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Background Documents | Article 9 Background
Seventh Session | Sixth
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
EU Comment: ningEU position not yet finalised, further discussion in New York necessary.
1. To enable persons with disabilities to live independently and fully participate in all aspects of life, States Parties to this Convention shall take appropriate measures, to ensure accessibility for persons with disabilities including by identifying and eliminating obstacles to accessibility, to ensure equal access by persons with disabilities to the built environment, to transportation, to information and communications, including information and communications technologies, and to other services, and facilities provided to the public, including through the provision of reasonable accommodation. in order to ensure the capacity of persons with disabilities to live independently and to participate fully in all aspects of life. These measures shall apply to, inter alia:
(a) the construction and renovation of public buildings, roads and other facilities for public use, including schools, housing, medical facilities, in-door and out-door facilities and publicly owned workplaces;
(b) the development and remodelling of public transportation facilities, communications and other services, including electronic services.
2. States Parties shall also take appropriate measures to:
(a) provide in public buildings and facilities signage in Braille and easy to read and understand forms;
(b) provide forms of live assistance and intermediaries, including guides, readers and sign language interpreters, to facilitate accessibility to public buildings and facilities;
(b)bis: facilitate access by persons with disabilities to relevant assistive devices and technologies;
(c) develop, promulgate and monitor implementation of minimum national standards and guidelines for the accessibility of public facilities and services;
(d) ensure that private entities which provide public facilities and services take into account all aspects of accessibility for persons with disabilities;
(d) provide trai
for all stakeholders on accessibility issues facing persons with disabilities;
(e) promote access for persons with disabilities to the new communication technologies and systems, including the Internet;
(f) promote the design, development, production and distribution of accessible information and communication technologies at an early stage, so that the information society becomes inclusive at minimum cost;
(g) promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information.
Intervention on Article 9
17.1.2006 (Morning)
My delegation would agree with the previous speakers who have held that we should not move too far away from the Chairman’s text and work with this text as the basis. As regards, the chapeau to Para 1, the emphasis of the Article is on accessibility and therefore the first sentence rightly stresses on accessibility. In the proposal of the EU the first reference is on enabling persons with disabilities ‘to live independently’ but that is not what this Article is all about. Also full participation is the thread which runs through he Convention. Therefore, we feel that the Chairman’s text places emphasis in the first sentence on where it should be placed – on accessibility and we should stay with it. We should stay with Para 1 in its entirety. That is to say that we are not in favour of introducing the concept of reasonable accommodation in the Chapeau to Article 1. Here we would support the delegation of Australia.
Intervention on Para 9(2)
17.1.2006 (Afternoon)
For Para 2a and 2b my delegation feels that the use of the word ‘provide’ in the Chairman’s text is preferable to the word ‘ensure’ as suggested by one delegation, as progressive realisation would apply to Para 2.
We also support the EU’s proposal to subsume paras f, g and h in a new 2(b) bis.
Article 9
Israel's proposal – REPLACE WITH THE FOLLOWING:
1. States Parties to this Convention shall require by way of legislation that all entities open to the public or providing services or information to the public, take appropriate measures to ensure accessibility consistent with the principles of this Convention for persons with disabilities, by preventing and eliminating new and existing barriers in the facilities and services concerned. These measures shall apply to, inter alia:
(a) existing and new buildings and other facilities providing services to the public, including schools, workplaces, medical facilities, roads, indoor and outdoor facilities;
(b) existing and new transportation facilities;
(c) all forms of information, communications and other services, including information and communications technologies and electronic services;
(d) mass media, including providers of information on the Internet;
(e) places, services and facilities owned or operated by public authorities and private entities alike.
2. States Parties shall require by way of legislation that reasonable accommodations are made to new and existing housing and residential buildings.
