Back to: Fourth Session of the Ad Hoc Committee
Summaries of the Fourth Session
Daily summary of discussion at the fourth session
02 September 2004
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UN Convention on the Human Rights of People with Disabilities
Ad Hoc Committee - Daily Summary
A service made possible by Disabled Peoples’ International (DPI), Handicap International (HI) and the International Service for Human Rights (ISHR),
with the financial support of the Governments of Mexico and New Zealand.
Volume 5, #9
September 02, 2004
The Coordinator updated the Committee on reports from the facilitators of informal consultations on Articles 5 and 6. Progress has been made, but there is clearly a need for further discussions on outstanding issues. This is also the case for Article 4. He reviewed the status of negotiations and requested the Plenary’s guidance on the way forward. The WG text, the working document for these negotiations as mandated by GA resolution, contains 210 separate paragraphs. So far 6 have been through facilitators groups and work on them continues. The Compilation of Modifications to that text contains a large number of proposals, some conflicting, some overlapping, some short, others long. These proposals are identified by their countries, and this may perhaps increase the sense of ownership attached to them. Article 7 for example has 42 such proposed amendments.
If the AHC continues at its current pace with delegations maintaining their submitted proposals, at the rate of 2 meetings a year, it will take 5 years to complete the present stage of negotiations, before even getting to a final text. On the other hand the Compilation was much larger when it emerged, about 164 pages, with additional proposals. The progress since then demonstrates that the volume of the Modifications can be significantly reduced in a much shorter space of time if the AHC so wishes.
Unlike the other meetings at the UN, this is not a politicized issue. There is no disagreement over what is clearly a common desire to draft a convention that helps PWD. The Convention has the power to confer benefits on PWD as soon as it comes into force. “The longer we put this off the longer will the present injustice and inequities our fellow citizens with disabilities face continue”. The fundamental question is thus the speed at which delegations are prepared to proceed and how attached they will remain “to proposals that are not of fundamental importance” to them. There are some issues on which delegations cannot compromise, and there will be a need to accommodate their concerns. However, there are other, minor issues of substance, which delegations would want incorporated because they improve the draft text, but which delegations could, if they had to, do without because they are not of fundamental importance. Any text, including that in existing Conventions, is capable of improvements both in drafting and substance. At some stage though there is “a law of diminishing marginal returns”, and the AHC has to accept a Convention that is not perfect “as long as it does the job.” The AHC should avoid the risk of “protecting drafts to death.”
The Coordinator therefore recommended to delegations who still wished to raise issues, both in this and forthcoming AHC sessions, that if their proposals were not garnering support, or raising opposition, they should be prepared to seriously reconsider their positions and yield on their text, unless these issues were of fundamental importance to them. In the event that the AHC was unable to come to an agreement on new text, it should fall back on the WG text as the default text.
The Coordinator concluded by highlighting that agreement on a proposal at this time does not close the door to further consideration later. If issues later take on fundamental importance to delegations they will have the opportunity to come back to them. So as to ensure progress and momentum, the objective at this point should be a text that has fewer rather than more proposals, to highlight issues that cannot be resolved at this point, and to move on to other Articles. The Coordinator asked for input and direction from the meeting regarding the above procedural recommendations.
Sierra Leone, Mexico, Mali, Venezuela, and the EU endorsed the Coordinator’s recommendations. Mexico noted that this is a time for concessions, and delegations should come prepared with alternative positions. It also cautioned that this should not be a second-class human rights Convention. Venezuela highlighted the need to keep the interests of PWD, not narrow economic interests, in mind, in this historic process. It called on the AHC to address the question of an Article on Definitions in this session. The EU expressed concern at the repetition of debates across various meetings and aligned itself with the comments New Zealand made yesterday. It noted that Plenary sessions conclude on a positive note, but constructive recommendations on the way forward made by the Coordinator are ignored at the informals, where delegations may in fact restart the debate. Having negotiations in such a large room is not conducive to coming quickly to agreement, and given this situation, delegations should adopt appropriate modalities. Finally, the EU expressed concern at the Organisation of Work and the possibility that the Coordinator himself may not be available during the proposed dates for the next session.
EQUALITY AND DISCRIMINATION – ARTICLE 7 (Contd)
Japan, represented by Mr. Yushiro, a Member of its House of Representatives and the Honorary Chair of the Asia-Pacific Regional Council of Disabled People’s International, made a statement. As a PWD he noted, “self determination is our highest priority.” PWD are not looking for pity. They may have different kinds of jobs and different ways of living but the critical issue is that they be able to make their own choices. If there are barriers to the visions and choices of PWD it is the responsibility of the State to remove those barriers. The voices of PWD must be listened to. PWD at this meeting are experts on disability issues and their lived experience is essential for this Convention to not become another paper. “We are the lucky ones who can meet here, and we must not forget those who don’t.” This Convention is an opportunity to create a space for PWD to make greater contributions to their community.
Thailand accepted in principle the WG text with the following concerns:  it questioned, as it had consistently done in the WG and in AHC3, the legitimacy of 7(3) which should not be in this Article;  the text on reasonable accommodation needs to be strengthened, and should be included in a definition of discrimination that should include a denial of reasonable accommodation;  the definition of discrimination should not treat direct and indirect discrimination separately and should cover both.
The Coordinator proceeded with a line-by-line reading of the Article, incorporating selected proposals into the WG text as reflected in the Compilation of Modifications to the Draft Articles dated Aug 30. In 7(1) the first sentence was accepted with the Canadian amendments, which had gained wide support. The Japanese proposal was made in the event that there was not going to be a reference to direct and indirect discrimination, and was therefore withdrawn. The second sentence was accepted in the original WG language. Regarding the third and last sentence, the Coordinator cautioned against “drawing up exhaustive and exhausting lists.” There have been lists in other Conventions but it is not possible to list all of the grounds for discrimination, which in the practice of the Human Rights Committee adds 20 more. The more that is added to these lists, the greater the controversy, eg. sexual orientation. One way forward would be to cite relevant human rights conventions, like CEDAW and CERD.
