Volume 3, #4
January 8, 2004

Morning Session

Commenced: 10:34am
Recessed: 1pm

The Coordinator proposed that WG draft proposal A/AC.265/2004/WG/CRP.3/ Add.2 on equality and non-discrimination be discussed at the afternoon session. An explanation given by Andrew Begg of the NZ Mission (Andrew.Begg@mfat.govt.nz) who had chaired this thematic consultation is described in the notes for that session.

Article 15 of the Chair's proposed text was the framework for this session's discussion.

FREEDOM OF OPINION AND EXPRESSION AND THE RIGHT TO ACCESS TO INFORMATION AND COMMUNICATION

The Inter-American Institute on Disability (IAID) stressed the essential role that communication and access to information plays in the lives of all people, and the particular difficulties that PWDs face in this area everyday. Members of the WG who are blind have underlined this problem in expressing the difficulties they experience in following the discussions of the WG. IAID asserted that the treaty must contain an article such as Article 15 of the Chair's draft, which would guarantee accessibility to information and communication for PWDs. If accessibility is not enacted properly, many disabled people will not attain full participation and inclusion.

World Federation of the Deaf (WFD) expressed concern that Article 15 of the Chair's draft is not adequate. The delegation gave the example that most deaf children are forbidden to use their own national sign language, which engenders serious illiteracy problems among the deaf. WFD proposed adding text that deaf and hard-of-hearing children be guaranteed the right to natural language development. This right must be secured, they asserted, so that the children may become bi- or multi-lingual. It is not enough that children learn their own national language.

WFD further proposed that the WG draw from the following UNESCO documents. There is are a position paper entitled "Education in a multi-lingual world" and a document entitled "Language, Vitality, Endangerment." Furthermore, WFD asserted that deaf people and the hard-of-hearing should have access to interpreter services, if they are to enjoy their right to access information and communication to the fullest extent possible.

WFD noted that Articles 21, 23, 24 and 27 of the Chair's draft also raise this issue, though from different point of view. WFD proposed to introduce new language, emphasizing that it was not calling for new rights--only that existing rights be secured. In this case linguistic rights and the right to language need to be carried out in lives of deaf people to ensure that freedom of expression and opinion is carried out. The Coordinator proposed that WFD read out language that it would like to see in the convention. The WFD proposed some text, but stressed that this was a preliminary draft and that it would like to work on it further and introduce the language at a later stage.

Thailand stressed that this was a core issue in the convention and noted that it may be one of the more unique issues among any human rights instruments. Thailand further stated that the content of Article 15 of the Chair's draft seemed to have been summarized from the Bangkok draft, and some key points were missing. Thus, Thailand proposed adding the language "including Information and communication technology (ICT) and assistive technologies." Thailand emphasized that if no mention of ICT was made, this would limit the choices of PWDs and urged the WG to reexamine Articles 16 and 19 of the Bangkok in order to bring back points that might be missing. Thailand asserted that the concept of "universal design" should also be captured.

Thailand further noted that Article 6 (d) of the European Union draft is useful in this context as it advocates "design for all."

Ireland drew attention to Article 8 (b) of the European draft requiring states to "promote equal access to information and means of communication," and Article 6 (d) which requires states to "promote the development and availability of design for all, technology and appropriate forms of assistance and support to person with disabilities." Regarding Article 15 of the Chair's text, Ireland also questioned whether there is a "right" to access to communication and information. Ireland recognized as an existing right the right to freedom of expression, which includes freedom to seek receive and impart information and ideas. Ireland proposed the phrase "equal access to information" which it preferred to the language "right to access."

Furthermore, Ireland raised concerns over the meaning of "officially recognized" modes of communication in Article 15.1 in the Chair's draft. Ireland explored whether this would entail a government officially recognizing a new language, or simply issuing a list of means of communications that it will communicate in. In Europe and other countries the question of official recognition of languages contains a number of sensitive political issues.

Turning to Article 15.2 of the Chair's draft, Ireland expressed concerns over whether the intention is that governments make all information in the public domain available in all forms of communications, irrespective of whether they had been requested by a PWD. Ireland conceded that it is a different matter if, for example, a person requests specific documents in Braille. There is a need for the WG to further elaborate how governments would implement this article. Ireland preferred a list of measures a government would take to a simple declaration of a right, which may or may not be implementable.

The Coordinator noted that it would useful to have comments on the subject from organizations representing PWD. The Coordinator expressed his view that it was not envisaged that states be required to translate all public documents. It was more matter of ensuring that if a PWD wants access to a document, they could access it through some mechanism. The Coordinator also noted that this convention is aimed at as wide a range of countries as possible, including countries with varying levels of resources. Thus the endeavor requires balancing: One would not want specify obligations that are so "onerous" that they might deter countries from becoming party to the convention. Sierra Leone asserted that, although Article 15 contains a statement of rights and principles, it lacked an action-orientation. Citing Article 10 (2), Article 13(3) and Article 16(4) of the Chair's draft, the representative raised the concern that there was inconsistency.