3. States Parties shall develop, implement and monitor accessibility standards which will be compulsory for all entities open to the public or providing services or information to the public and ensure that
(a) non compliance with these standards will be considered discrimination;
(b) standards are comprehensive, including health and safety requirements taking into account persons with disabilities;
(c) standards require the production and provision of all types of public materials, information and documents in comprehensible and usable formats, languages and scripts, including Braille, in a timely manner, and without additional cost to persons with disabilities;
(d) standards require appropriate forms of assistance, support and service to persons with disabilities to ensure access to, and understanding of, information and services, including professional sign language interpreters, guides and readers
4. States Parties shall also take appropriate measures to:
(a) provide training to all appropriate persons on accessibility issues, including service providers, building owners, designers and managers;
(b) ensure that professionals who consult, design and implement services in matters related to accessibility are appropriately qualified.
JUSTIFICATION: Whilst mindful of the need, at this stage, to keep changes to the Chair's text to the bare minimum, a number of key points in the context of accessibility, which we believe are a matter of general consensus, need to be clarified and reinforced, as follows:
• It is primarily entities open to, or servicing, the public which should be the subject of accessibility obligations (compare the chapeau of sub-Article 1 above with the chapeau of sub-Article 1 of the Chair's text);
• accessibility obligations also apply to existing as well as new, buildings open to the public (compare sub-Article 1(a) above with the chapeau of sub-Article 1 of the Chair's text) ;
• accessibility obligations also apply to existing as well as new, buildings open to the public (compare sub-Article 1(a) above with the chapeau of sub-Article 1 of the Chair's text);
• accessibility obligations apply to all entities providing services to the public, whether owned or operated by public authorities or private bodies (compare sub-Article 1(e) above with sub-Article 2(d) of the Chair's text).
• the obligation of States Parties, by way of legislation to set compulsory accessibility standards, non-compliance which shall be regarded as discrimination (compare the chapeau of sub-Article 3 and 3(a) above with sub-Article 2(c) of the Chair's text);
• accessibility obligations include making information and documentation available in comprehensible and usable formats (see sub-Article 3(c) above) ;
• in addition to the need for training of stakeholders on accessibility issues facing persons with disabilities (as provided for in sub-Article 4(a) above and sub-Article 2(e) of the Chair's text), professionals who consult, design and implement services in matters related to accessibility must be appropriately qualified (see sub-Article 4(b) above).
Article 9
1. States Parties to this Convention shall take appropriate measures to ensure accessibility for persons with disabilities by identifying and eliminating obstacles to the built environment, to transportation, to information and communications, including information and communications technologies, and to other services, in order to ensure the capacity of persons with disabilities to live independently and to participate fully in all aspects of life.
These measures shall apply to, inter alia:
(a) the construction and renovation of public buildings, roads and other facilities for public use, including schools, housing, medical facilities, in-door and out-door facilities and publicly owned workplaces;
(b) the development and remodeling of public transportation facilities, communications and other services, including electronic services.
2. States Parties shall also take appropriate measures to:
(a) provide in public buildings and facilities signage in Braille and easy to read and understand forms;
(b) provide forms of live assistance and intermediaries, including guides, readers and sign language interpreters, to facilitate accessibility to public buildings and facilities;
(c) develop, promulgate and monitor implementation of minimum national standards and guidelines for the accessibility of public facilities and services;
(d) ensure that private entities which provide public facilities and services take into account all aspects of accessibility for persons with disabilities;
(e) provide training for all stakeholders on accessibility issues facing persons with disabilities;
(f) promote access for persons with disabilities to the new communication technologies and systems; including the internet
(g) promote the design, development, production and distribution of accessible information and communication technologies at an early stage, so that the information society becomes inclusive at minimum cost;
(h) promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information
Article 9
1. States Parties shall take appropriate measures to ensure accessibility for persons with disabilities by identifying and eliminating obstacles to the built environment, to transportation, to information and communications, including information and communications technologies, and to other services, in order to ensure the capacity of persons with disabilities to live independently and to participate fully in all aspects of life, including in the urban and rural areas. These measures shall apply to, inter alia:
(a) The construction and renovation of public buildings, roads and other facilities for public use, including schools, housing, medical facilities, in-door and out-door facilities and publicly owned workplaces;
(b) The development and remodelling of public transportation facilities, communications and other services, including electronic services.
