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| CONTENTS INTRODUCTION
ChapterI. BASIC LEGAL CONCEPTS II. FACTORS CAUSING DISABILITY III. PREJUDICES AND DISCRIMINATION AGAINST DISABLED PERSONS:
AREAS, FORM AND SCOPE IV. NATIONAL AND INTERNATIONAL POLICIES AND MEASURES
DESIGNED TO ERADICATE DISCRIMINATORY PRACTICES AND GUARANTEE THE DISABLED THE FULL
ENJOYMENT OF HUMAN RIGHTS V. PUBLIC INFORMATION AND EDUCATION RECOMMENDATIONS AND
PROPOSALS |
1. By way of introduction it might be useful to go back into the past and to mention the names of Franklin D. Roosevelt, Goya, Frida Kahlo, Beethoven, Helen Keller and so many other famous men and women who in addition to their achievements have bequeathed us the living testimony of the fact that even those who had to cope with pain, adversity or particular physical or mental disabilities were also able to move humanity through their art, science and genius. To support this statement and to show that it is still valid today, it would suffice to mention the name of Stephen W. Hawking, the well known author of the best-seller A Brief History of Time,* who is regarded as one of the world's major theoretical physicists and who, despite having suffered from a progressive and incurable motor neuron disease for more than 25 years, is currently active as a professor at the University of Cambridge, in the same chair held by Isaac Newton two centuries ago.
2. However, there is no doubt that the mere mention of historical or outstanding figures is not enough to understand fully the immense problems facing millions and millions of persons who, either permanently or for a pro longed period, suffer from some type of disability. In fact, the above references, in addition to being of some illustrative value, are designed to explain our intention of departing from the classic approach to disability which traditionally confines it strictly to the persons affected and does not regard it as something which concerns us all and of treating it as a problem that involves the community as a whole.
3. More than 500 million persons,[1] 10 percent of the world's total population, suffer from some type of disability. In the majority of countries, at least 1 out of 10 persons has a physical, mental or sensory impairment, and at least 25 percent of the entire population are adversely affected by the presence of disabilities. These figures show with considerable eloquence the enormous size of the problem and, in addition to its universal scope, highlight the well-known impact of this phenomenon on any society as a whole. However, this quantification alone is not a sufficient basis for evaluating the actual gravity of the problem, since these persons frequently live in deplorable conditions, owing to the presence of physical and social barriers, which prevent their integration and full participation in the community. As a result, millions of children and adults throughout the world are segregated and deprived of virtually all their rights, and lead a wretched, marginal life.
4. Therefore, we do not consider it too bold to begin this study by immediately stressing the social question involved and the inherent problem of human rights.
5. As a preliminary warning, it should be pointed out that to deal correctly with this topic it is essential to rid ourselves of any feelings of pity or commiseration. We are not dealing with a strictly humanitarian problem, still less with a situation requiring our charity. Far from that, the treatment given to disabled persons defines the innermost characteristics of a society and highlights the cultural values that sustain it.
6. It might appear elementary to point out that persons with disabilities are human beings - as human as, and usually even more human than, the rest. The daily effort to overcome impediments and the discriminatory treatment they regularly receive usually provides them with special personality features, the most obvious and common of which are integrity, perseverance, and a deep spirit of comprehension and patience in the face of a lack of understanding and intolerance. However, this last feature should not lead us to overlook the fact that as subjects of law they enjoy all the legal attributes inherent in human beings and hold specific rights in addition.
7. In a word, persons with disabilities, as persons like ourselves, have the right to live with us and as we do. From the legal point of view, there are three dimensions to this statement: (a) the recognition that persons with disabilities have specific rights; (b) respect for these and all their rights; and (c) the obligation to do what is necessary to enable persons with disabilities to enjoy the effective exercise of all their human rights on an equal footing with others.
8. On 12 March 1984, the Commission on Human Rights adopted resolution 1984/31 recommending to the Economic and Social Council that it request the Sub Commission to appoint a Special Rapporteur to under take a thorough study, in consultation with the Centre for Social Development and Humanitarian Affairs, of the causal connection between serious violations of human rights and fundamental freedoms and disability as well as of the progress made to alleviate problems, and to submit its views and recommendations, through the Commission on Human Rights and the Commission on Social Development, to the Economic and Social Council. The Council endorsed the Commission's request by its resolution 1984/26 of 24 May 1984.
9. On 29 August 1984, in response to a request by the Economic and Social Council and the Commission on Human Rights, the Sub-Commission adopted resolution 1984/20 in which it decided to appoint Mr. Leandro Despouy as Special Rapporteur to conduct a comprehensive study on the relationship between human rights and disability.
