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Background Documents | Article 2 Background
Seventh Session | Fourth
Session | Third Session
Working Group | References
Argentina
Australia
Canada
Costa Rica
European Union
India
Kenya
National Human Rights Institutions
International Disability Caucus
International Disability Convention Solidarity in Korea (IDCSK)
Japan Disability Forum
National Association of Community Legal Centres (NACLC)
People with Disability Australia
Article 2
1. Disability The term "disability" means a physical, mental, or
sensory impairment, whether permanent or temporary, that limits the capacity
to perform one or more essential activities of daily life, and which can be
caused or aggravated by the economic and social environment.
(from article 1 of the Inter-American Convention on the Elimination of All
Forms of Discrimination Against Persons With Disabilities, AG/RES. 1608, 7
June 1999)
Proposal for Article 2 – Reasonable Accommodation
31 January 2006
Article 2
“Reasonable adjustments” means necessary and appropriate adjustments
and modifications not imposing unjustifiable hardship, which are needed in
a particular case to eliminate discrimination and ensure equality.
Australian proposed definition of disability
‘disability’ includes person who experience:
(a) total or partial loss of the person's bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person's body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and that such experience:
(h) may presently exist; or
(i) may have previously existed but no longer exists; or
(j) may exist in the future; or
(k) may be imputed to a person.
Article 2
Communication includes (DEL oral-aural communication, communication using sign) SPOKEN AND SIGNED languages, DISPLAY OF TEXT, and Braille, and tactile communication, large print, audio, accessible multimedia, PLAIN LANGUAGE, human reader and other augmentative or alternative modes of....
Discrimination on the basis of disability means any distinction, exclusion, or restriction on the basis of disability, INCLUDING A FAILURE TO PROVIDE REASONABLE ACCOMMODATION, which has the purpose or effect...
(DEL National) Laws of general application means laws that apply to society as a whole and which do not DISCRIMINATE AGAINST (DEL differentiate in respect of) persons with disabilities (DEL national laws and procedures of general application and national laws, customs and traditions of general application shall have the same meaning, mutatis mutandis).
Reasonable accommodation means A DUTY TO MAKE necessary and appropriate modifications and adjustments TO THE POINT OF UNDUE HARDSHIP (DEL not imposing a disproportionate burden), where needed in a particular case OR CASES, TO ELIMINATE DISCRIMINATION AND to ensure to persons with disabilities the enjoyment or exercise on an equal....
Universal design and inclusive designmean the design of products, (DEL and)
environments, AND PROGRAMS AND SERVICES to be usable by all people, to the
greatest extent possible, without the need for adaptation or specialized design
Article 2
"Disability" is the outcome of the interaction between a person
with an impairment and the environmental and attitudinal barriers he/she may
face.
Article 2
For the purposes of the present Convention:
“Communication” includes oral-aural communication, communication using sign languages, and Braille, and tactile communication, large print, audio, accessible multimedia, human reader and other augmentative or alternative modes of communication, including accessible information and communication technology.
[“Disability”…]
[“Persons with disabilities”…]
EU Comment: The EU agrees with the Chair that definitions of “disability” and “persons with disabilities” are not needed.
“Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability 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. It includes all forms of discrimination, including direct and indirect discrimination.
EU Proposal: Delete “including direct and indirect discrimination” because this is covered by “all forms of discrimination”.
“Language” includes oral-aural languages and sign languages.
“National laws of general application” means laws that apply to society as a whole and which do not differentiate in respect of persons with disabilities. “National laws and procedures of general application” and “national laws, customs and traditions of general application” shall have the same meaning, mutatis mutandis.
EU Proposal: The EU does not support the use of the term “national laws of general application” because it considers that this wording may not prevent States retaining discriminatory laws. The EU considers that this concept is best handled by using phrases such as “on an equal basis with others” where appropriate. The EU therefore proposes the deletion of this definition.
“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate burden, 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.
EU Proposal: Replace “on a basis of equality with others” with “without discrimination” because the EU considers it important to maintain the link between reasonable accommodation and non-discrimination.
“Universal design” and “inclusive design” mean the
design of products and environments to be usable by all people, to the greatest
extent possible, without the need for adaptation or specialized design.
EU Position
30 January 2006
“Communication” includes oral-aural communication, communication using sign languages, and Braille, and tactile communication, large print, audio, accessible multimedia, PLAIN LANGUAGE, human reader and other augmentative or alternative modes AND MEANS of communication, including accessible information and communication technology.
“Disability”, “Persons with disabilities”: THE EU AGREES WITH THE CHAIR THAT DEFINITIONS OF “DISABILITY” AND “PERSONS WITH DISABILITIES” ARE NOT NEEDED. HOWEVER, TO ACCOMMODATE THE CONCERNS BY SOME PARTNERS THAT ALL PERSONS WITH DISABILITIES SHOULD BE COVERED BY THE CONVENTION, THE EU HAS PROPOSED TO ADD THE WORD “ALL” IN ARTICLE 1 OF THE DRAFT CONVENTION. ARTICLE 1 WOULD THUS READ AS FOLLOWS: “The purpose of the Convention shall be to ensure the full and equal enjoyment of all human rights and fundamental freedoms of ALL persons with disabilities.”
“Discrimination on the basis of disability” means any distinction, exclusion, or restriction on the basis of disability 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. It includes all forms of discrimination [DELETE: including direct and indirect discrimination AS THIS IS COVERED BY ALL FORMS OF DISCRIMINATION].
“Language” includes oral-aural languages and sign languages.
[DELETE: “National laws of general application” means laws that apply to society as a whole and which do not differentiate in respect of persons with disabilities. “National laws and procedures of general application” and “national laws, customs and traditions of general application” shall have the same meaning, mutatis mutandis.] REASONING: THE EU DOES NOT SUPPORT THE TERM NATIONAL LAWS OF GENERAL APPLICATION BECAUSE IT CONSIDERS THAT THIS WORDING MAY NOT PREVENT STATES RETAINING DISCRIMINATORY LAWS. THE EU CONSIDERS THAT THIS CONCEPT IS BEST HANDLED BY USING PHRASES SUCH AS “ON AN EQUAL BASIS WITH OTHERS” WHERE APPROPRIATE.