Mexico suggested 2 ways forward:  move all references to specific kinds of discrimination to the Preamble as proposed by the EU. While a final discussion of its formulation could be left for when the AHC gets to the Preamble, the text could incorporate an inclusive list of treaties that already exist, thus making it clear that this treaty is seeking to guarantee rights that are already guaranteed elsewhere;  Given this suggestion Mexico recommends considering the recently distributed New Zealand proposal as a better alternative to the last sentence of the WG text: “Prohibit any discrimination on the grounds of disability, and guarantee to all PWD equal and effective protection against discrimination on the grounds of disability or on any other grounds.”
New Zealand informed the AHC that its proposal was not formally distributed, but was available for delegations seeking a more concise expression of Para (1). New Zealand is willing to accept the WG text in its current formulation whether in this Article or in the Preamble. It would prefer not to see a list in this para of all the grounds of double discrimination but can accept a list in this para or in the Preamble of those that are already identified in existing Conventions. Its interventions on this paragraph will be restricted to drawing attention on points where it believes the intent of the AHC has not been fully brought out or to avoid fruitless and time consuming debates.
Ukraine proposed replacing reference to “source” of disability with “cause” or “reason.”
Ghana (on behalf of the African Group) agreed with delegations on the need to avoid lists, and supported language that includes “or any other status” at the end.
Yemen opposed the reference to causes of disability in this para, but suggested adding a footnote that its inclusion in the Preamble would be considered.
Canada continued to see the significance of retaining a list in the third sentence, as well as adding its proposed reference to “ethnic” which it noted was inadvertently overlooked. This appears in some of the standard lists of other human rights treaties including CRC Article 2. Recognising the need for flexibility, Canada withdraws its proposal on sexual orientation. The NZ proposal could be a middle ground with respect to lists; alternatively there could be a standard list as per Article 2 of the ICCPR.
Australia supported the NZ proposal; alternatively if there were to be a list it should substitute an already existing one, either in this para or in the Preamble.
China supported Australia and Israel and proposed moving the third sentence elsewhere - in the Article, the section on Definitions, in the Preamble, or elsewhere in the treaty. Its current formulation is acceptable, however this sentence substantively repeats the obligations in the preceding first and second sentences which, respectively, “protect” and “prohibit” PWD from “any discrimination.” Therefore this sentence is redundant in this paragraph.
Norway favored moving the third sentence to the Preamble or adopting the NZ language as an alternative.
Serbia and Montenegro supported the NZ proposed language for the third sentence. The existing sentence can be moved to the Preamble, and if a listing is necessary, as per Canada’s suggestion, the CRC’s list should be used as this convention is universally accepted.
The Holy See recalled its intervention from last week and allied itself with other delegations that would prefer to avoid lists. If there is a need to be specific, existing instruments can provide guidance: the CRC, the CCPR, CESCR, and some regional Conventions. It supported the WG text formulations for the first and second sentences.
Israel reiterated that the third sentence is not relevant to a Convention on the rights of PWD. Discrimination on other grounds is and should be dealt with by other human rights Conventions. If the AHC cannot agree to deleting this sentence then in the interests of flexibility Israel proposes moving it to the Preamble, using CEDAW’s list as a precedent. A third option is to accept the shortened NZ proposal, prohibiting discrimination “on any other grounds.”
India agreed with Israel’s first and second options.
The Coordinator reflected the sense of the room that  a list does not belong in this para;  if there is to be a list, it should be in the Preamble, in which case it should not go beyond existing human rights conventions. Norway drew the Committee’s attention to the fact that Preambular para (m) already addresses this. New Zealand alerted the Committee to the connections between the second and third sentence for drafting purposes. Taking these interventions and his conclusions on the sense of the room into account, the Coordinator recommended the facilitator’s group re-draft this para without changing the substance as it has been agreed to so far. The second and third sentences could be merged, NZ’s proposal could be considered and a footnote cross- referencing the Preamble and noting the above points could be added.
The Committee moved to a consideration of Para 2.
China reiterated its proposed amendments to this Article made yesterday. It clarified its position regarding 7(2), in response to the Coordinator’s question, that it opposed references to direct and indirect discrimination since the language already prohibits “all kinds of discrimination.” These concepts cannot be legally defined nor can the prohibition against them be implemented. The definition of discrimination, which is the purpose of 7(2)(a), should specify that it applies to discrimination “against PWD,” and 7(2)(a) and (b) should be merged. The formulation of the last sentence of para (a) should parallel its equivalent in CEDAW and CERD.
Thailand agreed with the rationale and substance of China’s amendments to the first sentence but proposed a slightly different text, referring instead to “discrimination on the basis of disability.” In response to the Coordinator’s statement noting that reasonable accommodation is defined in a following paragraph, Thailand explained that it is important to insert the concept of reasonable accommodation at the end of 7(2)(b) as well. This para defines discrimination, and reasonable accommodation, this time negatively stated, should be integrated into this definition.
New Zealand agreed with others calling for specification that 2(a) deals with discrimination against PWD, and noted that the EU text does the same. It recalled its previous drafting suggestions and reiterated its preferred simple formulation for 2(b): “discrimination shall include all forms of discrimination”. NZ can accept the current text defining discrimination, but opposes the Thai proposal to include reasonable accommodation in this definition.
Ghana (on behalf of the African Group) agreed with China’s proposed amendment and called for specifying discrimination on the basis of disability, which puts this in the right perspective. It supports the language of 2(a), which is consistent with CERD and CEDAW. The NZ proposal to add “additional obligations or burdens” is justified and realistic because PWD have to bear additional burdens simply to have access to services that are otherwise available to others, or because measures have not been put in place to enable PWD to access services. The African Group would like to see this language retained. The African Group will later provide further input on reasonable accommodation but for now it prefers that references on this remain restricted to para 4.
Thailand corrected its previous intervention noting that “denial of reasonable accommodation” should be inserted at the end of 7(2)(a), in line with CESCR General Comment #5 and not (b).
Mexico highlighted the importance of 2(a) which has the power “to establish a new standard” for this group, pursuant to General Comment #18 of the Human Rights Committee. It drew attention to the EU’s definition, and read that in the Inter-American Convention (IAC): “Discrimination on the grounds of disability means any distinction, exclusion, or restriction based on a disability, record of disability, condition resulting from 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 PWD of his or her human rights and fundamental freedoms.” Without prejudice as to whether the definition belongs here or in a Definitions Article, Mexico suggests a definition that reconciles both proposed texts. The IAC definition’s inclusion of “present and past,” “perception” of disability and “record” of disability, eg medical or administrative, sets a new standard. It reiterated, as has New Zealand and Canada, that all references to “equal footing” be changed to “on an equal basis with others”.
