Back to: Daily
Ad Hoc Committee Main
Daily summary of discussions related to Article
UN Convention on the Rights of People with Disabilities
Fourth session of the Ad Hoc Committee - Daily Summary
A service made possible by Landmine Survivors Network *
Volume 5, #3
August 25, 2004
ARTICLE 7: EQUALITY AND NON-DISCRIMINATION
There was general support for proposals to replace the term “on an equal
footing” with the phrase: “on a basis of equality with others” in 7(2).
Mexico reiterated its AHC3 observations distinguishing
between equality and non-discrimination and suggested addressing these
two concepts in separate articles. Article 7 would address equality
before the law and non-discrimination and a new article would address
equality of opportunities, specifically, positive measures to prevent
and fight against discrimination. The content of Article 7 depends on
the final formulation of Articles 4 and 9. The Committee’s review of
Articles 4, 7 and 9 could be facilitated if they could be grouped together.
Chile supported Mexico’s suggestions as well as the
comments of Canada, the African Group and Kenya to include in 7(1) “other
aspects of vulnerability and age as well,” to which Chile proposes to
add a reference to people living with HIV/AIDS. There needs to be a
definition of discrimination, and Chile suggests incorporating the Inter-American
Convention’s definition, including the concept of preventing cancellation
of rights as well as removing barriers to the enjoyment of rights. It
proposes adding a new paragraph addressing sanctions to be applied against
those discriminating against PWD. It also proposes new language addressing
acts not intended to be covered by the prohibition against discrimination
in 7(3). This language would read: “The concept of discrimination does
not include the provisions, practices, or criteria objectively and demonstrably
justified by the State Party by a legitimate aim, and where the means
of achieving that aim are reasonable and necessary and consistent with
international human rights law.”
Ghana (on behalf of the African Group) supported the
Canadian proposals in 7(1) specifying “persons are equal before and
under the law” having the “equal protection and benefit of the law.”
It supports the WG formulation in 7(1) referencing “any discrimination”
and opposes the Japanese proposal to amend this to “all forms of discrimination.”
Despite the hesitation of States to list grounds of discrimination,
it supports retaining the list, with the additions proposed by Canada
(“ethnic”) and the African Group (health, marital status, belief, culture).
In 7(2) it supports the New Zealand proposal to add a reference to “additional
obligations or burden” and to the articulation of discriminatory barriers
that impede the enjoyment of rights by PWD, as reflected in the proposal
by Israel, adding “condition, act or policy.” In 2(b) the African Group
supports the Yemeni proposal to reference both direct and indirect disability.
It supports the retention of 7(3). In 7(4) it agrees with the proposed
amendments from Israel providing guidance on determining when a burden
is disproportionate, and from China referencing “unreasonable difficulties.”
In supports the Canadian proposal to replace “special measures” with
“positive measures” in 7(5), and recommends deleting the second half
of the paragraph after the word “Convention” as it is redundant. It
supports 7(bis) as proposed by Colombia, with the replacement of the
term “affirmative action” with “positive measures.” The African Group
supports incorporating in Article 7 elements of the EU’s proposal for
Article 3 bis (5)(c) and (d).
The EU declared that it was now prepared to accept
a separate article on equality and non-discrimination, moving it to
Article 3 and deleting current Article 3 on Definitions. It maintains
its AHC3 recommendations to move the text in 7(1) on multiple forms
of discrimination to the Preamble. Its alternative texts for 7(2) and
(3) provide clearer definitions of direct and indirect discrimination.
Its suggested rewording of 7(4) on reasonable accommodation stresses
this is an individualized concept, hence the need for the qualification
Venezuela stressed the need to incorporate the concept
of duty or obligation before the law. The Committee should discuss the
placement of the definition of discrimination when it considers Article
Canada favored retaining language on the prohibited
grounds of discrimination in Article 7 and opposed its placement in
the Preamble. PWD may experience discrimination on multiple and intersecting
grounds, and recognizing that the list is non-exhaustive it recommends
adding “sexual orientation” as a prohibited ground, as proposed by the
EU and Brazil in the Preambular paragraph (m). The New Zealand proposal
to add “additional obligations or burdens” in 7(2)(a) strengthens the
definition of discrimination. It opposes the proposal of Australia to
reference “or by association with a person with a disability” in 7(2)(b)
as it may detract from the ultimate focus of the convention which is
PWD and not families or support persons. With a minor amendment it supports
the Australian proposal to amend “disproportionate burden” to read “undue
hardship.” Canada opposes the creation of different State obligations
for direct and indirect discrimination. The difficulty of distinguishing
between the two can lead to undue focus on whether an act constitutes
direct or indirect discrimination.
