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Overview of International Legal Frameworks for Disability Legislation
Persons with disabilities often are excluded from the mainstream of the society and denied their human rights. Discrimination against persons with disabilities takes various forms, ranging from invidious discrimination, such as the denial of educational opportunities, to more subtle forms of discrimination, such as segregation and isolation because of the imposition of physical and social barriers. Effects of disability-based discrimination have been particularly severe in fields such as education, employment, housing, transport, cultural life and access to public places and services. This may result from distinction, exclusion, restriction or preference, or denial of reasonable accommodation on the basis of disablement, which effectively nullifies or impairs the recognition, enjoyment or exercise of the rights of persons with disabilities.
Despite some progress in terms of legislation over the past decade, such violations of the human rights of persons with disabilities have not been systematically addressed in society. Most disability legislation and policies are based on the assumption that persons with disabilities simply are not able to exercise the same rights as non-disabled persons. Consequently the situation of persons with disabilities often will be addressed in terms of rehabilitation and social services. A need exists for more comprehensive legislation to ensure the rights of disabled persons in all aspects - political, civil, economic, social and cultural rights - on an equal basis with persons without disabilities. Appropriate measures are required to address existing discrimination and to promote thereby opportunities for persons with disabilities to participate on the basis of equality in social life and development.
There also are certain cultural and social barriers that have served to deter full participation of persons with disabilities. Discriminatory practices against persons with disabilities thus may be the result of social and cultural norms that have been institutionalized by law. Changes in the perception and concepts of disability will involve both changes in values and increased understanding at all levels of society, and a focus on those social and cultural norms, that can perpetuate erroneous and inappropriate myths about disability. One of the dominant features of legal thinking in twentieth century has been the recognition of law as a tool of social change. Though legislation is not the only means of social progress, it represents one of the most powerful vehicles of change, progress and development in society.
Legislation at country level is fundamental in promoting the rights of persons with disabilities. While the importance - and increasing role - of international law in promoting the rights of persons with disabilities is recognised by the international community, domestic legislation remains one of the most effective means of facilitating social change and improving the status of disabled persons. International norms concerning disability are useful for setting common standards for disability legislation. Those standards also need to be appropriately reflected in policies and programmes that reach persons with disabilities and can effect positive changes in their lives.
All international human rights instruments protect the human rights of persons with disabilities, as they apply to all persons. This principle of universality is reinforced by the principles of equality and non-discrimination, which are included in human rights instruments.
The core United Nations human rights human rights conventions are:
- International Covenant on Civil and Political Rights;
- International Covenant on Economic, Social and Cultural Rights;
- Convention on the Elimination of All Forms of Racial Discrimination;
- Convention on the Elimination of All Forms of Discrimination against Women
- Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment ;
- Convention on the Rights of the Child;
- International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families
Some international and regional human rights conventions protect the rights of persons with disabilities specifically, or have provisions concerning persons with disabilities. These include:
- ILO Convention concerning Vocational Rehabilitation and Employment (Disabled Persons)
- Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons With Disabilities
- Convention on the Rights of the Child (article 23);
- African Charter of Human and People's Rights (art. 18(4));
- the African Charter on the Rights and Welfare of the Child (article 13);
- European Social Charter (article 15); and
- Protocol of San Salvador (Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights ) (article 6 & 9)
International human rights treaties are binding on States Parties that have ratified the instruments. Some universal instruments, such as the Universal Declaration of Human Rights, and some specific provisions, such as the principle of non-discrimination, have become part of customary international law and are considered binding on all States, even those that have not ratified a human rights treaty that embodies norms of customary law.
(b) International instruments that are non-binding, such as declarations and rules, and are useful in interpreting international standards and implementing them in national legislation.
International instruments, such as declarations, resolutions, principles, guidelines and rules, are not technically legally binding. They express generally-accepted principles and represent a moral and political commitment by States. They also can be used as guidelines for States in enacting legislation and formulating policies concerning persons with disabilities.
