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AD HOC COMMITTEE ON
AN INTERNATIONAL CONVENTION

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COMPILATION OF PROPOSALS
FOR ELEMENTS OF A CONVENTION

5 January 2004


PART III.    SCOPE/DEFINITIONS


 

Index

PART I. Preamble
PART II. Statement of Objectives and General Principles
PART III. Scope/Definitions
I. GENERAL COMMENTS
Governments
     The European Union
     Japan
     New Zealand
National Human Rights Institutions
     African Regional Workshop
     Commonwealth and Asia Pacific Region International Workshop
IGOs/Regional meetings
     Seminar of Quito
     Meeting of Bangkok
     African Regional Consultative Conference
     Pacific Islands Forum Secretariat
NGOs
     European Disability Forum
     WNUSP
II. SPECIFIC PROPOSALS
Chairman of the Ad Hoc Committee
     Chair's draft
Governments
     China
     India
     Mexico
     Venezuela
IGOs/Regional Meetings
     Seminar of Quito
     Bangkok Draft
NGOs
     DPI Japan
     World Blind Union
     WNUSP
Others/Individuals
     On-line Consultation
PART IV. General Obligations of States Parties
PART V. Guarantee of Equality and Non-Discrimination
PART VI. Guarantee of Specific Rights
PART VII. Monitoring Mechanisms
PART VIII. Final/General Provisions

GENERAL COMMENTS

                                    Governments

The European Union:
The European Union believes that for the purposes of the Convention it is not necessary to define the notion of disability.

Japan:
(3) Scope of the Convention
In order to realize the abovementioned concept of "normalization" and taking into account each county's different economic and social circumstances, the Convention should provide international guidelines or goals for the measures to be taken to ? enable persons with disabilities to overcome the constraints inherent to their disabilities and to ? eliminate the social barriers surrounding them, both "software" and "hardware" aspects, which impede the realization of each right of persons with disabilities in their social life.

In order that the protection and promotion of the rights of persons with disabilities be addressed with a higher profile in the international community, the Convention should clearly declare, in its preamble part for example, that all the rights enshrined in existing international human rights instruments should be equally enjoyed by every person with disabilities. Japan also basically supports the approach to elaborate upon not only civil and political rights but also economic, social and cultural rights.

As the protection and promotion of the rights and dignity of persons with disabilities involves almost every sector of society, the relevance of this Convention to a wide array of existing international instruments in addition to human rights instruments in its narrow sense as well as to national legal systems in each country should be examined carefully. It would also be necessary to consider in which areas the rights of persons with disabilities are well protected up to the same level that the persons without disabilities would enjoy, and in which areas the rights of the former are yet to be promoted for its full realization.

(4) Definitions
In principle, specific/substantive stipulations of the Convention should be discussed first, and definitions should be discussed at the later stage when the contents are somehow fixed. However, Japan's initial comments on definitions are as follows.

  • The current definitions of "persons with disabilities" vary as they reflect each country's circumstances and different legal systems. Furthermore, each country does not necessarily have unified definitions on persons with disabilities because objectives and measures to implement policies for them also vary. Therefore, if the Convention will include the definition of persons with disabilities, it should allow flexibility based on each country's situation and legal systems, while still ensuring that the objective of the Convention is the protection and promotion of the rights of persons with disabilities.
  • Similar to a definition of persons with disabilities, various "definitions of discrimination" exist because they reflect each country's political, economic and cultural situations and different legal systems. Since measures duly accommodating such differences are conducive to effectively eliminating discrimination, it is necessary to allow flexibility, taking into account each country's circumstances and legal systems. Definitions should be formulated so that many States can accept, or, they should give room for each country's interpretation. Japan considers that discussions of a definition of discrimination should proceed, with reference to CERD and CEDAW, and take into consideration the differences from those, as well as the various situations and legal systems among States.

New Zealand:
New Zealand suggests that rather than define disability it should adopt an understanding of disability as a process rather than something which individuals possess. The process of disablement occurs when people with impairments experience barriers to their full participation in society and their enjoyment of human rights. The understanding should also seek to encompass the full and diverse range of functional impairments including physical, sensory, neurological, psychiatric and intellectual all of which may be permanent, intermittent, temporary or perceived as impairment by society but not by individuals.

Non-discrimination measures should cover direct and indirect (hidden or systematic discrimination) including all arrangements, practices and social structures that might lead to the denial of rights and freedoms to disabled people. Discrimination must be considered to include a failure to accord reasonable accommodations or supports to ensure equal access to the choices, rights and responsibilities in all areas of life.