2. States Parties shall also take appropriate measures:
(a) To provide in public buildings and facilities signage in Braille and easy to read and understand forms;
(b) To provide forms of live assistance and intermediaries, including guides, readers and sign language interpreters, to facilitate accessibility to public buildings and facilities;
(c) To develop, promulgate and monitor the implementation of minimum national standards and guidelines for the accessibility of public facilities and services;
(d) To ensure that private entities which provide public facilities and services take into account all aspects of accessibility for persons with disabilities;
(e) To provide training for all stakeholders on accessibility issues facing persons with disabilities;
(f) To promote access for persons with disabilities to the new communication technologies and systems, including the Internet;
(g) To promote the design, development, production and distribution of accessible information and communication technologies at an early stage, so that the information society becomes inclusive at minimum cost;
(h) To promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information.
Non-governmental organizations
INTERNATIONAL DISABILITY CAUCUS (IDC)
Article 9
1. States Parties to this Convention shall take appropriate measures to ensure accessibility for persons with disabilities by identifying and eliminating obstacles to the built environment, to transportation, to information and communications, including information and communications technologies, and to other services, in order to ensure the capacity of persons with disabilities to live independently and to participate fully in all aspects of life.
These measures shall apply to, inter alia:
(a) the construction and renovation of public buildings, roads and other facilities for public use, including schools, housing, medical facilities, in-door and out-door facilities and publicly owned workplaces;
(b) the development and remodelling of public transportation facilities, communications and other services, including electronic services.
2. States Parties shall also take appropriate measures to:
(a) provide in public buildings and facilities signage in Braille and easy to read and understand forms;
(b) provide forms of live assistance and intermediaries, including guides, readers and sign language interpreters, to facilitate accessibility to public buildings and facilities;
(c) develop, promulgate and monitor implementation of minimum national standards and guidelines for the accessibility of public facilities and services;
(d) ensure that private entities which provide public facilities and services take into account all aspects of accessibility for persons with disabilities;
(e) provide training for all stakeholders on accessibility issues facing persons with disabilities;
(f) promote access for persons with disabilities to the new communication technologies and systems, including the Internet;
(g) promote the design, development, production and distribution of accessible information and communication technologies at an early stage, so that the information society becomes inclusive at minimum cost;
(h) promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information.
(NEW TEXT PROPOSED BY IDC)
1. States Parties to this Convention shall require that all entities open to the public or providing services or information to the public, take appropriate measures to ensure full accessibility for persons with disabilities by preventing eliminating new and existing barriers in all facilities and services. These measures shall apply to, inter alia:
(a) all forms of information, communications and other services, including information and communications technologies and electronic services;
(b) the production and provision of all types of public materials, information and documents in understandable, accessible and usable formats, languages and scripts, in a timely manner, and without additional cost to persons with disabilities;
(c) the development and remodelling of existing and new public transportation facilities;
(d) construction and renovation of existing and new buildings and other facilities providing services to the public, including schools, housing, workplaces, medical facilities, roads, indoor and outdoor facilities;
(e) mass media, including providers of information through Internet.
2. States Parties shall develop, implement and monitor accessibility standards which will be compulsory for all new facilities and services, and for the renovation of existing facilities and services and ensure that
(a) non compliance with these standards will be considered discrimination;
(b) standards are comprehensive, including health and safety requirements taking into account persons with disabilities;
(c) Standards require easy to read and understand signage, including comprehensible formats modes and means, and Braille and tactile signage; and
(d) where States set standards for private facilities and services through planning, building and other regulations, States will ensure these regulations contain accessibility standards for people with disabilities and ensure these standards are applied when renovation or change of use takes place.
