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protection and promotion of the rights of persons with disabilities is taken into account in
all policies and programmes.
B.
Article 5 (1) on equal protection and equal benefit of the law
16.
“Equal protection of the law” and “equal benefit of the law” include related but
distinct concepts of equality and non-discrimination. The phrase “equal protection of the
law” is well known in international human rights treaty law and is used to demand that
national legislatures refrain from maintaining or establishing discrimination against persons
with disabilities when enacting laws and policies. Reading article 5 in conjunction with
articles 1, 3 and 4 of the Convention, it is clear that, in order to facilitate the enjoyment by
persons with disabilities on an equal basis of the rights guaranteed under legislation, States
parties must take positive actions. Accessibility, reasonable accommodation and individual
supports are often required. To ensure equal opportunity for all persons with disabilities, the
term “equal benefit of the law” is used, meaning that States parties must eliminate barriers
to gaining access to all of the protections of the law and the benefits of equal access to the
law and justice to assert rights.
C.
Article 5 (2) on the prohibition of discrimination and equal and
effective legal protection
17.
Article 5 (2) contains the legal requirements for achieving equality rights for persons
with disabilities and persons associated with them. The obligations to prohibit all
discrimination on the basis of disability includes persons with disabilities and their
associates, e.g. parents of children with disabilities. The obligation to guarantee to persons
with disabilities equal and effective legal protection against discrimination on all grounds is
far-reaching and imposes positive duties of protection on States parties. Disability-based
discrimination is defined in article 2 as “any distinction, exclusion or restriction on the basis
of disability which has the purpose or effect of impairing or nullifying the recognition,
enjoyment or exercise, on an equal basis with others, of all human rights and fundamental
freedoms in the political, economic, social, cultural, civil or any other field. It includes all
forms of discrimination, including denial of reasonable accommodation.” That definition is
based on legal definitions of discrimination in international human rights treaties, such as
article 1 of the International Convention on the Elimination of All Forms of Racial
Discrimination and article 1 of the Convention on the Elimination of All Forms of
Discrimination against Women. It goes beyond those definitions in two aspects: first, it
includes “denial of reasonable accommodation” as a form of disability-based discrimination;
second, the phrase “on an equal basis with others” is a new component. In its articles 1 and
3, the Convention on the Elimination of All Forms of Discrimination against Women
contains a similar but more limited phrase: “on a basis of equality of men and women”. The
phrase “on an equal basis with others” is not only limited to the definition of disabilitybased discrimination but also permeates the whole Convention on the Rights of Persons
with Disabilities. On the one hand, it means that persons with disabilities will not be
granted more or fewer rights or benefits than the general population. On the other hand, it
requires that States parties take concrete specific measures to achieve de facto equality for
persons with disabilities to ensure that they can in fact enjoy all human rights and
fundamental freedoms.
18.
The duty to prohibit “all discrimination” includes all forms of discrimination.
International human rights practice identifies four main forms of discrimination, which can
occur individually or simultaneously:
(a)
“Direct discrimination” occurs when, in a similar situation, persons with
disabilities are treated less favourably than other persons because of a different personal
status in a similar situation for a reason related to a prohibited ground. Direct discrimination
includes detrimental acts or omissions based on prohibited grounds where there is no
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