Expert Group Meeting and Seminar on an International Convention to Protect and Promote the Rights and Dignity of Persons with Disabilities
Bangkok, Thailand, 2-4 June 2003

What kind of positive measures?

Discussion Paper for the On-line Seminar

Most human rights conventions work toward equality in treatment for all persons. This is, in one sense, the essence of non-discrimination. At the same time, some of the Conventions recognize that in order to achieve de facto equalization of opportunities [1], it may be necessary to institute some kind of positive discrimination. The rationale for this is that the present day consequences of past inequalities can make equalization impossible. For example, if women were systematically discriminated against in access to education in the past, they will have less education than men today. Something should be done to compensate for this so that the effects of discrimination are not perpetuated.

POSITIVE DISCRIMINATION IN CEDAW

With this in mind, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), has Article 4 that permits positive discrimination (discrimination in favor of women that might be against men) under two circumstances. The article states:

Article 4

1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.

2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.

The first paragraph recognizes that in order to quickly fill the gaps in opportunities for women, special measures may have to be adopted. They include such things as special quotas or targets in hiring or political participation or special programmes for women only. However, to ensure that these do not institutionalize discrimination against men, the measures must be temporary.

The second paragraph, however, points to a form of permanent positive discrimination. When CEDAW was negotiated, many countries had laws in place that were intended to protect women who were pregnant. These included different types of incentives, laws that did not permit them to do some kinds of work, different leave possibilities than men (such as paid leave from jobs for over two years in some countries). Because of the value to society of maternity, the Convention defined these policies and programmes as non-discriminatory.

THE ROLE OF POSITIVE DISCRIMINATION IN A CONVENTION ON DISABILITY

Many of the conditions that define disability will require positive discrimination if equalization of opportunities is to be achieved. This means that, in some areas, persons with disabilities will need to have more resources, or special programmes that are not available to persons that are not considered to have a disability. All of this comes under the heading of "reasonable accommodation", steps that should be taken by public entities or enforced by law and policy. A reasonable accommodation is something that provides an adjustment that is necessary if persons with disabilities are to have equal opportunities to participate or act.

Many steps taken to make the physical environment accessible (and are a reasonable accommodation) are not discriminatory. If ramps are used instead of stairs, this would not discriminate against persons who use stairs, or if bathrooms are designed to accommodate wheelchairs, persons not needing wheelchairs can use them as well.

A classic case of positive discrimination is setting aside parking spaces near building entrances for persons with disabilities. Since persons not having a disability cannot (or at least should not) use the spaces, this is discriminatory. Similarly, having a special bus fare for persons with disabilities is discriminatory, but reflects the fact that persons with disabilities tend to have less income.

What distinguishes these measures from the positive discrimination found in CEDAW is the fact that some of the measures will have to be permanent rather than temporary.

The issue here is what positive measures are needed by persons with disabilities and which of these should be considered permanent.

While this issue will inevitably work its way into the specific articles of the convention dealing with specific aspects of life, the Convention needs to have a clear statement of the principle.

The Standard Rules do not articulate a principle of positive measures, although many of the detailed measures presuppose a kind of positive discrimination. In the paper on elements for a convention proposed by the Government of Mexico, there is a proposed article 4 that is modeled on the CEDAW article and states:

Article 4

1. In order to guarantee equality of rights and opportunities for persons with disabilities, States Parties shall promote, among others, positive or compensatory measures.

2. States Parties shall adopt specific measures to protect persons with disabilities who are in special situations of vulnerability.

In the proposal, the term "compensatory" is used, which implies a form of off-set because of the condition of disability, but the meaning of positive measures is not clear from the text. The second element, protection, seems to be unrelated to equalization of opportunities.

HOW CAN THESE ISSUES BE ADDRESSED IN THE CONVENTION?

Based on the foregoing analysis, some elements could be suggested:

1. If the Convention is to be protected against persons who do not have a disability challenging measures that discriminate against them (like quotas, special rates or designated parking places), it would seem that there has to be a clear statement that positive discrimination, sometimes permanent, is required in some areas to ensure equalization of opportunity.
2. The rationale for positive discrimination should be built on the necessary reduction of limitations or restrictions on participation, where the key factor is equality in participation.
3. The measures should not be seen as compensatory in a "welfare" sense of entitlement, but in a developmental context, where the positive measures will liberate the potential of persons with disabilities and thereby contribute to the common good of society.
4. Positive discrimination should focus on those areas where the limitation or restriction being addressed would otherwise preclude equalization of opportunities.
5. Permanent positive measures should be restricted to the extent possible to those that are linked to the disability itself to avoid creating persons with disabilities as a different or "privileged" class.

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Note:

[1] An important distinction is equality of opportunity, rather than equality of result. The assumption of the conventions is that if equality of opportunity is provided, it is up to the individual to take advantage of this.

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Last updated 05/20/03. Contact: facilitator@worldenable.net