The Coordinator invited delegations to refer to definitions in CEDAW and CERD for precedents on this issue.
Japan opposed the Thai proposal to include the denial of reasonable accommodation in the definition of discrimination. It may give too much license to bring charges of discrimination, which has serious consequences. Japan does however support the current formulation of Article 4 on reasonable accommodation. Japan’s preliminary reaction to the Mexican proposal is that it is too prescriptive, especially references to “present” and “past”, which go beyond defining discrimination to a definition of disability, on which there is yet no consensus.
India supported the chapeau of 2 (a) of the EU proposal. It opposed any references to “systemic” or “perceived” disability and therefore suggested para 2(b) follow the NZ proposal and stop at “all forms of discrimination”. India opposes the definition in the Inter American Convention, which is both “too elaborate” and “not too specific”.
Israel proposed the following amendments to para 2:  it agreed with previous proposals specifying discrimination as being “on the basis of disability” in the beginning;  it reiterated its own proposal to add “condition, act or policy” and supported NZ’s proposals as well to the same sentence. There is a need for wider language here given, for example, if a commercial entity refuses to provide services to people who might not have a driving license, thereby making one service contingent upon the existence of another when there in fact might be other ways to ensure eligibility;  in accordance with the jurisprudence of discrimination there must be a reference to direct and indirect discrimination, as this is one of the most insidious and also common forms of discrimination; the EU’s language is acceptable to Israel here;  the reference to “systemic” discrimination can be removed;  as proposed by Australia, and by Mexico on the IAC definition, protections against past, perceived and imputed disabilities should be incorporated. These protections are not generally included in existing instruments on the domestic and international plane, and there is a need to extend the reach of the prohibition against discrimination, beyond simply employment, for example;  the Thai proposal on reasonable accommodation should be incorporated, and this is not an innovation in many domestic anti-discrimination statutes, including in the US, EU, and Israel. The Thai proposal reinforces “the centrality of the denial of reasonable accommodation” to discrimination.
The EU acknowledged wide acceptance among delegations for the text of its chapeau: “For the purposes of the present convention the term ‘discrimination on the grounds of disability’ shall mean” as a starting point for the rest of the paragraph. It considered the Thai proposal on reasonable accommodation to be on “solid ground” pursuant to General Comment #5 of the CESCR. This merits serious attention and a consideration of relationship to para 4. The EU will look into possibilities to merge the IAC language with its own though its first impression is that the IAC definition is too detailed.
The Coordinator confirmed the EU’s view of the sense of Committee on its chapeau.
Serbia and Montenegro aligned itself with the EU’s text, whether referencing “on the grounds” or “on the basis” of disability. It favors retaining the concepts of direct and indirect discrimination. It supports the Thai proposal on reasonable accommodation, which deserves further consideration in light of para 4, eg, whether denial of reasonable accommodation in and of itself constitutes discrimination or whether additional criteria should be met. At first glance it seems the IAC definition can be reconciled with the EU proposal, especially with regard to references to past and perceived disability as pointed out by Israel and Australia.
Thailand reiterated its call to delegations to seriously consider its proposal to include the denial of reasonable accommodation in the definition of discrimination. This is one of the few concrete mechanisms in this Convention that will protect the rights of PWD. Otherwise discrimination will continue to be dealt with in an abstract manner. “It is almost useless to talk about accessibility and a barrier free society when we cannot even agree to a highly individualized concept of reasonable accommodation that still leaves room for a court to decide what is and is not reasonable.” This is one – very compromising – way of achieving equality through a concrete tool.
The Coordinator noted that many delegations had expressed an interest in further studying the implications of the Thai proposal, even as others had either supported or opposed it. Given its substantive nature the Coordinator suggested therefore a footnote to the end of 2(a) outlining the proposal, the relevant ICESR General Comment (GC), delegations’ response to it, and the request to ensure its further consideration intersessionally as it would not be possible to pursue this at this session.
China opposed a reference to the ICESR GC because this deals with reasonable accommodation from the perspective of the obligation to fulfill social and economic rights, and not as a definition of discrimination. Korea suggested that the phrase “denial of reasonable accommodation” might more appropriately belong after the word “restriction” towards the beginning of 2(a) rather than at the end. The Coordinator responded to both by clarifying that the footnote will only identify the inclusion of “the denial of reasonable accommodation” as an issue for further consideration, including the matter of its placement and the GC, and that he is not making a recommendation either way.
The Coordinator reflected his sense of the AHC that the following language, from the EU formulation, had enjoyed wide support for incorporation in the first sentence of 2(a): “For the purposes of the present Convention the term discrimination on the grounds of disability shall mean,”
The EU agreed with the Chair, but noted the need for consistency in drafting, using either “on the grounds of disability” or “on the basis of disability” throughout the Convention.
Israel noted there was a substantive difference between the two. Because a broad definition of discrimination is required, “on the basis” is preferable. “On the grounds” refers to reasons or motives, and the whole point behind modern jurisprudence on discrimination is to highlight the most insidious forms of discrimination, which is unintentional and indirect. The Coordinator received the approval of the Committee to change the wording accordingly for 2(a).
China proposed the Argentine text as an alternative formulation for 2(a). This text provides a clearer definition referring directly to discrimination against PWD. Its wording is strictly consistent with existing international human rights conventions, namely Article 1 of both CERD and CEDAW. The EU text omits this wording, which China insists should be included: “in the political, economic, social, cultural, civil or any the field.” China agrees with the rest of the EU’s proposed text.
Israel agreed with the Chinese proposal but reiterated the crucial importance of adding “and requirement” to “any distinction, exclusion or restriction” in this text. This will preempt future debates about whether requirements are also included in the original list.
The Coordinator outlined the proposals currently on the table: the original text from the WG, the EU text, the Chinese proposal of the Argentine text, and the Mexican proposal of the IAC, noting that the latter 2 were more detailed.
Norway supported the EU text and stated its understanding that there were only 2 proposals on the table, from China and the EU. It highlighted the difference in meaning between the two: the addition of “made on the basis of disability” makes the Argentine text more limiting.
