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Back to: Third Session | Draft Article 3 Comments on the draft text Download complete compilation of comments: MS Word Accessibility Accessibility is understood to refer to the build environment and also, to signage in use, printed materials, information conveyed by sound, electronic information and communications. Disability The ILO: - agrees that, if disability is to be defined in the Convention, the
definition should reflect the social dimensions of disability. The ILO Code of Practice on Managing Disability in the Workplace agreed by a Committee of Experts comprising 27 government, employer and trade union representatives from developing and industrialized countries defines a disabled person as: “...an individual whose prospects of securing, retaining and advancing in suitable employment are substantially reduced as a result of a duly recognized physical, sensory, intellectual or mental impairment”. This definition has proven to be universally acceptable, in the context of vocational rehabilitation, vocational training and employment, while allowing for variation in national interpretations of disability. While dealing specifically with employment, the ILO suggests this definition could form the basis of a more generally applicable definition for the purposes of the proposed UN Convention. The use of such a definition in the Convention would offer scope to national authorities to define disability and disabled persons according to the needs of national policy and legislation and in conformity with national practice and understanding. Discrimination on the ground of disability The ILO suggests the following definition: Any distinction, exclusion or preference based on disability which nullifies or impairs equality of opportunity or treatment. General standards that establish distinctions based on actual or perceived disability constitute discrimination in law. The specific attitude of a public authority or a private individual that treats unequally persons with disabilities constitutes discrimination in practice. Indirect discrimination refers to apparently neutral situations, regulations or practices which in fact result in unequal treatment of persons with disabilities. Distinction or preferences that result from application of special measures of protection and assistance taken to meet the particular requirements of disabled persons are not considered discriminatory. Reasonable Accommodation The ILO suggests the following definition: Adaptations and modifications required to facilitate the equal enjoyment by persons with disabilities of all human rights and fundamental freedoms, without imposing a disproportionate burden. National Human Rights Institutions Ontario Human Rights Commission “Communication” The Commission would suggest adding “digitized text” to this enumerated list as it is fast becoming one of the most common alternate or intermediary format facilitating the production of other alternate formats including Braille, large text and audio. “Disability” Footnote 12 The Commission supports the view set out in the footnote 12 under the draft Article, that any definition of “disability” should reflect a social model of disability rather than simply a medical model. Similarly, the Commission’s Disability Policy supports a broader understanding of disability to include a social perspective. As well, the Disability Policy recognizes environmental sensitivities as well as drug and alcohol addictions as disabilities within the meaning of Ontario’s Human Rights Code. The Supreme Court of Canada has shed new light on the approach to be taken in understanding disability. In Mercier,1 the Supreme Court made it clear that disability must be interpreted to include its subjective component, since discrimination may be based as much on perceptions, myths and stereotypes, as on the existence of actual functional limitations. The Court chose not to create an exhaustive definition of disability. Instead, it opted for an equality-based framework that takes into account evolving biomedical, social and technological developments. Another Supreme Court of Canada decision2 has since confirmed that "social handicapping", i.e., society's response to a real or perceived disability, should be the focus of the discrimination analysis. “Universal design” and “Inclusive design” The Commission is supportive of including definitions of these concepts. The Commission identifies in its Disability Policy the principle of universal and inclusive design as critical to achieving integration and full participation for persons with disabilities. Barrier prevention is much more preferable to barrier removal. And it is consistent with the notion of disability as a social model. Case law in Canada also supports the notion of universal and inclusive design. The Supreme Court of Canada has noted the need to "fine-tune" society so that structures and assumptions do not exclude persons with disabilities from participation in society and it has more recently affirmed that standards should be designed to reflect all members of society,3 insofar as this is reasonably possible.4 If a definition on disability is to be included, it has to reflect the social model and it has to be broad, not leaving any group of disabled persons out. For instance, the use of the ICF definition would imply the risk of leaving certain groups of disabled people out. The Council of Europe has agreed on a definition of Universal Design, which might be considered useful for the Convention. The definition reads : “Universal design is a strategy, which aims to make the design and composition of different environments and products accessible and understandable to, as well, as usable by, everyone, to the greatest extent in the most independent and natural manner possible, without the need for adaptation or specialised design solutions.” Many human rights treaties precede the substantive obligations with a definitions or “use of terms” section, clarifying how terms are to be used and aiding in the interpretation and implementation of the treaty. The Ad Hoc Committee may wish to delay consideration of the definitions section until all the treaty provisions have been finalized, at which point it will be easier to identify which terms are consistently used and should be addressed in the definitions section, and which terms should be defined in the specific article(s) in which they are used. Footnote 10 indicates that further discussion of Draft Article 19 (Accessibility) will be needed to develop an appropriate definition. The Ad Hoc Committee may wish to take into consideration the definition of “access” used in the Bangkok Draft, as well as the coverage of Accessibility in Article 16 of that draft text. Footnote 11 references the discussion of whether a