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Article
5 - Equality and non-discrimination
Background
Documents | Article 5
Background
Seventh Session | Fifth Session | Fourth
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Fourth Session
Governments
National Human Rights Institutions
Meeting convened by the Office of the Swedish Disability Ombudsman
Non-governmental organizations
Children’s Rights Alliance for England
International Disability Caucus
Landmine Survivors Network
People with Disabilities Australia
Working Meeting of NGOs for people with disabilities from Ukraine, Russia, Belarus & Moldova
Comments, proposals and amendments submitted electronically
Governments
AFRICAN GROUP
ARTICLE 7
EQUALITY AND NON-DISCRIMINATION
1. States Parties recognize that all persons are equal before and
under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. States
Parties shall prohibit any discrimination on the basis of disability, and
guarantee to all persons with disabilities equal and effective protection
against discrimination. States Parties shall also prohibit any discrimination
and guarantee to all persons with disabilities equal and effective protection
against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national ethnic or
social origin, property, birth, source or type of disability, age, health,
marital status, belief, culture or any other status.
2. (a) Discrimination shall mean any distinction, exclusion, additional
obligations or burdens, or restriction or acts which have the purpose or effect of impairing or nullifying
the recognition, enjoyment or exercise by persons with disabilities, on
a basis of equality with others, of all human rights and fundamental
freedoms;
(b) Discrimination shall include all forms of discrimination, including
direct, indirect and systemic, and shall also include discrimination based
on an actual disability or a disability that is
perceived or attributed by society or by association with a person with
a disability.
3. Discrimination does not include a provision, criterion or practice that
is objectively and demonstrably justified by the State Party by a legitimate
aim and where the means of achieving that aim are reasonable and necessary and consistent with international human rights law.
4. In order to secure the right to equality for persons with disabilities,
States Parties undertake to take all appropriate steps, including by legislation, to ensure reasonable accommodation, defined as necessary
and appropriate modification and adjustments to guarantee to persons with
disabilities the enjoyment or exercise on an equal footing with
others of all human rights and fundamental freedoms, unless such
measures would impose unreasonable difficulties.
5. Positive measures aimed at accelerating de facto equality of persons
with disabilities shall not be considered discrimination as defined in the
present Convention, but shall in no way entail as a consequence the maintenance
of unequal or separate standards;
5(bis). In order to secure non-discrimination of persons with disabilities,
States Parties undertake in particular:
(c) States shall ensure that the needs and concerns of persons with disabilities
are incorporated into economic and social development plans and policies,
and not treated separately;
(d) to refrain from engaging in any act or practice of discrimination
against persons with disabilities and to ensure that public authorities
and institutions act in conformity with this obligation;
((7 bis) To ensure the right to equality for all persons with disabilities.
States Parties shall take positive measures to benefit
all persons with disabilities.
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CHILE
ARTICLE 7: EQUALITY AND NON-DISCRIMINATION
In the first paragraph, we share the view of Canada that ethnic origin should
be included, in addition to including health, marital status, belief, and
culture as proposed by the Group of African States, age, proposed by Kenya;
Chile recommends including genetic makeup and living with HIV/AIDS.
There is a proposal to add to sub-paragraph b) the definition taken from
the Interamerican Convention on the Elimination of All Forms of Discrimination
against Persons with Disabilities of the Organization of American States
or to supplement the definition by the Working Group with the elements covered
by that Convention not found in this article. For example, when referring
to the purpose or effect of impairment, the Interamerican Convention adds
impede or nullify.
Discrimination on grounds of disability: shall mean any distinction,
exclusion or restriction based on a disability, past disability, result
of a prior disability or perception of a present or past disability, which
has the effect or purpose of impairing or nullifying the recognition, enjoyment
or exercise by the persons with disabilities of their human rights and fundamental
freedoms.
Discrimination does not include a distinction or preference adopted by a
State Party in order to promote the independence, personal development and
social integration of persons with disabilities, as long as they are not
obligated to accept such a distinction or preference.
