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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

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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