New Zealand agreed with Norway and highlighted the need for the Committee to make a decision on what was a substantive difference between “discrimination against PWD” and “discrimination on the basis of disability.” The former is narrower in meaning than the latter in terms of their implications.
Netherlands (EU) agreed with New Zealand and Norway and opposed the Chinese / Argentine language. This would qualify the definition of discrimination to any distinction, restriction and exclusion “made on the basis of disability,” thus limiting the scope of this definition to what was essentially only direct discrimination. There is a need to include language that would prohibit distinctions and restrictions that, even if not made on the basis of disability, would still have the effect of impairing or nullifying PWD rights. The phrase “all human rights” in the EU and WG texts already captures the more detailed summing up in the Argentine text of these rights so the purpose of this amendment is therefore unclear. Recalling the Coordinators’ recommendation from earlier today the EU “pleads for only accepting amendments whose purpose is one that we can all share.”
Mexico agreed with the Netherlands and opposed the Chinese / Argentine text as this would considerably limit the scope of the protection this Convention is seeking to provide. This text sets aside the most important part of the Mexican proposal from the IAC - everything that relates to a perception of disability, present or past. Mexico agreed with delegations that there is a substantive difference between using “on the basis of disability” and “on the grounds”.
Serbia and Montenegro supported Norway, the EU, New Zealand and Mexico regarding the Chinese proposal.
Islamic Republic of Iran favored the additional language on human rights at the end as proposed by China / Argentina.
Australia supported the text using the EU formulation as read out by the Chair. It opposed the Chinese / Argentine text because it could potentially have the effect of excluding aspects of indirect discrimination. The details on human rights at the end of the paragraph as proposed by China are from CEDAW and are acceptable, however Australia sees no purpose for these additions.
China reiterated that the Argentine proposal is based on 2 international human rights Conventions, CERD and CEDAW. Given the concerns it has heard from the Committee on the need to encompass indirect discrimination, China concedes on the qualifying Argentine language here. However China reiterates its language at the end of the sentence, based on the need to use language from existing human rights conventions and not create new rights, to retain the specific references to human rights.
Mexico brought its own proposal to the Committee’s attention, the language of which should be incorporated in the middle of 2(a) rather than at the end.
Israel stressed that wording describing the types of acts that constitute the prohibition against discrimination need to be widened as much as possible. Its original proposed amendments of adding “condition, act of policy" should be considered. Delegations need not be concerned that this would be too wide, as all acts however described would still be subject to the requirement of whether they have the “purpose or effect” of impairing the rights of PWD.
Thailand expressed its hope that its proposal as footnoted would be considered.
The Coordinator noted that the chapeau of para 2 of the EU text was, except for its first line, otherwise the same as 2(a) of the WG text, so the EU text would be a basis for further discussion. Regarding China’s proposal he recalled Australia’s flexibility and Iran’s support, and indicated the need to have further input from delegations on its inclusion at the end of this paragraph. While Mexico’s proposal on the IAC was generally seen as too detailed its language could be considered. The Israeli proposal will be considered. Given delegations’ varying positions on the Thai proposal it is unlikely this will be resolved in negotiations today; however the footnote, as with everything else, remains on the table for future discussion. While there has been progress on 7(1), 7(2) will continue to be considered in the afternoon, with the possibility of a Facilitator’s meeting if time permits.
EQUALITY AND DISCRIMINATION – ARTICLE 7 (Contd)
The Coordinator reviewed the status of negotiations so far. There is agreement on 7(1) with the Facilitator’s group tasked with combining the second and third sentences without altering the substance. The EU text with a minor change is the basis for discussion at this point for para 2(a): “For the purposes of the present Convention the term discrimination on the basis of disability shall mean any distinction, exclusion or restriction … etc”. Regarding pending proposed amendments to this text, the Coordinator requested and received from Mexico approval to discuss inclusion of the IAC in 2(b) instead. Consideration then moved to the Chinese proposal, taken from CEDAW, Article 1.
Norway enquired from China as to how its proposed additional language would add to the substance of this paragraph.
China did not intend to interpret the benefit of such wording. The adoption of wording from another convention is in and of itself the benefit to this convention. China is not adding anything new, but simply would like to emphasise the importance of using language that has precedent. The Coordinator agreed that the Chinese addition did not substantively change the meaning of the paragraph. Given the importance China attached to it, however he recommended that it be accepted. This recommendation was approved by the Committee.
The Coordinator then moved to consideration of the Israeli proposal, which if incorporated would then read in the first sentence: “.. distinction, exclusion, restriction, condition, act, policy or requirement….” An alternative, to avoid the elaborate nature of this list, would be to simply say “…distinction, exclusion, restriction, act or omission….” instead.
The Netherlands (EU) noted that the Israeli proposal did not receive support from any delegation when it was first proposed, or when it was proposed a second time. The EU does not see the purpose of going into this proposal again, and would oppose such a shopping list approach. Instead as just demonstrated with the Committee’s acceptance of the Chinese proposal because of its basis in CEDAW, the language in this paragraph should similarly reflect that in existing Conventions.
The Coordinator confirmed that the existing EU text reflects CEDAW language: “… any distinction, exclusion or restriction…” The EU text will therefore remain as it is, with the option open for Israel to intervene further on this point if it wished, and this constitutes the agreed upon language for 2(a) so far. The Coordinator reviewed the sense of the Committee on 2(b), which seeks to ensure that a definition covers all forms of discrimination. A few delegations objected to references to indirect and direct discrimination, and a number of others did not wish to see these being defined separately, if mentioned. As a matter of legal interpretation, it is clear that any reference to discrimination alone would imply its broadest sense and therefore include direct and indirect. Delegations now need to resolve whether this needs to be spelled out further. There is also the Mexican proposal introducing additional text from the Inter-American Convention (IAC).
The Netherlands (EU) drew the attention of the Committee to the EU text on paragraph 2 – defining direct and indirect discrimination, with a specific proviso for justification of indirect discrimination, as reflected in EU law. In response to the Coordinator’s assessment that the EU text lacks the amplifications found in the WG text, the EU acknowledged that its text is narrower. The EU had, following the Mexican proposal, engaged in consultations in which its members’ opposition to references to systemic discrimination and perceived disability was made clear.