definition of “communication” is needed. A number of Working Group members felt that defining “communication” may be too difficult, and may not in fact be necessary for the purposes of the treaty. Footnotes 12 and 13 reference the discussions regarding the definition of “disability” and “persons with disability.” Within the context of human rights instruments that reference specific populations, it is not uncommon to include a definition of the group(s) of people to whom the treaty applies. (Cf. Convention Concerning Indigenous and Tribal Peoples in Independent Countries, ILO No. 169, Article 1) However, Working Group members questioned the need to include a definition of disability given the complexity of the issue. Others felt the inclusion of a definition essential, particularly for use in countries that do not include a definition of disability in their national legislation, or that utilize a definition that is not broad and inclusive of all people with disabilities. If the Ad Hoc Committee decides to include a definition of disability, it may find helpful the articulation of disability and disablement as a process included in the New Zealand proposal. (Cf. New Zealand’s View of a Convention on the Rights of Disabled People, paras. 7-9 and 23-24) In addressing the inclusion of a definition of “persons with disability,” the Ad Hoc Committee may wish to take into consideration the difficulties associated with defining personhood, and concerns that having to satisfy requirements of being a “person” before the law could act as an undue limitation on the scope of the application of the treaty. Footnote 14 questions the placement of the definition of discrimination. Human rights conventions that are based on a non-discrimination framework frequently place the definition of discrimination in a definitions section towards the beginning of the treaty. (Cf. International Convention on the Elimination of All Forms of Racial Discrimination, Article 1(1); Convention on the Elimination of All Forms of Discrimination Against Women, Article 1). The structure of the Working Group text utilizes a broader and more comprehensive structure (similar to that found in the Convention on the Rights of the Child), and therefore it may be more appropriate to address the definition of discrimination in Article 7 discussing Equality and Non-Discrimination, or (if Article 7 is split) in a separate article on discrimination. Footnote 15 addresses the inclusion of a definition of “language.” Whether or not the Ad Hoc Committee chooses to include such a definition, the coverage of linguistic rights will be an important aspect of the treaty, particularly for people with disabilities who utilize sign language and other methods of communication. (Cf. International Covenant on Civil and Political Rights, Article 27; Convention concerning Indigenous and Tribal Peoples in Independent Countries, ILO No. 169, Articles 28 & 30; and Convention on the Rights of the Child, Article 30) Footnote 16 notes that the concept of “reasonable accommodation” is addressed further, if not completely, in Article 7, and the Ad Hoc Committee may wish to consider whether the definition of “reasonable accommodation” should be placed in the article(s) specifically addressing it. Physical Disability Council of Australia Ltd PDCA supports the view that the definition of disability should reflect the social model of disability within the Convention which views disability as resulting from social barriers to participation as opposed to the medical model which views disability largely as medical issues that need to be ‘cured’. The other benefit of the social approach to disability is that is emphasizes that people with disability have the same rights as those of other members of the community in which they live. PDCA also supports the position put forward by Women With Disabilities Australia (WWDA) in its submission that given the current draft provides for an Article on Statistics and Data Collection, a globally accepted definition should be adopted to ensure that national and international data is useful. A definition on disability is not needed at all, and it would be better if each country made provisions of their own. Definition based on ICF will not be sufficient to guarantee all groups of PWD:s to be covered. A definition on disability as such can exclude individuals or groups of PWD:s. It is suggested to write Definitions on: The following issues seems also to need its own definitions According to this article, "language" includes both oral-aural
language and sign language. WFD believes that “language” should be defined
(see footnote 15). WFD will propose a definition for the word "language"
soon; we are currently consulting with linguistic experts. Sign languages have been defined from a linguistic viewpoint as languages, and those using sign languages have been defined as a linguistic minority. Deaf people are also persons with a disability in the sense that all their rights will be fulfilled only when their linguistic rights are met, and sign language and its use in all spheres of human life is recognised and respected. In other words, Deaf people are persons with a disability whose rights can be secured by securing their linguistic rights. In the view of WFD Braille and sign language should not be considered in the same light. It is very clear in linguistics that sign languages are LANGUAGES, whereas Braille is a way of writing down any language. Braille can be seen in the same way as, for instance, transcribing Kurdish written in Arabic script - as in Iraq - or Kurdish written in Cyrillic script - as in Azerbaijan - to Kurdish written in Latin script, i.e. it is a way of rendering a language in a form that group X can read. Group X can be Kurds who only know Latin script, or it can be blind people who only read Braille. Even if those Kurds can learn to read Kurdish in the Arabic or Cyrillic script whereas blind people cannot read any written language unless it is in Braille, this does not mean Braille is a language. It is a MEANS OF REPRESENTING AN EXISTING LANGUAGE. This distinction should be clear in all those articles where sign language and Braille are mentioned. World Network of Users and Survivors of Psychiatry While it may not be necessary to define “disability” or “persons with disabilities” it is important to state in a binding part of the convention that the convention applies to people with disabilities of the major categories including people with psychosocial disabilities. Footnotes Footnote 1: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27 [“Mercier”] Footnote 2: Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28 Footnote 3: Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 Footnote 4: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 [“Meiorin”] at para.68 |