We support the proposal of Japan, the Group of African States and
Canada to include at the end of paragraph 3 of this article the phrase:
“and consistent with international human rights law”; the paragraph would
read as follows:
3. Discrimination does not include a provision, criterion or practice that
is objectively and demonstrably justified by the State Party by a legitimate
aim and where the means of achieving that aim are reasonable, necessary
and consistent with international human rights law.
While this article refers to protection against discrimination,
it seems important to us to acknowledge that the occurrence of discrimination
would result in the appropriate penalty against those responsible. This
could appear in article 5 as a second paragraph, article 5 (b) as follows:
b) The occurrence of discriminatory actions or omissions
shall result in the application of penalties against those responsible,
in accordance with the procedures established by law.
EUROPEAN UNION
Draft Article 7
EQUALITY AND NON-DISCRIMINATION
EU Position : Accept a separate article 7 and replace to become
Article 3.
1. States Parties recognise that all persons are equal
before the law and are entitled without any discrimination to the equal
protection of the law. States Parties shall prohibit any discrimination
on the basis of disability, and guarantee to all persons with disabilities
equal and effective protection against discrimination. States Parties shall
also prohibit any discrimination and guarantee to all persons with disabilities
equal and effective protection against discrimination on any ground such
as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth, source or type of disability, age, or
any other status.
EU Proposal: The EU proposes that references to multiple
forms of discrimination should be moved to the Preamble. Therefore, the
EU proposes the deletion of the last sentence in Paragraph 1.
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 the right to equality for persons with disabilities,
States Parties undertake to take all appropriate steps, including by legislation,
to provide reasonable accommodation, defined as necessary and appropriate
modification and adjustments to guarantee to persons with disabilities the
enjoyment or exercise on an equal footing of all human rights and fundamental
freedoms, unless such measures would impose a disproportionate burden.
EU Proposal: EU suggests the following rewording of Paragraph 4
4. In order to guarantee compliance with the principle of equal treatment
in relation to persons with disabilities, States Parties undertake to take
all appropriate steps, including by legislation, to ensure that reasonable
accommodation is provided; reasonable accommodation to be defined as necessary
and appropriate modification and adjustments, where needed in a particular
case, to ensure to persons with disabilities the enjoyment or exercise on
an equal footing of all human rights and fundamental freedoms, unless such
measures would impose a disproportionate burden.
5. Special measures aimed at accelerating de facto equality of persons with
disabilities shall not be considered discrimination as defined in the present
Convention, but shall in no way entail as a consequence the maintenance
of unequal or separate standards; those measures shall be discontinued when
the objectives of equality of opportunity and treatment have been achieved;
INDIA
Interventions at the Third Session:
25.8.2004
Article 7: Equality and Non-discrimination
In para1, we align with those delegations that have proposed deletion of
the list.
In para 2(b), we support reference to direct and indirect discrimination,
however we would like to reflect further on the N.Z. proposal that discrimination
should include all forms of discrimination. My delegation has some concerns
about the concept of “perceived” disability in para 2(b) as this would be
difficult to define, evaluate and operationalise.
JAPAN
Art. 7-5
-as in the square brackets, we propose to delete whole language after the
word Convention (in line 3) "but shall in no way entail as a consequence
the maint enance of unequal or separate standards....(to the end)"
(rationale) We are of the opinion that there should exist some positive
action s, even with reasonable accommodations, to accommodate persons with
severe dis abilities. These measures should not be necessarily temporary,
as in the case of the protection of maternity stipulated in article 4-2
of the CEDAW.
For this reason, it is acceptable for us to formulate as follows, instead
of deleting all as proposed above:
"those measures should be discontinued when they are no longer justified
in li ght of the objectives of equal opportunity and treatment."
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MEXICO
Article 7
Suggestions for the content for a new article on Equality of opportunities.