“Reasonable accommodation” means necessary and appropriate modification and adjustments, WHERE NEEDED IN A PARTICULAR CASE; UNLESS IMPOSING A DISPROPORTIONATE BURDEN, to ensure to A PERSON WITH DISABILITY [DELETE: persons with disabilities] the enjoyment or exercise [DELETE: on a basis of equality with others] ON AN EQUAL BASIS WITH OTHERS of all human rights and fundamental freedoms.
“Universal design” and “inclusive design” mean the design of products and environments to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design.
Intervention
We are comfortable with the Chair’s text on most of the definitions.
We would however, like to make some suggestions.
(i) Regarding the definition of Communication, we support EU’s text,
which provides for inclusion of Plain Language as one of the modes of Communication.
(ii) Regarding the definition of Discrimination on the basis of disability, we support the Chair’s text. The issue regarding indirect discrimination on the ground of disability has been discussed in earlier meetings of this Committee. We feel that the last sentence of this definition is not necessary and can be dropped with out any loss in content.
(iii) Regarding Reasonable accommodation definition, we support the chair’s text where to our understanding the words ‘disproportionate burden’ have been used in the context of financial and other burdens which may not be commensurate with the benefit to be achieved i.e. accommodation sought to be provided is not reasonable. We would like to support those delegations who have suggested that the concept of reasonable accommodation has to be seen as distinct from discrimination on the grounds of disability i.e. State party’s inability to provide reasonable accommodation in a situation need not amount to discrimination against person with disability. We are however, cognizant of the responsibility of the State party to provide reasonable accommodation.
(iv) The most important aspect in this article is definition of Disability and persons with disability. We support the Chair’s views expressed in his letter that there is no need to give a definition of both these terms. During the debate today, some delegations have referred to ICF of WHO or some general formulations like Inter-American Convention. The question is whether any such general definition would be of any help from the point of view of this convention since state parties will have to provide a very specific definition of each type of disability, which is scientifically measurable in their domestic laws. Further, scope of the definition would continue to change over a period time; therefore, any specific definition in this convention may not serve required purpose. We understand very clearly when we talk of persons with disabilities. Rest of the details should be left with state parties to take necessary precautions while defining the two terms in their domestic laws.
For the purposes of the present Convention:
“Communication” includes oral-aural communication, communication using sign languages, and Braille, and tactile communication, large print, audio, accessible multimedia, human reader and other augmentative or and alternative modes and means of communication, including accessible information and communication technology.
“Disability” includes any physical, sensory, mental, psychological or other impairment, condition or illness that has, or is perceived by significant sectors of the community to have, a substantial or long-term effect on an individual’s ability to carry out ordinary day-to-day activities;
Persons with disabilities “Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability 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. It includes all forms of discrimination, including direct and indirect discrimination.
“Language” includes oral-aural languages and sign languages.
“National laws of general application” means laws that apply to society as a whole and which do not differentiate in respect of persons with disabilities. “National laws and procedures of general application” and “national laws, customs and traditions of general application” shall have the same meaning, mutatis mutandis.
“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate burden, 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.
“Universal design” and “inclusive design” mean the
design of products and environments to be usable by all people, to the greatest
extent possible, without the need for adaptation or specialized design.
National Human Rights Institutions
NATIONAL HUMAN RIGHTS INSTITUTIONS
Tuesday 31 January, 2006.
Thank you Mr Chair,
National Human Rights Institutions have two points to make with respect to draft Article 2.
First, National Human Rights Institutions strongly support the proposal put forward by many delegations including Canada, Australia, Lichtenstein, the EU and also the IDC to amend the definition of discrimination to explicitly include a “denial of reasonable accommodation” as a form of discrimination. Like many others, we view this issue as crucial.
The intimate connection between ‘reasonable accommodation’ and non-discrimination is the most visible positive accomplishment of modern non-discrimination law in the context of disability. Indeed, it is highlighted in General Comment 5 of the Committee on Economic, social and cultural rights.
It would seem strange, to say the least, if the most innovate aspect of comparative disability discrimination would be conspicuous by its absence in this convention.
As you indicated yesterday, I chaired the sub-group of the Working Group in January 2004 that worked on this issue. I will not rehearse the debate within the Working Group and the opposition within that group to connecting ‘reasonable accommodation’ to non-discrimination. Thats for the history books. Suffice it to say, that national positions have evolved quite positively since then. National Human Rights Institutions both acknowledge these positive steps and welcome them.
If there is real but largely inarticulate fear that the concept might provide
a back door allowing for the judicial enforceability of a broad sweep of socio-economic
rights beyond those that give rise to obligations of immediate effect then
this fear is misplaced.
The concept ‘reasonable accommodation’ stems from a very simple
insight that refraining from discrimination may not be enough to respect difference – sometimes,
something more should happen to accommodate the difference. That something
more usually costs nothing and is normally quite modest.
The obligation of ‘reasonable accommodation’ does not lead to wholesale structural change. It does not amount to ‘positive’ or ‘affirmative action’ in the traditional sense. And it certainly does not equate to economic, social and cultural rights. In short, the fear that the concept is some sort of back-door to allow for the full judicial enforceability of all socio-economic rights is without foundation.
The US courts and indeed many other courts throughout the world have built up an elaborate body of jurisprudence on ‘reasonable accommodation’ over several decades and especially since the enactment of the rightly famous Americans with Disabilities Act (1990). This comparative jurisprudence is almost unanimous in explicitly pegging ‘reasonable accommodation’ to the non-discrimination norm.
In point of fact, the concept began its life on the ground of religion but was, of course, subsequently made more famous on the ground of disability.
It is in this light that National Human Rights Institutions greatly welcome the draft text to reconnect ‘reasonable accommodation’ with non-discrimination now put forward by many delegations including Canada, Australia, Lichtenstein and the European Union. Such language would be to the effect that discrimination on the basis of disability includes ‘denial of reasonable accommodation.’