National Human Rights Institutions

African Regional Workshop:
Definitions

23. With regard to the definition of 'disability' the Convention should:

  • Provide a minimum standard upon which states may build upon but not weaken;
  • Include a definition which is premised on an understanding that disability is a social construct based on the context resulting from discrimination, prejudice and exclusion; and
  • Be inclusive covering inter alia physical, sensory, intellectual, psychiatric and multiple disabilities. Disability can be permanent, temporary, episodic and perceived.

24. With regard to the definition of 'discrimination' the Convention should:

  • address all forms of discrimination including direct, indirect, hidden and systemic discrimination;
  • recognise that equality of opportunity requires that any relevant restrictions or limitations caused directly or indirectly by a disability should be remedied by appropriate modifications, adjustments or assistance; and
  • require affirmative action, reasonable accommodation or 'special measures' to provide barrier free access in all spheres for full participation and to provide enabling environments, where necessary, in order to achieve equality of opportunity and treatment. Such action or measures should not be regarded as discrimination.

Scope:
25. The Convention shall apply both to public and private spheres and institutions.

26. While taking into account cultural and social differences between States, such differences must not permit practices which can lead to disability, or discrimination against persons with disabilities.

27. The Convention should ensure that disability issues are incorporated into all economic policies and plans.

Commonwealth and Asia Pacific Region International Workshop:
Definitions

16. With regard to the definition of 'disability' the Convention should:

  • stress that disability is not an individual pathology. It has a range of implications for social identity and behaviour, and largely depends upon the context and is a consequence of discrimination, prejudice and exclusion.
  • not be restrictive. For example it should cover physical, sensory, intellectual, psychiatric and multiple disabilities. Disability can be permanent, temporary, episodic and perceived.

17. With regard to the definition of 'discrimination' the Convention should:

  • address all forms of discrimination including direct, indirect, hidden and systemic discrimination;
  • recognise that equality of opportunity requires that any relevant restrictions or limitations caused directly or indirectly by disability should be remedied by appropriate modifications, adjustments or assistance;
  • require affirmative action, reasonable accommodation or 'special measures' to provide barrier free access in all spheres for full participation and to provide enabling environments, where necessary, in order to achieve equality of opportunity and treatment. Such action or measures should not be regarded as discrimination.

Scope
18. The Convention shall apply both to public and private institutions and spheres.

IGOs/Regional meetings

Seminar of Quito:
considered it indispensable to define the following theoretical concepts that will be used in the drafting of the Convention, concepts that will have to be part of Article 2.

1. Person with disabilities (In this case, each State Party will be able to use terminology that can be adapted to its cultural tradition, adjusting it to the Convention, promoting the dignity and the positive social image of the person with disabilities.)

2. Access, with the following concepts

2.1. Accessibility

2.2. Universal design

2.3. Reasonable accommodation

2.4. Access to information and communication technology

3. Integration - Inclusion

4. Autonomy - Independent living

5. Equality and equalization of opportunities

6. Positive and affirmative action

7. Discrimination against persons with disabilities

8. Vulnerability

Meeting of Bangkok:
suggested that the Convention should include definitions of disability, discrimination, and accessibility:

Disability
15. There is a range of definitions of disability adopted at the international level. This reflects different purposes as well as changes in the understanding of disability. The meeting noted that the WHO-ICF definition might be taken as a starting-point, but also noted that there were concerns about some definitions currently employed, particularly in relation to survivors of mental illness or users and survivors of psychiatry.

16. The Convention should contain a definition of disability that reflects an understanding of disability as something which is the result of social and environmental factors. A definition of disability should not be restrictive. For example it should cover physical, sensory, intellectual, psychiatric and multiple disabilities. It should acknowledge that disability can be permanent, temporary, episodic and perceived.

17. In elaborating the definition of disability, it should be recognized that, while individuals have impairments, disability is not an individual pathology. It has a range of implications for social identity and behaviour, and largely depends upon context. Disability may also be a consequence of discrimination, prejudice and exclusion.

Discrimination and equality
18. With regard to the definition of "discrimination" the Convention should address all forms of discrimination including direct, indirect, intended and unintended, hidden, and systemic discrimination. The convention should contain a definition of discrimination on the basis of disability which draws on existing international definitions but which modifies them to reflect the particular nature of equality and discrimination in relation to persons with disabilities.

19. There is a consistent approach taken to the definition of discrimination by the Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, ILO Convention No 111 on Discrimination in Occupation and Employment, and by the Human Rights Committee and the Committee on Economic, Social and Cultural Rights. Discrimination exists where there is "any distinction, exclusion or restriction on the basis of a prohibited characteristic (i.e. disability) which has the purpose or effect of impairing or nullifying on a basis of equality the recognition, enjoyment or exercise of human rights"..

