5 - Equality and non-discrimination
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Compilation of proposed revisions and amendments made by the members of the Ad Hoc Committee to the draft text presented by the Working Group as a basis for negotiations by Member States and Observers in the Ad Hoc Committee
(updated after the completion of the first reading at the Fourth Session, 26 August 2004)
Equality and non-discrimination
[1. States Parties recognize that all persons are equal before (and under — Canada) the law and are entitled without [any discrimination] (all forms of discrimination — Japan) to the equal protection (and equal benefit — Canada) of the law. States Parties shall prohibit any (such — Israel) 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 — Canada) or social origin, property, birth, source or type of disability, age (health — Kenya) (health, marital status, belief, culture — African Group) or any other status. — China, Australia] — Israel]
2. (a) [Discrimination shall mean any distinction, exclusion (, additional obligations or burdens — New Zealand) or restriction (, condition, act or policy — Israel) which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise by persons with disabilities, [on an equal footing] (on a basis of equality with others — Canada), of all human rights and fundamental freedoms;] (For the purpose of the present convention the term discrimination against persons with disabilities shall mean any distinction exclusion or restriction made on the basis of disability which has the effect or purpose of impairing or nullifying the recognition enjoyment or exercise by persons with disabilities on a basis of equality of human rights and fundamental freedoms in the political economic, social, cultural civil or any other field — Argentina) (public, private and familiar — Costa Rica)
(b) [Discrimination shall include all forms of discrimination, [including direct, indirect 2 — Yemen] and systemic, and shall also include discrimination based on an actual (past — Israel) (disability — Canada) or a disability (that is —Canada) [perceived] 3 (or attributed by society — Canada) (imputed — Australia) disability — Japan] (or by association with a person with a disability — Australia).
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.4 (and consistent with international human rights law — Japan, African Group, Canada). — Australia]
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] (to ensure — Israel) (adequate and — Costa Rica) [reasonable accommodation — Yemen] (acceptable accommodation — Yemen),5 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] — Kenya] (an unjustifiable hardship — Australia) (unreasonable difficulties — China). (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 — Israel).
5. [[Special] (positive — Canada) measures6] (measures of affirmative action — Colombia) (such as positive discrimination and positive action — Israel) 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.7 — Japan] — Lebanon] — EU]
(Nothing in this article shall prevent limiting the scope of special measures on a rational basis in accordance with the severity of the disability — Israel) — EU: see article 3 bis]
((7 bis) To ensure the right to equality for all persons with disabilities. States Parties shall take affirmative action measures to benefit all persons with disabilities. — Colombia)
(EU Proposed Article 3 bis:
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.
2. 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. 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.
4. 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.
5. In order to secure non-discrimination of persons with disabilities, States Parties undertake in particular:
(a) To take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws or regulations which have the effect or purpose of creating or perpetuating such discrimination wherever it exists;
(b) To embody the principles of equality of opportunity and non-discrimination on the ground of disability in their national constitutions or other appropriate legislation, if not yet incorporated therein, and to ensure, through law and other appropriate means, the practical realization of these principles;
(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;
(e) To take all appropriate measures to eliminate discrimination on the ground of disability by any person, organization or enterprise;
(f) To raise awareness throughout society regarding disability and persons with disabilities and foster respect for the rights of persons with disabilities;
(g) To combat stereotypes and prejudices about persons with disabilities;
(h) To promote an image of persons with disabilities as capable and contributing members of society sharing the same rights and freedoms as all others and in a manner consistent with the overall purpose of this Convention;
(i) Encouraging all organs of the media to project an image of persons with disabilities consistent with the purpose of this Convention; — EU)
2. Some members of the Working Group considered that the Convention should have a specific reference to both direct and indirect discrimination. Other members considered that the distinction between the two forms of discrimination was not sufficiently clear. They considered that both a reference to “all forms of discrimination” in paragraph 1, and the reference to the “effect” of discrimination in paragraph 2 (a), would cover the concept of indirect discrimination.
3. The Ad Hoc Committee may wish to consider the scope of this term, and whether it should apply to the individual’s perception of themselves, or society’s perception of them.
4. This paragraph has not appeared in any of the core international human rights treaties, although the concept has been developed in the jurisprudence of the treaty bodies. The Human Rights Committee has included it, for example, in its general comment on article 26 of the International Covenant on Civil and Political Rights. The Working Group discussed three options for the consideration of the Ad Hoc Committee: (a) The paragraph should not appear in the text at all; (b) the paragraph should be included only as an exception to the specific prohibition on indirect discrimination; and (c) the paragraph should apply to all forms of discrimination. In addition to those options, some members proposed adding the following phrase to the end of the paragraph: “... and consistent with international human rights law”.
5. The Ad Hoc Committee may wish to consider the following points when considering the term “reasonable accommodation”:
The Working Group considered that there was a need for a concept such as “reasonable accommodation” in the Convention in order to secure compliance with the principle of non-discrimination.
There was widespread agreement in the Working Group on the need to keep the notion both general and flexible in order to ensure that it could be readily adapted to different sectors (e.g., employment, education, etc.) and in order to respect the diversity of legal traditions.
There was also general agreement that the process of determining what amounted to a “reasonable accommodation” should be both individualized (in the sense that it should consciously address the individual’s specific need for accommodation) and interactive as between the individual and the relevant entity concerned. It was understood that an entity should not be allowed to compel an individual to accept any particular “reasonable accommodation”. It was also felt, however, that in situations where a range of “reasonable accommodations” was available — each of which was, by definition, reasonable — an individual did not have the right to choose the one that he or she preferred.
There was general agreement 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.
Some members of the Working Group supported the proposition that a failure to “reasonably accommodate” should in itself constitute discrimination; some of those members highlighted General Comment No. 5 of the Committee on Economic, Social and Cultural Rights as supporting this view.
Other members of the Working Group considered that the Convention should not dictate the manner by which the concept of “reasonable accommodation” should be achieved or framed under relevant domestic legislation. Specifically, they took the view that it was inappropriate for an international legal instrument designed primarily to engage State responsibility to frame a failure to “reasonably accommodate” on the part of private entities as a violation of the non-discrimination principle.
6. The term “special measures” is used in other international human rights treaties. The Ad Hoc Committee may wish to discuss the appropriateness of using the term in the disability context, and whether alternative terms could be used.
7. The Ad Hoc Committee may wish to discuss whether special measures in the disability context should be limited in time or more permanent.