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Background Documents | Article 2 Background
Seventh Session | Fourth
Session | Third Session
Working Group | References
European Union
Kenya
ILO
OHCHR
Ontario Human Rights Commission
European Disability Forum
International Save the Children Alliance
Japan Disability Forum
Landmines Survivors Network
Physical Disability Council of Australia Ltd.
Draft Article 3
DEFINITIONS
Comment: The EU is of the view that it is not necessary for the purposes of
the Convention to include a definition of “disability”.
Further, the EU does not consider
that it is necessary to have a separate article on definitions. If definitions
are needed, these should be included in the relevant article where the concept
is first used.
“Accessibility”
“Communication” includes oral-aural
communication, communication using sign language, tactile communication, Braille,
large print, audio, accessible multimedia, human reader and other augmentative
or alternative modes of communication, including accessible information and
communication technology.
“Disability”
“Persons with disability”
“Discrimination on the ground of disability”
“Language” includes oral-aural language
and sign language.
“Reasonable accommodation”
“Universal Design”, and “Inclusive
Design”.
EU Proposal: New Draft Article
3 bis consisting of
- Former draft Article 7 redrafted
as below
- Former draft Article 4 redrafted as below
- Former draft Article 5 redrafted as below
NON-DISCRIMINATION
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 second sentence in Paragraph 1.
2.
(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 equality for persons with disabilities, States Parties
undertake to take all appropriate steps, including by legislation, to provide
that 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.
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Draft Article 3
DEFINITIONS
Insert the following paragraph:
Disability means ‘A physical, sensory, psychiatric or intellectual impairment
or combination of any of those impairments (whether permanent or temporary,
provided that it lasts for a significant period of time), 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.’
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Draft Article 3
Definitions
Accessibility
Accessibility is understood to refer to the build environment and also, to signage
in use, printed materials, information conveyed by sound, electronic information
and communications.
Disability
The ILO:
- agrees that, if disability is to be defined in the Convention, the definition
should reflect the social dimensions of disability.
- while recognizing the diversity of definitions of disability used in national
legislation and policy throughout the world, and the achievement of the World
Health Organization in promoting a standardized classification for the purposes
of diagnosis, is concerned that the ambit of the convention may be limited if
disability is defined specifically.
- suggests that, rather than including a definition of disability, the Convention
should include a definition of a disabled person, as is the practice in ILO
international labour standards concerning persons with disabilities.
The ILO Code of Practice on Managing Disability in the Workplace agreed by a Committee of Experts comprising 27 government, employer and trade union representatives from developing and industrialized countries defines a disabled person as: “...an individual whose prospects of securing, retaining and advancing in suitable employment are substantially reduced as a result of a duly recognized physical, sensory, intellectual or mental impairment”. This definition has proven to be universally acceptable, in the context of vocational rehabilitation, vocational training and employment, while allowing for variation in national interpretations of disability. While dealing specifically with employment, the ILO suggests this definition could form the basis of a more generally applicable definition for the purposes of the proposed UN Convention. The use of such a definition in the Convention would offer scope to national authorities to define disability and disabled persons according to the needs of national policy and legislation and in conformity with national practice and understanding.
Discrimination on the ground of disability
The ILO suggests the following definition:
Any distinction, exclusion or preference based on disability which nullifies
or impairs equality of opportunity or treatment. General standards that establish
distinctions based on actual or perceived disability constitute discrimination
in law. The specific attitude of a public authority or a private individual
that treats unequally persons with disabilities constitutes discrimination in
practice. Indirect discrimination refers to apparently neutral situations, regulations
or practices which in fact result in unequal treatment of persons with disabilities.
Distinction or preferences that result from application of special measures
of protection and assistance taken to meet the particular requirements of disabled
persons are not considered discriminatory.
Reasonable Accommodation
The ILO suggests the following definition:
Adaptations and modifications required to facilitate the equal enjoyment by
persons with disabilities of all human rights and fundamental freedoms, without
imposing a disproportionate burden.