20. A definition of discrimination should:

  1. cover direct (disparate treatment), indirect (disparate impact), hidden and systemic discrimination, including all arrangements, practices, and social structures that lead to the denial of rights and freedoms;
  2. include a failure to accord reasonable accommodation as discrimination (as does the Committee on Economic, Social and Cultural Rights in its General comment 5), and should include a definition of reasonable accommodation;
  3. clarify the different types of "positive measures" that may be required to ensure equality (some continuing, some which may need to be only temporary) and the relationship of these "positive measures" to the definition of discrimination;
  4. provide that affirmative action or special measures to reduce or remove barriers to full participation and to provide enabling environments in order to achieve equality of opportunity and equality of treatment should not be regarded as discriminatory;
  5. equality of opportunity requires that any relevant restrictions or limitations caused directly or indirectly by a disability should be remedied by appropriate modifications, adjustments or assistance;
  6. recognize that discrimination can result where different treatment is based on multiple grounds including disability (intersectionality) - for example, women with disabilities, indigenous people with disabilities - and that there can also be discrimination where different disabilities are treated differently and where in relation to different treatment there is a disparate effect on an individual or group;
  7. include protection for associates of persons with disabilities against discriminatory treatment because of their association; and
  8. provide protection against discrimination where disability is suspected, assumed or perceived, or where the discrimination is based on a past disability.

21. The definition of equality should recognize that equality of opportunity requires that any relevant restrictions or limitations caused directly or indirectly by a disability should be remedied by appropriate modifications, adjustments or assistance and requires affirmative action, reasonable accommodation or special measures to provide barrier free access in all spheres for full participation and to provide enabling environments, where necessary, in order to achieve equality of opportunity and treatment. Such action or measures should not be regarded as discriminatory. The Meeting raised the issue of whether the concept of equality to be adopted was one of equality of opportunity or equality of outcome/result.

Accessibility
22. The concept of accessibility, which was a critical component of any convention, needs to be defined carefully. The following definition was proposed:[1]

"Accessibility" means the measure or condition of things and services that can readily be reached or used (at the physical, visual, auditory and/or cognitive levels) by people including those with disabilities, which could be achieved, through design and adaptation irrespective of any types of disabilities. The term "accessibility", as commonly used in the disability-related field, may include but is not limited to:
       (i) access to physical/built environments and public transport;
       (ii) access to information and communications, including information, communications and assistance technology.

The Meeting also noted the elaboration of accessibility with reasonable accommodation contained in the Manila Declaration on Accessible Information and Communications Technology adopted by the United Nations Interregional Seminar and Demonstration Workshop on Accessible ICT and Persons with Disabilities (Manila, 3-7 March 2003). That meeting was organized in response to General Assembly resolution 57/229, which inter alia calls for accessibility with reasonable accommodation in United Nations facilities and documents.

African Regional Consultative Conference:
Suggested the inclusion of the following definitions:

Definition of Disability
The definition of disability in the Convention must not focus on the inabilities of people with disabilities as this inadvertently leads to stigmatisation and categorisation and does not ogre well for equity. The definition should be premised on an understanding that disability is a social construct and most of its effects are inflicted upon people with disabilities by their social environments. Defining disability as such allows that we collectively contribute to changing this social construct.

Principle of Non-discrimination
The Convention must support the creation of a barrier free society that is premised on non-discrimination and participation. This is essential to ensuring the full and effective integration of persons with disabilities in the mainstream of social and economic development. The principle of non-discrimination in the disability context should be broadly seen to address all forms of discrimination experienced by persons with disabilities - i.e. discrimination on the grounds of race, gender, social origin, but to mention but a few. It is common knowledge that African women with disabilities often face triple discrimination - i.e. poverty, gender and disability.

Principle of Equality
The achievement of equality must be the common thread in the Convention. Persons with disabilities still experience prejudice and discrimination on the basis of their disability. Thus inclusion of the principle of the equalisation of opportunities for persons with disabilities will ensure the benefits of substantive equality in their daily lives. In essence, substantive equality requires that persons with disabilities are able to access economic, human and social rights.

Pacific Islands Forum Secretariat:
Scope of the convention:

  • The convention should be broad-based in scope to cater for the differing levels of economic capacity in different countries as well as different levels of interest and commitment.
  • While it should be general, it should not compromise its overall thrust and focus.
  • It should be a generic policy for all disabilities. This would be the most suitable approach for small island countries with relatively low numbers of each type of disability.
Definitions:
  • Comprehensive, holistic definitions are needed, not based on medical or welfare connotations, which are outmoded and inappropriate.
  • A social approach puts stronger emphasis on identifying and removing barriers to equal opportunities and full participation in all aspects of life for people with disabilities.
  • This approach focuses not on the disabilities, but more on the barriers imposed by society that prevent disabled people from realizing their potential.
  • Definitions should be as inclusive as possible.