Australia supported combining Articles 4, 5 and 7
into Article 3bis, in line with the EU proposal. The reference to equality
before the law in 7(1) is addressed in Article 9, so this should instead
reference equality of opportunity. The definition of discrimination
should be moved to a section on definitions, as this would apply throughout
the convention. It supports references to discrimination against associates
of PWD in 7(2)(b), notwithstanding concerns expressed. 7(3) should be
deleted. Reasonable accommodation should be included in the convention
as a broad term that should be used broadly and in relation to individuals.
It accordingly supports the text in 7(4). It supports the deletion of
7(5) subject to other changes in the Article that might warrant its
Mexico clarified that it did not propose merging Articles
7, 9 and 4, rather, the analysis around those articles should take place
at the same time.
New Zealand noted that 7(1) is repetitive and supported
efforts to streamline the text. It queried the necessity of listing
the grounds of discrimination, noting that any such language should
be consistent with ICCPR without attempting to create an exhaustive
list. Should there be additional grounds, however, sexual orientation
should be added. In 7(2)(a), the term “recognition” should be deleted
as it makes no sense in English. A simple formulation in 7(2)(b) can
avoid problems with direct and indirect discrimination and differentiation
between grounds for discrimination: “discrimination shall include all
forms of discrimination.” With regard to the differences of opinion
on 7(3), New Zealand notes that no other anti-discrimination convention
contains such a provision and suggests referencing General Comment 18
of the Human Rights Committee. It supports the retention of 7(5) as
drafted by the WG.
Norway questioned whether a listing of the prohibited
grounds of discrimination should be included in 7(1). It supports the
EU proposal for 7(1), though reserves the right to comment further.
There should be a reference to indirect discrimination as this is often
the type of discrimination that PWD frequently confront.
Serbia Montenegro supported the EU proposal to merge
4, 5 and 7 into 3bis with some minor qualifications. It supports the
Canadian proposal to use to term “positive measures” in place of “special
measures” in 7(5). It stresses the importance of linking the concept
of reasonable accommodation to discrimination – a failure to provide
reasonable accommodation should be seen to constitute discrimination.
Japan noted that there is no precedent for language
in 7(3) in other conventions, and it if this is to be maintained the
qualifying phrase “consistent with human rights law” should be added.
It opposes the final phrase on the discontinuation of measures when
objectives of equal opportunity are achieved in 7(5).
China reiterated its AHC3 recommendations, to delete
the following: the definition of discrimination as this is covered in
Article 3 and repetition should be avoided; the listing the prohibited
grounds of discrimination; the references to direct and indirect discrimination
in 7(2)(b) as in many countries it is not possible to distinguish between
them; the concept of “perceived disability” in 7(2)(b); para 7(3) as
suggested by Japan and the African Group. It supports in 7(1) the addition
by Canada of the term “under” and the concept of “unreasonable difficulties”
in 7(4). It opposes the EU’s Article 3bis.
The US noted that equality and non-discrimination are
“overarching principles of human rights law” and, in line with the EU
position, the article should be placed early in the convention. The
US endorses in principle the WG text. In 7(2)(b), “a record of disability”
should be added as this may broaden the basis of protection in the text.
Direct and indirect discrimination is important and the WG text in 7(2)(b)
sufficiently captures the points that both direct and indirect discrimination
should be unlawful. However, it does not support the EU proposal to
ascribe different legal criteria or consequences based on a distinction
that, in some jurisdictions, does not exist.
The Holy See noted the difficulties inherent in including
lists in treaties, and was gravely concerned with the Canadian proposal
to introduce “sexual orientation” in 7(1). This is inconsistent with
any juridical instrument in international law and cannot be supported.
Thailand noted that parts of Article 7, including (2),
(3) and parts of (5) describe what discrimination means as opposed to
describing what States must do to combat discrimination and promote
equality. Thailand supports 7(1) and 7(4), but if there is to be an
article on definitions, then (2), (3), and (5) should appear in that
India supported the deletion of the list in 7(1), as
proposed by some delegations. It supports references to both direct
and indirect discrimination, however, it will reflect further on the
New Zealand proposal to simplify the text with the following: “discrimination
shall include all forms of discrimination.” India is concerned with
the concept of perceived disability in 7(2)(b), as it is hard to define,
evaluate and operationalize, as noted by China.