We are less worried about where it is placed – at the start of the definition of discrimination as suggested by the EU or toward the end as suggested by Lichtenstein - but we stress the importance of restoring the link and thank national delegations for their positive attitude on the subject.
Secondly, National Human Rights Institutions also strongly support the EU’s proposal to insert the word ‘unless’ in place of the word ’not’ in the definition of ‘reasonable accommodation’ for the reasons put forward so clearly and succinctly by the Presidency.
Thank you.
Non-governmental organizations
INTERNATIONAL DISABILITY CAUCUS (IDC)
Article 2
For the purposes of the present Convention:
“Communication”
includes (Delete: oral-aural communication, communication using sign languages) BY) (ADD “spoken and signed languages”, and Braille, and tactile communication, large print, audio, accessible multimedia, (ADD: plain language) human reader(s) and (DELETE: “other”) augmentative (REPLACE “or” BY “and”) alternative modes (ADD: means and formats) of communication, including accessible information and communication technology.
Alternative wording:
"Communication" is the process of exchanging information, usually
via a common system of symbols and/or sounds. It includes inter alia spoken
and signeds languages and Braille, tactile communication, large print, audio,
captioning, , accessible multimedia, plain language, human readers, augmentative
and alternative modes, means and formats of communication, including accessible
electronic information and communication technology.
(DELETE: [“Disability”…]
[REPLACE “Persons with disabilities” BY “Person with a disability”]
(ADD: A person with a disability is an individual, whose potential to lead an inclusive life in the community of his/her own choice, is limited by the separate or concomitant impact of physical, economic, social and cultural environments and/or personal factors that interact with a condition. Such conditions include physical, sensory, psychosocial, neurological, neuro-diverse, medical, intellectual or other conditions that may be permanent, temporary, intermittent or imputed.
NOTE If a definition of a person with a disability does not exist in a country, the definition in this convention shall be applied and any definition of disability that is applied in their countries' courts of law shall be at least as inclusive and broadly based as the definition contained in this convention. )
(JUSTIFICATION: The IDC proposes not to have a definition on “disability”. IDC does not find a definition of different kinds of disabilities meaningful. However, IDC find it meaningful to define who have the right to be protected by this Convention but not define what is a disability as such.
The reason is that we need to clearly define who has the right to be covered by this Convention. If we do not have such a definition, States may defined what they find best and may exclude disability groups which should be covered and protected by this Convention.)
“Discrimination on the basis of disability”
means any distinction, exclusion (ADD: “denial of reasonable accommodation”)
or restriction on the basis of disability 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. It includes
all forms of discrimination, including direct and indirect discrimination.
(ADD: “Discrimination on the basis of disability” shall also include discrimination based on an actual, perceived, past, imputed or future disability, as well as discrimination based on association with a person with a disability. No individual shall be considered to be a person with a disability contrary to his/ her choice.)
(JUSTIFICATION: The IDC supports the inclusion of the concept of “denial of reasonable accommodation” as a form of discrimination as foreseen in the definition of General Comment No. 5 of the CESCR. The IDC considers it very important to include a reference to the acceptance by the person with a disability of what is a reasonable accommodation.)
“Language”
includes (REPLACE “oral-aural languages and sign languages” BY “spoken and signed languages”
(JUSTIFICATION: The IDC notes that signed languages are visual-gestural languages, while spoken languages are auditory-vocal languages. As it have proven to be difficult for States to understand that sign language is a language with the same qualification as any spoken language, it may take decades or longer to get sign language recognised as a language by States if we do not make provisions in this Convention.)
“National laws of general application”
means laws that apply to society as a whole and which do not differentiate in respect of persons with disabilities. “National laws and procedures of general application” and “national laws, customs and traditions of general application” shall have the same meaning, mutatis mutandis.
“Reasonable accommodation”
means necessary and appropriate modification and adjustments (DELETE “not
imposing a disproportionate burden”), (REPLACE “where needed in
a particular case” BY “that is interactive, individualized and
subject to the person’s consent”), (REPLACE “to ensure to
persons with disabilities the enjoyment or exercise on a basis of equality
with others of all human rights and fundamental freedoms” BY “to
ensure to persons with disabilities the enjoyment and exercise of all human
rights and fundamental freedoms on a basis of equality with others”).
(DELETE “(Universal design” and “inclusive design” mean
the design of products and environments to be usable by all people, to the
greatest extent possible, without the need for adaptation or specialized design.
(ADD: ““Inclusive and universal design” shall not exclude
assistive devices for particular groups of persons with disabilities where
this is needed”)
(JUSTIFICATION: IDC proposes to delete this definition since it does not appear frequently in this convention. As the concept including its title, vary from place to place and may change over time, IDC find it best to make generic reference direct to this concept in article 4.f) and then the reference could be deleted from article 9 as well.
IDC notes that while the concept of inclusive and universal design is good,
this does not do away with the need for assistive devices, and universal design
may not be able to address the needs of persons with disabilities whose type
of impairment exists in very small numbers in the population.)
NEW : “ inclusion”
means the full and equal participation in public, social and private life of persons with disabilities, with a focus on removal of social and physical barriers and with the provision of appropriate support and services.
DEFINITIONS
Compiled by DANIEL IGA MWESIGWA of the World Network of Users and Survivors of Psychiatry on behalf of the IDC
The IDC proposes not to have a definition on disability. The IDC does not find a definition of different kinds of disabilities meaningful. However, the IDC finds it meaningful to define who have the right to be protected by this convention but not define what is a disability as such.
Esteemed delegates I would like to remind ourselves that many nations have a mindset that persons with Psycho-social disabilities are not persons with disabilities. They always look at mental illness using the medical model of approach. However, looking at it from the social model of approach; the stigma from the community, the prejudices and stereotypes against people with Psycho-social disabilities are very disabling leading to loss of human diginity and gross violation of their inherent human rights.