The Coordinator outlined the issues for further debate: is there a need for 2(b)’s amplification of the definition of discrimination; if so is there a need to specify direct, indirect and systemic; should there be an additional reference to “perceived” disability, keeping in mind the opposition of the EU, China and other delegations; should there be further additions of elements from the IAC text, like record of disability, conditions resulting from previous disability, and present and past disability.
Israel reiterated its support for specifying “perceived” or “imputed,” as the category of people who are discriminated on this basis require protection, do not receive such protection from elsewhere, and domestic statutes provide precedent for this. There are also many PWD who are discriminated against on the basis of a record of disability which is cited in the IAC. While such precedents are not universal as pointed out by the EU, they are more widely cited in national laws in the form of references to “past” discrimination. As a compromise therefore Israel is willing to accept as an alternative, a reference to “past” discrimination, given that the EU has not specifically opposed that. In addition, it is essential to include a reference to “direct” and “indirect” discrimination because the most insidious forms of discrimination are indirect and unintentional. In this respect it supports the EU text, but it does not see the necessity for their definitions to be elaborated. Finally like the EU Israel is uncomfortable with the word “systemic”.
Ghana (on behalf of the African Group) agreed that defining indirect discrimination would be a difficult task. Therefore it is preferable to leave out definitions distinguishing direct and indirect discrimination. However, there should be references to them to acknowledge the reality that discrimination exists both implicitly and explicitly. Furthermore the African Group supports a reference to “perceived” disability.
Canada agreed with Ghana and Israel that there should be an explicit reference to both direct and indirect discrimination, but definitions are best left to the jurisprudence to develop given the difficulty in distinguishing between these concepts in practice. The term “systemic” is not well known in many domestic systems, and as a category of indirect discrimination should be removed. Canada believes that terms like perceived, actual, imputed and past disability are included within the concept of disability. Canada is flexible on whether a specific reference to these terms is necessary to advance the notion of discrimination based on disability.
Mexico expressed concern that the postponement of consideration of its proposal to 2 (b) risks making it a part of a more complicated discussion. These complications are:  the definition of indirect discrimination, on which delegations are divided;  the term “systemic”, what is in Mexico’s opinion “the repetitive and recurrent nature of a violation” has no precedent in existing international instruments (unlike references to “flagrant”, or “massive” violations) and is therefore problematic; and most importantly  the exception clause in 7(3) of the WG text or 7(2)(b) of the EU text both of which Mexico opposes. In this context, the value added of the Mexican proposal is being lost. Mexico reiterates that its objective with its proposal was to “set a new standard” as CERD and CEDAW did. For this reason, and in light of the flexibility expressed by Israel, Australia, Ghana, and the EU, it would be more meaningful to move the consideration of the central elements of the IAC definition - perceived discrimination and present and past disability - to 2(a), or even to an Article 3.
The Coordinator responded that 2(a) can be footnoted on the need to consider further amplifying the definition to include the IAC definition, though this cannot be taken up at this session. Further input was invited from the Committee on:  defining direct and indirect discrimination though the Coordinator sensed there was a reasonable level of support for referring to these terms without defining them;  systemic discrimination; and  the concept of perceived disability.
Jamaica emphasized the importance of including references to discrimination on the basis of the past disability as cited in the IAC. This applies particularly to people with psychiatric disabilities whose disability may be temporary, but their past disability results in them being discriminated against.
The United States supported the need for a 2(b) identifying both direct and indirect discrimination. For the reasons stated by Canada, because of the practical difficulty in attempting to define these concepts in any particular instance, they should not be defined. The US therefore opposes the EU text linking the WG text in 7(3) with a definition for indirect discrimination. The reference to “systemic” discrimination would cover acts already covered under the more extensive concepts of direct and indirect discrimination. The concept of discrimination should be broadened as much as possible and therefore the US supports inclusion of references to past and perceived disability. Viewed from the perspective that the intent of this Convention is to end discrimination, by those who are doing the discriminating, then leaving out such concepts would be a serious omission.
Norway supported the EU text’s distinctions on, and definitions of, discrimination; however if there is no consensus on a definition, both concepts must be clearly identified, as also stated by other delegations. Norway is unfamiliar with the concept of “systemic” discrimination, this is likely covered in other concepts already mentioned in this para, and is possibly superfluous. Norway remains flexible on inclusion of “past” and “perceived”.
The Coordinator asked for input on hypothetical situations where a situation of “systemic discrimination” may not be covered under any definition of discrimination.
Venezuela was flexible on the inclusion of these concepts but noted that they may be new to many national level systems. These terms would need to be defined, so it is recommended that this Article accordingly be linked to Article 3 on Definitions.
Serbia and Montenegro saw benefit to defining direct and indirect discrimination as in the EU text, but would not insist on maintaining this position if this is an obstacle to reaching consensus on this Article. Given the developing consensus that the concept of systemic discrimination is unclear, it should be left out. Serbia is flexible on the inclusion of perceived and past disability, but unless there is consensus, these terms should be cited in a footnote.
Thailand supported retaining the text of the following: 7(2)(b) of the WG text, the idea of direct and indirect discrimination without defining the latter, and concepts of past, perceived, imputed and record, of disability.
China reiterated that a definition of discrimination should cover all forms and not be confined to direct and indirect. As mentioned by Venezuela, African Group and Canada it is hard to distinguish between indirect and direct. The focus should be on defining discrimination and not trying to find the difference between the two. Suggestions to identify both without defining them are not meaningful. Definitions of all terms related to discrimination are needed otherwise contractual parties will not know what their obligations are. Therefore 2(b) should be deleted entirely. However, if this subpara has to be retained and there has to be some content, then the language could be in the abbreviated, if meaningless, form: “Discrimination shall include all forms of discrimination.”
Australia did not believe that it is strictly necessary to include references to direct and indirect discrimination but did see the value to highlighting that both of those forms are covered. It is not helpful to attempt to define these terms, which in many instances overlap. There is a difference between the terms “imputed” – which Australia had proposed - and “perceived”; Australia prefers inclusion of the latter word. It agrees that “systemic” has no shared meaning, and therefore should be left out. Concepts of past and future disability, which are related to the notion of discrimination on the basis of a record of disability, should be taken into account eg in situations where a person has a degenerative disease but is being discriminated now on the basis of that potential disability. However, incorporating them into this Article would pose a problem as they first need to be understood in the context of a definition of disability itself, rather than one on discrimination. The scope of the definition of disability, and whether it extends to people with past and potential disabilities, needs to be defined separately first.