The States Parties shall take the necessary measures to establish positive
and compensatory measures towards gaining equal access to opportunities
for persons with disabilities, such as the following:
• To promote accessible environments to facilitate access, participation
and freedom of movement;
• To endeavor their incorporation, continuance and participation in regular
educational activities at all levels;
• To promote at all levels of mandatory schooling, provision of special
technical help needed for each disability;
• To create permanent training programs for employment and promotion of
labor integration;
• To adequate facilities for recreation;
• To endeavor accessibility to public transportation;
• To promote that every public space or building and those that offer services
to the public, have the necessary physical adaptations and signs to facilitate
access, use and enough space for movement;
• To endeavor to have appropriate signs to facilitate free transit;
• To inform and advice construction professionals with regard to requirements
for facilitating access and use of buildings, and
• To promote that in all facilities of the national health and social security
systems, persons with disabilities regularly receive adequate treatment
and medication necessary for maintaining and furthering their functional
capacity and quality of life.
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National Human Rights Institutions
MEETING CONVENED BY THE OFFICE OF THE SWEDISH DISABILITY OMBUDSMAN
Observations Regarding Draft Article 7 on Equality and Non-discrimination
The participants,
1. note a need for clarification and coherence in connection with the wording
of Draft Article 7.
2. advise against the merger of Draft Articles 4, 5 and 7 as proposed by
the EU. Such a merger is believed to excessively shift the attention from
the obligation to realize enjoyment of the substantive core of each thematic
right to the obligation to realize the non-discriminatory enjoyment of each
right. Moreover, the participants recommend that the provision on equality
and non-discrimination be kept in one single article which, by virtue of
its general application, be placed after the provision on general obligations.
3. advise against substituting the term “equal treatment” for the term “equality”
in Paragraph 4 of Draft Article 7, as proposed by the EU in Article 3 bis.
The term “equality” better captures the right in question as encompassing
both a form of treatment (non-discrimination) and the result of such treatment
(the equal enjoyment of human rights).
4. propose that the different forms of discrimination covered by the Convention
be named as “direct discrimination”, “indirect discrimination” and “lack
of reasonable accommodation”, and that these forms of discrimination are
mentioned in connection with each other, rather than the latter being separated
from the two former.
5. wish to point out that the general definition of discrimination in the
Convention must be relevant to all forms of discrimination covered thereby.
The current definition in Paragraph 2a) of Draft Article 7 refers to “distinction,
exclusion or restriction”, which gives the impression of covering only direct
discrimination. This could be remedied e.g. by adding “provision, criteria
or practice” from Paragraph 3) of Draft Article 7.
6. wish to draw attention to the paramount importance of the Convention
clearly stating that the right to equality and non-discrimination creates
obligations both in the public and private sectors of society.
7. caution against watering down the obligations stemming from the right
to equality and non-discrimination in the Convention by including vague
and open-ended qualifications in the definition of discrimination, such
as those in Paragraph 3 of Draft Article 7 and in Paragraph 2b) of Article
3 bis as proposed by the EU. Such references have no precedence in the text
of existing United Nations Human Rights Conventions.
8. suggest that the reference to “special measures” in Paragraph 5 of Draft
Article 7 is reduced to “measures”, as the notion of “special” feeds into
negative stereotyping in the context of disability.
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Non-governmental organizations
CHILDREN's RIGHTS ALLIANCE FOR ENGLAND
Article 7 - Equality and non-discrimination
1. States Parties recognize 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.
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.
3. Discrimination does not include a provision, criterion or practice
that is objectively and demonstrably justified by the State Party by a legitimate
aim and where the means of achieving that aim are reasonable and necessary.
Delete.
4. In order to secure the right to equality for persons with disabilities,
States Parties undertake to take all appropriate steps, including by legislation,
to provide reasonable accommodation, defined as necessary and appropriate
modification and adjustments to guarantee to persons with disabilities the
enjoyment or exercise on an equal footing of all human rights and fundamental
freedoms (unless such measures would impose a disproportionate burden
– delete).
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.