So the IDC proposes the following:
A person with a disability is an individual, whose potential to lead an inclusive life in a community of his or her own choice, is limited by the separate or concomitant impact of physical, economic, social and cultural environments and or personal factors that interact with a condition. Such conditions include physical,sensory,psycho-social,neurological,or other conditions that may be permanent, temporary, intermittent or imputed.
INTERNATIONAL DISABILITY CONVENTION SOLIDARITY IN KOREA (IDCSK)
Article 2
IDCSK fully supports the proposals made by the IDC except only the below.
(JUSTIFICATION : “A person with a disability is an individual whose
opportunities are limited or lost in taking part in the normal life of the
community on an equal level with others, due to physical, social, attitudinal
and cultural barriers because of their physical, sensory, intellectual, psychological,
developmental, learning, neurological or other impairment including the presence
in the body of an organism or agent causing malfunction or disease, which could
be permanent, temporary, episodic or transitory in nature.” - * Our suggestion
is based on the Proposal C of Bangkok draft made in Oct. 2003)
Article 2
Revisions and Reasons:
1. We positively support the explicit statement that not only direct discrimination but also “indirect discrimination” is included in “all forms of discrimination”, after the definition of discrimination in Article 2.
[Reason] Because, in Japan, there is little awareness that indirect discrimination is a form of discrimination, it is necessary to call attention to this fact. Article 2 of the EU directive has given substance to the concept of indirect discrimination, and the Convention on the Elimination of all Forms of Discrimination against Women has also included the concept of indirect discrimination. Therefore, it is necessary to explicitly provide for this concept in relation to persons with disabilities as well.
2. “Where reasonable accommodation is denied” should be included in the definition of discrimination.
3. In Article 2, the words “not imposing a disproportionate burden” should
be cut from the phrase “Reasonable accommodation” means necessary
and appropriate modification and adjustments not imposing a disproportionate
burden”. The exception “not imposing a disproportionate burden” should
be prescribed as an exception to the implementation of Article 5.
Comments:
1. In the definition of “Communication”, “display of texts” should be explicitly included.
2. In the Covering Letter from the Chairman, questions have been raised regarding whether it is appropriate to include definitions of “Disability” and “Persons with disabilities” in the Convention. In light of the negotiation so far, the Chairman has expressed opinions that could be taken to mean that definitions for the two concepts are not necessary. The basis for this is that defining these concepts is difficult, and there is a risk of unintentionally excluding someone. However, the definition of “Disability” and “Persons with disabilities” has not been adequately discussed in the Ad Hoc Committee. It is premature to conclude at this stage that definitions for the two concepts are not necessary. In the case where definitions are to be included, they should be broad enough so that certain disabilities and persons with disabilities are not excluded.
3. The definition for “Discrimination based on the basis of disability” does
not include denial of “Reasonable accommodation”. JDF believes
that denial of reasonable accommodation should be taken as a form of discrimination.
In the covering letter from the Chairman, the uncertainty of the concept of
reasonable accommodation and the fact that many States are unlikely to be able
to provide reasonable accommodation immediately are pointed out as reasons
for the exclusion (the principle of progressive realization does not apply
to non-discrimination). However, it must be fully noted that reasonable accommodation
as a legal concept has been gradually evolving in many States and the EU in
the context of non-discrimination. Moreover, General Comment No. 5 of the Committee
on Economic, Social and Cultural Rights (CESCR) includes denial of reasonable
accommodation within the definition of disability. Therefore, there are doubts
as to the excluding of the denial of reasonable accommodation in the definition
of discrimination, and for this reason, we find it difficult to accept this
exclusion of reasonable accommodation from the definition of disability discrimination.
NATIONAL ASSOCIATION OF COMMUNITY LEGAL CENTRES (NACLC)
Article 2 – Definitions
The Draft Convention currently contains a number of definitions within Article 2.
While the NACLC understands that these are not to be the subject of debate
in the January meetings of the Ad Hoc Committee, it provides the following
comments for consideration.
Definition of Disability
In his open letter enclosing the Chair’s Text (the covering letter), His Excellency, Ambassador Don Mackay comments:
Views are divided as to whether it is necessary to define ‘Disability’ and ‘Persons with disabilities’. I tend to think that we don’t, as this will be very difficult, and there is the risk that we will unintentionally exclude someone.1
At the Experts’ Seminar held on 28 November 20052, His Excellency indicated that his understanding is that it is unnecessary to define disability if one considers the purpose of the Draft Convention being about achieving equality rights and the substantive provisions that provide for equality rights across a range of life activities apply to disability and so have a universal application.
Without a definition of disability this analysis can only ever operate effectively
to achieve formal equality. For example, if everyone has the right to choose
where they live, equal enjoyment of this right can be achieved in a formal
equality sense without a State Party having to do anything. However, to achieve
substantive equality where accommodations are required for the enjoyment of
this right it is necessary to clarify to whom the States Parties owe the reasonable
accommodation obligation.
The absence of a definition leaves the way open for three possible situations
developing: that States Parties adopt their own understanding of the term,
or that States Parties adopt an existing international understanding, such
as is found in the World Health Organisation’s International Classification
of Function (ICF), or that they rely on the widely advocated and accepted social
model.
The NACLC considers issues in relation to these three situations below.
Whilst recognising the challenges involved in negotiating an acceptable definition, NACLC submits that, in addition to the above discussion, it is vital that disability be defined for the following reasons.
(a) States Parties adopt their own domestic understanding Firstly, the absence of a definition allows States Parties the potential to significantly reduce their obligations under the Draft Convention once adopted (the Convention)
1 Open Letter from His Excellency, Ambassador Don MacKay, to the Ad Hoc Committee, 7 October 2005, 5.
2 This Experts’ Seminar was held by the Disability Studies and Research Institute and the Australian Centre for Human Rights in Sydney and titled ‘Critical issues in disability and human rights: An expert appraisal of the Chair’s text for a Comprehensive and integral international convention on the rights and dignity of persons with disabilities’.
by applying restrictive definitions that may exclude, for example, those that experience mental illnesses or learning disorders. This would effectively mean that rather than having a single international convention, with NACLC would have a number of national conventions that reflect shared concerns and individuals in some States would gain protection while those in other States would not. This reflects the current situation where domestic laws provide differential coverage of rights between States. A simple illustration would be that someone with a visual impairment that falls short of total blindness may be considered to be a person with disability in one State but excluded from the protection of the Convention in another.