National Human Rights Institutions stressed that a
general article on equality and non-discrimination is “crucial.” It
supports a definition of discrimination that is broad enough to encompass
all forms of treatment that would impair the full enjoyment of rights
and freedoms. In 7(2)(a), the reference to “distinction, exclusion,
or restriction” focuses on the different treatment of PWD and the discrimination
that may result, but does not address the equally important dimension
of discrimination that identical treatment of PWD often involves. Therefore,
it proposes the addition of the following language after “restriction”:
”any act, criterion, provision, practice, policy, rule, arrangement
or other treatment.” The definition of discrimination should appear
in the article on definitions as the concept of discrimination appears
in many articles of the convention text. The convention must clearly
state that the right to equality and non-discrimination creates State
obligations in the public and private spheres. Positive measures as
a means to achieve substantive equality for PWD must be included.
International Disability Caucus welcomed the EU decision
not to insist on merging Articles 4, 5 and 7, agreed with it that Article
7 should be moved towards the beginning of the Convention and called
on the Committee to determine its full scope. The Caucus has proposed
language to make clear that the failure to provide reasonable accommodation
constitutes discrimination, consistent with General Comment 5 of the
Committee on ESCR. Reasonable accommodation is an individualized concept
and requires a clear definition. It is also a new concept to many States.
The relationship between reasonable accommodation and accessibility
more generally also needs clarification. Discrimination should include
both direct and indirect discrimination, and while this reference should
be made in the text, no further attempt should be made to define them.
Discrimination on the ground of disability should cover actual, perceived,
past, imputed or future disability as well as discrimination based on
association with PWD. Article 7 should refer to multiple forms of discrimination
and sexual orientation should be included, as proposed by Canada and
the EU. The Caucus would support a separate paragraph on preferential
measures as long as it is understood that measures for preferential
treatment do not mean separate or unequal standards and they would not
be imposed on PWD. If the article is to cover substantive equality,
then other measures relating to PWD should be covered such as crisis
hostels for those with psycho-social disabilities, assistive devices,
for example. These are not preferential treatment measures or affirmative
action measures and no sunset clause should be imposed on such measures.
It supports a reversal of the burden of proof in relation to non-discrimination,
consistent with EU policy.
DPI supported the Caucus recommendations including
the need for the Convention to address the rights of PWD subject to
multiple forms of discrimination, and protect people with prior imputed
or perceived disabilities as well as people associated with PWD.
Volume 5, #8
September 01, 2004
MORNING SESSION: INFORMAL CONSULTATIONS
EQUALITY AND NONDISCRIMINATION - ARTICLE 7
The US reiterated that this is “the core and seminal” article
in this treaty, and is a basic principle enshrined throughout human
rights treaties. It should accordingly be moved up to Article 5 following
General Obligations, as the first and foremost of the fundamental specific
obligations. As a basic charter for nondiscrimination, it endorses in
principle the WG text. There are many difficult issues embedded in this
Article but it strikes a balance between when to be specific about certain
definitions and when to use broader language about obligations. The
US endorses references to all forms of discrimination, direct and indirect
in 7(2)(b), and notes that this is further captured in 7(2)(a) by reference
to the “purpose and effect” of impairing or nullifying rights. However,
the US agrees with Canada and other delegations that attempts to give
disparate legal definitions and disparate consequences to direct versus
indirect discrimination could lead to tremendous confusion in implementation
for those States who do not have this sort of jurisprudence in their
China agrees that this Article should be moved to Article
5 given its importance. If there is to be no separate article for definitions,
then this would be the right place to define discrimination. China reiterates
its WG position opposing distinct references to direct and indirect
discrimination. It opposes including the concept of “perceived” disability
as this Convention seeks to protect people based on real and actual
disability, not what may be perceived by a group of people. 7(3) is
repetitive and should be deleted. The text after “but shall in no way”
in 7(5) should be deleted.
The EU agrees with the US on the need to move this
article to a more prominent place in the Convention, and proposes placement
in Article 3. The last sentence in 7(1) on multiple forms of discrimination
should be moved to the Preamble, not because the EU opposes this language
but because it is misplaced in an article dealing with discrimination
on the basis of disability. The EU deals with direct and indirect discrimination
with a proposal based on EU law, and, for this reason references to
“systemic” discrimination and “perceived” disability should not be retained.
Given the definition of discrimination provided in the EU’s proposed
text which also covers the justification of discrimination, 7(3) should
be deleted. It proposes alternative text in 7(4) on the concept of reasonable
accommodation which, as suggested by the Caucus, should appear in an
Article on nondiscrimination. 7(5) is left intact.
Japan agreed with China’s proposal for 7(5), noting
that the second half of this Article is both unnecessary and harmful.
There are many measures that strictly speaking constitute unequal treatment
for PWD, like employment quotas, but this is necessary in order to maintain
their employment at a certain level. Japan believes that this is a good
system, and therefore should not be subject to a sunset clause.
Ghana (on behalf of the African Group) favored shifting
the article up to either Articles 3 or 5, given its importance. The
African Group takes note of the fact that there are a number of definitions
in this Article, and will wait for a final decision on this.