INTERNATIONAL DISABILITY
CAUCUS ON THE CONVENTION 1. States Parties shall prohibit any discrimination on the ground of disability,
and guarantee to all persons with disabilities equal and effective protection
against discrimination. (i) any distinction, exclusion, restriction, preference or denial of reasonable
accommodation , or
(ii) any act, policy, programme, practice or criterion which have the purpose
or effect of impairing or nullifying the recognition, enjoyment or exercise
by persons with disabilities, on an equal basis, of all human rights and
fundamental freedoms in the civil, political, economic, social, cultural
or any other field.
b) Reasonable accommodation means necessary and appropriate modifications
and adjustments to policies, programs or the built environment, accepted by
the person with a disability, which guarantee a person with a disability the
enjoyment or exercise on an equal basis of all human rights and fundamental
freedoms. 2. States Parties shall provide those services and measures required by persons
with disabilities to achieve the equal and effective enjoyment of all human
rights and fundamental freedoms, which shall be provided in consultation with
persons with disabilities and shall not be imposed against the will of persons
with disabilities. These measures 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.
PEOPLE WITH DISABILITY
AUSTRALIA Next, we recommend that the article contain an obligation on States to take
immediate and effective measures to eliminate discrimination on the ground
of disability, and to guarantee to all persons with disability equal and effective
protection from discrimination on the ground of disability. The article currently
confuses the ground of discrimination to be eliminated under this convention
by citing a range of social disadvantages in addition to disability. The intention
may be to prohibit discrimination on the ground of disability even if disability
is only one of the factors that result in discrimination, but if this is so,
the article fails to make this clear. To clarify the meaning of this sentence
it is suggested that it is replaced with a sentence that states that discrimination
on the ground of disability includes an act done for two or more reasons,
where one of the reasons is the disability of the person, whether or not disability
is the dominant or substantial reason for the act being done.1 We have proposed this addition in the definition of discrimination set out
in our discussion of Article 3 (above).
Equality and Non-Discrimination
1. States Parties to this convention shall take immediate and effective
measures to ensure equality of opportunity for persons with disability in
all areas of life. (a) Where the measure resulting in discrimination is necessary for the ordre
public. States Parties to this convention shall ensure that where discrimination
on the ground of disability is necessary for ordre public, such discrimination
will be the least restrictive absolutely necessary in the particular circumstances. States Parties to this convention shall ensure that where discrimination on
the ground of disability is excused under this paragraph, all other human
rights set out in this and other human rights conventions shall continue to
apply.
Draft Article 7: Equality and Non-Discrimination
a) Discrimination on the ground of disability shall mean
c) Discrimination on the ground 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.
d) Discrimination shall also include the interaction of disability with other
grounds such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth, age or sexual orientation.
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LANDMINES SURVIVORS NETWORK
DRAFT ARTICLE 7 – EQUALITY AND NON-DISCRIMINATION
SYNTHESIS OF PROPOSALS
1. States Parties recognise that all persons are equal before and under the
law and are entitled without any discrimination to the equal protection and
equal benefit of the law. States Parties shall prohibit any discrimination
on the basis of disability, and guarantee to all persons with disabilities
equal and effective protection against discrimination. States Parties shall
also prohibit any discrimination and guarantee to all persons with disabilities
equal and effective protection against discrimination on any ground such as
race, colour, sex, language, sexual orientation, religion, political or other
opinion, national, ethnic or social origin, property, birth, source or type
of disability, age, or any other status.
2. (a) Discrimination shall mean any distinction, exclusion, additional obligations
or burdens, restriction or preferences, which has the purpose or effect of
impairing or nullifying the recognition, enjoyment or exercise by persons
with disabilities, on a basis of equality with others, of all human rights
and fundamental freedoms.
(b) Discrimination shall include all forms of discrimination, including
direct, indirect and systemic, and shall also include discrimination based
on an actual, past, imputed or perceived disability, or by association with
persons with disabilities. 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.
3. In order to secure the right to equality for persons with disabilities,
States Parties undertake to take all appropriate measures to provide reasonable
accommodation, defined as necessary and appropriate modification and adjustments
to guarantee to persons with disabilities the enjoyment or exercise on a basis
of equality with others all human rights and fundamental freedoms, unless
such measures would impose a disproportionate burden. In determining whether
the burden in question is disproportionate, consideration should be given
to all relevant factors including the availability of state funding for the
purpose of making accommodations. Failure to provide reasonable accommodation
shall constitute discrimination.