Making declarations and listing rights is not enough argued Sierra Leone, there must be a paragraph or a line stating what States Parties are expected to do, as well as requiring States Parties to take action in this regard. The Coordinator noted an understanding in the WG of the objective of article in conceptual terms, and observed that what practically what is required of states is a more difficult question.

Building on comments made by Ireland regarding Article 15.1 of the Chair's draft, Japan drew attention to the term "officially recognized." The present formulation is not clear on the meaning of this term.

Article 19 (a) of the Bangkok draft,Japan noted, clearly states that sign language be recognized as one of the official languages of that country. The WG needs to clarify whether the language in Article 15.1 of the Chair's draft obligates states to include sign language or Braille in their official languages, or requires states to simply recognize alternative modes of communication.

China suggested that this article should be closely examined in connection with the definition of language. There is a need, for example, to clarify the scope of sign language or other similar languages. Regarding Article 15.2 of the Chair's draft, given that the convention will apply to countries with many different levels of development.

Furthermore, China pointed to the language "in a timely manner" deeming it too vague and proposed the term "progressively." Finally, China wished to clarify the meaning of "public domain," exploring whether the term covered private enterprise. China expressed the need to define words in a more practical manner. Government documents should be provided on request, yet "even with such a request" a government may not be "required to provide all information in such forms."

DPI stressed that a key issue is the right of access information, which - in turn - guarantees the right to exchange information with others and give expression to ideas and the right to receive information so that ideas may be developed. DPI noted the Bangkok draft takes into consideration the need of PWDs to able to communicate using a form of communication of their own choosing. Another useful reference, DPI noted, can be found in the Mexican draft, which asserts the need to involve the mass media and calls for public awareness-raising on those issues. The New Zealand document illustrates how accessible communication intrinsically impacts other rights, such as the right to political participation.

The Coordinator requested the Mexican text reference. Columbia read out the Mexican draft reference. The Coordinator inquired if there was technology existed which could convert text into Braille. As the response was affirmative, the Coordinator concluded that the existence of such technology would seem to resolve much of the issue. Morocco emphasized the high cost of this technology.

The WFDB stressed that access to communication and information is indispensable for people with deaf-blindness. WFDB is a diverse group including some who are totally blind depending Braille and others who are deaf and use sigh language. Particularly, in developing countries deaf-blind people do not have the opportunity to develop one of these communication systems. They often stay in the family only communicating basic needs, or not communicating at all and thus completely isolated. WFDB proposed to include in Article 15.1 the right to develop one's own communication system and to communicate in a language or communication system which one considers appropriate.

IAID noted that few people have access to information in Braille, and stressed that not all blind people know Braille and not all deaf know sign language, especially in developing countries. This is a daily reality, which has to be overcome with the active involvement of states in providing access to training mechanisms. If a deaf or blind person is looking for job these alternative measures should be available. It is not necessary for states to translate all their documents and this issue can be resolved with a specification in the article to that effect. IAID stressed that access to new information and communication technologies for PWDs should be accessible through programs. This should be guaranteed in this article, otherwise full participation and inclusion will be less possible and the development citizenship illusory.

Thailand outline two different approaches to this issue: Access to information and communication as a measure to achieve freedom of expression of which Article 19 of the Bangkok draft is a good example. Equally, one may cite physical and transportation access as well as access to information and communication. Article 16 of the Bangkok draft is an example of this. Thailand also cited Article 2 of the Bangkok draft, which defines accessibility in relation to language communication; asserting that it is technically possible to say that all information should be made accessible as there is a way to standardize how information is created, stored and disseminated. Electronic information is the central mode of information format. Using international standards or the accessibility standard of electronic information systems, there is a way to transfer this information into several different outputs, such as Braille, audio or multi-media. This convention should mandate the way information is processed from the beginning. This is a "matter of choice and commitment."

Germany asserted that the convention is a unique opportunity to make sure that countries are made aware that they have the opportunity to reduce costs in putting in place technological advances for PWDs. In addition, Germany reaffirmed that it is important not to seek to create new rights, as well as to safeguard against the creation of substandard rights. Germany pointed to language from Article 19 of CCPR, particularly subparagraph 2, to underline the point that it is already accepted in international law that freedom to choice a means of communication included in the right to freedom of expression.

WBU asserted that interest in education using Braille has decreased while the number of blind people has increased. WBU conceded that ICT offers a way to read, but that there is a need for a written language. Governments must have the responsibility to recognize Braille as the only written script for blind people. Regarding literature, copyright law "closed the door for many blind people" WBU remarked that the United Nations donated two Braille printers when the disability office was placed in Vienna, but the Braille printers have not been used since the Vienna office was closed nor have they been brought to NY.

The Coordinator asked whether the United Nations development programs have a component that deals with disability?

Disability Australia Limited (DAL) endorsed the comments made by Thailand, Germany, WBU and WFD. DAL asserted that the high cost of technology for PWD may be transferred to the corporations dealing with production of hardware and software. Countries have already undertaken to relegate telecommunication, media broadcast and technology standards, which has resulted in reducing the cost on the states and also in corporations widening their customer base. This is possible even for developing countries. Local initiatives have resulted in bringing the cost down, even on the hardware. DAL suggested a systematic approach to deregulation or amendment of regulations which could give way to certain standards in information an telecommunication technology and their services. DAL also urged investment in indigenous technologies and research, noting that the experience is rewarding results, which in the long-term not only benefit PWD but also a large potential section of the population who - due to age - encounter similar impairments.