The Coordinator noted proposals, for example from the
EU and Kenya, to include certain elements in the Preamble, and called
on the Committee to keep these in mind. The Coordinator announced informal
contact groups for the afternoon: Article 5 facilitated by Sierra Leone
followed by Article 6 facilitated by the Philippines, scheduled so that
they do not overlap. The plenary discussion of Draft Article 7 will
resume tomorrow morning.
Volume 5, #9
September 02, 2004
MORNING SESSION: INFORMAL CONSULTATIONS
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
Volume 5, #10
September 03, 2004
MORNING SESSION: INFORMAL CONSULTATIONS
EQUALITY AND NONDISCRIMINATION – ARTICLE 7 (Contd.)
The Coordinator introduced paragraph 4 on Reasonable Accommodation
(RA) by drawing the Committee’s attention to the issues raised in Footnote
27. Its lengthy nature reflects an extensive discussion in the main
WG as well as open ended discussion in small groups of experts in this
area. In addition to the Footnote the following issues need to be considered:
 abbreviations to the paragraph, keeping in mind that the chapeau
may not be value added, and that States are expected to implement their
obligations through legislation as already stated in Article 4 on General
Obligations;  the definition of reasonable accommodation;  the
qualification to that definition at the end of the paragraph, keeping
in mind the already existing qualifying language within the definition
itself, of “reasonable,” “necessary” and “appropriate.”
The Netherlands (EU) outlined 4 differences between
the EU text, drawn entirely from EU Directive 2078, and the WG text.
 the objective in the opening should be “to guarantee compliance
with the principle of equal treatment” rather than “to secure the right
to equality”. However to avoid a possibly difficult debate and given
the Coordinator’s recent remarks, the EU is open to deleting this opening
altogether.  States Parties cannot provide reasonable accommodation
as they are obligated to do in the WG text. In most cases it will be
private enterprises that will be thus obligated, and not the State.
The State’s role therefore is to “ensure that reasonable accommodation
is provided”;  the EU text inserts “where needed in a particular
case” to address the individuality of RA as highlighted in the footnote
and acknowledged by delegations;  as a matter of drafting, the reference
to “guarantee to PWD” should be changed “to ensure to PWD.”
Thailand supported the Coordinator’s proposal to delete
the chapeau so the paragraph begins with “States Parties.” It supports
the EU’s suggestion to add “to ensure that RA is provided” as governments
generally provide more broad based infrastructure and public facilities
that are geared to all people in an inclusive manner. In the case of
private entities it is difficult to expect universal design for all,
hence the need for RA. Nevertheless in some cases the State is obligated
to provide some RA directly. The qualification at the end of this paragraph
after “unless …” should be integrated into the definition of RA itself.
Costa Rica supported the EU text with Thailand’s suggestion
to delete language at the end of the paragraph because the additional
qualification here is redundant. If accommodation is reasonable, necessary
and appropriate then by definition it cannot be disproportionate. There
is the additional safeguard in the EU text applying the obligation to
an individual case. Finally, given the requirement of the chapeau, to
secure human rights, this qualification is even more unnecessary, and
may imply that the human rights referred to in the chapeau is a relative
and conditional, rather than absolute, concept.
Israel generally supported the EU text. However the
EU’s language of “equal treatment” reflects requirements of formal equality
and is not appropriate in the context of RA. RA is not about treating
PWD the same way that everyone else is treated. The EU approach is fundamentally
at odds with the requirements of de facto, substantive equality for
PWD, which includes the duty to reasonably accommodate as a main element.
The purpose of this paragraph is to define RA as part of the duty not
to discriminate, that is, as part of equality. Once that definition
is made clear then the chapeau of this paragraph becomes unnecessary.
Following the precedent of domestic statutes, the paragraph then only
needs to define RA. The duty to reasonably accommodate would already
be made clear in the context of the prohibition on discrimination. Israel
agrees with the EU language that States should “ensure that RA is provided”
as it is clear that States themselves do not have the control of all
employment frameworks and services to undertake this obligation entirely
themselves. The private sector, which is on the increase in many countries,
must be included where States parties have an obligation to “promote
and ensure” to achieve de facto equality for PWD. For this reason there
is a need to specifically reference enacting legislation, despite the
overriding obligation of states to legislate as stated in Article 4.
There is no other way States Parties can ensure that the duty to reasonably
accommodate can be fulfilled by the private sector. Israel supports
the EU’s language on meeting individualized needs of PWD. Finally, in
response to Costa Rica, the paragraph needs to be redrafted so that
the qualification at its end is integrated into the definition of RA,
ie. RA is accommodation that does not impose a disproportionate burden.