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See references to international human rights conventions and jurisprudence
Article 3 Definitions
Accessibility
WHO stresses the importance of health facilities including rehabilitation, goods,
and services being accessible to everyone without discrimination, within the
jurisdiction of the State party (WHO,2002). In this context, WHO would like
to stress the importance of including the overlapping dimensions of non-discrimination
(1), physical accessibility (2), economic accessibility (3) and information
accessibility (4) based on the General Comment on the right to health adopted
by the Committee on Economic, Social and Cultural Rights, which monitors the
International Covenant on Economic, Social and Cultural Rights.
Disability
WHO is committed to continuing efforts to ensure that persons with disabilities
are empowered by disability classification and assessment tools, and not discriminated
against. All WHO Member States have endorsed the International Classification
of Functioning, Disability and Health (ICF) (WHO,2001) at the Fifty-Fourth World
Health Assembly as the framework for defining and measuring disability. Therefore,
WHO stresses the importance of using disability “as an umbrella term for impairments,
activity limitations, and participation restrictions” (p.3) (WHO, 2001). In
this regard, WHO would like to highlight the importance that a person’s functioning
and disability be conceived as a “dynamic interaction” between “health conditions
and contextual factors”. (5)
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ONTARIO HUMAN RIGHTS COMMISSION
Article 3 – Definitions
“Communication”
The Commission would suggest adding “digitized text” to this enumerated list
as it is fast becoming one of the most common alternate or intermediary format
facilitating the production of other alternate formats including Braille, large
text and audio.
“Disability”
Footnote 12: Many members of the Working Group emphasized that a convention
should protect the rights of all persons with disabilities (i.e. all different
types of disabilities) and suggested that the term “disability” should be defined
broadly. Some members were of the view that no definition of “disability” should
be included in the Convention, given the complexity of disability and the risk
of limiting the ambit of the Convention. … There was general agreement that
if a definition was included, it should be one that reflected the social model
of disability, rather than the medical model.
The Commission supports the view set out in the footnote 12 under the draft Article, that any definition of “disability” should reflect a social model of disability rather than simply a medical model. Similarly, the Commission’s Disability Policy supports a broader understanding of disability to include a social perspective. As well, the Disability Policy recognizes environmental sensitivities as well as drug and alcohol addictions as disabilities within the meaning of Ontario’s Human Rights Code.
The Supreme Court of Canada has shed new light on the approach to be taken in
understanding disability. In Mercier4, the Supreme Court made it clear that
disability must be interpreted to include its subjective component, since discrimination
may be based as much on perceptions, myths and stereotypes, as on the existence
of actual functional limitations. The Court chose not to create an exhaustive
definition of disability. Instead, it opted for an equality-based framework
that takes into account evolving biomedical, social and technological developments.
Another Supreme Court of Canada decision5 has since confirmed that "social
handicapping", i.e., society's response to a real or perceived disability,
should be the focus of the discrimination analysis.
“Universal design” and “Inclusive design”
The Commission is supportive of including definitions of these concepts. The
Commission identifies in its Disability Policy the principle of universal and
inclusive design as critical to achieving integration and full participation
for persons with disabilities. Barrier prevention is much more preferable to
barrier removal. And it is consistent with the notion of disability as a social
model.
Case law in Canada also supports the notion of universal and inclusive design.
The Supreme Court of Canada has noted the need to "fine-tune" society
so that structures and assumptions do not exclude persons with disabilities
from participation in society6 and it has more recently affirmed that standards
should be designed to reflect all members of society, insofar as this is reasonably
possible.
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Draft Article 3 Definitions
If a definition on disability is to be included, it has to reflect the social
model and it has to be broad, not leaving any group of disabled persons out.
For instance, the use of the ICF definition would imply the risk of leaving
certain groups of disabled people out.
The Council of Europe has agreed on a definition of Universal Design, which
might be considered useful for the Convention. The definition reads : “Universal
design is a strategy, which aims to make the design and composition of different
environments and products accessible and understandable to, as well, as usable
by, everyone, to the greatest extent in the most independent and natural manner
possible, without the need for adaptation or specialised design solutions.”
