Introduction
Development of
disability policy
International and Regional Instruments for Protection and Promotion
UNITED NATIONS
Advocacy, Educational and Training Materials
Introduction
Disability and persons with disabilities
Persons with disabilities are entitled to exercise their
civil, political, social, economic and cultural rights on an equal
basis with others. Disability "summarizes a great number of
different functional limitations occurring in any population in any
country of the world. People may be disabled by physical,
intellectual or sensory impairment, medical conditions or mental
illness. Such impairments, conditions or illnesses may be permanent
or transitory in nature." (Standard
Rules on the Equalization of Opportunities for Persons with
Disabilities). Different expressions are used when referring to
persons with disabilities. For example, the term "differently-abled
persons" indicates that disability is not perceived as a deviation
from the norm. The term "disabled persons" might be misinterpreted
to imply that the ability of the individual to function as a person
has been disabled. This guide uses the term "persons with
disabilities", which is consistent with the language used by the
United Nations (UN).
The UN estimates that there are 500
million persons with disabilities in the world today. This number is
increasing every year due to factors such as war and destruction,
unhealthy living conditions, or the absence of knowledge about
disability, its causes, prevention and treatment.
The majority of persons with disabilities
live in less developed countries where people lack access to
essential services such as health care. Moreover, there exists a
clear relationship between poverty and disability. The risk of
impairment is greater for a family that lives in poverty, while and
at the same time, a disabled family member places higher demands on
the family's resources.
Among persons with disabilities, the
following form particularly vulnerable groups that face
discrimination based on two grounds: women, children, elders,
victims of torture, refugees and displaced persons, and migrant
workers. For instance, women with a disability are discriminated
against because of their gender and also because of their
disability.
Development of disability policy
The work of the UN constitutes the most
important actions taken by an international organization in the area
of disability. Based on the
International Bill of Rights, the UN formulated the first
specific document regarding disabilities in 1971 in the
Declaration on the Rights of Mentally Retarded Persons.
Important other documents followed but none of them are legally
binding. The 1980s mark the main phase of activity regarding
establishing international norms pertaining to persons with
disabilities. In 1981, the General Assembly declared the first
International Year of Disabled Persons. It was followed by the World
Programme of Action Concerning Disabled Persons in 1982 and the
Decade of Disabled Persons 1983-1992. Throughout the 1990s all UN
conferences dealt with disability rights and addressed the need for
protective instruments (World Conference on Human Rights 1993,
Fourth World Conference on Women 1995, Habitat II 1996). At present,
the Ad Hoc Committee on Disabilities is involved in a process to
create a convention that protects disabled persons on an
international level. A high level of awareness is also demonstrated
by the European Union, the year 2003 was declared as the
European Year of People with Disabilities. Other important
regional observances include the Asian and Pacific Decade of
Disabled Persons (1993-2002), the
African Decade of Disabled People (2000-2009), and the
Arab Decade of Disabled Persons (2003-2012).
International and Regional Instruments for
Protection and Promotion
International legal instruments take the form of a treaty (also
called agreement, convention, or protocol) that binds the
contracting states to the negotiated terms. When negotiations are
completed, the text of a treaty is established as authentic and
definitive and is "signed" by the representatives of states. A state
can agree to be bound to a treaty in various ways. The most common
are ratification or accession. A new treaty is
ratified by those states that have negotiated the instrument. A
state that has not participated in the negotiations may, at a later
stage, accede to the treaty. The treaty enters into force, or
becomes valid, when a pre-determined number of states have ratified
or acceded to the treaty.
When a state ratifies or accedes to a treaty, that state may make
reservations to one or more articles of the treaty, unless
reservations are prohibited by the treaty. Reservations may normally
be withdrawn at any time. In some countries, international treaties
take precedence over national law; in others a specific law may be
required to give a ratified international treaty the force of a
national law. Practically all states that have ratified or acceded
to an international treaty must issue decrees, change existing laws,
or introduce new legislation in order for the treaty to be fully
effective on the national territory.
The binding treaties can be used to force governments to
respect the treaty provisions that are relevant for the human rights
of persons with disabilities. The non-binding instruments,
such as declarations and resolutions, can be used in relevant
situations to embarrass governments by negative public exposure;
governments who care about their international image may
consequently adapt their policies.
The following international instruments protect the rights of
persons with disabilities. They mainly focus on protecting disabled
persons from discrimination and creating equal opportunities for
them to participate in society.
