5 - Equality and non-discrimination
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discussions on draft article 7
19. There was general agreement on the substance of paragraph 1, as well as on the addition of one footnote and the referral of a drafting matter to the Facilitator’s group on this draft article, led by Stefan Barriga (Liechtenstein).
20. The text was generally agreed as follows:
“States parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. States parties shall prohibit any discrimination on the basis of disability and guarantee to all persons with disabilities equal and effective protection against discrimination. States parties shall also prohibit any discrimination and guarantee to all persons with disabilities equal and effective protection against discrimination on any other grounds.a
21. The Facilitator’s group is to consider whether it would be useful to combine the second and third sentence of paragraph 1 without altering their substance.
Paragraph 2 (a)
22. There was general agreement to use the following text, which borrows from the last part of article 1 in the Convention on the Elimination of All Forms of Discrimination against Women (two footnotes were also agreed on):
“(a) For the purpose of the present Convention, the term ‘discrimination on the basis of disability’ shall mean any distinction, exclusion or restrictionb which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on a basis of equality with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”c
Paragraph 2 (b)
23. The text was generally agreed as follows: “(b) Discrimination shall include all forms of discrimination, including direct and indirect discrimination.”
24. Some drafting issues may need to be addressed later in relation to whether to amalgamate subparagraphs 2 (a) and (b).
25. It was generally agreed that existing paragraph 3 had a high risk of being misinterpreted. It was agreed to delete paragraph 3 and to add a footnote to the draft article.
26. The text of the footnote was agreed as follows:
“Note: A number of delegations were of the view that there should be a reflection of general comment 18 of the Human Rights Committee, as follows: ‘not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the convention’.”
27. There was general agreement to use the text set out below as a basis for paragraph 4, with two new footnotes, and to retain footnote 27 of the Working Group draft text. There was also acknowledgement of the need for further drafting consideration and discussion on the placement of the definition, either here or within the definitions section of the draft convention. The text was generally agreed as follows:
“dStates parties undertake to take all appropriate steps to ensure that reasonable accommodation is provided; ‘reasonable accommodation’ to be defined as necessary and appropriate modification and adjustments not imposing a disproportionate burden,e where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on a basis of equality with others of all human rights and fundamental freedoms.f”
a. The list of other grounds for discrimination outlined in the working group text has been deleted. A number of delegations would like to look again at this list in the context of the preamble; in particular, subparagraph (m) covers similar matters. It was agreed that the list should be consistent with existing human rights treaties.
b. A number of delegations wished to include here the phrase “or denial of reasonable accommodation”.
c. A number of delegations would like to include other aspects within the definition, such as those found within the Inter-American Convention. Particular aspects raised were: record of disability; condition relating to previous disability; or perception of disability, whether past or present.
d. A preceding phrase that was proposed, and a corresponding one in the Working Group draft, was deleted, which some delegations wish to consider further.
e. A number of delegations expressed reservations about the phrase “disproportionate burden”.
f. Footnote 27 in document A/AC.265/2004/WG.1 to be inserted here.