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UN Programme on Disability   Working for full participation and equality

COMPILATION OF INTERNATIONAL NORMS
AND STANDARDS RELATING TO DISABILITY

Part I. National Frameworks. 3/5 previousTable of Contentsnext

2. The Legislative Process

Index

INTRODUCTION
PART I. National Frameworks for the Protection of Rights of Persons with Disabilities
1. International Law and National Frameworks
1.1 Sources of International Law
1.2 The Role of Custom
1.3 The Role of Treaties
1.4 International Law in Municipal Law
1.5 Locating Human Rights Law in Municipal Law
1.6 Two Basic Concepts about Constitutions
1.7 International Law and Municipal Law Interface
1.8 The Role of the Constitution in Municipal Law
1.9 The Supremacy of the Constitution
1.10 Judicial review of Legislation
2. The Legislative Process
2.1 Equal Protection
2.2 Affirmative Action
2.3 Integration Policy: Education and Professional Training
2.4 Health care and Social Security
2.5 Housing
2.6 Fashioning Remedies for Violations of the rights of Persons with Disabilities
3. Remedies for Rights Violations
3.1 Due Process
3.2 Locus standi
3.3 Recourse Procedures at the National Level
3.4 National Courts
4. Responsibilities of States
4.1 Collection of Statistics
4.2 Awareness-raising
4.3 Policy-making and Planning
4.4 Ombudsman
4.5 International Disability Norms and their impact at the National Level
4.6 National Committees
4.7 Personnel Training
4.8 The Role of Non-governmental Organizations
4.9 NGO Action Before Submission of a Report
4.10 NGO Participation in the Reporting Process in the Context of Examination by a Treaty Body
4.11 NGO Action Following Examination of a Report
4.12 NGO Monitoring
4.13 Special Rapporteur
PART II. The International Human Rights System
PART III. The Regional Human Rights System
PART IV. Towards a Rights Based Perspective on Disability
PART V. Rights of Special Groups with Disabilities

One of the dominant features of the 20th century jurisprudence has been the recognition of law as a tool of change. An important feature of an effective legal system is its capacity to reflect the changing needs and demands of a society in which it operates. Although legislation is not the only means of social control, it definitely is one of the most powerful vehicles of change and development. Continuous law making becomes a natural response of a developing legal system to new challenges and needs. Today, almost every area of national legislative concern is affected in one way or another by international treaty standards. While an internationalframework of rules and standards is important, one should not disregard the importance of national legislation, a fundamental link in the fulfilment of the international law making. The next section sets out some examples of national legislation in relation to persons with disabilities.[19

2.1 Equal Protection

The Canadian Constitution was the first to include a comprehensive equality clause that mentions disability. It states: "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

Throughout the world today, people with mental disabilities suffer abuse, mistreatment, discrimination, stigmatization, and even death on account of their disabilities. Forced sterilization is one such example.

On the other hand, certain countries have passed anti-discrimination laws prohibiting discrimination against persons with disabilities.

In Germany, after reunification, the Constitution of the Federal Republic of Germany was amended. In addition to the general equal protection clause, a new phrase was added: "No one may be disadvantaged on account of his disability."

The Fifth Amendment of the Constitution of the United States of America provides:   " No person (...) shall be deprived of life, liberty, or property, without due process of law" and the Fourteenth Amendment to the United States Constitution provides:  " No state shall (...) deny to any person... the equal protection of the laws."

The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities in employment, public services and transportation and places of public accommodation.[20]  In the employment context, the ADA essentially prohibits discrimination against qualified individuals with a disability who can perform the essential functions of the position held or desired with or without reasonable accommodation, which does not impose an undue hardship on the employer.[21

The Constitution of the Portuguese Republic [22] states:  "Citizens who are physically or mentally disabled shall enjoy all the rights and be subject to all the duties embodied in the Constitution, except for the exercise or performance of those for which their disablement unfits them" (article 71). It also establishes that "…[t]he State shall carry out a national policy for prevention and for the treatment, rehabilitation and integration of handicapped persons, shall develop a form of education to make society aware of its duties of respect for them and solidarity with them and ensure that they enjoy their rights fully, without prejudice to the rights and duties of their parents or guardians."

In similar terms, the Spanish Constitution provides: " The public authorities shall implement a policy of prevention, treatment, rehabilitation and integration of those who are physically, sensory and mentally handicapped, who shall be given the special attention which tries to require and afford them special protection for the enjoyment of the rights which this Title grants to all citizens."

