Disabled Persons

Discrimination against persons with disabilities has a long history and persons with disabilities are regularly excluded from participation in society and denied their human rights. Discrimination against the disabled can take many forms, ranging from limited educational opportunities to more subtle forms, such as segregation and isolation because of physical and social barriers. The effects of discrimination are most clearly felt in the sphere of economic, social and cultural rights, in the fields of, for instance, housing, employment, transport, cultural life and access to public services. The obstacles the disabled face in enjoying their human rights are often the result of exclusion, restriction, or preference, and, for instance, when the disabled do not have access to reasonable accommodation on the basis of their limitations, their enjoyment or exercise of human rights may be severely restricted. In order for disabled persons to freely enjoy their fundamental human rights, numerous cultural and social barriers have to be overcome; changes in values and increased understanding at all levels of society has to be promoted, and those social and cultural norms that perpetuate myths about disability have to be put to rest.

At the national level, disability legislation and policies are often based on the assumption that the disabled are not able to exercise the same rights as non-disabled persons, thus often focusing on rehabilitation and social security. It is, however, increasingly recognised that domestic legislation must address all aspects of the human rights of the disabled, ensuring their participation in society on an equal footing with people without disabilities, creating opportunities for people with disabilities and eliminating discrimination. Although domestic legislation has the prime role in generating social change and promoting the rights of disabled persons, international standards concerning disability can be very useful for setting common norms for disability legislation. Violations of the human rights of persons with disabilities have not been systematically addressed in the sphere of international legal bodies, but in recent years the rights of the disabled have come to be discussed in various international fora.

 

A. Standards

The Convention on Rights of Persons with Disabilities (CRPD) was adopted by UNGA Resolution 61/106 of 13 December 2006. It entered into force on 2 May 2008. The purpose of the Convention is to ‘ensure the full, effective and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities and to promote respect for their inherent dignity’. Article 2 enshrines the principles upon which the Convention is based: dignity, freedom of choice, independence, non-discrimination, full inclusion, participation, respect for difference, acceptance of disability as part of human diversity, and equality of opportunity, accessibility, equality between men and women and respect for the evolving capacities of children with disabilities and their right to preserve their identities.

States parties undertake to ensure the full realisation of all human rights, to all individuals, without discrimination on the basis of disability. Steps to this end include the adoption of appropriate legal protection, the mainstreaming of disability issues into economic and social development policies and programmes, and the promotion of universally designed goods, services, equipment and facilities. States shall also consult with and actively engage persons with disabilities and their organisations in the development and implementation of policies and legislation aimed at implementing the Convention (Article 4). The Convention prohibits discrimination (Article 5) and stipulates special protection for disabled women and children (Articles 6 and 7). States parties have a duty to adopt immediate and effective measures to raise awareness of disability throughout society, to combat stereotypes and promote an image of persons with disabilities as capable and contributing members of society (Article 8). The Convention sets out civil and political rights as well as economic, social and cultural rights: the right to life (Article 10), equal recognition before the law (Article 12), access to justice (Article 13), liberty and security of the person (Article 14), freedom from torture (Article 15), freedom from exploitation, violence and abuse (Article 16), integrity of the person (Article 17), liberty of movement and nationality (Article 18), freedom of expression and opinion, and access to information (Article 21), respect for privacy (Article 22), respect for the home and the family (Article 26), education (Article 24), health (Article 25), work and employment (Article 27), adequate standard of living and social protection (Article 28) and participation in political and public life (Article 29). Rights specific to the Convention include the rights to live independently and be included in the community (Article 19), right to protection and safety of persons with disabilities in situations of risk (Article 11), the right to personal mobility (Article 20), the right to habilitation and rehabilitation (Article 26) and the right to participation in cultural life, recreation, leisure and sport (Article 30). In addition, parties to the Convention shall raise awareness of the human 412 PART IV. The Human Rights Protection of Vulnerable Groups rights of persons with disabilities (Article 8), and ensure access to the physical environment, to transportation, to information and communications and to other public facilities and services (Article 9). Article 31 commits states parties to data collection and statistical analysis, an essential measure in formulating and implementing appropriate policies with respect to the rights of persons with disabilities. The Convention recognises the importance of international cooperation for the realisation of rights of disabled persons, stipulating that states parties will undertake appropriate and effective measures in this regard, between and among themselves and, as appropriate, in partnership with relevant international and regional organisations and civil society, in particular organisations of persons with disabilities (Article 32).