Second, the absence of a definition also compromises the ability of the Convention to establish uniform international application. In the event that an enforcement mechanism is incorporated in the Convention, that mechanism would rely on a common understanding of the people to be protected to achieve universal application.
The development of a coherent international jurisprudence around the Convention would be seriously hampered if the core concept underpinning rights is not commonly understood. The absence of a definition could well result in much of the jurisprudence revolving around the question of who is a person with a disability.
The existence of varying definitions creates a situation whereby the operation of the Convention in one State could be significantly different to its operation in another. This would create serious difficulties in the effective monitoring and enforcement of the Convention, as different States Parties could claim different obligations depending on the scope of their definition and report against that set of obligations rather than a commonly agreed set. Comparability of State implementation goes to the very heart of the achievement internationally of equality rights for persons with disabilities.
Following this observation it is also notable that the absence of a definition could present a deterrent for States considering ratification of the Convention. Without a definition, the obligations and to whom the State owes those obligations are rendered ambiguous. Without a clear articulation of what rights and obligations the Draft Convention creates and to whom they apply, States will be reluctant to participate.
The existence of a Convention that allows for differential interpretation could also undermine the willingness of States to engage at the international treaty level. If States form the view that some States Parties, through a narrower interpretation of disability, are avoiding obligations that other States Parties have willingly adopted, this will exacerbate any sense that a common set of rules is not being applied.
(b) An existing international definition
In respect of the potential for States to fall back on an internationally recognized interpretation, the one that is available is the ICF. The ICF is not a simple form of words that stands alone. Rather, it is a framework by which human function can be understood and can be applied within different policy contexts. It is really an extremely detailed recognition of the social model analysis (which is considered in detail below). It recognises the physiological and environmental (in a very broad sense) elements and the consequential impacts of the interaction of these elements.
The purpose of the ICF is not to assist in the identification of persons with disabilities, but rather in achieving understanding of the impact of social policies on people with impairments. It doesn’t provide a simple checklist of who is and who isn’t a person with a disability in international law.
(c) The social model
The social model of disability is a theoretical concept used by disability
scholars to understand and analyse the oppression of people with impairments.
The option of relying on the social model of disability in its entirety brings
another set of problems. The social model uses the following three-tiered
analysis:
Impairment: Any loss or abnormality of psychological, or anatomical structure or function.
Disability: Any restriction or lack (resulting from an impairment) of ability to perform an activity in the manner or within the range considered normal for a human being.
Handicap: A disadvantage for a given individual, resulting from an impairment or disability, that limits or prevents the fulfilment of a role that is normal, depending on age, sex, social and cultural factors, for that individual.
Handicap is therefore a function of the relationship between disabled persons and their environment. It occurs when they encounter cultural, physical or social barriers, which prevent their access to the various systems of society that are available to other citizens. Thus, handicap is the loss or limitation of opportunities to take part in the life of the community on an equal level with others.3
To fully understand and apply the social model you need to include the ‘handicapping’ impact of the interaction between impairment and the consequential disability, and social and environmental factors.
The definitions proposed to the Ad Hoc Committee by a number of States include all three elements of the model. For example, South Africa has proposed the following form of words:
‘Disability’ is the loss or elimination of opportunities to take
part in the life
of the community; equitably with others that is encountered by persons having
physical, sensory, psychological, developmental, learning, neurological or
other impairments, which may be permanent, temporary or episodic in nature,
thereby causing activity limitations and participation restriction within the
mainstream society. These barriers may be due to economic, physical, social,
attitudinal and/or cultural factors.4 [Emphasis added to highlight the ‘handicap’ element
of the social model, and the ‘disability’ element.]
3 UN Decade of Disabled Persons 1983-92 (1983) World Programme of Action Concerning Disabled Persons, cited in Deborah Kaplan, The Definition of Disability (2005) The Centre for an Accessible Society <http://www.accessiblesociety.org/topics/demographicsidentity/dkaplanpaper.htm> at 27 November 2005.
4 This definition is reported by United Nations Enable from the Fourth session of the Ad Hoc Committee of 23 August 2004 http://www.un.org/esa/socdev/enable/rights/ahc4sumart03.htm at 27 November 2005. And in the materials provided from the Fourth session at <http://www.un.org.au/esa/socdev/enable/rights/ahcstata3tscompilation.htm> at 27 November 2005.
In the absence of a definition of disability, States could adopt the existence of a handicap as a prerequisite to being entitled protection under the Convention. This is problematic for two reasons.
Firstly, this approach could be used to exclude people who have impairments who, because of their particular circumstances, do not face limited opportunities as a result of limited human function. As such, it has the potential to be more exclusive than the ‘impairment and disability’ model found in the DDA. In effect, the ‘handicap’ element adds a filter of exclusion.
Secondly, by grounding the notion of handicap in the existence of barriers, this approach has the potential to provide a somewhat circular analysis. If a person has an impairment that creates functional limits, but faces no barriers to community participation (and so no ‘handicap’) then actions necessary to achieve substantive equality may well be the same as those necessary to provide formal equality.
If a person has an impairment that creates functional limits and they face barriers to community participation, then it is likely that different actions will be needed in order to achieve substantive equality, at least in some areas of life. The existence of a ‘handicap’ is premised on there being barriers created by society, barriers that would have to be removed by a State Party in order to comply with its obligations under Draft Convention. Once those barriers are removed it would be arguable, under a full social model definition, that the State Party has no further or special obligations to people with disabilities under the Convention.
The purpose of the Draft Convention is, in part, to establish that State Parties have obligations in respect of the achievement of equality rights for persons with disabilities. Those obligations may include the obligation to do something, that is, to provide reasonable accommodation. That obligation must hang off the social model concept of ‘disability’ rather than ‘handicap’ as the whole purpose of the obligation is to remove the barriers created by social and environmental factors.