NGOs

European Disability Forum:
Definition of disability
The definition of disability is a very complex issue and should not become an excuse for inaction. We therefore suggest not to deal with this issue at an early stage of the process. The new WHO classification International Classification of Functioning (ICF) is not a legal definition of disability and therefore not appropriate for a legal instrument.

EDF considers it as very important that:

  • the prohibition of discrimination should cover all persons with disabilities, with significant impairments, irrespective of the level of severity.
  • for a person to be considered disabled, the person has to view him or herself as a person with a disability.
  • the diversity of the disability population must be acknowledged.
  • the parents, spouses and siblings of persons with disabilities, in particular of disabled children and persons with disabilities unable to represent themselves, must also be protected by the Convention.

Definition of discrimination
The definition of discrimination to be included in the Convention should broadly reflect the definition of discrimination used in the EC Directive on equal treatment in the workplace (Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation). Direct discrimination, indirect discrimination and harassment need to be considered as forms of discrimination. Moreover, it is vital to ensure that the failure to provide reasonable accommodation, has to be considered as a form of discrimination.

The definition of discrimination of the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities might also provide some elements for the definition of discrimination. It states:

"The term "discrimination against persons with disabilities" means any distinction or restriction based on disability, record of disability, condition resulting from a previous disability, or perception of disability, whether present or past, which has the effect or objective of impairing or nullifying the recognition, enjoyment, or exercise by a person with a disability of his or her human rights and fundamental freedoms."

Positive action aiming to ensure real equal opportunities for disabled people should in no way be considered discrimination against non disabled people and should therefore be allowed and promoted.

Definition of equal opportunities
A definition of equal opportunities needs also to be included in the Convention. Any such definition should be based on the definition included in the UN Standard Rules.

The right for disabled people and their families, particularly in the case of people with complex dependency needs, to obtain the adequate governmental support (financial and in terms of assistive devices, services and time) is a key element to really ensure full access to all human rights.

WNUSP:
Basic Articles: Who is covered

It is important to characterize this as a human rights and non-discrimination convention, and thus to protect everyone from discrimination on the basis of disability. It is important to define discrimination on the basis of disability for that reason.

Our primary concern about such a definition is that all people with disabilities, and all forms of disability, be covered. It would also be desirable to obtain a definition that is comfortable both for people with disabilities who identify with medical terminology and diagnosis, and for those who reject medical terminology and identify with disability as a social and political category only.

It is also important that any definition of disability not give rise to extensive litigation, for example by naming the extent of functional limitation that constitutes disability.

SPECIFIC PROPOSALS

Chairman of the Ad Hoc Committee

Chair's draft:

Article 2
Definitions

  1. For the purposes of this Convention:
    "Accessibility" means the measure or condition of things and services that can readily be reached or used by people including those with disabilities, which could be achieved, through inclusive and universal design or adaptation and by legal and programmatic means, in order to promote their access to the physical environment, public transportation and information and communication, including information, communication and assistive technologies, and to societal structures and decision- and policy-making processes
    "Associate" includes a family member, helper, carer, or relative, or advocate for a person with a disability
    "Communication" includes oral-aural communication, communication using sign language, finger Braille, Braille, large print, audio, accessible multimedia, human reader and other augmentative or alternative modes of communication, including accessible information and communication technology.
    "Disability" is the loss or limitation of opportunities to take part in the life of the community on an equal level with others due to physical, social, attitudinal and cultural barriers encountered by persons having physical, sensory, psychological, developmental, learning, neurological or other impairments (including the presence in the body of an organism or agent causing malfunction or disease), which may be permanent, temporary, episodic or transitory in nature
    "Discrimination on the ground of disability" includes:
    (1) any distinction, exclusion, restriction on the ground of disability which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field;
    (2) any act, criterion, provision, practice, policy, rule or arrangement which, although not explicitly based on disability-
    (a) has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of their human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field; and
    (b) cannot be objectively justified as a reasonable and proportionate means of achieving a legitimate aim;
    (3) a failure to make reasonable accommodation,
    (4) less favourable treatment of an associate of a person with a disability because of that other person's disability or because of the association, and a reference to disability includes a suspected, imputed, assumed or possible future disability, perceived disability, a past disability or the effects of a past disability, or the characteristics of a disability.
    "Language" includes oral-aural language and sign language. "Reasonable accommodation" means introduction of necessary and appropriate measures to enable a person with a disability fully to enjoy fundamental rights and freedoms
  2. Discrimination on the ground of disability includes discrimination on the ground of multiple disabilities, discrimination on the ground of type or severity of disability, and discrimination on the basis of disability in conjunction with one or more other characteristics, such as race, ethnicity, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, caste, sexuality, disability or other status.
  3. Measures taken to ensure that persons with disabilities enjoy on a basis of equality human rights and fundamental freedoms and to participate fully in the life of the community, for example the provision of financial support or of assistive devices or technical aids, do not constitute discrimination but are measures necessary to ensure equality of opportunity
  4. Adoption by States Parties of temporary special measures aimed at accelerating the achievement of de facto equality for persons with disabilities shall not be considered discrimination as defined in this Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality or opportunity and treatment have been achieved.