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INTERNATIONAL SAVE THE CHILDREN ALLIANCE
Draft Article 3 - Definitions
The draft does not provide basic definitions.
Suggested changes
If it is decided to include a definition of ‘persons with disabilities; we want
to add that this includes children with disabilities.
For example:
‘Persons with disabilities’ – applies to children as well as adults,
expect where national law provides specific legislation excluding all children
from particular activities, for example, sexual relations, marriage, employment.
Suggested additional definition
The text mentions issues of diversity; we therefore recommend a definition
of diversity as all persons with disabilities are unique. This definition
needs to specify disability as an issue of difference, concretise issues of
diversity within the community of disabled people. This definition needs to
provide a comprehensive view instead of gender, ethnicity in its own and relate
diversity with risks of multi-discrimination (on the basis of race, colour,
gender, age, communication skills, level of autonomy in daily life, socio-economic
status,... )
<Article 3> Definition
Original Text of the Draft
Disability
Footnote 12
Many members of the Working Group emphasised that a convention should protect
the rights of all persons with disabilities (i.e. all different types of disabilities)
and suggested that the term "disability" should be defined broadly.
Some members were of the view that no definition of 'disability' should be included
in the convention, given the complexity of disability and the risk of limiting
the ambit of the convention. Other delegations pointed to existing definitions
used in the international context including the World Health Organisation's
International Classification of Functioning, Disability and Health (ICF). There
was general agreement that if a definition was included, it should be one that
reflects the social model of disability, rather than the medical model.
JDF’s Comment to this part (1)
It is crucially important that the Working Group has reached a consensus that
the definition of “disability” should be the one that reflects the social model
of disability, rather than the medical model. (See Footnote 12). This consensus
should be a presupposition for further discussion.
It should be noted that if
factors of social barriers are to be included in the definition of “disability”
in addition to individual impairments under the social model, definitions of
each “disability,” “person with disabilities” and “discrimination on the ground
of disability” may after all overlap in their meanings.
JDF’s Comment to this part
(2)
On the other hand, if only actual impairment is defined as “disability,” it
may result in an absence of the viewpoint of “social model.” Further, such a
definition may exclude “unique faces” (a self-help group of people whose faces
have troubles or external wounds”), HIV positives who do not show symptoms of
AIDS or those who had disabilities before. Therefore, in case that “disability”
is to be defined as actual impairments, it must be ensured that people with
“unique faces” and others also fall under the scope of the convention. For this
end, taking the “social model” into consideration, it is necessary to include
the provisions such as “a record of an impairment”, “being regarded as having
an impairment” and “a disability perceived” into the definition of “disability”.
(See Americans With Disabilities Act (ADA), draft Article 7-2 (b).)
Reference: ADA
The term “disability” means, with respect to an individual –
(A) a physical or mental impairment that substantially limits one or more of
the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
Reference: Draft Article 7-2 (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.
JDF’s Comment to this part (3)
In discussing about the definition of “disability,” the following three should
be taken into considerations: 1) to bear the viewpoint of social model in mind,
2) to give the term “disability” a broad definition, and 3) not to limit to
actual impairments.
Also, notice should be given to correlation and conformity among three definitions
of “disability,” “person with disabilities” and “discrimination on the ground
of disability.”
Original Text of the Draft
Discrimination on the ground of disability
JDF’s Comment to this part
While the definition of “reasonable accommodation” is articulated in draft Article
7-4, it is not necessarily clear why it is defined in Article 7-4. It is appropriate
to include the definition of “reasonable accommodation” in draft Article 3 which
includes all relevant definitions. With that, it should be specified that a
denial of “reasonable accommodation” constitutes discrimination on the ground
of disability.
Original Text of the Draft
“Language" includes oral-aural language and sign language.
JDF’s Comment to this part
Regarding the definition of “language” (in relation to Article 3), with the
recognition that sign language is language, it must be considered as an official
language from the viewpoint of guaranteeing the right to use one’s own language
and in reference to Article 27 of the ICCPR.