Finally, the Constitution of Uganda provides:  " Society and State shall recognise the right of persons with disabilities to respect and human dignity."

2.2 Affirmative Action

The equal protection clause is one of the fundamental principles of the Constitution. It guarantees that those similarly situated will be dealt equally by the Government and by law. It does not reject, however, the Government’s ability to classify persons or draw lines in the creation and application of laws. However, it does guarantee that those classifications will not be based upon impermissible criteria or arbitrarily used to burden a group of individuals. Therefore, those who are treated less favourably by the legislation are not denied equal protection of the law because they are not similarly situated to those who receive the benefit of the legislative classification. There is a higher public interest that justifies this differential treatment.

Affirmative action policies in the United States are generally directed towards members of a special class. Where government action treats a member of such a class differently from the general population on the basis of being a member of that class, the state action will be strictly scrutinised. That means that the differing treatment will be upheld only if the State can show a compelling governmental interest and that no less discriminatory alternatives exist that would serve this interest as well[23]. Generally, in the United States, benign classifications of "discrete and insular" groups such as persons with mental disabilities will pass a rational basis review, meaning that they will not be strictly scrutinized by the courts.

To achieve equal protection, for persons who are disadvantaged because of sex, race or disability, the Governments must, sometimes, use affirmative action policies in employment and education. In addition, governments use quotas, subsides and other incentives.

In Australia, the Disability Discrimination Act allows federal, state and local Governments to enact special measures in favour of less advantaged groups. In some cases, persons pertaining to dominant groups filed complaints asserting that they were being discriminated against by positive action measures. The Australian Courts held that special and preferential treatment may be justified to achieve the purpose of equal opportunities[24].

The Constitution of the Portuguese Republic establishes that "…the State shall carry out a national policy for prevention and for the treatment, rehabilitation and integration of handicapped persons, shall develop a form of education to make society aware of its duties of respect for them and solidarity with them and ensure that they enjoy their rights fully, without prejudice to the rights and duties of their parents or guardians."

The Spanish Constitution provides: "The public authorities shall implement a policy of (...) integration of those who are physically, sensory and mentally handicapped, who shall be given the special attention which they try to require and afford them special protection for the enjoyment of the rights which this Title grants to all citizens".

In India, the Persons with Disabilities Bill [25]implements a scheme of positive discrimination in favour of persons with disabilities through a quota system, reserving a certain number of places for persons with disabilities in the training and employment programs of public and private sector entities. It also provides incentives to establishments promoting the employment of disabled persons and preferential treatment through tax concessions, subsidies and grants

France also operates a quota system for persons with disabilities. Public private sector offices employing at least 20 staff members are called upon reserve six per cent of full time or part-time positions for persons with disabilities. There are exceptions from these provisions, most of which have financial implications.

Germany too requires employers with at least 19 employees, to reserve a quota for persons with disabilities.

2.3 Integration Policy: Education and Professional Training

Certain jurisdictions have adopted positive steps to integrate persons with disabilities into the community.

In the United States, the Americans with Disabilities Act (ADA) (1990) provides that public opportunity providers may not discriminate against otherwise qualified individuals with disabilities.  An employer violates the ADA  if the employer can show that the accommodation  would impose an  undue hardship on the operation of the   employer’s business. Further, the ADA prohibits an employer from denying an employment opportunity to a job applicant or employee who is an otherwise qualified individual with a disability, if the denial is based on the employer’s need to reasonably accommodate an employee or applicant’s physical or mental impairment. The term reasonable accommodation is defined in the ADA to include: making existing facilities accessible; job restructuring; part-time or modified work schedules; reassignment to a vacant position; modification of equipment or devices; adjustments or modifications of examinations, training materials or policies; and provision of readers, interpreters and attendants. The ADA sets forth a three-pronged definition of disability: a) a physical or mental impairment that substantially limits one or major life activities of such individual; b) a record of such an impairment; or c) being regarded as having such an impairment. Evaluating the issue of equal protection, the United States Supreme Court has established major standards. 