The purpose of a Convention is to ensure that people with impairments have rights recognised at an international level on an equal basis to all other persons and that the particular effects of the interface of disability and the way in which societies operate are, to the maximum extent possible, ameliorated through requiring appropriate systems of support in all aspects of community life.
In light of the above comments it is important that an inclusive definition be included in order to ensure that the Draft Convention can operate effectively within the international context.
The NACLC proposes a definition that is based on the Disability Discrimination Act 1992 (Cth) (the DDA). The NACLC recognises that the purpose and context of this definition in the DDA requires it to be modified to accord with the purpose of the Draft Convention.
The NACLC’s preferred definition is:
Disability includes:
(a) total or partial loss of the person’s bodily or mental functions, or
(b) total or partial loss of a part of the body, or
(c) the presence in the body of organisms causing disease or illness, or
(d) the presence in the body of organisms capable of causing disease or illness, or
(e) the malfunction, malformation or disfigurement of a part of the person’s body, or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction, or
(g) a disorder, illness or disease that affects a person’s thought processes,
perception of reality, emotions or judgement or that results in disturbed
behaviour,
This definition draws on both concepts of impairment and disability from the social model. It potentially broadens the scope of the definition from the DDA by using the term ‘includes’ rather than ‘means’. One of the significant benefits of this definition is it does not rely on the labels of physical, sensory, psychological that are commonly found in domestic anti-discrimination laws. It is also generally the case that any particular disability is likely to fit within more than one of the categories listed. This expands it potential to be inclusive.
While it is our view that the definition of disability ought not include concepts of past, future, or imputed disabilities, the NACLC recognises the need to ensure that the provisions dealing with non-discrimination include these concepts. As such, it is necessary to include past, future and imputed disabilities in the definition of discrimination on the basis of disability in Article 2.
If a person is excluded from the enjoyment of rights on the basis of a past,
future or imputed disability they require and deserve protection regardless
of if they actually experience that disability or not. They also need to have
recourse to remedial mechanism under anti-discrimination laws at a domestic
level.
Recommendation 1
That the position that no definition of disability is required in the Convention
be revised and replaced with an inclusive definition of disability that relies
on the ‘impairment’ and ‘disability’ elements of the
social model and reflects the definition in the Disability Discrimination Act
1992.
Recommendation 2
That the definition of ‘discrimination on the basis of disability’ in Article 2 be amended to include distinctions, exclusions or restrictions on the basis of past, future or imputed disabilities as well as current.
Definition of Reasonable Accommodation
The current definition of ‘reasonable accommodation’ is ‘appropriate
modification and adjustments not imposing a disproportionate burden …’
The NACLC notes that this is a significant shift in interpretation from that
usually applied in those jurisdictions that have a robust and well-established
jurisprudence around ‘reasonable accommodation’ (or its equivalents).
It is a shift in two regards.
Despite recent developments in Australia, the notion of ‘reasonable
accommodation’ does not usually import a limit on the obligation. A
reasonable accommodation is any change in the situation that enables a person
with a disability to enjoy equal opportunity in the relevant circumstance.
It is most commonly understood in the context of employment, where the accommodation
may be a change to the work environment or to the way in which the job is
to be done.
The usual obligation is for the provider or employer to provide reasonable accommodations unless to do so would be to impose an unjustifiable or undue hardship.
The NACLC submits that this two-pronged analysis is clearer and a more appropriate way to consider the question of both the ‘reasonableness’ of the accommodation and the limits imposed on it. The question of reasonableness needs to have international application and this can only be achieved if it does not import capacity to bear the cost of the accommodation. Rather, it should remain restricted to the question of what is needed to enable the person to enjoy substantive equality.
Further, the NACLC of the opinion that ‘disproportionate burden’ is an unsatisfactory standard to use to limit the obligation to make reasonable accommodation. It is unsatisfactory because it is highly subjective, it does not require any significant measure of difference the usual effort involved in an action and the additional effort requirement to afford substantive equality, it uses a term already used in equality law in notions of indirect discrimination and the disproportionate effect of an otherwise neutral term or condition (where the understanding is that any statistically significant effect is sufficient), and that it provides no basis by which to test a State’s assessment that modifications and adjustments were a ‘disproportionate burden’.
This language and construct of reasonable accommodation reflects that found in Article 5 of the European Community’s Employment Equality Directive.
In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.5
It is important to note that Article 5 itself includes an interpretive aid in the final sentence and the language in Article is supported by an interpretive provision in paragraph (21) of the Preamble:
5 Council Direction 2007/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16, 19.
To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.6
The NACLC notes that there is no jurisprudence around Article 5.
In all the circumstances, the NACLC advocates for the use of ‘unjustifiable
hardship’ as the standard at which a limit applies to the obligation
to provide reasonable accommodation on the basis that it places a higher onus
on the States Parties to demonstrate why a failure to accommodate was not practically
possible. It will also require a more comprehensive consideration of the ability
of the State to make the adjustments, the costs and disadvantages of those
adjustments to the State, and the benefits of those adjustments to individuals
involved.
Recommendation 3
That the current the definition of ‘reasonable accommodation’ in Article 2 be replaced with the following language:
‘Reasonable accommodation’ means necessary and appropriate modifications
and adjustments 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 including those set out in this Convention.
Recommendation 4
That the Draft Convention be amended to include, wherever there is an obligation
to reasonably accommodate, that the limit on that obligation is based on the
principle of unjustifiable hardship. 6 Ibid, 17.
NACLC
Intervention by People with Disability Australia Incorporated (Australian)
National Association of Community Legal Centres
Mr Chairperson:
This intervention is made on behalf of People with Disability Australia and the Australian National Association of Community Legal Centres. Thank you for the opportunity to address the Ad Hoc Committee.
We strongly urge the Ad Hoc Committee to support the incorporation of a broad and inclusive definition of disability into the Convention.