DAL noted that the universality of the freedom of information could not be denied, but the issue might be resolved by applying the principle of reasonable accommodation.

Slovenia noted that ICT offers new possibilities to overcome obstacles. Regarding sign language, Slovenia stated that over 20 countries recognize sign language in some fashion.

Mexico remarked on two issues in the discussion. First is the linguistic rights of PWD to exercise freedom of expression in their own language or communication system as well as access to these forms and the means to use them. Second, measures to promote access to alternative means of communication and availability of information in accessible formats

South Africa supported submissions by colleagues on the inclusion in the convention of technologies that facilitate communication of PWD. As much as cost is a factor, the WG needs to focus on the principle to minimize the risk of compromising these principles. Domestically, South Africa is developing one technique, using software and hardware, regarding the use of internet that would enable one to operate in the absence of electricity. The importance of information technology should not be masked by the cost factor. South Africa suggested that Article 15.2 of the Chair's draft include all disabilities so as to not exclude a form of disability, particularly multiple disabilities. The Coordinator asked the South African delegate whether information on the project she described regarding the Internet was readily available to others. He also asked whether there were mechanisms for sharing this kind of information. South Africa did not wish to indicate that the information exchange was perfect and hoped that convention would address this issue.

WFD commenting on the Irish delegation's concern over the issue of accepting alternative modes of communication as official languages, WFD stressed that it was not calling for official recognition of these modes of communication, only for the right to freedom of expression, which cannot exist when one's mother tongue cannot be used. WFB recalled that Slovenia had stated that there is legislation on sign language in 20 countries, and noted that in fact 30 countries mention it in some legislation. WFD supported Article 19 of the Bangkok draft and hoped to see that language used. WFD further noted that linguists around world have adequately defined the different types of sign language, so there is no need to detail these.

South African Human Rights Commission observed that access to information and communication forms an integral part of equality. The delegates also noted that South Africa recognizes sign language in its constitution. In addition, public information is available upon request in alternative formats. The South African Commission's mandate includes ensuring rights of PWDs as well as the rights of PWD to access information. While there is a provision in the law, the actual practice has been different. Without detracting from Article 15.2, the Commission suggested including the phrase "upon request" between "right to provision" and "in a timely manner" in the first line of the paragraph.

South Africa stressed the need for "something that is doable" or a "minimum threshold" in the convention.

II stressed that all official documents should be available in plain language. II also noted that a writing style that is clear and avoids jargon was useful for everyone. This should be stipulated in Article 15 of the Chair's draft.

Sierra Leone argued that Article 15 of the Chair's draft should not be too specific. The reference to Braille should not be included as this is not a resolution. Article 8 (a) (b) and (c) of the Mexican proposal is very specific about what governments should do, but there is nothing about specific technologies. Sierra Leone asserted that the convention should not address the issue of the cost of these technologies. As per the phrase "timely manner," it might allow for much abuse. The article should entail general principles such as the right to communication and to receive information in an appropriate mode, to be followed by specific obligations for states to uphold.

Canada expressed concerns over the use of the word "right" in the title of Article 15 of the Chair's draft. Canada stated that it was more at ease with existing human rights such as the freedom of expression, which is consistent with ICCPR. The term "right" in other contexts is problematic. Furthermore the phrase "officially recognized" is used in Article 15.1 of the Chair's draft. In addition, Canada suggested seeking other wording for the term "public domain" in Article 15.2 as it could encompass the private sector where the government's power is circumscribed. The identification of standards is a positive and important step, but Canada cautioned against establishing prescriptive obligations that cannot be met. If obligations are perceived to be too "onerous," it would not be "healthy" for this instrument "that we are interested in being a success." Canada deemed Articles 7 and 8 of the Mexican draft useful for the convention

India was in general agreement with Article 15.1 of the Chair's draft, but suggested additional language qualifying Article 15.2 "with reasonable accommodation subject to the availability of human financial and technical resources." She also suggested Article 6 (e) and (f) of the Indian draft are relevant to the title of Article 16 in the Chair's draft.

Lebanon remarked that, as noted by Thailand, ICT is best enacted at an early stage of design to become available at a minimum cost. Lebanon raised the issue of illiteracy and noted that a large number of PWD are unable to benefit from technology

Uganda remarked that Article 15 seems to assume that all blind people and deaf people know Braille and sign language. This is not the case in developing countries where there is a need to enact measures to enable deaf people and blind people to learn Braille and sign language. Such measures would render the right envisaged in Article 15 meaningful. Sign language might be taught for four years in primary school, not only for PWD to learn sign language, but for others as well. It is important for other people to learn sign language, so that deaf people may overcome the barrier often encountered in communicating with others. Article 15.1 makes a reference to essential services. This is restrictive as an official may claim that a service is not essential. Uganda proposed deleting the word "essential."

Thailand offered to send to the secretariat relevant materials including information on the World Information Summit. International accessibility standards exists, such as the accessible multi-media standard. Canada stressed the need to ensure that states follow these standards.