General policy instruments, such as the outcome documents of world summits and conferences, are applicable to persons with disabilities. These instruments include, for example, the Copenhagen Declaration and Programme of Action adopted at the World Summit for Social Development (6-12 March 1995), and the Millenium Declaration and the Millenium Development Goals adopted at the United Nations Millenium Summit in September 2000.
Several disability-specific non-binding international instruments have been adopted at the international level. The instruments include:
- Declaration of the Rights of Mentally-Retarded Persons,
- Declaration on the Rights of Disabled Persons,
- World Programme of Action concerning Disabled Persons,
- Tallinn Guidelines for Action on Human Resources Development in the Field of Disability,
- Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care,
- Standard Rules on the Equalization of Opportunities for Persons with Disabilities,
- ILO Recommendation concerning Vocational Rehabilitation of the Disabled,
- ILO Recommendation concerning Vocational Rehabilitation and Employment (Disabled Persons),
- Sundberg Declaration on Actions and Strategies for Education, Prevention and Integration, adopted by the UNESCO World Conference on Actions and Strategies for Education, Prevention and Integration, Malaga (Spain), 2 - 7 November 1981,
- Salamanca Statement and Framework for Action on Special Needs Education, adopted by the UNESCO World Conference on Special Needs Education: Access and Quality, Salamanca (Spain), 7 - 10 June 1994 .
In addition, a General Comment on persons with disabilities has been given by the Committee on Economic, Social and Cultural Rights. General Comments are authoritative statements of the Committee of its understanding of rights enshrined in the International Covenant on Economic, Social and Cultural Rights. General Comments, adopted by most human rights treaty bodies, can be used to guide States in the implementation of international human rights norms, and to measure the level of compliance of States Parties with regard to the specific rights contained in human rights conventions.
Translation from an international convention, standard or norm to national law and then to local implementation is slow and complex but fundamental. States are primarily responsible for transforming legislative, administrative and judicial practices, to empower persons with disabilities to exercise their rights. States that have become Parties to an international convention are legally bound to implement the provisions contained in the convention in their domestic jurisdiction. International law leaves it to States to adopt such legislative and other measures, consistent with their constitutional processes, to give effect to the obligations which they undertake to implement and ensure that any person whose rights or freedoms are violated have an effective remedy justifiable before independent and impartial tribunals.
Three main methods are available to implement international legal instruments in domestic law:
(1) Direct incorporation of rights recognised in the international instrument into what may be termed a "bill of rights" in the national legal order.
(2) Enactment of different legislative measures in the civil, criminal and administrative laws to give effect to the rights recognised in international legal instruments.
(3) Self-executing operation of international legal instruments in the national legal order.
The course of the legislative process will differ according to the relevant domestic legal systems. For instance, incorporation of international human rights principles and norms in national constitutions - or similar documents - remains the most important way of bringing national laws in conformity with international standards.
In relation to economic, social and cultural rights, implementation will differ from one country to another, depending on their level of development. Yet, all countries require major programme efforts. The obligation of States Parties in the international human rights instruments to promote progressive realization of the relevant rights to the maximum of their available resources clearly requires Governments to do much more than merely abstain from taking measures which might have a negative impact on persons with disabilities.
Direct application of international law by domestic courts also can play an important role in implementing international human rights norms applicable to persons with disabilities by means of compliance with relevant international standards and citing precedents in other jurisdictions. Due process of law has to be followed in matters of disability legislation.
Furthermore, judicial initiatives may propel executive and legislative branches of Governments to act with regard to drafting, enforcing and evaluating disability legislation. Courts also may encourage various interest groups to take up action on certain issues.
The greater the extent to which international norms on disability is widely known, the greater the possibility of domestic courts complying with these norms. This allows courts to play a major role in interpreting and developing international norms and standards, by applying international standards in domestic issues of disability.