The Convention is monitored by the Committee on the Protection of the Rights of Persons with Disabilities. The Committee consists of 12 independent experts elected for four-year terms, renewable once, and should include experts with disabilities. After an additional sixty ratifications or accessions to the Convention, the Committee’s membership will increase to 18. States parties are invited to actively involve persons with disabilities and their representative organisations when nominating candidates for election to the Committee.

Prior to the adoption of the CRPD, international human rights instruments protected the rights of persons with disabilities through the principles of equality and non-discrimination. The UDHR refers expressly to disabled persons, stipulating in Article 25 that ‘everyone has the right to security in the event of [?] disability’. Its derivatives, the ICCPR and ICESCR, do not contain any explicit reference to persons with disabilities; many provisions of the Covenants are, however, of direct relevance for ensuring equal opportunities and the full participation of persons with disabilities in society; for example, Article 6 (respecting the right to life) and Article 7 (respecting the right to freedom from torture and other cruel, inhuman or degrading treatment and punishment) under the ICCPR and Article 2 (the general non-discrimination norm) under the ICESCR. Article 23 CRC specifically discusses the rights of handicapped and disabled children.

The Committee on Economic, Social and Cultural Rights has adopted a General Comment on persons with disabilities. General Comment 5 is particularly important as it establishes that disability falls under the heading, ‘other status’ in Article 2 ICESCR and is therefore regarded by the Committee as a prohibited ground for discrimination. Similarly, the Committee on the Elimination of All Forms of Discrimination Against Women has adopted General Recommendation 18 on disabled women.

Several international and regional human rights instruments contain specific provisions concerning persons with disabilities.

Under the auspices of the AU, Article 18(4) ACHPR stipulates that the disabled shall be entitled to special measures of protection and the African Charter on the Rights and Welfare of the Child discusses the rights of handicapped children in Article 13.

The European Social Charter (revised) stipulates that disabled persons have the right to independence, social integration and participation in the life of the community’ (Part I No. 15) and sets out steps that states shall undertake to this end, such as promoting access to employment and education (Article 15).

The EU Directive establishing a general framework for equal treatment in employment and occupation (Framework Employment Directive), 2000/78/EC prohibits discrimination on the grounds of disability. The employer must provide ‘reasonable accommodation’ with regard to work practises, access and training. The European Commission, through its Disability Action Plan (DAP), also seeks to ensure the mainstreaming of disability issues within all relevant EU policies. The plan is developed in two-year phases, with each phase concentrating on different areas of policy. The 2008-2009 plan assesses the need to amend or adjust EU policies in light of the entry into force of the CRDP.

In the Inter-American system, Article 6 Protocol of San Salvador stipulates: ‘States Parties undertake to adopt measures to make the right to work fully effective [?] in particular, those directed to the disabled’ and Article 9 sets out the right to social security in case of disability. Moreover, provisions in human rights instruments protecting members of vulnerable groups are applicable to disabled persons.

Two other Conventions dealing directly with the rights of disabled persons have been adopted. One is the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities (1999) (see II§3.B). States parties undertake, inter alia, to adopt necessary measures to eliminate discrimination against persons with disabilities; to ensure access to facilities and services; to provide services to ensure optimal level of independence and quality of life for persons with disabilities; and to implement educational campaigns to increase public awareness so that discrimination can be eliminated, promoting respect for and co-existence with persons with disabilities (Article 3). Furthermore, states parties undertake to collaborate and co-operate to eliminate discrimination (Article 4) and to promote participation of organisations of persons with disabilities in the measures and policies adopted to implement the Convention (Article 5). The other Convention is ILO 159 concerning Vocational Rehabilitation and Employment (Disabled Persons) (1983). It sets out, inter alia, principles of vocational rehabilitation and employment policies aimed at equal opportunity and measures for action at the national level to be taken for the development of rehabilitation and employment services for disabled persons.

