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Article 5 - Equality and non-discrimination
Background Documents | Article 5 Background
Seventh Session | Fifth Session | Fourth
Session | Third Session
Working Group | References
Seventh Session
Governments
Non-governmental Organizations
International Disability Caucus
International Disability Convention Solidarity in Korea (IDCSK)
Comments, proposals and amendments submitted electronically
Governments
AFRICAN GROUP
Position on Article 5
Mr. Chairman, as indicated by the African Group during negotiations on Article 5 in the plenary meeting on Monday, 16 January 2006, we wish to communicate the following as the Group’s observation on the afore-mentioned article:
Article 5(1): This paragraph is acceptable to the African Group.
Article 5(2): We agree with the EU’s proposal to delete part 2 of paragraph 5(2) to keep the article concise and avoid repetition as well as replace the word “any” with the word “all” in the first sentence of the paragraph as proposed by the Canadian Delegation.
Paragraph 5(3): The African Group supports the Kenyan proposal on this paragraph. The paragraph should be amended to read “States parties shall take all appropriate steps to ensure that reasonable accommodation is provided so that persons with disabilities may enjoy or exercise all human rights and fundamental freedoms on an equal basis with others”.
Paragraph 5(4): On this paragraph, our Group prefers not to qualify the Word “Measures” at the beginning of the paragraph and amend the paragraph to read “Measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discriminatory on the basis of the present Convention”.
Proposed Article 5bis - Specific Population Groups
Recognition of specific population groups
States Parties shall recognise the particular vulnerability and additional disadvantage of specific population groups of persons with disability, including:
(a) women with disability
(b) children and young persons with disability
(c) elderly persons with disability
(d) persons with severe and/or multiple disability
(e) persons with disability from racial, ethnic, linguistic, and/or religious minority groups
(f) Indigenous persons with disability, and
(g) persons with disability living in rural, remote and small island communities.
State Parties shall take all appropriate measures, including any special measures, to ensure for these groups the full and equal enjoyment of the rights set out in this convention.
Article 5
Paragraph 3:
"In order to promote equality and eliminate discrimination, states parties undertake to take all appropriate steps to provide reasonable accommodation"
China can agree with the Korean proposal to change "undertake to" to "shall".
Article 5
EU Comment: The EU interprets this article as being consistent with ICCPR Article 26.
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.
2 States Parties shall prohibit any discrimination on the basis of disability and guarantee to persons with disabilities equal and effective protection against discrimination. States Parties shall also prohibit any discrimination and guarantee to persons with disabilities equal and effective protection against discrimination on any other grounds.
EU Proposal (2): To make paragraph (2) clearer, delete “States Parties shall also prohibit any discrimination and guarantee to persons with disabilities equal and effective protection against discrimination” and move “on any other grounds” to the end of the first sentence. The paragraph would therefore read:
States Parties shall prohibit any discrimination on the basis of disability and guarantee to persons with disabilities equal and effective protection against discrimination on any other grounds.
3. States Parties undertake to take all appropriate steps to ensure that reasonable accommodation is provided.
4. Measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination on the basis of disability.
EU Proposal (4): Insert “specific” before “measures” and replace “discrimination on the basis of disability” with “discriminatory”. This helps to clarify that positive measures to eliminate discrimination on the basis of disability can not be considered discrimination towards non-disabled people.
The paragraph would therefore read:
Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discriminatory.
Intervention on Article 5
16.1.2006 (Morning)
We generally support the text on equality and non-discrimination. We, however, would like a clarification about the use of the term ‘on any other ground’ used in the second sentence of Para 2. Specifically our constitution prohibits discrimination on the basis of race, religion, sex, language. Normally such discriminations are prohibited by the constitutions of States Parties. We are not sure about the kind of discrimination which is meant to be covered by the ‘language in Para 2. Would it not be preferable to add the words ‘prohibited by the constitution of the States Parties’ after the words’ ‘on any other grounds’? Alternatively, the second sentence could be deleted.
Article 5
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.
2 States Parties shall prohibit any discrimination on the basis of disability and guarantee to persons with disabilities equal and effective protection against discrimination. States Parties shall also prohibit any discrimination and guarantee to persons with disabilities equal and effective protection against discrimination on any other grounds.