It is critical that the class of persons entitled to the protections provided in the Convention is clearly identified. Failure to identify this class will result in some States denying the protection of the Convention to particular groups. It will therefore mean the perpetuation of the very human right violations this Convention has been developed to eliminate. Groups most at risk include persons with psychosocial disability, who are not recognised as persons with disability in many countries.
We have noted with concern suggestions that if a definition of disability is to be included that it might be limited to “mental”, “physical” and “sensory” impairment. Whilst this may appear to be a broad formulation, it is fact unnecessarily limiting, and has been determined by courts in some countries to exclude conditions such as epilepsy, learning disability (for example, dyslexia) and long-term health conditions such as HIV/AIDS.
We are also concerned by the potential incorporation of “substantial limitation”, or like term, in the definition. This term is utilised in both the US and UK definition of disability and has at least two very significant problems. First, it has been interpreted by courts to deprive persons who have an impairment that can be alleviated by an aid, appliance, or even medication, of the protection of non-discrimination legislation on the basis that with the aid or appliance or medication the person does not experience a “substantial limitation”.
Second, it requires persons with disability to prove at the threshold that they experience a “substantial limitation”. This leads to serious problems when the individual must then show that the adjustment they require is proportionate or does not represent an unjustifiable hardship. Victory at the first hurdle may inevitably lead to defeat at the second. We would not want to see these problems cemented in this Convention. The reference to “essential activities of daily life” is also potentially too restrictive. For example, it might not be interpreted to include the ability to use a mobile ‘phone or attend a theatrical performance, on the basis that these are “non-essential activities”.
From a legal perspective, it is important that the obligations imposed on States by the Convention are clearly ascertainable. Unless the population group to whom this Convention applies is ascertainable, it will give rise to uncertainty and conflict, particularly in relation to any monitoring and communication procedures provided under the Convention.
This Convention has been described as a ‘visionary’ document. By including a broad and inclusive definition of disability in this Convention, we will stimulate the fundamental changes required in some societies to protect the human rights of some groups, not included within traditional concepts of disability.
In this respect we urge State Parties to re-examine the three proposals for a definition of disability contained in the Bangkok draft for this Convention which are very successfully framed within the social model while at the same time clearly identifying the persons protected by the Convention. These proposals appeared to receive wide in principle support from government, intergovernmental and non government organisations in the Asia Pacific region. In particular, we commend to the Ad Hoc Committee Proposal B.
Turning briefly to another issue, we strongly support those States that have called for the replacement of the term “disproportionate burden” with the term “unjustifiable hardship”. “Disproportionate burden” sets the benchmark for compliance too low, and the word “burden” perpetuates a very negative portrayal of persons with disability as “burdens on society” and is inconsistent with a rights-based approach.
Thank you for the opportunity to address the Ad Hoc Committee.
PEOPLE WITH DISABILITY AUSTRALIA (PWDA)
Report on National Consultations
Article 2
The Chair’s Text contains several definitions of concepts. Many of these definitions were supported by participants and these are recorded below. However, some definitions received particular attention from participants and recommendations for new or altered text are identified.
Communication
Chair’s Text
For the purposes of the present Convention:
“Communication” includes oral-aural communication, communication
using sign languages, and Braille, and tactile communication, large print, audio,
accessible multimedia, human reader and other augmentative or alternative modes
of communication, including accessible information and communication technology.
Participants in general supported this paragraph of the article.
Disability
Chair’s Text
[Disability] – the Chair left vacant text on a definition of disability.
The Chair indicated that views were divided (at the Ad Hoc Committee) as to whether to include a definition of disability. Some delegates have indicated that there is no need to include a definition so as not to unintentionally exclude any person.
However, participants overwhelmingly supported the inclusion of a definition of disability in this article and argued that it was vital to provide a clear, broad and inclusive definition for this concept for a variety of reasons. Many of these were an extended articulation of issues identified in the 2004 Australian consultation.
Participants indicated that failure to include definition to the groups of people the convention is intended to provide protection for may result in some States denying the protection of the convention to these groups.
The convention was described as a ‘visionary’ document and therefore needed to ensure broad coverage in order to stimulate the fundamental changes required in some societies to protect the human rights of some groups, not included by traditional notions of disability.
In addition, participants argued that the approach of the Chair’s Text, in not defining disability, may lead to unnecessary delay, distraction and diversion from the issues of substance the Convention is to address and that it is important that the obligations imposed on States by the Convention are clearly ascertainable. Unless the groups to whom this convention applies is ascertainable, it will give rise to uncertainty and conflict, particularly in relation to any monitoring and complaint (communication) procedures under the convention.
A few participants indicated that they were concerned that by focussing on the nature of impairment in the definition, the social barriers to full and equal enjoyment of the rights of people with disability may not be achieved. To this end, some argued (in line with current International Disability Caucus debate) that the definition needed to reflect a social model of disability.
The main tenet of the social model is that, while people may be limited by impairment, it is society that disables people, by establishing and maintaining institutional, social and physical barriers to access and inclusion with society. The social model places the ‘problem’ of disability in the social environment, rather than in the ‘pathology’ of the individual. Its action implication is social change rather than personal cure.
However, others argued that a broad social model definition which did not incorporate a clear relationship with impairment will not provide a necessary protection for certain groups of people with disability. Further, it was argued in line with the 2004 Australian consultation findings, that it should be recognised that all of the substantive articles of the convention identify and respond to the social and environmental barriers encountered by people with disability, so the convention has achieved its objective of being based in a social model of disability.
One compromise that was suggested was to include a definition which incorporates a chapeau which describes the disabling effects of socio-economic conditions and ends with a broad and inclusive definition based on impairment type, such as that found in the Disability Discrimination Act 1992. It was recognised, however, that in the deliberations at the Ad Hoc Committee, should the decision of the Australian delegation be whether to support a social model or a broad model on impairment, that the broad-based model is most preferable.
A further suggestion involved making an additional to the Preamble recognising the impact of disabling social barriers. Please refer to section 2.2 of this report (above).
