
The language in 7.2(a) will bring this document in line with CEDAW.
Additions should be made to 7.2(b) to extend non-discrimination to those
with a record of disability, and to those associated with PWD. The concept
of indirect discrimination may not translate to other areas. The addition
of the term “legitimate aim” is too broad to be useful; 7.2(a) is better
worded. If “legitimate aim” is used, Japan’s qualifications should be
included. Disproportionate burden should be tied to state aid. The term
"positive action" is preferable to “special measures.” Paragraph
should be deleted.
LSN supported the title in the WG's draft. Equality
is consistent with other treaties. The term “indirect discrimination”
should be defined clearly in the Convention. The EU language in the
Article 3.2(b) should be adopted. Paragraph 7.3 should be deleted because
it is not in any other Convention and review standards can be created
the monitoring body. If 7.3 is left in the Convention, the Convention
should also incorporate the language changes proposed by Canada, Japan,
Yemen and EDF. LSN supported Canada’s language change in 7.2(a), because
it would remove the words "on an equal footing" which amputees
PWD find inappropriate.
NACLC/People with Disabilities Australia Incorporated/Australian
Federation of Disability Organizations stated that equality
must have a
central position in this Convention. It supported the removal of equality
from Article 7 only if equality is placed as a general obligation in
Article 4 or as separate Article. The organization of the Article could
improved. It suggests beginning the Article by prohibiting discrimination,
then requiring RA in State and non-State entities and clearly stating
failure to provide RA is discrimination. Only narrow exceptions, such
for public order, should be allowed, and only with the understanding
all other human rights instruments and non-discrimination provisions
to PWD. These exceptions should be subject to the least restrictive
alternative and active measures by PWD are voluntary. Direct and indirect
discrimination, RA, and active special measures should be defined.
Systemic discrimination is subsumed under indirect discrimination, but
indirect discrimination must be defined. The Bangkok draft's definition
would serve. Discrimination includes suspected, imputed, assumed, possible
disability, association with PWD, past disability or effects of past
disability and characteristics of a disability.
DPI noted that RA is more fully developed in footnote
27. As expressed in
the EDF’s statement, DPI is concerned that there is no clear identified
position that the denial of RA constitutes discrimination. It asks the
to clarify RA because unmet accommodation needs lead to exclusion and
inability to participate in all areas of life. The ESCR’s General Comment
5 may be helpful.
World Federation of the Deaf supported EDF and others.
discrimination on other bases such as race and gender are covered by
Conventions, these often do not help PWD, and multiple discrimination
continues. WFD supported the existing language in 7.1 and notes that
list of prohibited forms of discrimination, such as in the Convention
the Rights of the Child, could be included.. For example, language
discrimination is prohibited in other Conventions; however, deaf children
are punished for using sign language. Disabled girls are discriminated
doubly and some disability groups are discriminated more than others.
supported Canada’s addition of the term “ethnic.”
Inclusion International supported the EU and the concepts
of RA and undue
hardship. Children need to be highlighted in this section because
discrimination against children is a concern.
National Human Rights Institutions supported the deletion
of 7.3 because
it allows for too much discretion by States and it does not appear in
other Convention. It suggested deleting “disproportionate burden” so
States will not renege on their obligations.
ARTICLE 8: RIGHT TO LIFE
Yemen agrees completely with Article 8. It recommended
a second paragraph:
"States Parties shall, in accordance to their obligations in the
of international law and the Universal Declaration of human rights and
international treaties and conventions for the protection of civilians
from armed conflicts, take all necessary measures to guarantee the
protection and care for persons with disabilities that are affected
armed conflicts or are refugees or are internally displaced persons."
China stated that the right to life by PWD is protected
which means those who have been born and living on this earth. In order
control its population and relieve burdens on its society, China practices
family planning. This policy protects PWD. China questioned the necessity
of including this Article in the Convention.
Ireland stated that the EU supported Article 8 after
a very difficult
discussion. The EU does not support any additions.
South Africa stated that right to life was needed
for the Convention to be
comprehensive. However, right to life is in other instruments. It does
support any additions to this article.