(JUSTIFICATION: Accessibility needs to be defined through the establishment of accessibility standards which need to be compulsory. If a new or renovated service or facility does not meet these standards, it can not be considered accessible and it therefore will discriminate against persons with disabilities. It is also important that standards are comprehensive)
(MOVED HERE FROM ARTICLE 4 f)
3. States shall promote the development, availability and use of inclusive and universally designed goods and services, equipment and facilities, standards and guidelines, that require no adaptation or the minimum possible adaptation, at the least cost, to meet the specific needs of a person with disability.
(JUSTIFICATION: The development, availability and use of new products in an accessible way using inclusive and universal design principles to meet the specific needs of persons with disabilities, is better placed in the article on accessibility than in Article 4 on General Obligations.)
(MOVED HERE FROM ARTICLE 4 g)
4. States shall promote the development, availability and use of communication and mobility aids, devices, assistive technologies, designed for persons with disabilities, giving priority to affordably priced technologies. States shall provide accessible information to persons with disabilities about communication and mobility aids, devices, and assistive technologies including new technologies, as well as other forms of assistance, support services and facilities.
(JUSTIFICATION: Apart from making services, facilities and mainstream products accessible, many persons with disabilities require assistive technologies which need to be affordable)
5. States Parties shall ensure that laws protecting copyright do not constitute a discriminatory barrier to access by persons with disabilities to any published material and shall establish legitimate means to enable persons with a reading related disability to gain access to material that technological and other protection measures might otherwise exclude;”)
(JUSTIFICATION: Copyright exceptions are of greatest importance for PWD with print disabilities. This has been reworded and moved here from article 30 of the Chair’s text)
6. States Parties shall also take appropriate measures to:
(a) provide professional sign language interpreters, forms of live assistance and intermediaries, including guides and readers to facilitate accessibility to public entities, buildings and facilities;
(b) provide appropriate forms of assistance, support and service to persons with disabilities to ensure access to and understanding of information and services;
(c) provide training for all stakeholders on accessibility issues, including service providers, building owners, designers and managers;
(d) ensure that professionals who consult, design and implement services in matters related to accessibility are appropriately qualified and involve people with disabilities and their representative organisations at all stages;
(e) provide free postal services for use by blind and partially sighted persons to carry literature, in whatever format, and equipment produced or adapted for the use of blind and partially sighted persons.
(JUSTIFICATION: Postal services in many countries are becoming fully liberalised placing at risk the provision of free post for articles for the Blind. Heavy Braille books and bulky equipment is often only available from national centres, so postal costs would prohibit their availability to blind persons.)
7. States Parties shall ensure through legislation that no person with a disability is denied access on the ground of disability to any facility or service open to the public.
(JUSTIFICATION: In most of the cases, the problem of access is related to lack of accessibility, but sometimes also people with disabilities are denied access (to restaurants, hotels, cinemas, etc) on the basis of disability or because they use a guide dog, etc..
Final Statement
IDC STATEMENT ON ARTICLE 9 ON ACCESSIBILITY
JANUARY 16, 2006
Distinguished colleagues,
We would like to thank the Chair for the opportunity to share the views of the International Disability Caucus (IDC) on Article 9 of the Chair’s Text.
The IDC appreciates the text prepared by the Chair, and has proposed some amendments to elaborate on the scope of the right to accessibility, from the perspective of the experiences of persons with disabilities. We also thank the European Union and the delegation of Israel for taking into consideration the IDC text in preparing alternative texts on this article and their continued openness to bear in mind aspects that are essential to the International Disability Caucus.
The Caucus would like to raise some key issues:
First, the IDC feels strongly that this article – and indeed the entire Convention – should reflect the progressive realization of rights. As several delegations have supported, provisions on accessibility should apply to BOTH public and private entities which serve the public and to BOTH facilities and services provided to the public, including transportation and information and communication. Furthermore, we support the Chilean position that access to work places should extend beyond “publicly-owned work places” to “all work places”.
