 |
 |
|
|
|
|
|
Back to: Third Session | Draft Article 7 Comments on the draft text Download complete compilation of comments: MS Word - The ILO welcomes the emphasis in this draft article on equal opportunity, equal treatment and non-discrimination, and the provision for reasonable accommodation and affirmative action in the form of special measures. - Suggests that guidance on reasonable accommodation and affirmative action be provided either in a form of an annex to the Convention or in guidelines to be drawn up to accompany the Convention. National Human Rights Institutions Ontario Human Rights Commission 7.1 See the Commission’s comment above under paragraph (m) of the Preamble of the Draft Convention. 7.2(a) The Commission agrees with the meaning of discrimination set out in this paragraph. In addition, the Ad Hoc Committee might wish to consider the three broad inquiries set out in the Commission’s Disability Policy, as suggested by the Supreme Court of Canada, for determining if discrimination has taken place:1 (1) Differential Treatment 7.2(b) The Commission would agree that setting out forms of discrimination is important to forward a full understanding of rights and obligations. At the same time, discrimination in all its forms has the same effect and individualized accommodation for persons with disabilities will still be necessary. As a result of two landmark decisions of the Supreme Court of Canada,2 the distinction between direct discrimination and adverse effect discrimination has become of much less practical significance in Canada. With respect to the inclusion of “perceived” disability, the Commission is supportive of this broad understanding, which is also reflected in Ontario’s Human Rights Code and in jurisprudence from the Supreme Court of Canada as noted above in the Commission’s comments under draft Article 2 on the definition of disability. 7.3 The Commission would recommend qualifying or revising this exception
or defence with the notion of the duty to accommodate short of undue hardship
(see the Commission’s comment under subparagraph 7.4 below). In this regard,
the Commission would recommend consideration of the three-step inquiry
set out in the Commission’s Disability Policy, as suggested by the Supreme
Court of Canada in Meiorin,3 for determining whether prima facie discrimination
can be demonstrably justified and the duty to accommodate has been met.
If prima facie discrimination is found to exist, the person responsible
for accommodation must establish on a balance of probabilities that the
standard, factor, requirement or rule: Sections 3.2 and 3.3 of the Commission’s Disability Policy set out a number of considerations for the application of this framework. Footnote 26 The Commission recognizes that the inclusion of subparagraph 7.3 is intended to strike a balance between the legitimate aims of the State and the needs of persons with disabilities. At the same time, the Commission is of the view that, as with Ontario’s Human Rights Code, such a balance should be struck on the basis of the notion of duty to accommodate short of undue hardship described above. And, for the reasons the Commission set out under paragraph 7.2(b) above, including the landmark decisions of the Supreme Court of Canada cited in this regard, subparagraph 7.3 should apply to all forms of discrimination and not be limited to indirect discrimination. 7.4 The Commission agrees in principle with a balanced definition of “accommodation”,
though arguably, the definition of the term “reasonable” used in this
draft Article may not set a sufficiently high standard, particularly without
any test for undue hardship. Ontario’s Human Rights Code states that there
is a duty to accommodate the needs of persons with disabilities, short
of undue hardship. The Commission’s Disability Policy sets out the Commission’s
interpretation of this provision of the Code: The “appropriateness” of an accommodation is a determination that is
distinct and separate from whether it would then result in “undue hardship”.