Governments

China:
Article 2
For the purpose of this Convention,

"Disability" means a functional status of human individual, which is the outcome of the interaction between the individual and the society and environment, manifested as physical, sensory, mental, intellectual impairment that limits the capacity to perform daily life and social participation and which can be aggravated by the economic and social environment.
" Discrimination against persons with disabilities", means any forms of distinction treatment, exclusion or restriction based on a disability, which has the effect of impairing the rights and dignity of persons with disabilities.

India:

Article 2: Definition

Accessibility

"accessibility" means the measure or condition of things and services that can readily be reached or used by people including those with disabilities, which could be achieved, through inclusive and universal design or adaptation and by legal and programmatic means, in order to promote:

  • access to physical/built environments and public transport;
  • information and communication systems; and
  • assistive devices.

"associate" includes a family member, helper, carer, or relative or advocate for a person with disability.

"communication" includes oral-aural communication, communication using sign language, finger Braille, Braille and/or augmentative or alternative modes of communication, including accessible information and communication technology.

Disability

"Disability" is/comprises a dynamic interaction between the medical or health condition of a person and the social, economic and physical environment, and involves the limitation of the person's opportunities to participate in one or more life activities, which results from [or is aggravated by] the interaction between the environment and the person's physical, sensory, intellectual, psychological, developmental, learning, neurological or other impairment (including the presence in the body of an organism or agent causing malfunction or disease.

Discrimination

"discrimination on the ground of disability" includes:

(1) any distinction, exclusion, restriction on the ground of disability which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of human rights and fundamental freedoms in the political, economic, social, cultural, civil [linguistic] or any other field;

(2) any act, criterion, provision, practice, policy, rule or arrangement which, although not explicitly based on disability -

  1. has a disproportionate impact on persons with disabilities or persons with particular disabilities;
  2. has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of their human rights and fundamental freedoms in the political, economic, social, cultural, civil, linguistic or any other field; and
  3. cannot be objectively justified as a reasonable and proportionate means of achieving a legitimate aim;

(3) failure to make reasonable accommodation, or a failure to eliminate environmental and attitudinal barriers, or the establishment of the new barriers which impair access to desired services and full participation in the activities of civil, cultural, economic, political and social life;

(4) failure to provide goods, services and facilities to persons with disabilities [in the most integrated setting] in the manner most appropriate to the needs of the person;

(5) less favourable treatment of an associate of a person with a disability because of that other person's disability or because of the association also amounts to discrimination.

Discrimination on the ground of disability includes discrimination on the ground of multiple disabilities, discrimination on the ground of type or severity of disability, and discrimination on the basis of disability in conjunction with one or more other characteristics, such as race, ethnicity, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, caste, sexuality, disability or other status.

And a reference to disability includes a suspected, imputed, assumed or possible future disability, perceived disability, a past disability or the effects of a past disability, or the characteristics of a disability.

"equality of opportunity" means the condition in which society treats each individual with a disability as a person equal in dignity and rights and removes any restrictions or limitations by appropriate means, adjustments and allocations, and by affirmative action, reasonable accommodation or "special measures" and provides enabling environments to ensure de facto equality between persons with and without disability.

"language" includes oral-aural language and sign language.

"reasonable accommodation" means introduction of necessary and appropriate measures to enable a person with a disability to fully enjoy fundamental rights and freedoms [and to enjoy access to goods, services and facilities]

"universal design" means measures taken to ensure that a person with a disability has an equal opportunity with other persons to enjoy human rights and fundamental freedoms and to participate fully in the life of the community. For example the provision of financial support or of assistive devices or technical aid, do not constitute discrimination but are measures that are necessary to ensure equality of opportunity.

Adoption by State Parties of temporary special measures aimed at accelerating the achievement of de facto equality for persons with disabilities shall not be considered discrimination as defined in this Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality or opportunity and treatment have been achieved.