UNITED NATIONS
Universal Declaration of Human Rights (1948) (article 3, 21, 23,
25)
The Universal Declaration of Human Rights (UDHR) was adopted by the
General Assembly of the United Nations in 1948 and provides human
rights standards accepted by all member states. The UDHR represents
the normative basis that led to formulating the standards concerning
persons with disabilities that exist today. In Article 25 (1) the
UDHR specifically mentions the socio-economic rights of people with
disabilities: the right to an adequate standard of living, including
food, clothing, housing and medical care and social services, and
the right to security in the event of unemployment, sickness,
disability, widowhood, old age. Article 7 guarantees equality before
the law and equal protection by the law for all people, including
against discrimination.
International Covenant on Civil and Political Rights (1966)
(article 26)
This treaty lists several rights that are relevant to disability.
Article 26 states that all people are equal before the law and have
the right to equal protection of the law.
International Covenant on Economic, Social and Cultural Rights
(1966) (article 2)
The Covenant does not explicit refer to disability. However,
disability can be included under "other status" in article 2 (2),
which calls for non-discrimination on any grounds such as race and
color, and "other status".
To more fully elaborate on the strategies for implementation of the
rights set forth in the International Covenant on Economic Social
and Cultural Rights, the
Committee on Economic Social and Cultural Rights -- the
monitoring body of the Covenant -- issued:
General Comment 5 (1994)
This General Comment by the Committee on Economic, Social and
Cultural Rights formulates obligations of states to eliminate
discrimination of persons with disabilities in the areas of equal
rights for men and women ("double discrimination") (article 3 of the
ICESCR), work (ICESCR articles 6-8), social security (article 9),
protection of the family (article 10), adequate standard of living
(article 11), right to physical and mental health (article 12),
right to education (articles 13 and 14) and the right to take part
in cultural life and enjoy the benefits of scientific progress
(article 15).
Declaration on the Rights of Mentally Retarded Persons (1971)
This declaration was proclaimed by the UN General Assembly and
states that: "The mentally retarded person has, to the maximum
degree of feasibility, the same rights as other human beings."
Declaration on the Rights of Disabled Persons (1975)
This declaration adopted by the UN General Assembly is the first
international document that tried to define the term "disability."
The Declaration includes a number of social and economic rights as
well as civil and political rights.
Declaration on the Rights of Deaf-Blind Persons (1979)
Article 1 of the Declaration states that "…every deaf-blind person
is entitled to enjoy the universal rights that are guaranteed to all
people by the Universal Declaration of Human Rights and the rights
provided for all disabled persons by the Declaration of the Rights
of Disabled Persons."
Convention on the Elimination of Discrimination Against Women
(1979) (article 3)
The Convention on the Elimination of Discrimination Against Women,
usually abbreviated as CEDAW, does not include any specific article
on disability rights, but aims to protect the rights of all women,
whether disabled or not. Disabled women face double discrimination
based on their gender and secondly, on their disability. In
General Recommendation 18 the Committee on the Elimination of
Discrimination Against Women, the monitoring body of the CEDAW
convention, stresses that disabled women suffer from double
discrimination and are a particularly vulnerable group. It
recommends that governments provide information on disabled women in
their period reports and on special measures that governments have
taken to ensure that women with disabilities "have equal access to
education and employment, health services and social security, and
to ensure that they can participate in all areas of social and
cultural life."
A major outcome of the International Year of Disabled Persons (1981)
was the formulation of the
World Programme of Action Concerning Disabled Persons (WPA)
(1982). The WPA is a global strategy to enhance disability
prevention, rehabilitation and equalization of opportunities, which
pertains to full participation of persons with disabilities in
social life and national development. The WPA also emphasizes the
need to approach disability from a human rights perspective.
Convention (No. 159) concerning Vocational Rehabilitation and
Employment (Disabled Persons) (1983)
This treaty of the International Labour Organization (ILO), a UN
specialized agency, obligates states to "formulate, implement and
periodically review a national policy on vocational rehabilitation
and employment of disabled persons" (article 2). This treaty also
emphasizes the principle of equal opportunity: "positive measures
aimed at effective equality of opportunity and treatment between
disabled workers and other workers shall not be regarded as
discriminating against other workers" (article 4).
Convention on the Rights of the Child (1989) (article 2, 6, 12,
23, 28)
This treaty lists disability as one of the grounds discrimination is
prohibited on (article 2). In addition, article 23 directly
addresses the rights of children with disabilities stating that
disabled children are entitled to a "full and decent life" of
dignity and participation in the community.