Reference: Article 27 of the International Covenant on Civil and Political Rights
(Rights of Minorities)
In those States in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be denied the right, in community
with the other members of their group, to enjoy their own culture, to profess
and practise their own religion, or to use their own language.
Original Text of the Draft
Reasonable accommodation
JDF’s Comment to this part (1)
“Reasonable accommodation” is a concept that is not included in any of six major
international human rights instruments. As in the Americans With Disabilities
Act of 1990 and EU Directives on Equal Treatment (2000), the concept is being
widely accepted in the international community as indispensable to legislation
concerning persons with disabilities. Therefore, it is indispensable to specify
“reasonable accommodation” in the Convention.
JDF’s Comment to this part (2)
The term “reasonable accommodation” is specified in Article 3 (Definition),
Article 7 (Equality and non-discrimination), Article 17 (Education) and Article
22 (Right to work) of the draft text of the Working Group. At least, these four
specifications of “reasonable accommodation” should not be deleted.
JDF’s Comment to this part (3)
The definition of “reasonable accommodation” is stipulated in draft Article
7-4. However, it is not necessarily clear why the definition is given there.
As it is a concept relating to the substantial stipulations in general, it is
appropriate to include the definition in draft Article 3 that lists all relevant
definitions or to articulate the definition of “reasonable accommodation” in
draft Article 4 stipulating general obligations of State Parties.
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DRAFT ARTICLE 3 COMMENTS
Many human rights treaties precede the substantive obligations with a definitions
or “use of terms” section, clarifying how terms are to be used and aiding in
the interpretation and implementation of the treaty. The Ad Hoc Committee may
wish to delay consideration of the definitions section until all the treaty
provisions have been finalized, at which point it will be easier to identify
which terms are consistently used and should be addressed in the definitions
section, and which terms should be defined in the specific article(s) in which
they are used.
Footnote 10 indicates that further discussion of Draft Article 19 (Accessibility)
will be needed to develop an appropriate definition. The Ad Hoc Committee may
wish to take into consideration the definition of “access” used in the Bangkok
Draft, as well as the coverage of Accessibility in Article 16 of that draft
text.
Footnote 11 references the discussion of whether a definition of “communication”
is needed. A number of Working Group members felt that defining “communication”
may be too difficult, and may not in fact be necessary for the purposes of the
treaty.
Footnotes 12 and 13 reference the discussions regarding the definition of “disability”
and “persons with disability.” Within the context of human rights instruments
that reference specific populations, it is not uncommon to include a definition
of the group(s) of people to whom the treaty applies. (Cf. Convention Concerning
Indigenous and Tribal Peoples in Independent Countries, ILO No. 169, Article
1) However, Working Group members questioned the need to include a definition
of disability given the complexity of the issue. Others felt the inclusion of
a definition essential, particularly for use in countries that do not include
a definition of disability in their national legislation, or that utilize a
definition that is not broad and inclusive of all people with disabilities.
If the Ad Hoc Committee decides to include a definition of disability, it may
find helpful the articulation of disability and disablement as a process included
in the New Zealand proposal. (Cf. New Zealand’s View of a Convention on the
Rights of Disabled People, paras. 7-9 and 23-24) In addressing the inclusion
of a definition of “persons with disability,” the Ad Hoc Committee may wish
to take into consideration the difficulties associated with defining personhood,
and concerns that having to satisfy requirements of being a “person” before
the law could act as an undue limitation on the scope of the application of
the treaty.
Footnote 14 questions the placement of the definition of discrimination. Human
rights conventions that are based on a non-discrimination framework frequently
place the definition of discrimination in a definitions section towards the
beginning of the treaty. (Cf. International Convention on the Elimination of
All Forms of Racial Discrimination, Article 1(1); Convention on the Elimination
of All Forms of Discrimination Against Women, Article 1). The structure of the
Working Group text utilizes a broader and more comprehensive structure (similar
to that found in the Convention on the Rights of the Child), and therefore it
may be more appropriate to address the definition of discrimination in Article
7 discussing Equality and Non-Discrimination, or (if Article 7 is split) in
a separate article on discrimination.