Specific non-binding instruments have also been adopted at the international level addressing the rights of disabled persons. These instruments include the Declaration of the Rights of Mentally Retarded Persons (UNGA Resolution 26/2856 (XXVI), 1971); the Declaration on the Rights of Disabled Persons (UNGA Resolution 30/3447 (XXX), 1975); the World Programme of Action concerning Disabled Persons (UNGA Resolution 37/52, 1982); the Tallinn Guidelines for Action on Human Resources Development in the Field of Disability (UNGA Resolution 44/70, 1990); the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (UNGA Resolution 46/119, 1991); ILO Recommendations concerning Vocational Rehabilitation of the Disabled (1955) and concerning Vocational Rehabilitation and Employment (Disabled Persons) (1983); the Sundberg Declaration on Actions and Strategies for Education, Prevention and Integration (1981); the Salamanca Statement on Principles, Policy and Practice in Special Needs Education (1994); and the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities (UNGA Resolution 48/96, 1993).

A World NGO Summit on Disability was held in Beijing in March 2000, resulting in the Beijing Declaration on the Rights of People with Disabilities in the New Century. Through this Declaration, the NGOs in the field of disability lent their moral authority to the idea of a disability-specific human rights treaty.

 

B. Supervision

The CRPD contains a unique provision regarding national monitoring and implementation. States parties shall designate one or more focal points within government for matters relating to the implementation of the Convention, and shall give due consideration to the establishment or designation of a coordination mechanism within government to facilitate related action in different sectors and at different levels. States parties are also to maintain, strengthen, designate or establish a framework, including one or more independent mechanisms, to promote, protect and monitor implementation of the Convention. When designating or establishing such a mechanism, states parties shall take into account the principles relating to the status and functioning of national institutions for the protection and promotion of human rights. Finally, civil society is given a central role in promoting the implementation of the Convention as Article 33 sets out that civil society shall be involved and participate fully in the monitoring process established by states parties.

The traditional CRPD supervisory mechanism is the reporting mechanism (Article 35). States parties shall report on the steps they have taken to implement the Convention within two years of its entry into force for the state concerned, and thereafter at least every four years or whenever the Committee on the Rights of Persons with 415 Disabled Persons Disabilities so requests. After examining the reports, the Committee will transmit such comments as it may consider appropriate to the state party concerned.

Under the Optional Protocol to the CRPD, states parties may recognise the competence of the Committee on the Rights of Persons with Disabilities to receive communications from individuals or groups of individuals on alleged violations of rights bestowed upon them by the Convention. If the Committee is satisfied that the matter has not been, and is not being, examined in another international context, and that all domestic remedies have been exhausted, it may call for explanations and express its views. At any time after the receipt of a communication the Committee may request that a state party take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims of the alleged violation.

Article 6 Optional Protocol enables the Committee to initiate a confidential investigation when it receives reliable information indicating grave or systematic violations by a state party of rights enshrined in the CRPD. The Committee may designate one or more of its members to conduct an inquiry and to report urgently to it. Where warranted and with the consent of the state party, the inquiry may include a visit to its territory. The Committee shall transmit its findings to the state concerned togetherwith any comments and recommendations. The state should in return submit its observations to the Committee within six months of receiving the findings. Inquiries shall be conducted confidentially and the cooperation of the state in question shall be sought at all stages of the proceedings.

One of the major development goals of the United Nations is promoting the quality of life of the disadvantaged, including people with disabilities. The year 1982 was the UN International Year of Disabled Persons and the World Programme of Action concerning Disabled Persons (WPA) was adopted by the UNGA. The WPA is a global strategy to enhance disability prevention, rehabilitation and equalisation of opportunities with the aim of full participation of persons with disabilities in social life and national development. The WPA emphasises the need to approach disability from a human rights perspective and that persons with disabilities should not be treated in isolation, but within the context of normal community services. The WPA provided analysis of principles, concepts and definitions relating to disabilities and an overview of the world situation regarding persons with disabilities, setting out recommendations for action at the national, regional and international levels.

In order to provide a time frame for the implementation of the World Programme of Action, the UNGA proclaimed 1983-1992 the United Nations Decade of Disabled Persons. One of the major results of the Decade was the adoption of the ‘Standard Rules on the Equalisation of Opportunities for Persons with Disabilities’. Although not legally binding, the rules summarise the message of the WPA, cover all aspects of the life of disabled persons and set out the moral and political commitment of states to take action to attain equal opportunities for the disabled; the rules serve as policy instrument and as a foundation for economic and technical co-operation.