Columbia supported keeping this article with no changes.
Argentina stated that right to life is dealt with
in other instruments. If
it is necessary to include it, the CRC language may be helpful: “States
Parties recognize that any disabled person has an inherent right to
Norway agrees that this is a difficult issue and supported
Article 8 with no changes.
Costa Rica endorsed Argentina's recently stated view,
that the right to
life is inherent to everyone and if a specific mention is included in
Convention, it may open a Pandora’s Box. Given the Committee’s general
support for this inclusion Costa Rica suggested alternative language
follows: “States Parties reaffirm the inherent right to life of all
persons and shall take all necessary measures to ensure its effective
enjoyment by persons with disabilities.” The existing draft article
create a distinction that is not there; everyone has same rights and
obligations, not just PWD. In addition Costa Rica calls for an additional
Article for “Populations in Special Risk” such as in situations of armed
conflict, natural disasters and extreme poverty. Draft language for
article will be distributed later.
Uganda supported the original Article 8 and supported
the added paragraph
about armed conflict. Its suggested language is as follows: “In accordance
with their obligations under international humanitarian law to protect
civilian population in armed conflicts and risk situations, States Parties
shall take all feasible measures to ensure the protection and care of
persons with disabilities who are affected by armed conflicts."
The Holy See attaches great importance to this article
and its role in
this Convention. Although the Right to Life is recognized in other
instruments, PWD are a specific group with specific issues. The voices
PWD should be heard in this, because of their lived experiences related
the denial of this right.
Mexico stated its preference for Article 8 in the
original WG, but may
support adding a second paragraph.
Nicaragua supported Article 8 as drafted and favors
regarding armed conflict.
Japan supported the original text. Regarding the addition
conflict, it may support it, but inclusion may change the intent of
Article. It may be better under another Article.
India supported the addition of a right to survival,
as follows: AStates
Parties shall ensure to the maximum extent possible the survival and
development of PWD.@
Kenya supported this Article as written. It also supported
conflict and natural disaster addition. This is important to developing
countries faced with civil strife.
Jordan supported the Article as it is and suggested
adding at the end of
the sentence “in particular in situations of armed conflicts and natural
disasters, in accordance with international law, human rights, refugee,
and international humanitarian law.”
Lebanon believes a separate article is needed so that
Article 8 will not
Eritrea supported the addition of a new paragraph
regarding armed conflict
since PWD are under much greater risk.
NACLC/People with Disabilities Australia Incorporated/Australian
Federation of Disability Organizations supported retaining
the content of
the existing draft article with an additional statement elaborating
rights related to the specific circumstances of PWD. “These measures
shall include enacting measures to discourage the elimination of unborn
children on the basis of their actual, suspected, imputed, assumed or
possible future disability by providing pre-natal information and
post-natal support to parents of children with disability, prohibiting
state and non-state actors from limiting or abusing social assistance
equal terms with others on the basis of a parental decision to bear
child with a disability, the provision of life sustaining and life
enhancing medical and social interventions that will ensure survival
PWD, enacting protections against violence, abuse and neglect of PWD,
eliminating policies and practices that result in segregation and
isolation of PWD.” In addition, genetic engineering presents a
fundamental eugenic threat to many impairment groups.
Inclusion International expressed its concern over
the role of genetic
engineering, noting that PWD are a part of human diversity and bring
unique contributions through their disability. “Don’t prevent us, include
World Federation of the DeafBlind recommended changing
the title to the Right to Life, Survival and Development” with the following
additional language: “States parties shall take all necessary measures
to ensure its effective enjoyment by women, men, girls and boys in all
stages of life.” Supporting the Indian position there should be a second
paragraph: “The right to life includes the right to survive”. The additional
third paragraph would state: “Disability must not become a justification
for determination of life.”
The Ad Hoc Committee Daily Summaries are published by the Landmine Survivors
Network, a US based international organization with amputee support networks
in 6 mine affected / developing countries. The proceedings of the UN Ad
Hoc Committee elaborating a Convention on the human rights of people with
disabilities are covered by them as a service to those wishing to better
understanding and follow the process toward a convention.