Participants also identified that the Chair’s Text does not include the nature of a person’s disability. Most participants indicated that the Convention needed to include in the definition of discrimination recognition that disability may be permanent, temporary, episodic or transitory in nature. However, it was recognised that at international law, these terms may prove problematic. Nevertheless, most participants argued for the inclusion of the nature of disability in the definition.
Recommended text:
“Disability:” In this convention “disability” means:
A person who is limited by the separate or concomitant impact of physical, economic, social and cultural environments and/or who experiences
(a) total or partial loss of the person's bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person's body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future; or
(k) is imputed to a person.
Discrimination
Chair’s text
“Discrimination on the basis of disability” means any distinction,
exclusion or restriction on the basis of disability 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. It includes
all forms of discrimination, including direct and indirect discrimination.
Some participants identified the need to include the term “practice” in the definition. Participants argued that the inclusion of the term is essential to reflect the fundamental meaning of indirect discrimination – that is practices which appear on their face to be neutral but in fact impact adversely on those with particular attributes.
There was also substantial discussion on whether a definition should include the term ‘associate’. Some participants argued that such an inclusion would significantly broaden the application of what constitutes discriminatory practices and may result in a number of States being unprepared to sign off on such a broad definition. In addition, some argued that the inclusion could make the definition too prescriptive and shift the focus from persons with disability onto the rights of others, which may have the effect of diluting the rights of persons with disability. Others argued that if the term ‘associates’ was not included there would be a risk that this will remain an area that persons with disability may experience discrimination, albeit indirect. Still others argued that this convention based on the rights of people with disability and any attempt to include others rights in the convention would dilute it strength and relevance to people with disability.
The general perception of participants was that at this time the term of associates does not need to be included as a definition.
Participants also endorsed the findings of the 2004 Australian consultation
there needs to be an inclusion that discrimination may occur for one or more
reason. Participants argued that it should be made clear that if something
is done for more than one reason it can still amount to unlawful discrimination.
Participants pointed to domestic anti-discrimination law which take this approach
and argued that unfair discrimination must be challenged for itself, whether
or not it is accompanied by other motivations as well.
Recommended text
“Discrimination on the ground of disability” includes:
(a) any practice, distinction, exclusion, or restriction on the ground of disability which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including direct and indirect discrimination
(b) any act, criterion, provision, practice, policy, rule or arrangement which, although not explicitly based on disability -
(i) has a disproportionate impact on persons with disability or persons with particular disability;
(ii) has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of human rights and fundamental freedoms in any area of life; and
(iii) cannot be objectively justified as a reasonable and proportionate means of achieving a legitimate aim.
(c) failure to provide reasonable adjustments to facilitate the participation of a person with disability in any area of life; or
(d) An act is done for two or more reasons, where disability is one of those reasons, whether or not it is the dominant or a substantial reason for doing the act; or
(e) Less favourable treatment of an associate of a person with disability
because of that other person’s disability or because of the association.
Language
Chair’s text
“Language” includes oral-aural languages and sign languages.
Participants indicated that this definition is confusing. No clear understanding of oral-aural could be determined. Most participants supported the recommendation of the Australian Association of the Deaf that the text be simplified.
Other participants indicated that language may also be constructed in a tactile manner. Participants indicated that by including this recognition it would ensure that communication with blind and deafblind people is addressed and this would align with the definition of communication. However, other participants indicated that Braille and other tactile activity is a communication tool, as distinct from a language.
However, given that the purpose of this consultation was to indicate which parts of the text were acceptable or otherwise, participants agreed to leave the text as it is, but to note it may require further clarification.
National laws
Chair’s text
“National laws of general application” means laws that apply to society
as a whole and which do not differentiate in respect of persons with disabilities. “National
laws and procedures of general application” and “national laws, customs
and traditions of general application” shall have the same meaning, mutatis
mutandis.
There was widespread support for the definition of national laws contained
in the Chair’s Text, particularly in light of its relevance to Article
23: Respect for Home and the Family (discussed elsewhere in this report). However,
one participant indicated that the concept ‘mutatis mutandis’ should
be clarified to ensure accessibility of the convention text and indicated that
UN language equivalents could be substituted as follows:
Recommended text
…. shall have the same meaning, the necessary changes having been made;
with the necessary changes having been carried out; having substituted new
terms; with respective differences taken into consideration.
Reasonable accommodation
Chair’s text
“Reasonable accommodation” means necessary and appropriate modification
and adjustments not imposing a disproportionate burden, 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.
There was widespread concern amongst consultation participants regarding the inclusion of the concept ‘disproportionate burden’. Nearly all participants indicated that people with disability should not be construed as a burden, nor should the accommodations made to ensure full and equal participation be considered in such a manner.
Most participants considered the concept ‘unjustifiable hardship’ as an acceptable alternative. It was recognised that there was significant jurisprudence behind the concepts of both unjustifiable hardship and undue hardship; however this was not the case for the term disproportionate burden. In addition, participants argued that the test of ‘…not imposing a disproportionate burden …’ appeared less than that currently contained in the Disability Discrimination Act 1992. Moreover, participants argued, it was important to set the highest possible benchmark in this convention and that the concept of disproportionate burden did not achieve this.
However, participants recognised that the concept of unjustifiable hardships
may not be fully accepted at international level and agreed that ‘disproportionate
hardship’ may be used as a compromise, should ‘unjustifiable hardship’ not
be accepted.
Recommended text
“Reasonable accommodation” means necessary and appropriate modification
and adjustments not imposing an unjustifiable [disproportionate] hardship,
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.
Universal design
Chair’s text
“Universal design” and “inclusive design” mean the design
of products and environments to be usable by all people, to the greatest extent
possible, without the need for adaptation or specialized design.
Participants strongly supported this definition of ‘universal design’ and ‘inclusive
design’.
Inclusion
Participants suggested that the term ‘inclusion’ needed to be given definition. This was discussed particularly in the context of Article 24: Education. However, it was also identified that the term was also used in other places in the Chair’s Text. Participant indicated that this term varies in definition over different contexts and therefore needs definition.