Netherlands (EU) will reconsider its position defining direct and indirect discrimination given the Committee’s general opposition to this. If the EU’s text in this area is not included then it is likely that the EU’s opposition to the justification of discrimination in 7(3) of the WG text will be strengthened, as under EU law there is never a justification for direct discrimination. The EU shares delegations’ opposition to the word “systemic”, which adds no clear value and should be left out. The notion of “perceived” disability meets with strong objections from some EU members. Regarding the IAC definition, in which this concept is included, the EU notes that there are several elements to it, and it is unlikely they would all be adopted by this Committee. This should be kept in mind by those members of this Committee who are party to the IAC and therefore subject to its provisions in their entirety. Perhaps silence on the IAC in this Convention process is advisable, in the interests of encouraging the IAC’s own jurisprudence and case law to develop towards inclusion of certain concepts.
Mexico noted it will be up to States Parties of the IAC to make a decision on the ramifications of a selective inclusion of its provisions in this Convention, and whether that might weaken the legal regime established by the IAC. However Mexico would be interested in meeting bilaterally with the EU on this point and to discuss those aspects of the IAC definition that would be acceptable to the EU and could be incorporated in this Convention.
Costa Rica outlined the structure of the article in response to the Chinese proposal that 7(2)(b) should be deleted. The distinction between 2(a) and 2(b) is that the first prohibits discrimination and the second defines discrimination, so logically they are both needed. 7(2)(c) would be superfluous if the definition of discrimination in (b) can encompass all its elements, including (c) and the proposal by Israel. This would streamline the text.
Israel emphasized the importance of including protection of people with past disability within the scope of this treaty, even if a footnote is the only solution at this stage. Without such a provision a person who used to have a psychiatric disability would not be protected from discrimination. There are 2 basic elements to the IAC definition, one relating to past disability, and the other relating to imputed disability. Both categories should be protected and are not covered elsewhere, but the former is the more relevant to disability, and the latter can be dealt with elsewhere. This cannot be left to jurisprudence as the EU has suggested, because jurisprudence will draw conclusions from the omission of this term by this Committee in developing its case law. If past disability is not expressly included this provision, it will be read to refer only to people with present disabilities. It should be noted that NGOs and NHRIs call for the inclusion of this term. Israel supports 7(3) very strongly and will intervene then regarding its proposed amendments on the types of acts covered by the prohibition on discrimination.
Netherlands (EU) strongly differed from the Israeli legal interpretation and clarified that not mentioning elements such as past, present, perceived does not mean that they are not included in the definition. Thus EU member states already prohibit discrimination based on past disability. The real risk lies in legitimizing a reasoning that absence of elements means their exclusion from coverage. If the Committee starts picking things from the IAC for inclusion in this Convention then it risks engaging in such “contrarian” reasoning. The conclusion will be drawn that those elements from the IAC that are not selected for this text are not meant to be covered.
The Coordinator reviewed the discussions so far.  He identified Mexico’s proposal on the broad ranging IAC text as an issue that requires further discussion. A footnote will be added to 2(a) to indicate this outstanding proposal and strong views from member states both supporting and opposing it: “a number of delegations considered that other aspects should be included in the definition, as found in the IAC definition, such as “disability, record of disability, conditions resulting from previous disability, perception of disability, present or past.”  It will not be possible at this session to resolve these issues at this session.  There is sufficient support for a reference to direct and indirect discrimination and sufficient opposition to defining them.  The use of the word “systemic” clearly presents major problems for many delegations.  The latter part of 2(b) will be addressed in the footnote in 2(a). The merging of 2(a) and (b) as proposed by Costa Rica would be considered only if this covers both direct and indirect discrimination and can be addressed later. This is ultimately a drafting issue rather than a matter for substantive debate. The Coordinator concluded with the following new text for (b): “Discrimination shall include all forms of discrimination, including direct and indirect discrimination.” The Coordinator then outlined the issues related to Article 7(3) as stated in Footnote 26, noting that even though its option (b) was not supported in the context of the EU proposal, such an option could still be considered.
Thailand reiterated its consistent opposition to this paragraph, which paves the way for PWD to be discriminated against. It can be used to justify acts where PWD are unintentionally discriminated against.
India asserted that the para does not justify discrimination, and is needed in the interests of “harmonizing resource constraints and the need for positive discrimination.” In situations where specific steps are taken for affirmative action, as happens in India, this language takes on board certain criteria of reasonableness to govern acts of positive discrimination. The motive is not to dilute the effectiveness of the treaty but to recognize that in countries where there are clear resource constraints, the commitments relating to positive discrimination can be harmonized with those constraints. It should be noted that any such provision has to be objectively and demonstrably justified, has to have a legitimate aim, and the means of achieving those aims have to be both reasonable and necessary. Therefore sufficient safeguards have been built in to the para to ensure that the interests of PWD are not lost sight of. It is essential that this remains as a separate para especially if the Committee adopts the view that, as India favors, 2(b) only defines discrimination as all forms of discrimination.
The Coordinator requested India’s and the Committee’s input on the best way forward to deal with the resource issue, a major issue for all countries and in particular developing countries. Currently these issues are being addressed in several ways in this Convention, this paragraph being one of them, and in the absence of a single text on progressive implementation perhaps this multiple approach is necessary. Recalling the discussion on progressive implementation of obligations under the Convention in General Obligations earlier this week, it may be possible to agree on language that covers the resource constraint concerns of India and other delegations. In that situation the Coordinator enquired whether it would it be acceptable to India to have this paragraph deleted.
Ghana (African Group) supported 7(3), which is not a limitation clause but a tacit recognition that discrimination, while on the face of it may be unfair, has some positive aspects to it. States should be given a clear ambit for provisions, criteria and practices that are justifiable under international human rights law. Para 3 provides such a framework.
The Coordinator enquired of Ghana the same question it asked India, that if the Convention has a provision giving sufficient protection to states making it clear that obligations in the ESC area require progressive implementation rather than immediate realization, would Ghana still support retention of this article?