4 Measures aimed at accelerating de facto equality of persons with disabilities
and ensuring their equal enjoyment or exercise of human rights and fundamental
freedoms 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.
COMMENTS
Draft Article 7 elaborates not only core principles of this Convention, but
fundamental principles relating to the protection of human rights. As noted
by several Ad Hoc Committee members (Australia, EDF), equality and non-discrimination
are closely linked, with non-discrimination being a means of achieving equality.
Draft Article 7(1) adopts several proposals (Canada) designed to emphasize
that people with disabilities are entitled to a relationship with the law
that fully ensures them both the benefits as well as the protection of the
law. The list of prohibited grounds for discrimination has also been amended
to include some additional grounds suggested by members, such as ethnicity
(Canada) and sexual orientation (EU – in context of preamble). The inclusion
of ethnicity is in keeping with the CRC, Article 2(1), whilst the inclusion
of sexual orientation represents the growing acceptance by many States that
sexual orientation is not a permissible basis for discrimination. Although
some States felt that the list of prohibited grounds was redundant in this
context (China, Israel, Australia), it has been retained here to highlight
the need for States to act to ensure that people with disabilities are not
only accorded due protection against disability-based discrimination, but
also against discrimination on other grounds which may be equally applicable.
This is of particular importance for people with disabilities who are members
of other historically marginalized groups.
Draft Article 7(2)(a) now includes a reference to “additional obligations
or burdens” (New Zealand), as well as “preferences”, in order to provide a
more complete articulation of the kinds of discriminatory barriers that impede
the enjoyment of human rights by people with disabilities. (Cf. CERD, Article
1(1)) In addition, the provision also substitutes “on a basis of equality
with others” for the traditional “on an equal footing with others,” considered
by some to have derogatory connotations in the disability context. (A similar
change has also been made in Draft Article 7(3), formerly 7(4).)
Draft Article 7(2)(b) reflects proposals (Israel, Australia) supporting broad
protection against disability discrimination, so that those with prior, imputed,
or perceived disabilities, as well as those who associate with people with
disabilities, receive due protection against the kinds of disability-motivated
discrimination so pervasive in many societies. A definition of indirect discrimination
(from EU 3bis) has also been added, to prevent confusion over the meaning
of the term. Some members expressed the belief that there is no appreciable
difference in direct vs. indirect discrimination, or that any differences
should not be elaborated in the Convention (Yemen, Japan, Canada). Yet a number
of States have successfully and usefully incorporated the concept of indirect
discrimination in their domestic anti-discrimination legislation. (Cf. Australian
Disability Discrimination Act, 1992, Part 1 (6); Irish Employment Equality
Act, Part IV, S.31), and it therefore seems appropriate that the Convention
should utilize this experience to provide more comprehensive protection against
disability discrimination.
Former Draft Article 7(3), addressing those acts not intended to be covered
by the prohibition against discrimination, has been deleted from this draft.
To the extent that the provision attempted to provide a standard of review,
it failed to provide adequate restrictive language to ensure that only objectives
consistent with international human rights law would be considered “legitimate
aims.” Given that no similar provision has ever been included in a core human
rights instrument, Draft Article 7(3) represented a major departure with prior
international human rights law as well as a potential avenue for abuse of
the prohibition against discrimination. The development of any kind of standard
of review for Article 7 is best left to the body tasked with monitoring implementation
of the Convention, as has been done in other treaty contexts.