DPI asserted that linguistic rights needed to be specifically defined. Sign language is not the only disability related system; Braille can be considered a distinct language, because it uses specific symbols. Article19 of the Bangkok draft and Article 7 of the Mexican draft have begun to address these issues.

Venezuela remarked that a fundamental problem in access to communication is literacy. In many developing countries the illiteracy rate is high, and much higher for PWD, as they are often marginalized and isolated. Venezuela stressed the importance of national training programs in sign language, reading and writing and oral language for deaf people. Taking into consideration Article 8 of the Venezuelan draft found on page 104 of the Compilation, there is need to develop strategies to encourage mass media to make services accessible. Venezuela asserted that Article 15 of the Chair's draft does not include all the concerns expressed in the WG discussion.

China took note of comments made by Sierra Leone and India who pointed out that in order ensure the accessibility of PWD, states should be proactive and enact measures to that effect. China's proposal on page 95 of the Compilation outlines such measures in its Article 5 (4) (5) (6).

Afternoon Session

Commenced: 3:12 PM
Adjourned: 6:02 PM

PROPOSED TEXT OF ARTICLE 5: "EQUALITY AND NON-DISCRIMINATION"

Andrew Begg of NZ Mission explained in the morning session that this text aimed to capture the essence of the WG discussion that had taken place earlier in the week, reflected in the footnotes and in the working note underneath Article 5.2 (c), as well as incorporating the initial thoughts of those participating in the informal consultation the night before.

• Paragraph 1 is based on Article 6 of the Chair's draft.
• Paragraphs 2 (a) and (b) are based on both Article 3 of the European Union draft and on the definition from the Chair's draft.
• Paragraph 2 (c) is taken from the Chair's definition, however it was not intended that this paragraph offer a definition of disability. The caveat included in Article 5.2 (c) stipulates that what is said is only intended to cover acts of discrimination and not to raise the issue of defining disability. The WG will have to address at a later stage the issue of defining disability as well as whether to even include a definition in the convention.
• Paragraph 3 is based on the Chair's definition and on Article 3 (b) of European Union draft.
• Paragraph 4 comes from Article 5 (d) of the European Union text as well as some elements from the Chair's definition.
• Paragraph 5 is based on the Chair's definition and Article 4 of the European draft.
• Paragraph 6 comes from Article 8 of the Chair's draft. In addition, paragraph 1 is similar to Article 26 of ICCPR.

The Coordinator noted that many of these paragraphs draw from existing treaties and jurisprudence. Paragraph 2 (a) is similar to Article 1.1 of CERD and Article 1 of CEDAW. Article 5.3, as the representative of OHCHR has pointed out, comes from jurisprudence of the Human Rights Committee. In addition, Paragraph.5 draws from Article 1.4 in CERD and Article 4 of CEDAW, while Paragraph 6 is similar to Article 5.1 of CEDAW.

Ireland noted that was, in general, a good text because it took into account disparate views. He noted that he was committed to paragraph 1 as a principle, as it was based on Article 6 of the ICCPR, and asked members to consider the precise location of it. He had no difficulty with 2(a) because it drew on existing definitions and was close to the EU Draft and said that the inclusion of the word "systemic" did not add to the text in 2(b). It would be simpler and clearer to link 2(c) with 2(d) and said that the word "perceived", contained in 2(d), might be too ambiguous for a legal document and offered that members might look at a clearer word and consider the use of the word "assumed." With regard to paragraph 3, although the idea was also part of the EU Draft, it was intended to be an exception and not as a principle, as it appears to be in this text. He said that there is no justification for direct discrimination and had a strong preference to relate this paragraph to indirect discrimination. He supported paragraph 4 and 5, but said that wording of paragraph 5 could be altered (in reference to the word "special") though it had a history in human rights instruments. He added his delegation would work with Mexico on paragraph 6.

Morocco asked for the source of the word "systemic" in 2(b) to better understand its context. It supported the wording in paragraph 4/footnote 2. Andrew Begg explained the word came from debate amongst delegates and not from a written source from the Coordinator. There was general agreement, he said, that it was a good concept. Colombia proposed to include it as a broad term, so as to cover all forms of discrimination.

India said that the inclusion of "direct, indirect, and systemic" in 2(b) was unnecessary because of the phrase "discrimination shall include all forms of discrimination." For the same reason, South Africa concurred that it was not necessary to list some forms of discrimination.

Venezuela said discrimination should spoken of in broad and general terms in 2(b) and called for the inclusion of "all forms of" to the end of the last sentence of paragraph 1.

Sierra Leone proposed the deletion of 2(b) and the addition of "all forms of discrimination" to the end of the last sentence of paragraph 1.

Ireland said there was a significant advantage in including indirect and direct discrimination in 2(b) and that the explicit inclusion of indirect, in a human rights text, would be a step forward in understanding what is meant the term. He noted that in many ways, indirect discrimination was more likely to occur than direct discrimination and that although "all forms" would also refer to indirect discrimination, the deletion of the term could make it easier for it to be "swept under the carpet."