Mexico:
Article 2

For the purposes of this Convention, the following definitions shall apply:

  1. "Disability" means a physical, mental (psychic), or sensory impairment, whether permanent or temporary, that limits the capacity to perform one or more essential activities of daily life, and which can be caused or aggravated by the economic and social environment.
  2. Discrimination against persons with disabilities means any distinction, exclusion, or restriction based on a disability, record of disability, condition resulting from a previous disability, or perception of disability, whether present or past, which has the effect or objective of impairing or nullifying the recognition, enjoyment or exercise by a person with a disability of his or her human rights and fundamental freedoms.

Venezuela:
Article 2

Definitions
For the purposes of this Convention:

"Persons with disabilities" means persons with any form of physical, intellectual or sensory absence or impairment, whether structural, functional or both, which constitutes a permanent or temporary limitation, restriction, obstruction or dysfunction in respect of human beings' relationship to their environment that may be caused or aggravated by the economic and social environment.

"Discrimination against persons with disabilities" means any distinction, exclusion or restriction on social participation, based on a disability which has the effect of impairing or nullifying the recognition, enjoyment or exercise by a person with a disability of his or her human rights and fundamental freedoms in the political, economic, social, cultural, employment, educational, sports or any other sphere of public life.

"Impairment" means any physical, intellectual or sensory anomaly, whether structural, functional or both, which constitutes a permanent or temporary limitation, restriction, obstruction or dysfunction in respect of human beings' relationship to their environment.

"Prevention" means the adoption of measures aimed at limiting or preventing the occurrence of disabling illnesses or accidents and at preventing impairments, where these have occurred, from having adverse physical, psychological and social consequences.

"Rehabilitation" means a process aimed at enabling persons with disabilities to achieve and maintain their social integration and an optimal physical, sensory and intellectual functional level consistent with their anatomical and physiological capacities.

"Social integration" means the effective involvement and participation of persons with disabilities in social development processes through various types of organizations of themselves, their families and social groups. Employment; inclusion in education, sports and cultural life; participation in social processes and activities to improve the quality of life; health care; and environmental protection are social integration activities.

IGO/Regional meetings

Seminar of Quito:

suggested the following changes to Mexico's text:

Suggested title: Definitions

Either

Discrimination against persons with disabilities means any arbitrary distinction, exclusion, or restriction based on a disability, record of disability, condition resulting from a previous disability, or perception of disability, whether present or past, which has the effect or objective of impairing or nullifying the recognition, enjoyment or exercise by a person with a disability of his or her human rights and fundamental freedoms.

Or

Discrimination against persons with disabilities means any distinction, exclusion, or restriction based on a disability, record of disability, condition resulting from a previous disability, or perception of disability, whether present or past, which has the effect or objective of impairing or nullifying the recognition, enjoyment or exercise by a person with a disability of his or her human rights and fundamental freedoms. Discrimination also is constituted by the failure to eliminate environmental or attitudinal barriers or the creation of new barriers that impede access to services and to full participation in the activities of civil, cultural, economic, political and social life.

Bangkok Draft:
Article 2      Definitions

1. For the purposes of this Convention:

Accessibility
"accessibility" means the measure or condition of things and services that can readily be reached or used by people including those with disabilities, which could be achieved, through inclusive and universal design or adaptation and by legal and programmatic means, in order to promote their access to the physical environment, public transportation and information and communication, including information, communication and assistive technologies, and to societal structures and decision- and policy-making processes.

Associate
"associate" includes a family member, helper, carer, or relative, or advocate for a person with a disability.

Communication
"communication" includes oral-aural communication, communication using sign language, finger Braille, Braille, large print, audio, accessible multimedia, human reader and other augmentative or alternative modes of communication, including accessible information and communication technology.

Disability
Proposal A
"disability" is the dynamic interaction between the medical or health condition of a person and the social, economic and physical environment, and involves the limitation of the person's opportunities to participate in one or more life activities, which results from [or is aggravated by] the interaction between the environment and the person's physical, sensory, psychological, developmental, learning, neurological or other impairment (including the presence in the body of an organism or agent causing malfunction or disease)
Proposal B "disability" is a dynamic interaction between a person's physical, sensory, psychological, developmental, learning, neurological or other impairment (including the presence in the body .of an organism or agent causing malfunction or disease) and the social, economic and physical environment, which results in the limitation of a person's opportunities to participate in one or more life activities
Proposal C
"disability" is the loss or limitation of opportunities to take part in the normal life of the community on an equal level with others due to physical, social, attitudinal and cultural barriers encountered by persons having physical, sensory, psychological, developmental, learning, neurological or other impairment (including the presence in the body of an organism or agent causing malfunction or disease), which may be permanent, temporary, episodic or transitory in nature.