Draft Article 7(3) (formerly 7(4)) builds upon the concept of “reasonable
accommodation” as an individualized and interactive means for securing compliance
with the principle of non-discrimination, by elaborating the understanding
of “disproportionate burden.” Specifically, the amendment (Israel) captures
the agreement by many States that the availability of state funding should
limit the use of “disproportionate burden” as a reason by employers and service
providers not to provide reasonable accommodation. Additional language, not
provided during the third session of the Ad Hoc Committee, responds to the
opinion of many that
failure to reasonably accommodate should in itself constitute discrimination,
and brings the provision in line with the views expressed by the Committee
on Economic, Social and Cultural Rights. (Cf. Committee on Economic, Social
and Cultural Rights, General Comment 5, para. 15)
Draft Article 7(4) (formerly 7(5)) addresses the provision of additional measures
to accelerate the achievement of de facto equality, and removes the limiting
‘sunset clause’ formerly at the end of that provision. (Japan, Lebanon, Yemen)
Although some measures may be limited in time, in the context of disability
some measures (such as assistive technologies or respite care) retain relevancy
over the long-term and should be maintained. This amendment is consistent
with the opinion of the Human Rights Committee that temporal restrictions
need not be placed on the use of such measures if the conditions warrant their
continued use. (Cf. Human Rights Committee, General Comment No. 23 (Article
26), 1989, para. 10) Draft Article 7(4) also deletes the term “special,” (Canada)
which has sometimes had a derogatory connotation in the disability context.
Draft Article 7(4) has also been amended to incorporate the concept of pursuing
measures to ensure the equal enjoyment or exercise of human rights and fundamental
freedoms by people with disabilities, in addition to the achievement of de
facto equality. (Cf. CERD, Article 1(4))
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Article 7: Equality and non-discrimination
The principles of equality and non-discrimination are central in this convention.
The current draft article can be improved both in terms of its structure and
content in a number of respects.
Article 7 currently includes a definition of discrimination on the ground
of disability. We believe a definition of discrimination should be incorporated
into the definitions section of the convention, rather than in this article,
as the concept of non-discrimination is used throughout the convention (see
our commentary on Article 3 above for a proposed definition).
In terms of structure, we believe the article should commence with an obligation
on States to take immediate and effective measures to achieve equality of
opportunity for people with disability. We are concerned that the reference
to equality in paragraph 1 is to ‘equality before the law.’ That concept is
dealt with under Article 9: Equal Recognition as a Person Before the Law.
The relevant concept in this article is equality of opportunity.
Next, the article should set out a clear obligation on States to impose a
positive duty on State and non-State actors to make reasonable adjustments
to meet the participation requirements of people with disability. The definition
of discrimination on the ground of disability must then make it clear that
failure to provide reasonable accommodation amounts to discrimination on the
ground of disability (again, refer to our proposed definition of discrimination
on the ground of disability above).
It is also suggested that the article should set out exceptions to the prohibition
of discrimination, which in our view ought to be limited to exceptions based
on the public order, ‘active (special) measures’ and unjustifiable hardship.
These exceptions ought to be very narrowly framed, so as to ensure that other
human rights obligations continue to apply, and that while the measure itself
may be excepted, all acts done in its administration and implementation remain
subject to the prohibition on discrimination. They should also be expressed
as subject to the principle of the least restrictive alternative, and acceptance
of an active measure by a person with disability must be voluntary.
Taking these proposals into account, it is suggested that the article is redrafted
as follows:
2. States Parties to this convention shall take immediate and effective
measures to eliminate discrimination on the ground of disability in all
areas of life, and to guarantee to all persons with disability protection
against discrimination on the ground of disability.
3. States Parties to this convention shall take immediate and effective
measures to impose a positive duty on State and non-State actors to make
reasonable adjustments to facilitate the participation of people with disability
in all areas of life on the basis of equality with others.
4. States Parties to this convention shall excuse discrimination on the
ground of disability only in exceptional circumstances:
(b) Where the adjustment required to facilitate the participation of a person
with disability would constitute an unjustifiable hardship, having regard
to the benefit of the adjustment to the individual, any broader benefits
of the adjustment to the community, and the resources available to the discriminator;
(c) Where the measure is a positive measure designed to benefit a particular
person or class of persons with disability. States Parties to this convention
shall ensure that all acts done in the administration and implementation
of a special measure remain subject to the prohibition on discrimination
on the ground of disability.
Footnotes:
1. Cf s 10 Disability Discrimination Act,
1992.
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WORKING MEETING OF NGOs FOR PEOPLE WITH DISABILITIES FROM UKRAINE,
RUSSIA, BELARUS & MOLDOVA
Article 7 - Equality and non-discrimination
1) Instead of the words “source or type of disability” use: “cause
and type of disability”
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