The notion of a “disproportionate burden” should be retained because
it addresses the resource implications of the obligation to reasonably
accommodate. Different entities have different levels of resources and
there is a need to match the obligations of the employer / service provider
with the level and extent of its resources and with the PWD. Accordingly
Israel has proposed language further defining “disproportionate burden”,
and relating it to the test of the level of state resources, as mentioned
in the footnote. However Israel is flexible on the inclusion of this
The Coordinator enquired of Israel whether the retention
of “including by legislation” may pose a problem of interpretation.
This may create a negative implication for the other parts of the Convention
where States are similarly obligated to take steps but without the additional
obligation to legislate specified. The Coordinator again highlighted
the fact that the obligation to legislate would be in Article 4. On
reconsideration Israel agreed that the phrase could be omitted given
that States’ obligations in this paragraph would be read in conjunction
with the obligation to enact legislation in Article 4.
Serbia and Montenegro reiterated its support of the
EU proposal, including the language obligating states “to ensure” rather
than to provide RA, and the language to individualise RA. It welcomes
the EU’s flexibility on the chapeau, which should be deleted. Debates
about this opening text could be lengthy with little value added to
the outcome. Serbia and Montenegro supports the Coordinator’s interpretation
of the ramifications of retaining “including by legislation” and this
too should be deleted. The last part of the paragraph on “disproportionate
burden” could in fact be read to be a part of the definition, and should
be retained, if necessary with the drafting changes to address concerns
of Israel and Thailand. RA is one of the key concepts relating to PWD,
like accessibility, and is drawn from a considerable body of comparative
legislation. This concept should be spelled out in a way to ensure that
it would remain in the Convention and that would encourage the maximum
number of States to adhere to this Convention.
Norway had been agreeable with the WG text, but now
supports the EU’s proposed amendments as they add nuance and precision
to the original draft. The paragraph should begin simply with “States
Parties” without the chapeau. The amendment proposed by Israel to relate
this obligation to the availability of State funding is unnecessary
and can be interpreted within the notion of proportionality already
in the paragraph.
Canada agreed with the Coordinator’s proposal to delete
the chapeau. It supports EU language ensuring RA is provided for the
reasons given by Thailand and EU. It agrees with Israel on the need
to retain the concept of “disproportionate burden”. However this language
needs significant strengthening and for this reason Australia’s alternative
language of “unjustifiable hardship” is preferable. Canada has no strong
views on the inclusion of “including by legislation.” The idea of State
funding is already captured within the definition of RA and the notion
of “unjustifiable hardship,” so, like Norway, Canada considers the Israeli
proposed language here unnecessary.
The Coordinator drew the attention of the Committee
to the Australian language of “unjustifiable hardship,” as well as African
Group text of “unreasonable difficulties” as alternatives to “disproportionate
burden”. The objective is for the term to balance situations where accommodation
is not reasonable with those situations where RA can and should be provided
but States are given an easy way out.
The Netherlands (EU) had a strong preference for the
WG wording of “disproportionate burden” but will consider the alternatives
that have been proposed once it has a better sense of the rationale
behind them. In response to Costa Rica, the EU asserts that the notion
of proportionality is value added. It is possible for accommodation
to be “necessary and appropriate” but still not be provided because
it is disproportionate.
India proposed replacing the word “take” with “endeavor
to ensure” so the sentence after the chapeau would now read “States
Parties undertake to endeavor to ensure…” India supports the Coordinator’s
proposal to delete “including by legislation” as this is incorporated
in Article 4. It also supports replacing “reasonable” with “adequate,”
as proposed by Costa Rica, as this latter word satisfies the criteria
of reasonableness. India would support both the WG text’s wording of
“disproportionate burden,” or Canada’s suggested alternative of “unjustifiable
hardship”. With regard to “appropriate modifications and adjustments”
it is preferable to use language to “ensure” rather than “guarantee.”
Ghana (African Group) would be the only dissenting
voice calling for the retention of the chapeau, which the Group believes
clearly sets out the fundamental reasons why RA should be provided for
PWD. However the African Group will consider the alternative chapeau
suggested by the EU. The Group believes that among all other measures
legislation is an important measure to rely on to ensure that RA is
addressed. The Group agrees that some caveats need to be incorporated
into the notion of RA and hence the need to account for “unreasonable
Thailand was flexible on mentioning “including by legislation”.
Either the language of “disproportionate burden” or “unreasonable difficulties”
needs to be more clearly integrated into the definition of RA. As has
been voiced by many disability organizations “equal footing” needs to
be replaced with “on an equal basis.”