The Coordinator said that this issue (2b) was not likely to be resolved in the WG and proposed the inclusion of a footnote that stated the two views/options on this issue so it could be considered further by the AHC. He noted that small groups could consider it next week if there was time, and asked the next speakers not to come back to the issue.

Sierra Leone supported a footnote on 2(b) and called for a footnote on the meaning of "perceived" in 2(c) and the legal implications of this concept for the AHC to consider.

Thailand asked for further elaboration on paragraph 3 as to who would give the justification for discrimination and asked if this would make it justifiable for states or state agencies to conduct any act.

Rehabilitation International (RI) recalled the consensus on the purpose of the Convention, that the non-discrimination idea while critically important, did not alone exhaust all the "action orientations needed" to fulfill this purpose. Paragraph 1 "neatly encapsulates" both the "instrumental and ontological" purposes of this idea ? as a means to secure the higher end of full and equal enjoyment of all human rights and as an end and right in and of itself. The nondiscrimination concept needs to get at both the ugly forms of discrimination as well as the more insidious, "smiling" forms of discrimination. With regard to Paragraphs 2(a) and 2(b), they can peacefully coexist. 2 (a) brings us closer to existing human rights doctrine and holds greater potential for cross-fertilisation between this convention and existing ones. The inclusion of the word "systemic" in 2 (b) was a novel extension of the discrimination idea and made this provision "alive in the context of disability." 2 (c) reflected the philosophy of the Canadian delegation to "avert our gaze from the taxonomy of discrimination and look to the phenomenon of discrimination". The discrimination concept needs to be cast quite broadly to cover persons who both have a record of a disability as well as those who are "attitudinally disabled" - those who have disability imputed to them by the attitudes of others. Article 1, paragraph 2(a) of the Inter-American Convention on Disability has useful language in this regard. With regard Paragraph 3, he questioned whether "its proponents are comfortable that this ratchets up the rights by circumscribing the let-outs?" He added that there is a need for a general article somewhere in the Convention that it in no way detracts from existing human rights standards and that the mention of some rights and not others is without prejudice for the general application of all human rights for PWD. His concerns with Para 4 was based on the fact that reasonable accommodation is generally interpreted "not as a species of positive action, but as a direct corollary of the discrimination idea". He cited US and other laws in this regard, reminded delegates of the need to make existing rights effective and avoid creating new rights, and highlighted the opportunity "to draw out a much clearer link between discrimination and the obligation to reasonably accommodate". This is "what adds value", and provides "the most valuable tailoring" to the discrimination idea in the disability field. The fact that this Paragraph leaves this link to the imagination is a problem. In addition, this paragraph's language on "the right to non-discrimination" needs to be redrafted. Finally, he called for more clarity on the term "disproportionate burden" given that sufficient scope for "the balancing act" of States'many pressing allocational priorities can be found within the concept of reasonable accommodation itself, since by definition the accommodation has to be reasonable. The concept of progressive achievement also would kick in to allow for enough leeway to balance state priorities in situations related to financing. If "disproportionate burden" is retained then clarity is needed on whether and how it applies to public authorities and private entities and their relationship to each other. He suggested that useful language for paragraph 6 could be found in the Malaga Declaration adopted by the Council of Europe.

The World Network of Users and Survivors of Psychiatry (WNUSP) agreed with RI's positions. She emphasised reasonable accommodation must be individualized and not forced, as one person's accommodation could be undesirable for another, so there should be some reference to the idea that reasonable accommodation could not be imposed on PWD who did not want it. WNUSP also suggested mentioning that reasonable accommodation is a social measure and not a measure to change an individual. Since Paragraph 3 lacks precedent in existing human rights instruments it could create a perception that it was more permissive to discriminate on the basis of disability, than, for example, gender, or race. On the issue of indirect and direct discrimination, she noted that all examples of indirect discrimination could also be understood as discrimination of effect, and added that if they were introduce a new concept, it needs to be further defined.

Canada said that paragraph 3 was important and recalled the issue of balance between the safety of the collective and individual in this regard. He said, for example, in Canada, blind people are not issued driver's licenses. These were not issued for reasons of public safety, but could be considered individual discrimination. He did not support the separation of indirect and direct discrimination in 2(b) given how difficult it was to separate the two; given that they would not support a qualification that only applied to one.

Coordinator recalled that footnote 1 referred to paragraph 3 said that this was an issue for the AHC to discuss in detail/in-depth.

European Disability Fund (EDF) concurred with Ireland on the issue of indirect and direct discrimination and proposed that "special" be deleted from paragraph 5. He noted that paragraph 4, on reasonable accommodation, should be written as a positive action measure for states and recalled that failure to provide reasonable accommodation was discrimination.

Mexico noted that it would provide a suggestion for paragraph 6 shortly and expressed the view that the text should also reference the discrimination faced by doubly vulnerable groups (those who are multiply discriminated against on the basis/grounds of disability, race, and/or poverty). It also enquired it the article could also include elements on equal opportunity and equality, as a discussion of these issues would be well placed in this article, or another one. It noted, as it had previously, that it would like to see some balance in reference to non-discrimination and promotion of the rights and equality of PWD.