In the United Kingdom’s the Disabled Persons Act (Employment)[26]originated from the need to make provisions for people disabled in the Second World War. The objective of the Act was to improve the employment prospects of people with disabilities. The Act defined a disabled person as someone who "…on account of injury, disease or congenital deformity, is substantially handicapped in obtaining or keeping employment, or in undertaking work on his own account, of a kind which apart from that injury, disease or deformity would be suited to his age, experience and qualifications." The act provided for the registration of disabled people; the establishment of employment quotas; the designation of certain occupations as reserved for persons with disabilities; sheltered employment; vocational training and rehabilitation; and the establishment of a national body to advise on the employment situation of persons with disabilities.

TheUnited Kingdom’s Disability Discrimination Act[27] introduced a new definition of disability and repealed the quota, registration, and designated employment provisions of the Disabled Persons Act (Employment). For a number of years it had been recognised that these provisions were not working as originally intended. For example, the requirement for employers with twenty or more employees to meet a 3% quota of registered disabled persons proved difficult for employers to fulfil since only a third of those in the workforce eligible to register did so. The quota only took account of recruitment but did nothing to promote effective employment policies by considering issues such as training and promotion.

In the United States, the Americans with Disabilities Act (ADA) prohibits an employer from denying an employment opportunity to a job applicant or employee who is an otherwise qualified individual with a disability, if the denial is based on the employer’s need to reasonably accommodate an employee or applicant’s physical or mental impairment.   The term reasonable accommodation is defined in the ADA to include: Making existing facilities accessible; job restructuring; part-time or modified work schedules; reassignment to a vacant position; modification of equipment or devices; adjustments or modifications of examinations, training materials or policies; and provision of readers, interpreters and attendants. Thus an employer may be required to modify a particular job so that a person with a disability can perform the position’s essential functions. This can be accomplished by eliminating the job’s nonessential elements, redelegating assignments, exchanging assignments with another employee, or redesigning procedures for task accomplishments.[28]  

In India, the Persons with Disabilities Bill ensures free and compulsory education to children with disabilities through different forms of education, such as special, integrated and non-formal education. It also provides financial assistance in the form of distribution of equipment free of charge or at a subsidised cost, promotes research to develop enabling technology and teaching methods for the education of persons with disabilities, and adapts and modifies education syllabi to enhance disabled persons' access to education. The Bill alsoimplemented a scheme of positive discrimination in favour of persons with disabilities through a quota system reserving a certain percentage of places for persons with disabilities in the training and employment programs of public and private sector entities. It also provided incentives to establishments promoting the employment of disabled persons and preferential treatment through tax concessions, subsidies and grants.

2.4 Health care and Social Security

The Constitution of Denmark provides that " …any person unable to support himself or his dependants shall, where no other person is responsible for his or their maintenance, be entitled to receive public assistance, provided that he shall comply with the obligations imposed by Statute in such respect."

In Japan, the Fundamental Law for Countermeasures for Mentally and Physically Handicapped  Persons provides that the State and local public bodies should take measures to provide mentally and physically handicapped persons with medical benefits which are necessary for them to restore or obtain their function. They should also accommodate handicapped persons in institutions or have them attend the same, according to their age, kind and degree of their handicaps. This is necessary in order to provide them with appropriate protection, medical care and training and to promote research and development of medical care, guidance, training, and other tools.

The Constitution of Venezuela provides that "…persons who lack the economic means and who are not in a position to obtain them shall have the right to social assistance if they are incorporated in the social security systems."

2.5  Housing

Physical disability may restrict the opportunities for the person concerned and his or her family, to fully participate in the life of the community. Disabled persons in developing, as well as industrialised countries, find barriers in the planned environment, which restrict their independence. The problem is how to integrate disabled persons in the economic and social life from which they have so far been excluded by both cultural and physical barriers. It is important, therefore, that those who develop policies for both building and urban planning should take account of the needs of persons with disabilities.

The guide Designing with Care was prepared as a result of the implementation of the Plan of Action of the International Year of Disabled Persons[29], which calls for the preparation of a series of Manuals covering different aspects of barrier free environment for disabled persons. The Guide is the result of the joint co-operation between the Swedish International Development Authority (SIDA), the United Nations and the United Nations Centre for Human Settlements (HABITAT).

2.6 Fashioning Remedies for Violations of the Right of Persons with Disabilities

Legislation on disability will be meaningless without corresponding enforcement mechanisms and remedies for rights violations.  The domestic remedies should afford a real opportunity for review and reparation, while basic norms of impartiality and independence of the judiciary and of due process should prevail. If the domestic remedies fail to provide an effective remedy, the individuals still have recourse to the international machinery for protection of human rights. The effectiveness of international complaint procedures can be questioned, but a complaint process it self becomes an advocacy effort which creates greater awareness on disability rights

The first place an advocate or victim of a human rights violation may look for recourse in one’s own country or residence, is to the courts, commissions or other judicial bodies There are two ways in which to raise issues involving violations of the right to legal assistance in international human rights law. First the advocate can use domestic law in the domestic courts. The second course of action is the invocation of an international mechanism for the protection of human rights norms.