Second, the Caucus fully supports the need for comprehensive standards for new and existing facilities and services. In this regard, we endorse paragraph 3 of the text prepared by the delegation of Israel, which proposes that “States Parties shall develop, implement and monitor accessibility standards which will be compulsory for all entities open to the public or providing services or information to the public…”
Third, the IDC would like to underline the broad extent of accessibility, which includes not only physical access, but also access to information and communication technologies (ICT) – new technologies which open doors to many possibilities for persons with disabilities. The IDC would like to encourage that the Convention make specific reference to the rights of persons with disabilities to access to information and communication technologies, and the IDC has suggested several sub-paragraphs to reflect this broad scope of accessibility.
Fourth, the IDC shares the view of the Chair that this Convention is intended to protect the rights of persons with disabilities for decades to come and supports generic language in the text. With respect to assistive technology, any references to “assistive technologies” should also include “information and communication technologies”. Also, we support efforts to make all references to assistive technologies consistent throughout the Convention text, as the term also appears in Articles 4, 20 and 26, among others.
Furthermore, on the issue of Universal Design or Inclusive Design or Design for All or possibly new terms that will be used in the years ahead. Bearing this in mind, we would propose that the following generic language be used: “products, environments and services which are usable by all people, to the greatest extent possible, without the need for adaptation or specialized design”, which is consistent with the International Standardization Organization Guide 71 and CEN Guide 6. We also feel strongly that this consideration also applies to the design and construction of new buildings and other facilities.
Fifth, the IDC fully supports the proposals made by several delegations to add a paragraph to Article 9 protecting the right of persons with disabilities to access to emergency assistance.
Finally, we also support the comments made by some delegations to ensure that the provisions under this Article are also applied to people with disabilities living in both rural and urban areas.
Again, we thank the Chair for the opportunity to speak to the Committee and look forward to working together in the spirit of compromise while still ensuring these fundamental rights of persons with disabilities.
INTERNATIONAL DISABILITY CONVENTION SOLIDARITY IN KOREA (IDCSK)
IDCSK fully supports the proposals made by the IDC except only the below.
Article 9
(NEW 2-(i) State parties shall take measures for persons with disabilities to safely use these all public facilities and escape in emergency cases.)
Article 9
Revisions and Reasons:
1. The phrase “to ensure accessibility for persons with disabilities by identifying and eliminating obstacles…” in the preamble to Article 1 should be revised to read “to ensure accessibility for persons with disabilities by identifying and eliminating obstacles, and by preventing new barriers… ”
2. Regarding Paragraph 2 (a), in order to reflect the needs of late-deafened and hard of hearing people, “provide in public buildings and facilities signage in Braille and easy to read and understand forms;” should be revised as follows: “provide in public buildings and facilities signage in Braille, display of texts and easy to read and understand forms;”
3. Regarding Paragraph 2 (b), in order to reflect the needs of late-deafened and hard of hearing people, “live assistance and intermediaries, including guidelines, readers and sign language interpreters, to facilitate accessibility to public buildings and facilities” should be revised as follows: “live assistance and intermediaries, including guidelines, readers, sign language interpreters and speech-to-text interpreters to facilitate accessibility to public buildings and facilities.”
4. Regarding the private sector, instead of the current vague endeavor clauses that use the terms ”facilitate” and “promote”, a more binding clause using the words “ensure” should be adopted. The following clauses should be relevant:
(b) “facilitate accessibility” should be revised “ensure accessibility”.
(f) “promote access” should be revised “ensure access”
(g) “promote the design...” should be revised “ensure the design…”
(h) “promote other appropriate forms of assistance and support…” should revised “ensure other appropriate forms of assistance and support…”
5. Article 20 (personal mobility) should be added to Article 9 as Paragraph 3.
[Reason] It is important to make the concept of “accessibility” a broader concept that includes providing reasonable accommodation to private bodies, by combining provisions on effective measures addressed to individual and specific needs of persons with disabilities (the newly proposed Paragraph 3) with the provisions on the development of infrastructure (Paragraphs 1 and 2).