3. States Parties undertake to take all appropriate steps (ADD – to promote the equal and active participation of persons in all areas of life, including steps) to ensure that reasonable accommodation is provided.
JUSTIFICATION: The central Article on Equality and Non-Discrimination must reflect worldwide recognition that genuine equality can only be achieved by states taking active steps to promote equal and active participation by persons with disabilities in all areas of life.
4. Measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination on the basis of disability.
Article 5
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.
2 States Parties shall prohibit any discrimination on the basis of disability and guarantee to persons with disabilities equal and effective protection against discrimination. States Parties shall also prohibit any discrimination and guarantee to persons with disabilities equal and effective protection against discrimination on any other grounds.
3. States Parties undertake to take all appropriate steps to ensure that reasonable accommodation is provided so that persons with disabilities may enjoy or exercise all human rights and fundamental freedoms on an equal basis with others.
4. Measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination on the basis of disability.
Non-governmental Organizations
INTERNATIONAL DISABILITY CAUCUS (IDC)
Article 5
Chairman’s text amended by the IDC
2. 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.
3. States Parties shall prohibit any discrimination on the basis of disability and guarantee to persons with disabilities equal and effective protection against discrimination. States Parties shall also prohibit any discrimination and guarantee to persons with disabilities equal and effective protection against discrimination on any other grounds.
4. States Parties undertake to take all appropriate steps to ensure that reasonable accommodation is provided.
5. Measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination on the basis of disability (ADD: “if they are accepted by persons with disabilities and are in compliance with the principles and rights included in this Convention.”)
(JUSTIFICATION: To avoid any misuse of these measures, paragraph 4 would be clearer if it states that these measures need to be accepted by persons with disabilities and that they cannot be inconsistent with the principles and rights included in this Convention.)
INTERNATIONAL DISABILITY CONVENTION SOLIDARITY IN KOREA (IDCSK)
IDCSK fully supports the proposals made by the IDC except only the below.
Article 5
2 States Parties shall prohibit any discrimination on the basis of disability and guarantee to persons with disabilities equal and effective protection against discrimination (Add: with various measures including legal actions). States Parties shall also prohibit any discrimination and guarantee to persons with disabilities equal and effective protection against discrimination on any other grounds.
Article 5
EQUALITY AND NON-DISCRIMINATION (including Article 2)
Comments: 1. Since the definition of discrimination and reasonable accommodation is dealt with in Article 2 unlike the Working Group text, the Article has been downsized. Also, general exceptions to discrimination were deleted. We approve of these points. 2. Regarding discrimination and reasonable accommodation, reasonable accommodation is where, if the physical and human support that is necessary to remove barriers to full participation by persons with disabilities is not provided, it would in reality be equivalent to unequal treatment originating from distinction, exclusion, or restriction. It is an issue within the category of discrimination, and what is at issue is whether or not its absence amounts to discrimination in respect of a particular individual.
On the other hand, affirmative action or other positive measures differ from reasonable accommodation on two points. First, affirmative action or other positive measures do not take into account individual’s case-specific situation with the opposite party, but seeks an institutional guarantee. Second, absence of affirmative action or other positive measures do not amount to discrimination, where absence of reasonable accommodation does. Moreover, since the opposite party shall be discharged of obligations where reasonable accommodation imposes a disproportionate burden, there is no need to consider reasonable accommodation as social rights and interpret it as allowing progressive realization.
3. Regarding the concept of disproportionate burden, Article 2 provides the definition of reasonable accommodation and an exception on its implementation. However, since implementation measures are dealt with in Article 5, the part that provides the exception should be moved to Article 5. 4. Regarding special measures, they should remain limited in time as it was in the Working Group text. In the Chairman’s text, “measures” will include many different sorts of necessary measures, not only quota systems. Therefore, its temporary character should be retained as a general rule.
PEOPLE WITH DISABILITY AUSTRALIA (PWDA)
Report on National Consultations
Article 5
There was general support for this article. No amendments or revisions to the Chair’s Text are proposed.