Principles for the Protection of Persons with Mental Illnesses and
the Improvement of Mental Health Care (1991)
This document adopted by the UN General Assembly sets detailed
standards for the protection of persons with mental disabilities. It
emphasizes that all persons have the right to the best available
mental health care and that persons with a mental illness shall be
treated with humanity and respect for the inherent dignity of the
human person. Individuals with mental disabilities also have the
right to protection from economic, sexual and other forms of
exploitation, physical or other abuse and degrading treatment. The
Principles stipulate that there shall be no discrimination on the
grounds of mental illness and that persons with a mental illness
shall have the right to exercise all civil, political. In case a
person lacks legal capacity due to his or her mental illness any
decisions related to the well-being of this person shall be made
only after a fair hearing by an independent and impartial tribunal
established by domestic law.
Standard Rules on the Equalization of Opportunities for Persons with
Disabilities (1993)
Adopted by the General Assembly in 1993 in the aftermath of the
Decade of Disabled Persons, the Standard Rules do not constitute a
legally binding document for member states. However the Standard
Rules are the most comprehensive set of human rights standards
regarding disability police to date and represent "a strong moral
and political commitment of Governments to take action to attain
equalization of opportunities for persons with disabilities." The
document addresses preconditions for equal participation, target
areas of equal participation, implementation measures and monitoring
mechanisms.
Implementation of the Standard Rules on the Equalization of
Opportunities for Persons with Disabilities are monitored by the
Special Rapporteur on Disability. The first Special
Rapporteur, Bengt Lindqvist (Sweden), was appointed in 1994, and his
mandate was renewed twice, in 1997 and 2000. In 2003, Sheikha Hessa
Khalifa bin Ahmed al-Thani (Qatar) was appointed as the Special
Rapporteur for the period 2003-2005.
Beijing Declaration on the Rights of
People with Disabilities (2000)
This declaration was adopted at the World NGO Summit on Disability
and calls for a higher standard of living, equal participation and
the elimination of discriminatory attitudes and practices.
AFRICAN UNION (FORMERLY ORGANIZATION OF AFRICAN UNITY, OAU)
African Charter on Human and Peoples' Rights (1981) (article 18)
The Charter contains article 18 (4) which states that disabled
persons have the right to special measures of protection and article
16 (1) provides that every individual shall have the right to enjoy
the best attainable state of physical and mental health.
COUNCIL OF EUROPE
The Council of Europe is a regional intergovernmental organization
consisting of 45 countries. It aims to defend human rights,
parliamentary democracy and the rule of law. All members of the
European Union also belong to the Council of Europe. The Council of
Europe has not adopted any specific human rights treaty on persons
with disabilities, but created two important treaties that include
the protection of disabilities rights:
European Convention on the Protection of Human Rights and
Fundamental Freedoms (1950) (article 5)
Article 5 of the Convention states that the right to liberty and
security can be infringed upon on grounds of mental disability: "No
one shall be deprived of his liberty save in the following cases and
in accordance with a procedure prescribed by law: [...] the lawful
detention of persons for the prevention of the spreading of
infectious diseases, of persons of unsound mind, alcoholics or drug
addicts or vagrants."
European Social Charter (1961) (article 15)
The Charter works as the counterpart to the Convention addressing
social and economic rights, such as the right to work, or the right
to social security. The Charter was the first human rights treaty to
explicitly mention disability.
In addition the Parliamentary Assembly of the Council of Europe has
adopted several recommendations about policies regarding persons
with disabilities:
Recommendation (818) on the Situation of the Mentally Ill (1977)
This document outlines recommendations regarding the protection of
mentally ill persons in court, and the legislation rules on the
confinement of mentally ill persons.
Recommendation (1185) on Rehabilitation Policies for the Disabled
(1992)
This recommendation urges member states to ensure active
participation in society and equal opportunities for disabled
persons.
Recommendation No. R(92)6 on a Coherent Policy for the
Rehabilitation of People with Disabilities (1992)
This instrument recognizes the rights of disabled persons to be
different and focuses on the right to independent living and full
integration into society.
EUROPEAN UNION
The
European Parliament has adopted several resolutions
referring specifically to the protection of disability rights. The
Resolution on the human rights of disabled people (1995) urges
the European Commission, the executive branch of the European Union,
to take steps to ensure equal opportunities for disabled persons.
The
Resolution on threats to the right to life of disabled persons
(1996) seeks to protect the right to life and states that the
European Parliament is "opposed to the practice of the active
killing by doctors of patients in a persistent vegetative state and
disabled new-born children." Finally, the
Resolution on the Commission's communication on equality of
opportunity for people with disabilities (1997) recognizes that
"there are 37 million disabled people in the European Union who do
not enjoy full civil and human rights" and reminds member states of
their responsibility to implement disability protection laws on the
national level. In December 2000, the Council of Ministers of the
European Union adopted a (binding) general
Framework Directive on equal treatment in employment prohibiting
direct and indirect discrimination on the grounds of religion or
belief, age, disability or sexual orientation. The Framework
Directive is binding upon the current member states, while candidate
member states are required to have completed national implementation
of the Directive before joining the EU.
