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Contributions submitted by Governments
in electronic format at the Fourth Session

Proposed Modifications to Draft Article 7

African Group

ARTICLE 7
EQUALITY AND NON-DISCRIMINATION

1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit 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 ethnic or social origin, property, birth, source or type of disability, age, health, marital status, belief, culture or any other status.

2. (a) Discrimination shall mean any distinction, exclusion, additional obligations or burdens, or restriction or acts which have the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise by persons with disabilities, on a basis of equality with others, of all human rights and fundamental freedoms;

(b) Discrimination shall include all forms of discrimination, including direct, indirect and systemic, and shall also include discrimination based on an actual disability or a disability that is perceived or attributed by society or by association with a person with a disability.

3. Discrimination does not include a provision, criterion or practice that is objectively and demonstrably justified by the State Party by a legitimate aim and where the means of achieving that aim are reasonable and necessary and consistent with international human rights law.

4. In order to secure the right to equality for persons with disabilities, States Parties undertake to take all appropriate steps, including by legislation, to ensure reasonable accommodation, defined as necessary and appropriate modification and adjustments to guarantee to persons with disabilities the enjoyment or exercise on an equal footing with others of all human rights and fundamental freedoms, unless such measures would impose unreasonable difficulties.

5. Positive measures 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;

5(bis). In order to secure non-discrimination of persons with disabilities, States Parties undertake in particular:

(c) States shall ensure that the needs and concerns of persons with disabilities are incorporated into economic and social development plans and policies, and not treated separately;

(d) to refrain from engaging in any act or practice of discrimination against persons with disabilities and to ensure that public authorities and institutions act in conformity with this obligation;

((7 bis) To ensure the right to equality for all persons with disabilities. States Parties shall take positive measures to benefit all persons with disabilities.

European Union

Draft Article 7
EQUALITY AND NON-DISCRIMINATION

EU Position : Accept a separate article 7 and replace to become Article 3.

1. 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.

EU Proposal: The EU proposes that references to multiple forms of discrimination should be moved to the Preamble. Therefore, the EU proposes the deletion of the last sentence in Paragraph 1.

(a) 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.

(b) Discrimination shall include all forms of discrimination, including direct, indirect and systemic, and shall also include discrimination based on an actual or perceived disability.

EU Proposal: EU proposes replacing paragraph 2 (a) and (b) with the following:

“For the purpose of the present Convention, the term "discrimination on the grounds of disability" shall mean any distinction, exclusion or restriction which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise on an equal footing by persons with disabilities of all human rights and fundamental freedoms.”

a. Direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on the grounds of disability;

b. Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put a person having a disability at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary or unless measures are taken to eliminate that disadvantage

3. 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.

EU Proposal: Delete Paragraph 3

4. 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, 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.

EU Proposal: EU suggests the following rewording of Paragraph 4

4. In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, States Parties undertake to take all appropriate steps, including by legislation, to ensure that reasonable accommodation is provided; reasonable accommodation to be defined as necessary and appropriate modification and adjustments, where needed in a particular case, to ensure 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.

5. Special measures 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;

Japan

Art. 7-5
-as in the square brackets, we propose to delete whole language after the word Convention (in line 3) "but shall in no way entail as a consequence the maint enance of unequal or separate standards....(to the end)"

(rationale) We are of the opinion that there should exist some positive action s, even with reasonable accommodations, to accommodate persons with severe disabilities. These measures should not be necessarily temporary, as in the case of the protection of maternity stipulated in article 4-2 of the CEDAW.

For this reason, it is acceptable for us to formulate as follows, instead of deleting all as proposed above:

"those measures should be discontinued when they are no longer justified in li ght of the objectives of equal opportunity and treatment."

Mexico

Suggestions for the content for a new article on Equality of opportunities.

The States Parties shall take the necessary measures to establish positive and compensatory measures towards gaining equal access to opportunities for persons with disabilities, such as the following:

To promote accessible environments to facilitate access, participation and freedom of movement;
To endeavor their incorporation, continuance and participation in regular educational activities at all levels;
To promote at all levels of mandatory schooling, provision of special technical help needed for each disability;
To create permanent training programs for employment and promotion of labor integration;
To adequate facilities for recreation;
To endeavor accessibility to public transportation;
To promote that every public space or building and those that offer services to the public, have the necessary physical adaptations and signs to facilitate access, use and enough space for movement;
To endeavor to have appropriate signs to facilitate free transit;
To inform and advice construction professionals with regard to requirements for facilitating access and use of buildings, and
To promote that in all facilities of the national health and social security systems, persons with disabilities regularly receive adequate treatment and medication necessary for maintaining and furthering their functional capacity and quality of life.

Report of the Coordinator to the fourth session of the Ad Hoc Committee

Summary of discussions on draft article 7

Paragraph 1

19. There was general agreement on the substance of paragraph 1, as well as on the addition of one footnote and the referral of a drafting matter to the Facilitator’s group on this draft article, led by Stefan Barriga (Liechtenstein).

20. The text was generally agreed as follows:

“States parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit 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 other grounds.^a

21. The Facilitator’s group is to consider whether it would be useful to combine the second and third sentence of paragraph 1 without altering their substance.

Paragraph 2 (a)

22. There was general agreement to use the following text, which borrows from the last part of article 1 in the Convention on the Elimination of All Forms of Discrimination against Women (two footnotes were also agreed on):

“(a) For the purpose of the present Convention, the term ‘discrimination on the basis of disability’ shall mean any distinction, exclusion or restriction^b which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on a basis of equality with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”^c

Paragraph 2 (b)

23. The text was generally agreed as follows: “(b) Discrimination shall include all forms of discrimination, including direct and indirect discrimination.”

24. Some drafting issues may need to be addressed later in relation to whether to amalgamate subparagraphs 2 (a) and (b).

Paragraph 3

25. It was generally agreed that existing paragraph 3 had a high risk of being misinterpreted. It was agreed to delete paragraph 3 and to add a footnote to the draft article.

26. The text of the footnote was agreed as follows:

“Note: A number of delegations were of the view that there should be a reflection of general comment 18 of the Human Rights Committee, as follows: ‘not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the convention’.”

Paragraph 4

27. There was general agreement to use the text set out below as a basis for paragraph 4, with two new footnotes, and to retain footnote 27 of the Working Group draft text. There was also acknowledgement of the need for further drafting consideration and discussion on the placement of the definition, either here or within the definitions section of the draft convention. The text was generally agreed as follows:

“^dStates parties undertake to take all appropriate steps to ensure that reasonable accommodation is provided; ‘reasonable accommodation’ to be defined as necessary and appropriate modification and adjustments not imposing a disproportionate burden,^e where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on a basis of equality with others of all human rights and fundamental freedoms.^f”