The Coordinator recalled Mexico’s previous interventions
that called for the general replacement of the term “equal footing,”
which has no legal meaning to “on a basis of equality with others,”
and this will be considered. The Coordinator enquired from Thailand
as to how the caveat to the obligation to reasonably accommodate can
be integrated into the definition.
Thailand recommended that the measures that could be
considered to constitute RA should be clarified to mean those that are
individualized, interactive, without imposing unjustifiable hardship
or disproportionate burden on the provider. The Coordinator proposed
the following reformulation of this sentence with the deletion of the
last phrase beginning with “unless”: “.. reasonable accommodation, to
be defined as necessary and appropriate modifications and adjustments,
not imposing a disproportionate burden, where needed in a particular
case, to ensure to PWD the enjoyment or exercise ….” This changes the
order of placement of the terms without changing the substance. Thailand
agreed with these changes but asserted that they do lead to a change
in the substance as now the notion of disproportionate burden is not
an additional “external condition”, outside of the term reasonable accommodation
New Zealand was comfortable with the WG draft with
this paragraph but now also supports what it acknowledges are useful
improvements that have been proposed to it. The chapeau can be deleted.
The EU’s language “to ensure that RA is provided” will cover more cases
where RA should be provided. “Guarantee” should be changed to “ensure.”
The EU’s rephrasing of this paragraph is preferred because the second
part can be moved if necessary in its entirety to a separate Article
on Definitions. New Zealand supports the Coordinator’s proposed reformulation
of the paragraph addressing Thailand’s concern; however purely as a
drafting matter, the phrase “where such modifications and adjustments
are needed” needs to be added after “disproportionate burden” to restore
the flow of this sentence. Also as a drafting matter, New Zealand reiterates
its support for what was Canada’s original proposal to replace “on an
equal footing’ as raised by the Coordinator.
Australia agreed that the chapeau should be deleted;
if retained Australia would oppose its EU formulation citing “equal
treatment” since “in this context, equal treatment is not necessarily
the outcome we are seeking.” Other amendments in the EU proposal improve
the text: changing the obligation of States Parties to “ensure” rather
than “provide” RA, and adding the phrase “where needed in a particular
case”. The concept of “unjustifiable hardship” is stronger than that
of “disproportionate burden” and is therefore preferred. Either way
the concept is brought directly and much more clearly into the definition
of RA in the Coordinator’s reformulation of it. Therefore Australia
supports that reformulation with possibly some minor drafting changes.
It is not necessary to specifically mention legislation in this paragraph
for the reasons stated by the Coordinator, that this could give rise
to negative implication in other Articles where this term is not used.
While state funding is important, this paragraph is not the appropriate
place to refer to this issue.
Jordan agreed that the chapeau and the mention of
legislation should be deleted. The reference to “exercise and enjoyment”
in the definition should be replaced with “protection or enjoyment.”
Jordan is flexible on either “disproportionate burden” or unjustifiable
hardship”. It supports the EU’s proposal to change “provide” to “ensure”.
The Netherlands (EU) responded to Thailand’s concerns
by noting the differences between the WG text on which Thailand’s objections
seem to be based, and the EU text. In the former the definition of RA
is separated by 2 commas followed by the phrase “unless such measures
… “ where it could be argued that the last phrase is separate from the
definition. In the latter there is a semi-colon breaking up the second
half of the paragraph dealing with the definition, within which the
same phrase also falls, and this is the only way this phrase can be
interpreted. The EU would oppose the reformulation proposed by the Coordinator
because it sends a wrong signal to begin a definition with an exception.
This phrase is an exception, and it must remain as an exception.
Thailand responded that its concerns on the exception
have been voiced by other delegations. The inclusion of “unless” creates
2 sets of content, one set of conditions for determining what RA is
and “another condition for whether RA should be ensured or not.” This
could cause confusion in practice. The exception should be a part of
The Coordinator suggested a full stop completely separating
the first and second half of the paragraph could be considered. However
this may not address Thailand and other delegations’ concerns, which
are primarily based on the exceptionalism that is created by locating
the phrase with the terminology of “unless …” at the end of the sentence.
Lebanon emphasized that “reasonable” induces measures
that put limitations on the accommodation. In addition the notion of
reasonable applies not just to the provider but also to the PWD. In
this regard RA is inherently individualized, and is not the same as
“accessibility for all.” For this reason Lebanon proposes adding the
phase “for the best interests of the person.” Lebanon also prefers the
phrase “unjustifiable hardship” as this better represents the interests
of the PWD as well. From an employers perspective the measures may always
be a disproportionate burden.
China supported the original WG text; it noted also
that were its chapeau removed the first part of this paragraph would
sound incomplete. It opposes the language of the chapeau of the EU text,
agrees with the EU language “to ensure” rather than provide RA, supports
the WG language after that, and supports the EU text after “unless”.