ORGANIZATION OF AMERICAN STATES (OAS)
American Convention on Human Rights (1969) (article 24)
The Convention does not explicitly address the subject of
disability, but contains the classical human rights guarantees. For
example, Article 24 states the right to equal protection.
Additional Protocol to the American Convention on Human Rights in
the area of Economic, Social, and Cultural Rights (Protocol of San
Salvador) (1988) (article 18)
This treaty specifically that persons with disabilities are entitled
to receive special attention in order to achieve the greatest
possible development of his or her personality. It also obliges
governments to implement special measures to facilitate the full
integration of persons with disabilities.
Inter-American Convention on the Elimination of All Forms of
Discrimination Against Persons With Disabilities (1999)
This Convention aims to prevent and eliminate all forms of
discrimination against disabled persons and to promote their full
integration into society.
National Protection and Service Agencies
Several countries such as the Australia, India, the United Kingdom
and the USA have passed and implemented national anti-discrimination
laws, guaranteeing full participation in society by persons with
disabilities.
In Australia, the
Disability Discrimination Act was passed in 1992. The objectives
of the Act are "to eliminate, as far as possible, discrimination
against persons on the ground of disability in the areas of: work,
accommodation, education, access to premises, clubs and sport; and
the provision of goods, facilities, services and land; and existing
laws; and the administration of Commonwealth laws and programs; and
to ensure, as far as practicable, that persons with disabilities
have the same rights to equality before the law as the rest of the
community; and to promote recognition and acceptance within the
community of the principle that persons with disabilities have the
same fundamental rights as the rest of the community."
In India, two national instruments were passed, the
Rehabilitation Council of India Bill and the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act.
In the United Kingdom, the
Disability Discrimination Act of 1995 aims to end the
discrimination which many persons with disabilities face. The Act
enumerates rights in the areas of employment, access to goods,
facilities and services and buying or renting land or property.
In the United States, civil rights law regarding persons with
disabilities is based on a number of laws among which the
Americans with Disabilities Act (ADA) is the most important one.
The ADA prohibits discrimination on the basis of disability in
employment, state and local government, public accommodations,
commercial facilities, transportation, and telecommunications.
Examples of further national legislation are the Civil Rights of
Institutionalized Persons Act, the Individuals with Disabilities
Education Act and the Rehabilitation Act.
Advocacy, Educational and Training Materials
For advocates
Guide to Disability Rights (and dealing with the system)
This guide provides practical information on employment, free
medication, social security benefits, special education, and tax
benefits.
Training Materials for Lawyers and NGOs on the European Convention
on Human Rights and the rights of people with mental health problems
and/or developmental disabilities (Mental Disability Advocacy
Center, Budapest, 2002).
This training manual was written for lawyers and NGOs attending
training seminars organised by the Mental Disability Advocacy Center
(MDAC) and partner NGOs during 2002. The materials are intended to
provide insight into the European Convention on Human Rights and
mental disability in Central and Eastern Europe. The goal of this
manual is to provide an initial look into the human and civil rights
of people with mental health and/or developmental disabilities in
this region. Subsequently definitions of mental health problems and
developmental disabilities are given here along with relevant
articles of the European Convention on Human Rights and case law of
the European Court of Human Rights and the Council of Europe
Committee for the Prevention of Torture.
For teachers
Ten messages about children with disabilities (UNICEF)
Practical tips for to help children with disabilities learn in a
safe and equitable environment.
The Disabled: "Making Our Own Charter" (by Richard Pierre Claude
in: Popular Education for Human Rights: 24 Participatory
Exercises for Facilitators and Teachers, HREA, 2000)
This is a highly participatory and can be adapted to diverse
settings and cultures. At the conclusion of this exercise
participants should be able to identify some of the special needs of
persons with disabilities; justify identifying the needs and rights
of the disabled in the form of a brief Preamble to a Charter for the
Disabled; identify a series of human rights of the disabled that
specifically reflect their needs and are not inconsistent with
existing broader international and national rights standards; and
adopt a plan of action to ensure that disable people learn about
their human rights.
Other Resources
Disabled Persons and Human Rights
European Year of People with Disabilities (2003)
International Day of Disabled Persons
Organisations advocating for and educating about the rights of
persons with disabilities
For
more information please find website:
http://www.hrea.org
http://www.unhchr.ch
Human Rights for Persons
with disabilities