[Proposal for a new Paragraph 3]
3 States Parties shall take effective measures to ensure liberty of movement with the greatest possible independence for persons with disabilities, including:
(a) Ensuring the freedom of movement of persons with disabilities in the manner and at the time of their choice, and at affordable cost; (replace “facilitating” with “ensuring”)
(b) Ensuring access by persons with disabilities to high-quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost, through public assistance to private bodies that provides them to persons with disabilities; (1. replace “facilitating” with “ensuring”; 2. add “through public assistance to private bodies that provides them to persons with disabilities”)
(c) Providing training in mobility skills to persons with disabilities and to specialist staff working with persons with disabilities;
(d) Encouraging private entities that produce mobility aids, devices and assistive technologies to take into account all aspects of mobility for persons with disabilities.
Comments:
Since Article 9 is a comprehensive provision on accessibility, it should include provisions that prescribe rights. Because it would be a provision concerning social rights, it should not be problematic.
Related Domestic Legislation:
Barrier-free Transportation Law and the Law on Buildings Accessible and Usable by the Elderly and Physically Disabled, or the “Universal Design Law” (currently under consideration?) which integrates the two laws. Also for reference, the “Comprehensive Access Law” proposed by the Japan conference on welfare conscious town building.
MENTAL DISABILITY RIGHTS INTERNATIONAL (MDRI)
on Draft Article 9 (Accessibility)
Thank you, Mr. Chairman.
Mental Disability Rights International would like to support the position taken by the International Disability Caucus, and highlight two additional points not yet expressly raised in this discussion which we believe are of fundamental importance for this Convention. Both build on the positions taken by State delegations on this Article and are consonant with the IDC proposals. We decline to address the important issues on which clear consensus has already been reached by the Committee, such as the public/private dichotomy.
First, a specific, but important point. MDRI is concerned about the lack of emphasis in this article on the right to programmatic access to services. Effective and equal access to services is particularly important for persons with mental disabilities, for whom there may be significant obstacles to access that are not a product of the built environment. In subparagraph 1, States Parties commit to ensure accessibility in a variety of contexts, including “the built environment, to transportation, to information and communications,” etc, but the term “services” appears only at the end as “and to other services.” The placement of the word seems to suggest that it is modifying the previously listed items. MDRI suggests that the words “programs and services” be added to the list directly after transportation or communications. This is a small change, but it will be crucial to ensuring that persons with mental disabilities have access to the services and programs that are so often inaccessible to them in practice.
Second, MDRI continues to be alarmed at the lack of any reference in Article 9 to a “right to accessible environments and services, on an equal basis with others” or, in the words of the EU, “a right to equal access.” That is, accessibility continues to be framed purely as an obligation, rather than as a right. We note that this is a Convention about the rights of persons with disabilities and underscore that it is the specification of rights that is necessary when it comes to empowerment of persons with disability and enforcement of this Convention by individuals. An obligation means little in practical terms without a corresponding and enforceable right, and vice-versa. We expressed this concern at the sixth session—noting that accessibility was, at that time, the only substantive provision of the Convention not expressed as a right—but raise it again given that the concern is amplified by the new placement of Article 9 in Part I of the Convention—rather than in Part II where the substantive individual rights are collected.
MDRI notes that, at the Sixth session, Canada urged moving the provisions on accessibility and non-discrimination further to the front of the Convention given their fundamental importance to PWD—a position supported by Serbia and Montenegro. We understood this as moving the relevant provisions to a higher position with regard to the substantive rights at issue, not moving it into the general provisions clauses, which refer to general principles and obligations, not to substantive rights.
That State delegates understand accessibility to be a right, rather than a mere obligation, was highlighted by the interventions of the EU and Chile in their comments yesterday, Brazil and Chile in their comments today, as well as by Canada and a series of delegations at the 6th session. In making proposed amendments yesterday, the EU emphasized the element of equality and “equal access” that seemed missing in the Chair’s text. It also highlighted the link between accessibility and reasonable accommodation—reasonable accommodation, generally recognized as a right in domestic legislation, being understood as the individual side of accessibility. Chile, in turn, referred to the need for an express reference to the “right to accessible technology” and Brazil returned to emphasize the “right” to accessibility this afternoon. This reiterates the sentiments expressed by delegations at the 6th session.
