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Back to: Third Session of the Ad Hoc Committee
Daily summary of discussions
Daily
summary of discussions related to Article 7
EQUALITY AND NONDISCRIMINATION
UN Convention on the Rights of People with Disabilities
Third session of the Ad Hoc Committee - Daily Summary
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Volume 4, #2
May 25, 2004
Afternoon Session
Commenced: 3:20 PM
Adjourned: 5:59 PM
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 is a duty to refrain from something, whereas equality
in dignity, rights and 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 the EU whether the chapeau should include references to gender,
race, language, etc., and whether or why this reference should be moved
to the 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 a 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 WG's Article
3 could allow direct discrimination. There are circumstances where 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
there is confusion about this term. Reasonable accommodations are “necessary
and appropriate modification and adjustments, where needed in a particular
case, to ensure to PWD the enjoyment or exercise on an equal footing
of all human rights and fundamental freedoms, unless such measures would
impose a disproportionate burden.” It is an individualized concept.
For 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
they apply in other Conventions.
South Africa and the African Group
will submit proposed language regarding discrimination.
Japan suggested changing the WG language in 7.1 from
“any discrimination” 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, Japan 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 this Convention.
China suggested deleting the last sentence in 7.1
because all other kinds of discriminations are covered by other Conventions
and could cause unnecessary confusion.
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.” It 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 a basis of equality with others.” The definition
of perceived disability in 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 the EU proposal regarding direct and indirect discrimination
(7.3), it is a very difficult distinction to make in practice. If this
section stays, it 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 or restriction,” add “condition, act, or policy” because
it needs to include all acts which may discriminate. In addition, past
disability needs to be 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.” Add to the end of
7.5, “Nothing in this article shall prevent limiting the scope of special
measures on a rational basis in accordance with the severity of the
disability.”
Lebanon supported deleting the sunset provision from
7.5.
New Zealand suggested adding, along with distinction,
exclusion, or restriction, the discriminatory nature of additional obligations
or burdens on people with disabilities. This is included in New Zealand's
national law.
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 7.3 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 of 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 be made between direct and indirect discrimination because there
are too many 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 part of 7.5 should be deleted.
Costa Rica agreed with Canada and Argentina. It suggested
adding to 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 may 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
equality and 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. It cannot be imposed on PWD, it is individualized, and must
be effective in its purpose. Disproportionate burden is a difficult
concept because it could be used to discriminate; therefore RA needs
to be qualified by type of entity, size of entity, financial capacity
and the cost of the RA. This 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 is workable for some countries, but not for all. The compromise
in WG was to mention, but not define these terms. Defining direct/indirect
discrimination could cause more problems. The burden of proof must be
on 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
be 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 a tool 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 7.3 should be deleted.
LSN supported the title in the WG's draft. Equality
and non-discrimination is consistent with other treaties. The term “indirect
discrimination” should be defined clearly in the Convention. The EU
language in the new 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 by 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 and other 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 be improved. It suggests beginning the Article by prohibiting
discrimination, then requiring RA in State and non-State entities and
clearly stating the failure to provide RA is discrimination. Only narrow
exceptions, such as for public order, should be allowed, and only with
the understanding that all other human rights instruments and non-discrimination
provisions apply 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 AHC to clarify RA because unmet accommodation needs lead
to exclusion and the 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.
Even though discrimination on other bases such as race and gender are
covered by other Conventions, these often do not help PWD, and multiple
discrimination continues. WFD supported the existing language in 7.1
and notes that a list of prohibited forms of discrimination, such as
in the Convention on 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. WFD 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 any other Convention. It suggested deleting “disproportionate
burden” so that States will not renege on their obligations.
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