Serbia and Montenegro opposed this article for the reasons put forth by Thailand. If on the other hand everyone else in the Committee reaches consensus that this language should be retained, and in the interests of flexibility, Serbia would then wish to see such an exception linked to indirect discrimination only, whether or not this term is defined. Furthermore, as a country in transition Serbia favors the principle of progressive implementation, and would be satisfied with a provision on this in the General Obligations Article, therefore negating the need for this paragraph.
Israel asserted its own understanding that this provision did not have a resource-related purpose, though there might have been a number of intentions behind this para. Resource constraints should be rightfully dealt with in the General Obligations Article, adopting standard language that has been used in other human rights instruments. This provision does however need to address situations where for example, there is what is known in the employment context as “a bona fide occupational qualification,” or where “disability is an objective bar to performing the job or providing the service.” Eg: not employing a blind person for a job that requires driving, not making some accommodations in a gym or fitness center because of the nature of the disability. This provision should strive to provide for the rights of PWD to the maximum extent possible. It is also important, as reflected in Israel’s legislation, to get all stakeholders in both the international and domestic legislative spheres to strike a balance that is both explicit and implicit. “No system provides for absolute rights but for a system of checks and balances” and there are circumstances where certain cases of prima facie discrimination is justified. For this reason this provision is necessary, but it should be reformulated to cover “discrimination of the kind which is essential to the service or job occupation in relation to which discrimination is alleged.” There is precedent for this in domestic legislation. The language in 7(2)(a) on “distinction, exclusion or restriction” needs to be made consistent with the reference in 7(3) on ”provision, criterion or practice.” Furthermore Israel reiterates the need to include “requirement” or “condition” in this list, so that it would appropriately cover situations where, eg, a particular job requires a certain level of physical fitness. Accordingly Israel suggests, as has the NHRI, that the drafting of this section of 2(a) could be made broader to refer to “acts or omissions.”
The Coordinator enquired as to existence of domestic legislation that covers the situations that Israel has just exemplified. He recalled that this provision, originating from the discussion in the WG, was in fact meant to cover such situations of “occupational qualifications.” It was not intended to be a blanket exclusion of the sort that delegations are concerned about, nor was it intended to be a provision relating to resources. The question, therefore, is whether the Committee can formulate narrower language that covers the issues that have been identified by Israel and that are clearly already in existence in some domestic legislation. In this regard, perhaps language from the General Comment of the ICCPR can help: “Finally the Committee observes that not every differentiation of treatment will constitute discrimination if the criteria for such differentiation are reasonable and objective and the aim is to achieve a purpose which is legitimate under the Covenant.” It is clear also what the Committee does not want to achieve: a loophole States can use to discriminate against PWD under a blanket exemption clause.
Thailand emphasized its concerns with this paragraph - the list of qualifications can go on and on, and “who is to decide that such qualifications have not in fact arisen from stereotypes?” In some cases, before their origins in stereotypes can even be realised, these qualifications have become law. Thailand is not convinced that these qualifications can be objectively and demonstrably justified. The fact remains that they would ultimately have to be based on another’s perception of the capacity of a PWD.
Republic of Korea opposed this para for reasons already provided by other delegations. Determining whether a PWD is qualified for a job, and the process of justifying their discrimination if they are not, should be left up to the PWD, ie the person who is to be discriminated against, not just the state. In addition therefore the para is fundamentally in conflict with the concept of PWD self representation and the Convention’s cross cutting idea that states should work in close consultation with PWD in all matters that concern them.
Mexico emphasised that this provision has nothing to with progressive realization and in this respect agrees with Israel. Such issues belong in Article 4 keeping in mind that, as suggested by New Zealand, the rights subject to progressive realisation should be distinguished from those obligations that are to be immediately implemented. Mexico agrees that the examples given by Israel correspond to the practice in virtually all countries. However if this provision were to be adopted, the Committee of Experts for this treaty would have a lot of work to do identifying whether any objective is real and whether the means available are suitable. Furthermore legitimacy is an elastic term, “reasonable” brings in concepts of proportionality and other concepts here pertain more to international humanitarian law. With regard to Israel’s point on absolute rights, Mexico asserts that some core human rights are absolute, from which there can be no derogations and no exceptions. The principle of nondiscrimination is in this category. The IAC in a celebrated international opinion declared recently that nondiscrimination is a principle that has Jus Cogens status. Mexico cannot accept that via an exception such as in this Article, this hard won principle now well established in the international civil and political rights area and the various case law surrounding that can be undermined. With respect to the question of how a country might establish criteria for types of work or activity, this should be left up to the national level. The burden of proof should be on the state to demonstrate that the criteria is not discriminatory. Inserting this provision will weaken rather than strengthen this Convention. Finally, this provision seems to have led to some confusion with progressive realization, as well as with paragraph 5. This provision does not belong in this article or anywhere else in this Convention.
Costa Rica agreed with Mexico and noted this provision “is an escape clause” that could lead to a violation of the very rights the Convention is trying to protect. This complex issue should be dealt with in the framework of case law instead, and developed over time. As specified in the Footnote this provision does not appear in any other human rights instrument and should be deleted.
Canada affirmed the Coordinator’s recollection of the genesis of this provision, and noted WG discussions around the CCPR’s General Comment. This paragraph is trying to represent the important concept that not every differentiation in treatment is discriminatory. Canada agrees with Israel “that job qualifications that may make a distinction in either purpose or effect with respect to different groups of people yet indeed correspond to the actual merits and capabilities of that individual or to what is required for the job.” Perhaps the concepts and language of the General Comment needs to be reflected more faithfully in this para. In addition, India’s concerns regarding actions taken to ameliorate the situation of PWD, like positive measures and affirmative action programs, are already captured in para 5. Para 5 states explicitly such measures will not be considered discrimination, but perhaps this idea can also be represented in para 3.
The Coordinator asked delegations to consider the General Comment language in their interventions.
New Zealand recalled the WG recommendation that an answer to the problems of this para could be to draw more closely from the General Comment. While the existing WG text is not inconsistent with NZ’s domestic legislation, it is conscious “of the need not to codify and freeze in place the case law, which is still developing” and to which Israel referred. Another more recent impulse from NZ was to suggest deleting this para and thereby prevent this development from continuing. However in the interests of flexibility NZ is willing to consider redrafting this article along the lines of the General Comment in order to give some guidance at least, to States.