Footnote 15 addresses the inclusion of a definition of “language.” Whether or
not the Ad Hoc Committee chooses to include such a definition, the coverage
of linguistic rights will be an important aspect of the treaty, particularly
for people with disabilities who utilize sign language and other methods of
communication. (Cf. International Covenant on Civil and Political Rights, Article
27; Convention concerning Indigenous and Tribal Peoples in Independent Countries,
ILO No. 169, Articles 28 & 30; and Convention on the Rights of the Child,
Article 30)
Footnote 16 notes that the concept of “reasonable accommodation” is addressed further, if not completely, in Article 7, and the Ad Hoc Committee may wish to consider whether the definition of “reasonable accommodation” should be placed in the article(s) specifically addressing it.
PHYSICAL DISABILITY COUNCIL OF AUSTRALIA LTD.
PDCA supports the view that the definition of disability should reflect the social model of disability within the Convention which views disability as resulting from social barriers to participation as opposed to the medical model which views disability largely as medical issues that need to be ‘cured’. The other benefit of the social approach to disability is that is emphasizes that people with disability have the same rights as those of other members of the community in which they live.
PDCA also supports the position put forward by Women With Disabilities Australia
(WWDA) in its submission that given the current draft provides for an Article
on Statistics and Data Collection, a globally accepted definition should be
adopted to ensure that national and international data is useful.
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DEFINITIONS
Article 3:
A definition on disability is not needed at all, and it would be better if each
country made provisions of their own.
Definition based on ICF will not be sufficient to guarantee all groups of PWD:s
to be covered.
A definition on disability as such can exclude individuals or groups of PWD:s.
It is suggested to write Definitions on:
- Disability
- Persons with disability:
- Accessibility
- Discrimination on the ground of disability
- Language, includes oral-aural language and sign language
- Reasonable accommodation
- Universal Design or Inclusive design
The following issues seems also to need its own definitions
- Reasonable accommodation
- Specific formats, plain language or easy-to-read formats
- Habilitation
- Community based rehabilitation (CBR)
- Severe disabilities
- Self-determination or self-governing
- Mobility or accessibility
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Draft Article 3, Definitions
According to this article, "language" includes both oral-aural language
and sign language. WFD believes that “language” should be defined (see footnote
15). WFD will propose a definition for the word "language" soon; we
are currently consulting with linguistic experts.
In looking at the most comprehensive list of the world’s languages, Ethnologue
(www.ethnologue.com), some 6,700 spoken languages and 115 sign languages are
listed. Sign languages are listed on par with spoken languages, AS INDEPENDENT
LANGUAGES.
Sign languages have been defined from a linguistic viewpoint as languages, and
those using sign languages have been defined as a linguistic minority. Deaf
people are also persons with a disability in the sense that all their rights
will be fulfilled only when their linguistic rights are met, and sign language
and its use in all spheres of human life is recognised and respected. In other
words, Deaf people are persons with a disability whose rights can be secured
by securing their linguistic rights.
In the view of WFD Braille and sign language should not be considered in the
same light. It is very clear in linguistics that sign languages are LANGUAGES,
whereas Braille is a way of writing down any language. Braille can be seen in
the same way as, for instance, transcribing Kurdish written in Arabic script
- as in Iraq - or Kurdish written in Cyrillic script - as in Azerbaijan - to
Kurdish written in Latin script, i.e. it is a way of rendering a language in
a form that group X can read. Group X can be Kurds who only know Latin script,
or it can be blind people who only read Braille. Even if those Kurds can learn
to read Kurdish in the Arabic or Cyrillic script whereas blind people cannot
read any written language unless it is in Braille, this does not mean Braille
is a language. It is a MEANS OF REPRESENTING AN EXISTING LANGUAGE. This distinction
should be clear in all those articles where sign language and Braille are mentioned.
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WORLD NETWORK OF USERS AND SURVIVORS OF PSYCHIATRY
Draft Article 3
WNUSP Comment: While it may not be necessary to define “disability” or “persons
with disabilities,” it is important to state in a binding part of the convention
that the convention applies to people with disabilities of the major categories
including people with psychosocial disabilities.
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