It should be viewed as a process and as a matter of degree along a continuum,
rather than an all-or-nothing proposition. Undue hardship might be avoided
by implementing next best alternatives or providing accommodation at a
later date or phasing it in over time. Section 4 of the Commission’s Disability Policy sets out a number of considerations for understanding and applying the undue hardship defence. 7.5 The Commission supports this provision, including the notion that measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved. Similarly, Ontario’s Human Rights Code sets out a provision for “special programs”. The Commission’s Guidelines on Special Programs elaborate on its understanding of this provision. EDF suggests to include a specific reference to effective equality in this article, which is to be obtained through a combination of non-discrimination and positive action measures. EDF welcomes that the article clearly states that disabled people should be protected from all forms of discrimination and welcomes a specific reference to direct, indirect and systemic discrimination. The recognition of the reversal of the burden of proof acknowledged in recent EU legislation should be included in this article. EDF supports the inclusion of the provision stating that the failure to provide a reasonable accommodation is to be considered as discrimination, as also reflected in General Comment 5 of the ICESCR. If a reference to disproportionate burden is to be maintained, this needs to be qualified taking into account different elements like: the size of the organisation, the existence or not of financial incentives to compensate partly or totally these costs. The exception clause included in paragraph 3 causes great concern to EDF. It should be deleted. EDF strongly supports the idea reflected in paragraph 5. The Madrid Declaration adopted in 2002 clearly referred to the fact that a combination of non discrimination and positive action measures are needed to obtain the final objective of full participation of disabled people. We suggest to replace the word “special measures” by “positive action measures”. It should be stated that these measures should not be imposed against the will of the disabled person. The article should also include a specific reference to multiple discrimination. The reference to the other forms of discrimination in paragraph 1 attempts to do this, but is not clear enough. The Convention should also protect persons who are perceived (by others) to have a disability and who have had a disability in the past. Indian NGO Consultative Meeting As regard article 7 para 3, additional text is suggested to tightly guard abuse of the provision. The modified text for para-3 should read “Discrimination does not include a provision, criterion or practice that is objectively and demonstrably justified by the State Party by a legitimate aim and the means of achieving that aim are reasonable, necessary and are consistent with international human rights laws.” Equality and non-discrimination are not only core principles of this convention, they are fundamental principles relating to the protection of human rights. Given the need for the convention to clearly articulate these rights and avoid ambiguity, it may be more appropriate to elaborate them in separate articles, as has been done in other contexts. (Cf. International Covenant on Civil and Political Rights, Articles 2 & 26; Convention on the Elimination of All Forms of Discrimination Against Women, Articles 1, 2 & 15) The articulation of what constitutes discrimination, provided in Draft Article 7(2)(a), is consistent with formulations in other treaties. (Cf. Convention on the Elimination of All Forms of Racial Discrimination, Article 1(1); and Convention on the Elimination of All Forms of Discrimination Against Women, Article 1) In describing prohibited forms of discrimination in Draft Article 7(2)(a), it may be helpful to expand the concept of “actual or perceived disability” to include, for example, “a suspected, imputed, assumed or possible future disability, perceived disability, a past disability or the effects of a past disability, or the characteristics of a disability.” (Cf. Bangkok Draft, Article 1 definition of discrimination) With regard to Footnote 24 and whether “indirect” discrimination should be specifically referenced, it is worth nothing that the concept of indirect discrimination is expressly referenced in some domestic anti-discrimination legislation. (Cf. Australian Disability Discrimination Act, 1992, Part 1 (6); Canadian Human Rights Act, Part 1(7); and Irish Employment Equality Act, Part IV, S.31) Footnote 26 references the provision in Draft Article 7(3), and notes that such a provision has never before been included in a core international human rights convention. In its General Comment on Article 26 of the ICCPR, the Human Rights Committee stated that it “not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.” (Cf. Human Rights Committee, General Comment No. 23 (Article 26), 1989, para. 13) Although similar, the standard articulated by the Human Rights Committee differs from that included in Draft Article 7(3), because the Committee included the proviso that the differentiation must aim to achieve a purpose “legitimate under the Covenant.” There is no such restrictive language in Draft Article 7(3) and thus it is unclear what standard would be used to determine whether the State’s discrimination fulfilled a