Discrimination

"discrimination on the ground of disability" includes:

  1. any distinction, exclusion, restriction on the ground of disability which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of human rights and fundamental freedoms in the political, economic, social, cultural, civil[, linguistic] or any other field;
  2. any act, criterion, provision, practice, policy, rule or arrangement which, although not explicitly based on disability--
  3. [has a disproportionate impact on persons with disabilities or persons with particular disability;]
  4. has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of their human rights and fundamental freedoms in the political, economic, social, cultural, civil [, linguistic] or any other field; and
  5. cannot be objectively justified as a reasonable and proportionate means of achieving a legitimate aim;
  6. a failure to make reasonable accommodation, a failure to eliminate environmental and attitudinal barriers, or the establishment of the new barriers which impair access to desired services and full participation in the activities of civil, cultural, economic, political and social life,
  7. failure to provide goods, services or facilities to persons with disabilities [in the most appropriate manner for ] [in the most inclusive setting appropriate to the needs of] those persons; or
  8. less favourable treatment of an associate of a person with a disability because of that other person&'s disability or because of the association. and a reference to disability includes a suspected, imputed, assumed or possible future disability, perceived disability, a past disability or the effects of a past disability, or the characteristics of a disability.

Equality of opportunity
"equality of opportunity" means the condition in which society treats each individual with a disability as a person equal in dignity and rights and removes any restrictions or limitations by appropriate means, adjustments and allocations, and by affirmative action, reasonable accommodation or "special measures" and provides enabling environments to ensure de facto equality between persons with and without disability.

Language
"language" includes oral-aural language and sign language

Reasonable accommodation
"reasonable accommodation" means introduction of necessary and appropriate measures to enable a person with a disability fully to enjoy fundamental rights and freedoms [and to enjoy access to goods, services and facilities]

Universal/inclusive design
["universal design" means...]

2. Discrimination on the ground of disability includes discrimination on the ground of multiple disabilities, discrimination on the ground of type or severity of disability, and discrimination on the basis of disability in conjunction with one or more other characteristics, such as race, ethnicity, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, caste, sexuality, disability or other status.

3. Measures taken to ensure that a person with a disability [has an equal opportunity with other persons to enjoy][fully enjoys] human rights and fundamental freedoms and to participate fully in the life of the community, for example the provision of financial support or of assistive devices or technical aids, do not constitute discrimination but are measures necessary to ensure equality of opportunity

4. Adoption by States Parties of [temporary] special measures aimed at accelerating the achievement of de facto equality for persons with disabilities shall not be considered discrimination as defined in this Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality or opportunity and treatment have been achieved.

NGOs

DPI Japan:
Article 2 Definition of 'disability'

For the purposes of this Convention, 'disability' shall mean any difficulty experienced, due to a social environment requiring some degree of ability and specific skills, without taking into account individual particularities related to, inter alia, injury or sickness.

Article 3 Definition of 'persons with disabilities'

  1. For the purposes of this Convention, 'persons with disabilities' shall mean persons who are in such a situation, that they experience, or might experience, difficulties in living, due to a long-term, temporary or future disabilities. 'Person with disabilities' shall mean people in such a situation that they are disadvantaged if compared to persons without disabilities, unless the environment undergoes adaptation measures to their disabilities.
  2. For the purposes of this Convention, 'persons with disabilities' shall mean persons having in the past experienced a 'disability' as defined at paragraph 1, or considered as experiencing a 'disability'.

Article 4 Definition of 'discrimination against persons with disabilities'

  1. For the purposes of this Convention, 'discrimination against persons with disabilities' shall mean situations, in a political, economical, social, cultural or any other context related to living conditions, and in which, persons' right to equal access to social life is either denied or limited, because of their physical or psychological particularities.
  2. 'Unintentional discrimination' is considered as 'discrimination' as defined in alinea 1. For the purposes of this Convention, 'unintentional discrimination' shall mean situations in which, due to ignorance, incomprehension or prejudice against persons with disabilities, administrative services, public or private association, or individual denies actual violations of the rights of persons with disabilities, or, in which the specific needs related to a disability is not given adequate consideration, and as result persons with disabilities are disadvantaged or suffers ill-treatment.

Article 5 Definition of 'ill-treatment'
Are constitutive of an 'ill-treatment', abuse, neglect and economic exploitation. Abuse includes physical, sexual and psychological abuse. Neglect includes care-neglect and medical neglect.