While acknowledging that a decision on the Definitions article has not
been made China noted that such technical points should not be in Article
Serbia and Montenegro supported the Coordinator’s reformulation
of the definition of RA. It also suggested breaking paragraph 4 into
subparagraphs (a) as far as the semi colon in the EU text, and (b) for
the rest of the paragraph. This might make confusion over interpretation
less likely. Likewise it approves replacing “on an equal footing.”
Japan, like Australia, would not accept the notion
of equal treatment in the EU chapeau, but can accept wording based on
the principle of equality. Concepts like “unreasonable difficulties”
should be incorporated in such a way they do not imply that new conditions
are being attached to something that has already been defined, but are
an inherent part of the definition of RA itself.
Cuba expressed concern that the notion of “disproportionate
burden” could apply to other areas of life as well, potentially inhibiting
the integration of PWD. It suggested alternative translation of the
term “accommodation” from what was reflected in the Spanish texts before
them. The Coordinator suggested conferring on this point with other
Spanish speaking delegations.
The Philippines shared the concerns of Thailand and
other delegations regarding the placement of “disproportionate burden”.
Perhaps this clause can be brought further up into the sentence following
“modifications and adjustments.” Alternatively the word “unless”, which
connotes conditionality, could be replaced with “without imposing …”
Jamaica cautioned that the Committee should ensure
a loophole free Convention. It should avoid exception clauses that could
be misinterpreted or allow States Parties or private entities to find
justifications for not accommodating PWD, especially in terms of employment
or education. Therefore the reference to disproportionate burden should
be moved further up in the text, as suggested by the Philippines. Jamaica
further posited that perhaps the concept of “reasonable” already incorporated
the notion that this would not entail a disproportionate burden. Accordingly
a definition of this word could be included in a separate Article so
as to apply to other parts of the Convention as well. Finally Jamaica
feels strongly about retaining the mention of legislation as this is
in line with its own domestic legislation.
Yemen did not see the need to retain the chapeau of
this paragraph given the overall purpose of Article 7 is to promote
equality and nondiscrimination. It supported the proposal of Jordan.
Yemen supports changing the terminology of “reasonable” accommodation
to “acceptable” accommodation.
The United States sought to clarify the definition
of RA and in this regard supported the Philippines proposal, which would
apply the exception to the adjustments themselves. There may be situations
where an accommodation would be necessary and appropriate in terms of
granting access to the PWD, but may still constitute, as in U.S. law,
“undue hardship” for a particularly small employer. The Philippines
proposal merits strong consideration.
Uruguay agreed that the chapeau to this paragraph was
not necessary. The exception at the end of the sentence should be deleted.
It is contrary to the purpose of the convention itself, which is to
promote the rights of PWD and not the interests of the State.
Israel reiterated the concept of “reasonableness” is
in and of itself too vague. States need the additional guidance and
clarification that comes with reference to “disproportionate”, as this
applies to resources. Israel disagrees with the Australian and Canadian
alternative language of “unjustifiable hardship”, which sounds “too
apologetic.” The Indian suggestion of endeavoring to undertake unnecessarily
weakens states obligations in a sentence which already contains the
right checks and balances. It agrees that “guarantee” should be replaced
by “ensure” because the former may be a little too ambitious an expectation
of States Parties.
The Syrian Arab Republic shared delegations concerns
with the exception at the end of the paragraph because it dilutes the
strength of States’ obligations. The exception could be used to negate
the obligation. Syria proposes deleting this last part of the para with
the following alternative language: “ … right to equality for PWD, States
Parties undertake to take all appropriate steps including by legislation,
to provide / guarantee to the extent possible” or “to the maximum possible
…” This would avoid imposing unbearable burdens on the State while also
ensuring that the State would do all that it can do to promote the rights
The Coordinator reviewed his sense of the room on the
EU text, which had been the basis of negotiations over the WG text:
 a great many delegations supported deleting the chapeau, over which
delegations expressed concerns both in the WG and EU versions. The paragraph
would begin with States Parties. The African Group did not agree to
this deletion, however it is reconsidering this position, and if it
wishes, this can be noted in a footnote.  many delegations were comfortable
with deleting of “including by legislation” on the understanding that
it will be replicated in General Obligations Article 4. The first part
of the paragraph would then read as follows: “States Parties would undertake
to take all appropriate steps to ensure that RA is provided.”  “on
an equal footing” would be replaced with “on a basis of equality with
others”;  keeping in mind that the EU’s text did not satisfy the
concerns many delegations had with the exception at the end of the second
sentence, the Coordinator suggested the following alternative formulation:
“RA to be defined as necessary and appropriate modifications and adjustments,
not imposing a disproportionate burden, where needed in a particular
case, to ensure to PWD the enjoyment and exercise on a basis of equality
with others, of all human rights and fundamental freedoms.” The Coordinator
asked the Committee for its approval to move forward on the basis of
this text with the caveats as indicated for the chapeau and mention
The EU requested that the footnote proposed by the
Coordinator on the chapeau refer to the EU’s preference for its retention.