legitimate aim. The inclusion of such a standard is of critical importance, as is the qualifier that the means of achieving the aim are reasonable, necessary, and consistent with international human rights law. Both requirements could be addressed with language such as, “ … by a legitimate aim consistent with international human rights law and the means of achieving that aim are reasonable and necessary and consistent with international human rights law.” One example of a permissible provision by a State Party in this regard might be the use of qualifications tests, e.g. to drive a car. (For an example of this in domestic legislation, Cf. Mexican Federal Act for the Prevention and Elimination of Discrimination, Article 5(II).) Draft Article 7(4) addresses the provision of “reasonable accommodation,” and the understanding of that concept as expressed by members of the Working Group is accurately set forth in Footnote 27. In determining whether to specify that a denial of reasonable accommodation constitutes discrimination, the Ad Hoc Committee may wish to consider the conclusion of the Committee on Economic, Social and Cultural Rights that “For the purposes of the Covenant, ‘disability-based discrimination’ may be defined as including any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights.” (Cf. Committee on Economic, Social and Cultural Rights, General Comment 5, “Persons with Disabilities”) Draft Article 7(5) addresses “special measures,” the use of which is widely supported as a means to “diminish or eliminate conditions which cause or help to perpetuate discrimination.” (Cf. Human Rights Committee, General Comment No. 23 (Article 26), 1989, para. 10) As highlighted in Footnote 28, the Ad Hoc Committee may wish to consider the use of an alternative term, because in the disability context, “special” has sometimes had a derogatory meaning. An alternative term could be “positive action.” (Cf. “Prevention of Discrimination: The concept and practice of affirmative action,” Final report submitted by Mr. Marc Bossuyt, Special Rapporteur, in accordance with Sub-Commission resolution 1998/5, E/CN.4/Sub.2/2002/21, para. 5) On the issue of whether the treaty should specify that such measures be limited in time (Footnote 29), it should be noted that in the opinion of the Human Rights Committee, “as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant,” which implies that temporal restrictions need not be placed on the use of positive measures if the conditions warrant the continued use of such measures. (Cf. (Cf. Human Rights Committee, General Comment No. 23 (Article 26), 1989, para. 10). Physical Disability Council of Australia Ltd 1. PDCA fully supports this statement as it will allow people from different cultural backgrounds with disability full protection under this Convention. Current domestic legislation (i.e. Disability Discrimination Act and the Racial Discrimination Act) has difficulty coping with the intersection between ethnicity and disability. We support the statement that ethnicity and disability are interdependent and one can not be valued over the other. However, the draft text will in fact allow for more complete protection of the rights of people from non English speaking background with disability. In the “shopping list” are indigenous people not included. Both direct and indirect discrimination should be targeted. Interesting to discuss the issue whether discrimination should apply to PWD’s and their opinions and experiences of discrimination or the society’s perception. Para 3, of this Article should be deleted. Reasonable accommodation is important and could be defined under Article 3, Definitions. This convention should not limit the definition of reasonable accommodation as it is extremely important for PWD. World Network of Users and Survivors of Psychiatry 3. 4. Paragraph 3 should be deleted, as argued elsewhere in more detail. Briefly, the commentary in footnote 26 is inaccurate when it states that General Comment 18 of the Human Rights Committee has included this identical language. The Human Rights Committee stated that not all “differential treatment” will constitute discrimination, if its purpose is legitimate under the ICCPR, and if “the criteria for such differentiation are reasonable and objective.” This is very different from defining discrimination as deprivation of human rights or fundamental freedoms based on disability, and then creating an exception that would allow some instances of such deprivation to continue. Paragraph 4 should be amended to delete the phrase “unless such measures would impose a disproportionate burden,” for a similar reason. In national legislation, reasonable accommodation may be defined in ways that make it less onerous to balance the needs of people with disabilities with economic cost of our accommodations. However, if reasonable accommodation is defined as that which is necessary to ensure our enjoyment of human rights and fundamental freedoms on an equal footing with others, such language is inappropriate and represents a retreat from the standard articulated in ICCPR article 2(1) and ICESCR article 2(2), which guarantee the equal exercise of civil, political, economic, social and cultural rights without discrimination of any kind. Footnotes Footnote 1: See Law v. Canada, Supra note 2. Footnote 2: See Meiorin, supra note 7, and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [“Grismer”] Footnote 3: See Meiorin, Supra note 7 |