China said that the principles of non-discrimination should both be embodied in the text and that this article should be coordinated with text on general principles and definitions to avoid duplication and noted the inclusion of a definition in paragraph 2, which might also be stated in another article. It noted that the concept of equality was only touched upon in paragraph 2 and reminded members that a Convention only focused on non-discrimination would be too passive and negative and that it needed to be able to enable implementation of rights. He called for the addition of "with disability" after the word "persons" in the first line of paragraph 1 and of "against PWD" after the first word in the first sentence of 2(a). China noted that 2(a) used wording found in CEDAW and reiterated that non-discrimination was not a right, as stated in paragraph 4, but a principle. He called this a wording issue that had to be addressed.

Germany cautioned against the suggestion that "with disabilities" be included in "all persons are equal before the law" in Paragraph 1 because it could lead to difficult legal questions. She emphasized that language was extremely important in relation to discrimination and for this reason its unprecedented use in the justification clause, Paragraph 3, should be either closely linked to indirect discrimination or be left out. She noted that 2(c) should be moved to 2(b), as Ireland had stated previously, to ensure that the text not be about defining disability but about putting PWD on equal footing with those who are protected by CEDAW or CERD. It is about outlawing these basic acts. It concurred that "assumed" or "perceived" could be used in 2(c) and agreed with RI that the denial of reasonable accommodation should be referenced as discrimination. She noted this concept has explanatory power in recent studies and national legislation, and should be understood also in relation to the economic and social rights covenant.

Japan was not familiar with the term reasonable accommodation given that no other human rights conventions used it. It asked for clarification on who would measure what is reasonable, adequate, or who would be obligated to provide this, as this was an interpretation issue. Paragraph 5 was too one-sided and recalled the Japanese quota system for employment for PWD, and noted that some special measures should continue even after their objective had been met.

Colombia, like Mexico, asked delegates to bear in mind the question of equal opportunity as it relates to non-discrimination and noted that equal opportunity and equality were separate issues and should be separated into different paragraphs. She noted that in Spanish, it was easy to draw a distinction between equal opportunity and equality. The Coordinator responded that this distinction could also be drawn in English and asked members to think about whether equal opportunity should be addressed in this article or in another, as this idea had only been generally fleshed out thus far.

Disability Australia Limited (DAL) endorsed the view that failure to provide reasonable accommodation was discrimination. It had reservations on the term "disproportionate burden" in paragraph 4 as it was an unclear concept and was dangerous in that it imposed a higher cost on states (increased number of appeals for exemption). She noted that the clause only covered the private sector and proposed that this be eliminated so as to give states more flexibility. She said that reference to "systemic" in 2(b) should be retained because it was justifiable and needed to be addressed by active implementation of the provision.

World Federation of the Deaf (WFD) said that there could be different views on what is meant by reasonable accommodation in paragraph 4 and members had a responsibility to define the concept at some level. It opined that it meant providing a barrier-free society and agreed with RI that reasonable accommodation should be strongly linked to the notion of non-discrimination. It called for financial measures and state budgets be addressed with regard to reasonable accommodation because this was only one part of state budgets and "no state would go into bankruptcy" for it and noted that the whole society, as well as the individual with a disability would benefit from reasonable accommodation as it allowed the individual to be a productive asset to society and also protected his/her individual human rights. In this regard, it would 'cost money" not to provide for reasonable accommodations.

The Coordinator noted that many delegates wanted the text on reasonable accommodation to be either better defined or more refined and said the issue should be considered further. He proposed that interested delegations get together on an informal basis to further refine the concept/provision. He asked Gerald Quinn of RI, who had expertise on this matter, to convene this small group meeting. Ireland intervened that Quinn's views were well known and that although it did not share his views, it would be happy to meet with him. He questioned whether, given the plethora of small meetings, if it would be possible to devote an hour of the regular meetings to informal discussions. The Coordinator said it was a good idea and that implementation of that proposal of procedure would depend on the progress made. Lebanon proposed that members come back to reasonable accommodation in the 12th session on definitions because the Bangkok Draft discussed the concept in its section on definitions. The Coordinator called this another good proposal and proposed that the issue be dealt with in the provision on definitions. Canada intervened that their small group was almost done with their discussion, and proposed that Quinn's group meet at the 9 am slot they are currently using, on Monday. The Coordinator proposed that the group follow Canada's proposal and if that was not possible, Lebanon's proposal would be used.

South African Human Rights Commission called paragraph 6 too restrictive and called for a broader formulation because the text limited the number of fields that could adopt appropriate measures to combat stereotypes and prejudices. The Coordinator replied that it should consult with Mexico and Ireland on this issue.

Landmine Survivors Network (LSN) asked when the group would discuss vulnerable groups, an issue that Mexico had raised previously. The Coordinator said this point could be covered by way of footnote and said it went back to the question of including the issue of equality, not just non-discrimination, in this text.

India supported Canada's view on paragraph 3 and said that the inclusion of "disproportionate burden" in paragraph 4 was relevant to developing countries. It called the phrase after the semi-colon in paragraph 5, unnecessary and the inclusion of the word "teaching" redundant in paragraph 6. It wanted "educating the community" to be deleted from paragraph 6. The Coordinator replied that it should discuss paragraph 6 with Ireland and Mexico.