  1. For the purposes of the Convention, 'physical abuse' shall mean use of material force, injury or confinement.
  2. For the purposes of the Convention, 'sexual abuse' shall mean any sexual contact or behaviour either against the will of a capable person, or towards an incapable person, regardless of its will.
  3. For the purposes of the Convention, 'psychological abuse' shall mean all behaviour that does not match to alinea 1 and 2 and such as teasing, oppressive, insulting or any such behaviour.
  4. For the purposes of the Convention, 'care-neglect' shall mean failure by the person who is in charge, according to a legislation, a contract or an administrative measure, of the care of a person with disabilities, to provide that person with the care needed by any person with disabilities or by him as an individual case.
  5. For the purposes of the Convention, 'medical neglect' shall mean failure by the person who is in charge, according to a legislation, a contract or an administrative measure, of the medical care of a person with disabilities, to provide adequate medical treatment or opportunity of such a treatment to that person.
  6. Economic exploitation
    For the purposes of the Convention, 'economic exploitation' shall mean either, use, acquisition or release of the assets of a person with disabilities for purposes other than its well-being; non payment of the salary of a person with disabilities for its effective work; or enforcing an person with disabilities to accomplish tasks that are not assumed by any legal contract.

World Blind Union:
Taking inspiration from the broad definition of disability introduced by the Mexican government's delegation in its proposal to the Ad Hoc Committee, the World Blind Union proposes the following definition:

" A physical, psychiatric, intellectual, or sensory impairment, (whether permanent or temporary, provided that it lasts for a significant period of time), that limits the capacity to perform one or more essential activities of daily life, and which can be caused or aggravated by the economic and social environment."

WNUSP:
Based on the definitions in the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, and the contributions made by participants in the Quito seminar, we propose the following the definition:

Discrimination against persons with disabilities

a. The term "discrimination against persons with disabilities" means any distinction, exclusion, or restriction based on disability, record of disability, condition resulting from a previous disability, or perception of disability, whether present or past, which has the effect or objective of impairing or nullifying the recognition, enjoyment, or exercise in conditions of equality by a person with a disability of his or her human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

b. Failure to eliminate environmental and attitudinal barriers or establishment of new barriers which impair access to desired services and full participation in the activities of civil, cultural, economic, political and social life also constitutes discrimination.

Anyone subjected to discrimination as defined in a or b above shall have recourse to remedies under this Convention.

Others/Individuals

On-line CONSULTATION: comments to the Mexican text:

Subparagraph (a):
While this is the definition used in the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities, it may not be sufficiently clear to guide national legislation. The matter of definition is particularly critical for this convention because of the potential ambiguities about who will be covered by the convention's provisions.

First, the definition should include the broad range specified in the Standard Rules: "People may be disabled by physical, intellectual or sensory impairment, medical conditions or mental illness." It should also clearly show the relationship between the individual and the environment. One approach has been developed in the United Kingdom:

Disability is the outcome of the interaction between the person with the impairment or health condition and environmental factors
'disabled person' is a person with an impairment or health condition who encounters disability or is perceived to be disabled.
Impairment is a characteristic and condition of an individuals' body or mind which unsupported has limited, does limit or will limit that individual's personal or social functioning in comparison with someone who has not got that characteristic or condition.
Environmental factors make up the physical, social and attitudinal environment in which people live and conduct their lives

If the OAS definition is used, it should be supplemented by sub-paragraphs that provide examples of "essential activities of daily life" as well as examples of types of disabilities. For the activities of daily life" one possibility is to cite by footnote the section of the International Classification of Functioning, Disability and Health relating to activities, although this is a taxomomy rather than a definition. Another possibility is to include the definitions of activity used in some national censuses:

"Functional activities: seeing, hearing, speaking, lifting and carrying, using stairs, and walking;
"Activities for daily living (ADL): getting around inside the home, getting in or out of a bed or chair, bathing, dressing, eating, and toileting;
"Instrumental activities of daily living (IADL): going outside the home, keeping track of money or bills, preparing meals, doing light housework, and using the telephone."

Because persons who are not necessarily specialists will apply the Convention, it would be useful to include as a sub-paragraph a listing of the major types of disabilities that have been identified. This approach was used in the United Nations Declaration on the Elimination of Violence against Women where it was also important to have clarity about what was covered. So a subparagraph should be added along the following lines:

Disabilities covered by this Convention include, but are not limited to, blindness, deafness, mobility impairments, intellectual impairments, consequences of mental illness and its treatment [additional examples to be added.]

Subparagraph (b):
The issue of who determines whether a person has a disability as defined in the convention should be addressed. Who determines is related to the specific context in which disability is addressed, but the article on definition should provide clear and unambiguous guidance about how the determination should be made. Thus, an additional paragraph to that effect should be adopted, along the lines of:

"Whenever the question arises of whether an individual is covered by the provisions of the convention in national laws and programmes, this should be determined by a fair and open procedure involving expert advice, legal opinion and individuals with disabilities through their organizations."


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United Nations, 2003-04
Department of Economic and Social Affairs
Division for Social Policy and Development