MDRI thus expresses a concern about both substance and structure with regard to Article 9. On the substantive side, MDRI feels strongly that accessibility should be framed as a right. MDRI supports the new text of the IDC. However, should the Chair’s text be retained, we think that this important issue can be addressed easily within that text, maintaining all current elements but adding the crucial concept of a right. Thus, ¶1, which currently states that “States Parties shall take appropriate measures to ensure accessibility for persons with disabilities,” could be rewritten to state:
1. States Parties recognize the right of all PWD to full and effective access, on an equal basis with others, to the built environment, to transportation, to programs and services, and to information and communications, including information and communication technologies. To ensure this right, States Parties shall take all appropriate measures to identify and eliminate obstacles and barriers to such access that hinder the capacity of persons with disabilities to live independently and to participate fully in all aspects of life. These measures shall apply to, inter alia:
This formulation is both a strong rights-protective provision—emphasizing equal access, in line with the position of many State delegations, including the EU, Canada, and the Latin America block—while simultaneously taking into account resource constraints through the qualifier that only “appropriate” measures must be taken.
Turning to the structure of the Convention, we note that draft Article 9 on accessibility is better placed in Part II of the Convention, albeit at the beginning. The same is true of Article 5, relating to equality and non-discrimination, which is a substantive right and not merely an obligation. Part I should be limited to general provisions that apply to all the protected rights recognized in the Convention.
Thus, MDRI would propose that Part I includes the Purpose, General Principles, General obligations, and Awareness-raising. Part II would then include all of the substantive rights in the Convention, including the rights to equal accessibility and to non-discrimination and equality—that is, current Articles 5 and 9.
With regard to this latter point on non-discrimination, it is worth highlighting that most human rights conventions—including the ICCPR, the American Convention on Human Rights, and the African Charter on Human and Peoples’ rights—have two non-discrimination/equality clauses—one framed as an obligation in Part I of the Convention, the other as a right in Part II. The first is generally included in the general obligations clauses as the principle of non-discrimination and applies to all of the rights recognized in the Convention. That is, a State violates its obligations under the Convention with respect to a given Convention right when it discriminates with respect to that right. The second—usually framed as equal protection of the law—is included as a protected right in and of itself. It differs from the non-discrimination obligation in that it is not limited to the rights recognized in the Convention, but rather extends to all rights recognized in domestic law. That is, a State violates a person’s right to equal protection of the law when it denies equal protection on the basis of rights not recognized in the Convention, but rather guaranteed in domestic law.
In this way, non-discrimination and equal protection are guaranteed with regard to all rights and freedoms—both in and out of the Convention. We also believe that this will respond to Australia’s very valid and appropriate concern that the concept of reasonable accommodation not turn into a “let-out” provision allowing States to get out of their obligations with respect to substantive rights. The right to reasonable accommodation is a right. It is a substantive right, enforceable as such. It should not be limited to a general obligation. This is of fundamental concern in terms of effective practical enforcement of the Convention, and we urge the Committee to reconsider the placement of both Articles 5 and 9. Consistent with most international human rights treaties, they do not belong in Part I.
In sum, MDRI proposes that the language of Article 9 be amended slightly to refer directly to the “right of accessibility on an equal basis with others” and that both Articles 9 and 5 be moved from Part I into Part II where they belong as substantive rights. This is in addition to mentioning “services and programs” directly in paragraph 1, rather than generally as “other services”—a point crucial for the right to equal accessibility of persons with mental disabilities in particular.
Thank you.
PEOPLE WITH DISABILITY AUSTRALIA (PWDA)
Report on National Consultations
Article 9
There was general support for this article. No amendments or revisions to the Chair’s Text are proposed.