Disabled People International (DPI) supported RI's input on reasonable accommodation.

The Republic of Korea (ROK) called accommodation a traditional way of thinking and challenged the members to modify the terminology to "reasonable adaptation" as a new idea for the future.

Slovenia expressed concern that paragraph 3 gave too many justifications for discrimination and agreed with Germany that it should either be deleted or linked specifically to indirect discrimination.

Venezuela asked for clarification on what is meant by reasonable accommodation. The Coordinator said it should be read in relation to the second part of the paragraph 4; it basically meant what one had to do to ensure that particular result provided it is reasonable. He said he hoped it would be clarified in the small group meeting that Gerald Quinn would convene.

Thailand recalled a GA resolution on reasonable accommodation and proposed that it be used in relation to accessibility and universal design to make it less difficult. He reminded members some people preferred "reasonable adaptation" during the Bangkok discussions and recalled that reasonable accommodation had been used a lot in the Americans with Disabilities Act (ADA). He encouraged the input of people who had knowledge of this term, especially in relation to ADA and noted that it was "interesting" that few people had supported his intervention on paragraph 3.

The Coordinator noted that the United States was present as an observer at the meeting and had experience with regard to the term. The United States said that the term was reflected in both ADA and the Rehabilitation Act, in the context of the employment of PWD. It noted that the term has been specifically applied to the concept of employment (allowing PWD to work in a job setting) though the same principle has been applied to other situations such as in a college setting (though using a different term). It reiterated the limitations on reasonable accommodation, such as fundamental changes in a program and costs for small businesses. It noted that it would be happy to cooperate with Mr. Quinn's meeting on this issue. The Coordinator asked the delegates to participate in the small group meeting, as their input would be helpful and suggested that Thailand get together with the United States to flesh out issues it had on this issue. Thailand asked for clarification. The Coordinator said that he thought Thailand wanted more information on reasonable accommodation, from the U.S. context and Thailand replied that it was seeking assistance from the United States as a whole, with regard to this issue, not just one specific issue they had.

Colombia read a definition of reasonable accommodation from online consultants and pointed out that the term would go beyond adapting the environment and would go toward facilitating access to all PWD.

Ireland commented that reasonable accommodation was also found in EU legislation in connection to employment, in addition to U.S. legislation and pointed out that the delegates from RI and Germany were experts on this term. It said that there were discussions in the EU as to whether or not this term had to be defined in the text, because everyone knew what it meant. A definition was included, though, in the text, he said, and noted that delegates from the EU would draft language on the scope of this concept on the basis of EU legislation.

Coordinator intervened that this was not an easy task and that if the issue was not possible to resolve in the small group meetings, it could be left to the AHC.

South Africa said the text minimized elaboration on the question of equality, though it was referenced in the title of the article. It opined that the concept should be a fundamental part of the Convention and that elements of the Bangkok Draft could be considered in the explicit elaboration of the concept. It also noted that the definition of reasonable accommodation in paragraph 4 was similar to the one used in the South African context, but its definition was more encompassing to all aspects of life.

Sierra Leone said at this point, the article should be referred to the AHC and called attention to number 7 of the Standard Rules, specifically 3(a), as a way of expressing these issues being discussed.

WNUSP said the definition of reasonable accommodation, as written would be difficult and confusing for PWD to understand and that it was important that PWD knew what it applied to. It raised the question who decided what is reasonable for PWD and encouraged a positive approach to dealing with it, which must be included in the Convention as a concept.

ROK proposed the addition of "adjustment or adaptation" in regards to reasonable accommodation and encouraged members to look at the broader issue.

RIGHT TO RESPECT FOR PRIVACY, HOME, THE PROTECTION OF THE FAMILY, AND THE RIGHT TO MARRY

The Coordinator reminded the WG that Article 16 of the Chair Draft would be a framework for discussion and that there were other texts on this issue.

Inclusion International (II) discussed Article 15 of the Chair Draft as it did not have a chance to do so in the morning session. It reminded members that freedom of opinion is often neglected for those who have intellectual disabilities and that in institutions, where many reside; they are treated not as citizens but as patients. It noted the importance of guaranteeing this right irregardless of type of disability or the place in which the person resides. With respect to Article 16, he noted the lack of privacy in group homes and institutions and asked delegates to refer to Article 8 of the European Convention on Human Rights, which might be helpful in drafting this article. It criticized paragraph 3, as guardianship laws incapacitate PWD and suggested that it start with the term "legal assistance" as people with intellectual disabilities, especially in developing countries, might not receive this.

South Africa proposed that the "right to privacy" be a separate article, perhaps linked to Article 13 and 14, as Article 16 only focused on the domestic domain. She proposed the restructure of the "specific rights" section of the Chair Draft into four focus groups for the provisions: thematic; general; civil and political rights; and economic and social rights. The thematic group would contain articles 3, 9, 10, and 18 of the current text. The general group would contain articles 6, 8, part of 15 (part on access), 11, 21, 22c, 28, and 29. The civil and political group would contain articles 12, 13, 14, 15(part on freedom of expression), 16 (part on right to privacy), 17, and 19. The economic and social group would contain articles 20, 23, 24, 25, 26, 27, 28, and 16 (part on home, protection of family, right to marry). It stated that this structure would allow for a less complex document.