The EU believes a specific reference to the objective of “equal treatment”
for PWD is necessary precisely because RA is often perceived as constituting
unequal treatment. The Coordinator assured the EU that the footnote
will highlight that several groups of states wish to reflect further
on the need for an introductory paragraph.
Jamaica sought clarification whether there is a general
approach regarding definitions given that RA will be mentioned in other
parts of the Convention. The Coordinator replied that it was not possible
to reach conclusions on this point, keeping in mind China’s objections
to including what it considered to be technical terms in the Definitions.
The matter of placement could be addressed in negotiations about the
structure of the Convention.
Lebanon enquired why the alternative language of “unjustifiable
hardship” was not incorporated. The Coordinator noted that on balance
more delegations were in support of the existing WG phrase, and moreover
this terminology fits better in the altered context in which this phrase
has now been incorporated into the sentence.
Costa Rica agreed to the Coordinator’s summing up of
the negotiations but with some caveats. It reiterated its objections
to the term disproportionate burden. There are “more than enough safeguards”
already incorporated in the existing concepts of “reasonable”, “necessary”,
“appropriate”, applicable in a specific case, and with a defined objective.
Furthermore including “disproportionate burden” weakens fundamental
human rights obligations and drags the Committee into further negotiations.
The exception clause could be addressed in the same way as the chapeau
in the Coordinator’s review, as both of these had raised objections
from delegations. The exception clause likewise could be deleted with
an explanatory footnote added.
The Coordinator stressed the difference of views on
this issue was both fundamental and various. As reflected in his discussions
with Thailand and other delegations the Coordinator has sought to get
at the fundamental problems that delegations were having with this provision,
and this is the best compromise that could be reached. There are a number
of qualifications in this provision; however in the Coordinator’s interpretation
these qualifications apply to the type and nature of modifications and
adjustments being made and their linkage to the disability in question
as noted by “where needed in a particular case.” So this part of the
provision could be read as “modifications…. which are necessary and
appropriate to the disabled person in question.” It seemed that a number
of delegations wanted some balancing language that “accepts that in
some circumstances it may not be reasonable to require for those modifications
to be made.” That is, all of the modifications that may suit the PWD
may not, bearing into account all other things, be appropriate in the
circumstances, and they may impose a disproportionate burden.
Costa Rica acknowledged that while “necessary and appropriate”
applies to the PWD, the notion of “reasonableness”, which the Coordinator
himself had mentioned, already exists to meet the concerns of States.
If the concerns of States need to be reiterated, then the qualifying
language can simply repeat the word “reasonable” after “necessary and
appropriate.“ Or another word synonymous with the word “reasonable”
- which “disproportionate burden” is not - can be used, and the Committee
can open a different set of discussions on what that should be. Or,
conversely, the term that is being defined,’ ie “reasonable accommodation”
needs to be changed. Costa Rica again noted that it will not let its
concerns obstruct progress in the current negotiations.
The Coordinator pointed out part of the problem with
interpretation as highlighted by Costa Rica and other delegations could
lie in the fact that the term reasonable accommodation in this paragraph
is not in inverted commas. This may cause some confusion in that “reasonable”
in reasonable accommodation could be interpreted as a qualifier in and
of itself. In the Coordinator’s own view “reasonable accommodation”
is a single term that is being defined. The Coordinator noted the sense
around the room that this issue is not yet settled and Costa Rica’s
concerns can be cited in a footnote.
Cuba seconded Costa Rica’s concerns on the inclusion
of the term “disproportionate burden” and would like its own “serious
reservations” here to be recorded in a footnote. It shared Jamaica’s
concerns regarding Definitions. The Coordinator affirmed that Footnote
27 would be maintained from the original WG text.
Norway announced new concerns that both the WG and
EU texts could be misconstrued as introducing new reasons for states
to derogate from their obligations on civil and political rights, beyond
those reasons that already exist in the Covenant. This could be “a very
unfortunate consequence of this language”. Norway would like to flag
this concern and think a bit more about how notions of RA can be introduced
into the sphere of civil and political rights before a final formulation
of this para is agreed upon.
Before closing the informal consultations, the Coordinator thanked
delegations for their cooperation. He looked forward to the work being
continued at the next round of informal consultations, which hopefully
will allow the Committee to complete discussion of the first half of
the Convention, through Article 15.