Netherlands (EU) informed the AHC the source of Para 3 is Council Directive 2000/78/EC of 27 November 2000, which has exactly the same language with one exception – the Council text starts with a reference to indirect discrimination. Given the Committee’s opposition to this qualification, however, the EU opposes inclusion of para 3.
The Coordinator recalled he had earlier invited the Committee to deal in another way with the content of the EU proposal by inserting a reference to indirect discrimination in Para 3, but there had been no response.
Norway highlighted the risks associated with this para, even though it would not contradict its own domestic legislation. This para could expand the scope for exceptions to the nondiscrimination principle, unnecessarily expand the scope for differentiation of treatment, and create discrepancies between the nondiscrimination rule of this Convention and other international human rights treaties. It agrees that case law and jurisprudence, which has been a decisive factor in the past, is dynamic and constantly evolving. Therefore States should be cautious about codifying this concept in this Convention. However if the Committee is moving towards a consensus to retain this para, then Norway seconds Canada’s proposal that the para should closely heed the General Comment wording.
Israel cautioned that it would be hasty to simply delete this paragraph. This is a complex issue and the Convention should both maximize protection for PWD but also be a balanced instrument. The General Comment of the HRC has to be given consideration. It is obviously necessary as Canada has pointed out to find language that clearly indicates that this is an exception to the general rule of nondiscrimination. This is what has happened in domestic legislation, where the language is narrow, and narrowly construed by the courts. As is indicated in the language of the General Comment there are requirements of reasonableness and objectivity. The subjective opinion of the provider or employer is not relevant. It is the objective validity of the requirement which is relevant. Finally, it should be noted that silence is not the only way of letting case law develop. It is possible to relate to this issue while still leaving room for the development of the case law. There are other kinds of formulations, whether in the Council Directive or in the leading anti discrimination legislation of the US, Canada, New Zealand, that reference “bona fide occupational qualifications,” “genuine occupational qualifications,” or “requirements which are essential to the service provided.” This para is relevant to situations where “employers or providers will have what can be called legitimate concerns, and where people who are not employed or admitted may rightfully believe they have a right to be employed or be provided a service.”
The Coordinator summarized that it is unlikely the current language in para 3 will attract consensus. At the same time a number of delegations support language to cover the concerns Israel refers to. It is clear that what is intended in this para is much narrower than what appears at first sight and a solution here is to draft a provision that follows General Comment #18. Other delegations advise that this issue is best left to national legislation given its evolutionary nature. Delegations may be agreeable to addressing this issue if it would not do the sort of damage to the text that they have been concerned about. A way forward might be to insert a provision in the Preamble drawing attention to General Comments of the Human Rights Committee on the differentiation of treatment in relation to discrimination, without referring to #18 specifically as there may be other General Comments to follow in the future. This will provide “a hook,” making clear the drafters of this Convention had in mind the type of issues the HRC has pronounced upon in its General Comment #18. A second option would be to address this issue in the Final Report. However such insertions tend to become overlooked, so the Preamble would be a better location. The Coordinator surmised that it is likely debate on this provision could take a great deal of time, with the also likely outcome being language no one would be comfortable with. Those who are concerned that the Article would be abused would still read into it the possibility of abuse. Those who want to protect the rights of states to undertake activities that differentiate but are not discriminatory would be uneasy as well. The Coordinator recommended a general reference in the Preamble that would respect the interests of both parties.
Thailand clarified its objections to the language in para 3. It is not that this language “might” be abused or “may” lead to harm towards PWD. Historically it has been proven to cause harm to PWD. It is always the non-disabled people who with “goodwill and misunderstanding set these criteria that later on prove incorrect,” only to be followed by apologies and corrections. Meanwhile these criteria and qualifications have been copied, have spread, and later turned down by lawmakers who themselves were initially unaware of their existence. It is not only the fear of what may happen in the future but what has been proven to have happened in the past that delegations need to be aware of.
Jamaica supported the Canadian position and would support a redraft based on the General Comment wording to be inserted into the Preamble.
Mexico opposed both options proposed by the Coordinator. A treaty, unlike a resolution, is subject to the rules of interpretation laid down by the Vienna Convention, which are clear. In addition this convention is derogating from CERD where only one differentiation can be made which would not constitute discrimination - between citizens and non-citizens. The Human Rights Committee does not according to a treaty have any power to interpret that treaty, and this is up to States Parties only. Once terms move from a General Comment to a treaty they acquire an entirely different value. It is not clear to Mexico for example what the Human Rights Committee means by “reasonable,” “objective” and “legitimate” and inserting them in the Preamble does not solve this problem. The Preamble has less legal significance than the body of the text but is still part of the treaty text and has to be interpreted. In this sense the Committee is simply putting off the problem rather than resolving it. One suggestion would be to return to it when Reservations are discussed. While Mexico opposes permitting Reservations, there may be an opportunity at that time for a state party signing the convention to make an “interpretative declaration.” There is also the possibility at that time for the Chairman to make an “interpretative declaration” on behalf of the body adopting the instrument. Mexico therefore recommends that this wording should not be inserted in a Preamble, but instead in a footnote.
Israel supported the Coordinator’s recommendation, which reflected a balance between the essential nature of the equality and nondiscrimination provisions while putting the justification for discrimination on a different normative level. The language in the Preamble would not be of the same status as the prohibition on discrimination. This could allay fears that any exception could be widely construed or open to abuse. Israel is not convinced by Mexico’s concerns that introducing a General Comment into the Preamble could be a violation of the Vienna Convention or any other Convention.
The Coordinator concluded with the recommendation that para 3 be deleted, given the clear sense of the Committee that its language in its present form was inappropriate, but with a footnote in the title that will clearly retain this issue as a matter of further discussion: “A number of delegations are of the view that provision should be incorporated along the lines of General Comment #18 of the HRC that: [quote GC #18].” In response to Sierra Leone, the Coordinator clarified that this Footnote would replace existing Footnote 26, the options in which have now been considered by the Committee. The Coordinator also informed delegations they could suggest specific references from ILO Conventions to add to the Footnote, as suggested by Sierra Leone, should they think this will be helpful in the Committee’s deliberations tomorrow.
India was prepared to accept, in the interest of flexibility and moving forward, “reintroducing the concept of indirect discrimination, which takes care of the wording in para 3.”
The Session was adjourned.
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