In 1994, the position of Special Rapporteur on Disability of the United Nations Commission for Social Development was established. The task of the Special Rapporteur is to monitor the implementation of the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities and to advance the status of people with disabilities throughout the world. Furthermore, under the auspices of the UN, the Division for Social Policy and Development of the United Nations Secretariat is a focal point on matters relating to disability. The Division deals, inter alia, with the promotion, monitoring and evaluation of the implementation of the World Programme of Action and the Standard Rules; it prepares publications, promotes national and international programmes and works closely with and supports governments and NGOs in the field of disability. The Division also publishes the UN Enable, the United Nations Persons with Disabilities website, see www.un.org/disabilities.

The Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities established a supervisory body, the Committee for the Elimination of All Forms of Discrimination against Persons (Article 6). The Committee is charged with reviewing reports submitted by states parties on ‘ measures adopted by the member states pursuant to [the] Convention and on any progress made by the states parties in eliminating all forms of discrimination against persons with disabilities. The reports shall indicate any circumstances or difficulties affecting the degree of fulfilment of the obligations arising from [the] Convention’. The Committee held its first meeting in February 2009.

The Human Rights Committee has dealt with disability, often in relation to discrimination or inhuman treatment. In Vos v. The Netherlands, the Committee found that a differentiation with regard to disability benefits among disabled women on the sole ground of marital status as a widow was not based on reasonable and objective criteria and therefore constituted prohibited discrimination. In Hamilton v. Jamaica the Committee found the failure of the state to accommodate the author as a disabled person in prison amounted to inhuman treatment. Similarly, in Brough v. Australia, the author’s extended confinement to an isolated cell without any possibility of communication, combined with his exposure to artificial light for prolonged periods and the removal of his clothes and blanket, was not commensurate with his status as a juvenile person in a particularly vulnerable position because of his disability and his status as an Aboriginal. As a consequence, the hardship of the imprisonment was manifestly incompatible with his condition, as demonstrated by his inclination to inflict self-harm and a suicide attempt. The Committee therefore concluded that the author’s treatment was inhuman, violating Article 10 ICCPR.

The European Court has dealt with some cases concerning discrimination and disability, many concerning disability benefits. In Ásmundsson v. Iceland the Court found that the applicant’s right to property had been violated when his disability pension was discontinued (see also, e.g., Maurice v. France, Miller v. Sweden, Gheorghe v. Romania and Danilchenko v. Russia). In Vincent v. France the Court considered that to detain a handicapped person in a prison where he could not move about and, in particular, could not leave his cell independently, amounted to ‘degrading treatment’ within the meaning of ECHR (see also Hüseyin Yildirim v. Turkey). In D.H. and Others v. The Czech Republic the Court ruled that the Czech Republic had violated the ECHR by assigning non-disabled Roma children to segregated special education schools. In Shtukaturov v. Russia the Court ruled that Russia had violated the ECHR through several acts that deprived an individual with mental disabilities of his legal capacity, including placing him in an institution.

In Mental Disability Advocacy Center v. Bulgaria (Complaint No. 41/2007), the European Committee of Social Rights ruled that Bulgaria violated the human rights of children with intellectual disabilities under the ESC by institutionalising them in settings without equal access to education.

The European Court of Justice has elaborated upon the provisions of the Framework Employment Directive 2000/78/EC. For instance, in the case of Coleman v. Attridge Law (C-303/06), the plaintiff alleged that her employers treated her less favourably than her co-workers as a result of her responsibilities as carer for her disabled son. The Court decided that the principle of equal treatment enshrined in the Directive extends to all discrimination based on disability and is not limited to those who are themselves disabled. This concept is called ‘discrimination by association’. The aim of the Directive is the integration of disabled persons, and the Court took the view that the ill-treatment of those associated with disabled persons could jeopardise that integration.

The International Day of Disabled Persons is 3 December each year. The aim is to promote an understanding of disability issues and mobilise support for the dignity, rights and well-being of persons with disabilities. Similarly, the United Nations Economic and Social Commission for Western Asia (ESCWA) has launched the Arab Decade for People with Disabilities from 2003-2012. The African Union designated the years 2000-2009 to be the African Decade of Persons with Disabilities; subsequently extending it until 2019.


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