Coordinator said it would be helpful if the Chair could be provided copy of this framework and noted that he was simply using the Chair's text, as a framework for discussion of issues, not to prejudice the drafting in terms of structure. He said that structural issues would be discussed once the WG decided on what the content would be in each article.

The Inter-American Institute on Disability (IID) noted that Article 16 should refer to the rights of reproduction for women who have a disability as many women are convinced or told to avoid having children. It noted that is was sometimes the case for people who were deaf or blind. It commented that this should be eradicated.

Ireland said the article's content did not adequately elaborate all of the elements in the title. It suggested that the article be expanded or privacy be addressed in an article that was separate from an article on marriage, family, and relationships. It referred to Article 7(e), (f) of the EU Draft, which is based on the ICCPR and noted that the right to marriage was guaranteed in this instrument and that it was a right, and not a subset of another right. It called for further elaboration of EU Draft Article 7(f) and suggested that the approach taken in Article 16 of CEDAW might be useful as well as the wording in Standard Rule 9. It noted II's concern on guardianship law in paragraph 3 and questioned the appropriateness of quantifying financial issues in paragraph 4.

Coordinator interpreted paragraph 3 in light of CEDAW as saying that PWD had "equal rights to be guardian" and did not refer to a "guardian of them." He asked Ireland to read Rule 9 from the Standard Rules.

Ireland noted that the relevant part was in the second paragraph of Rule 9, where it talks about denial of opportunity.

WNUSP said it was unnecessary to single out parents who had intellectual or psychiatric disabilities in paragraph 4 as it could suggest/assume incapability without assistance with regard to these groups.

World Federation of the Deaf and Blind highlighted the perspective of this group with regard to privacy and relationships. It noted that many deaf/blind people are in institutions and may never know if they are alone or not, when they have privacy (i.e. they don't know the feeling of privacy). It raised questions on deaf/blind children who don't know issues of sexuality, especially in institutions. It noted also the importance of the principle "by law, they are having the right" because, he said "for us it feels like having that right."

Japan suggested that paragraph 3 be rewritten to make it specifically important to PWD and requested that paragraph 3 make clear that there are certain PWD who cannot achieve guardianship without assistance.

DPI noted that the international human rights framework does not explicitly link the right to family with PWD and that Standard Rule 9 addressed a range of these issues. It said it was essential that human rights law be strengthened so that PWD can enjoy that right. The delegate noted the situation of disabled women in her own country and the societal assumption that women with disabilities cannot make good mothers or wives and stated that existing human rights instruments do not try to remedy that assumption.

Germany concurred with Ireland that members look to Article 16 in CEDAW and Article 17 in the ICCPR for guidance on wording, as well as Standard Rule 9. She noted that the elements outlined in Standard Rule 9, were not addressed in CEDAW because it is not a general issue for women. It proposed that the issue of sexual violence be addressed in this Article (which is addressed in CRC Article 34), as women with disabilities are at particularly high risk. In this context, it noted that the article should address privacy issues for women. It also proposed better wording of the needs of disabled parents in paragraph 4.

The Coordinator pointed out the link between this article and Article 14 of the Chair's draft which deals with forced intervention.

Disability Australia Limited highlighted the discriminatory nature of family law in Asian states, in which legal discriminations are practiced with regards to certain groups'ability to engage in adoption, divorce, custody etc. It noted concern with paragraph 3 and 4 in that did not deal with deep-rooted practices and legal discriminations.

India commented that privacy was mentioned in the title of the Article but not in the body and called for mention of the concerns of privacy for women. It proposed that "in accordance to the policies in their countries" be added to paragraph 2.

China referred to Standard Rule 9 in the context of paragraph 2 and took note of India's statement on paragraph 2. It called for reference to specific conditions and policies of countries and said that the text should emphasize PWD as well as others, as having equal right to give birth, and said it could provide an alternative text to the Coordinator on this issue. It noted the prevalence of domestic violence against PWD and proposed this act be treated as a crime. It stated that it could provide text on this issue to the Coordinator.

The Coordinator noted that Canada and Morocco would intervene on Article 16 at the next session.

The Disability Negotiations Daily Summaries are published by the Landmine Survivors Network, a US based international organization with amputee support networks in six mine affected / developing countries. They cover the intergovernmental proceedings of the Ad Hoc Committee on the human rights of people with disabilities. Reporters covering the Working Group meetings are Elizabeth Kissam, Jennifer Perry and Zahabia Adamaly (editor). The Summaries are posted on line by noon the following day at www.worldenable.net and http://www.rightsforall.org They are translated into Japanese by the Japanese Society for Rehabilitation of Persons with Disabilities (dinf-j@dinf.ne.jp) and Spanish by the Inter American Institute on Disability (iidisab@aol.com) If you are interested in translating and disseminating the Summaries over the course of the Working Group meetings, and would like your contact information to be distributed, or have comments / questions, please write to Zahabia@landminesurvivors.org