There are several ways in which domestic law incorporates international law into its operations.  Advocates can argue the effectiveness of international law in the following ways:

  • Treaties in Domestic Law: Advocates can argue that a treaty creates new or additional legal obligations with regard to rights of  persons with disabilities.
  • Customary International Law in Domestic Law: Customary international law is a combination of the practice of states and a collective sense of legal obligation, usually expressed through court decisions or other recognized legal authorities. Customary international law is binding in domestic courts. Sometimes, even when there is no treaty on the issue, advocates may use customary law arguments to articulate new obligations for disabled persons.
  • Jus Cogens in Domestic Law: This is a principle that is so fundamental that it invalidates rules made by treaty or custom.
  • International Law as a Means of Informing Domestic Law: International law can always be used to bolster or interpret domestic law principles.

The right to an effective remedy is also recognised in the International Covenant on Civil and Political Rights, article 2 (3), which stipulates that each State Party to the Covenant undertakes to ensure that any person whose rights have been violated shall have an effective remedy before a competent authority provided for by the legal system of the State. An advantage of bringing matters to the courts is that the courts can bring attention to disability matters and in this way enhance legislative changes. This can also encourage different national actors to take up action on disability issues.

Most human rights systems at the regional and international level require that before a claim for redress for an alleged violation of human rights is entertained at those levels, national remedies must be exhausted.

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[19]  Americans with Disabilities Act of 1990, 42 USC Sec. 12101 ( 1999); Canadian Charter of Rights and Freedoms, The Canadian Human Rights Act, R.S.C., Ch.H. 6 Sec.1 ( 1998); Disability Discrimination Act ( 1992) Aust, Aus. Cons.art.7 (1997); Law of the Peoples Republic of China on the Protection of Disabled Persons ( 1990); Law on Equal Opportunities for Persons with Disabilities ( 1996) ( Costa Rica); Grundgesetz ( constitution) art 3 (3) ( FRG);  Disability Discrimination Ordinance, Cap. 487 ( 1995) ( ( H.K); Act xxvi on Provisions of the Rights of Persons Living with Disability and their Equality of Opp. ( 1998) ( Hung.); The Persons with Disabilities ( Equal Opportunity Protection of Rights and Full Participation) Act ( 1995 No. 1 of 1996) India;   Employment Equality Act of 1998, Equal Status Bill of 1999 ( Ir.); Equal Rights for People with Disabilities Law, 5758- 1998 ( Isr.); Act Relating to Employment Promotion etc. of the Handicapped, Law No. 4219 ( 1990) ( S. Korea); Human Rights Act of 1993 ( N.Z); Republic of Malawi ( constitution) Act of  1994, chap.111.sec.13 (g); Magna Carta for Disabled Persons ( Republic Act No. 7277) ( 1991) ( Phil); Disability Discrimination Act ( 1995) U.K.; S. Afr.const. Sec. 9 ( 1996); Protection of the Rights of Persons with Disabilities Act. No. 28 of 1996 ( Sri L); Law on the Prohibition of Discrimination Against Persons with Disabilities in Employment  SFS No. 1999-132, ( 1999) (Swed.); Uganda Const. chap. Iv, sec. 21 (2) 1995; Disabled Persons Act of 1992 ( Zimb.) . 

[20]  42 U.S.C. Sec. 12101, et seq.

[21]  29 C.F.R. Sec. 1630-2 (o) and 1630.2 (p).

[22]  Adopted in April 1976

[23]  San Antonio Independent School District v. Rodriguez, 411 US 1.28.1973.

[24].  Proudfoot v.  Human Rights and Equal Opportunities Commission, ALR 199.100.557.

[25]  Adopted in 1995.

[26]  Adopted in 1944.

[27]  Adopted in 1995.

[28]  ADA Sec. 101 (9) (B) ( codified at 42 U.S.C.A. sec. 12111).

[29]  Adopted in 1981.

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United Nations, 2003-04
Department of Economic and Social Affairs
Division for Social Policy and Development