10. Recently, beginning in the late 1970s, the inter national community, pressed by the enormous suffering caused by widespread hunger, ecological disasters, wars, etc., became increasingly aware of the problems afflicting persons with disabilities. The beginning of the new multilateral concern with disability can be seen as the adoption by the General Assembly of the Declaration on the Rights of Disabled Persons, on 9 December 1975, following the Declaration on the Rights of Mentally Retarded Persons, adopted on 20 December 1971.[2]
11. As will be recalled, on 16 December 1976 the General Assembly proclaimed 1981 as the International Year of Disabled Persons,[3] later known under the theme “full participation and equality”, and there was established a United Nations Trust Fund to finance those activities whose purpose was, in particular, to draw the attention of the international community to the situation and the needs of persons with disabilities. The main result of the actions undertaken before and during the celebration of that year was the elaboration of the “World Programme of Action concerning Disabled Persons,”[4] which the General Assembly adopted by consensus through its resolution 37/52 of 3 December 1982. The Programme sets the guidelines for a world strategy to promote the adoption of effective measures for prevention of disability, rehabilitation and the achievement of “equality” and “full participation” of disabled persons in social life and development.
12. It is important to mention that the World Programme of Action explicitly recognizes the right of every human being to equal opportunity, which in fact means a broadening of the concept of human rights. This explains why, the year following the adoption of the plan, the General Assembly, through its resolution 37/53, entitled “Implementation of the World Programme of Action concerning Disabled Persons”, stipulated that United Nations human rights bodies should take into account the unfavorable conditions in which most disabled persons are living and urged those bodies to adopt measures to correct the situation.
13. However, the point of departure of the work of the relevant United Nations human rights bodies is essentially Sub-Commission resolution 1982/1, in which the Sub-Commission recommended that Governments give consideration to difficulties encountered by disabled persons in the enjoyment of universally proclaimed human rights as well as to the need to strengthen procedures for them to bring allegations of violations of their human rights to a competent body vested with the authority to act on such complaints or to draw them to the attention of the Government.
14. One year before the appointment of the Special Rapporteur, the Sub-Commission, at its thirty-sixth session, explicitly highlighted, in resolution 1983/15, the relationship between human rights and disability, in particular between human rights violations and disability.
15. As mentioned earlier, the original mandate of the Special Rapporteur derived from Commission on Human Rights resolution 1984/31, Economic and Social Council resolution 1984/26 and Sub-Commission resolution 1984/20. These resolutions call for a thorough study to be undertaken of the causal connection between serious violations of human rights and fundamental freedoms and disability, focusing on recommendations and/or progress achieved in remedying that situation. The mandate also includes a request to make an in-depth analysis of all forms of discrimination against disabled persons, as well as the existing or possible relationship between the system of apartheid and disability.
16. Guided by the principles of equality of opportunity, full participation and an independent living for disabled persons, the Sub-Commission requested the Special Rapporteur to examine closely the treatment afforded to disabled persons by public and private institutions, and any cases of institutional abuse, and to examine the situation of economic, social and cultural rights in relation to disability. Lastly, the Sub-Commission's resolution requested the inclusion in the study of a preliminary outline on the subject of scientific experimentation as it relates to disability.
17. The Special Rapporteur's mandate was subsequently extended and refined thanks to guidance and input from members of the Sub-Commission, observer Governments, non-governmental organizations, etc., during the discussions which took place at the thirty eighth and fortieth sessions of the Sub-Commission in 1985 and 1988 respectively, which provided an opportunity for examination of the Special Rapporteur's preliminary report (E/CN.4/Sub.2/1985/32) and his progress report (E/CN.4/Sub.2/1988/11). Particularly noteworthy, in this connection, were observations on the need for in depth study of the various types of conflict, wars and other forms of violence as causal factors of disability; the relationship between the latter and peace; the repudiation of penalties or punishments, such as amputation deliberately designed to cause disability; and the desirability of providing an adequate legal definition and more precise statistical data on the number of disabled persons.
18. The discussions, which were held, brought out clearly the desirability of including in the study the particularly complex and serious problems which arise in regard to disability in particular groups, such as women,[5] indigenous populations,[6] immigrant workers and refugees,[7] and also the acute problems experienced by disabled persons in the developing countries. This report also reflects the concern expressed by various participants in regard to the relationship between extreme poverty, underdevelopment[8] and social inequalities and the emergence and intensification of disabilities and also the enjoyment of human rights by disabled persons.
19. Finally, it is to be noted that the Economic and Social Council, during its session held in New York from 29 June to 31 July 1992, approved the request made by the Commission on Human Rights, in its resolution 1992/48 of 3 March 1992, to the Secretary General, asking him to take all measures needed to en sure that the Special Rapporteur's final report on human rights and disabled persons be published by the United Nations in all the official languages and be transmitted to the Commission for Social Development for its consideration.
20. In compliance with the mandate conferred on him by the preceding resolutions, the Special Rapporteur has, since 1984, circulated requests, based initially on a provisional list of questions and subsequently on a questionnaire, for information and suggestions from Governments, various United Nations bodies, in particular the Centre for Social Development and Humanitarian Affairs in Vienna, the specialized agencies, regional organizations and non-governmental organizations concerned, in particular organizations for disabled persons. The large number of responses received supplement the information received by the United Nations prior to the appointment of the Special Rapporteur, as published in documents E/CN.4/Sub.2/1983/36 and Add.14 and E/CN.4/Sub.2/1984/9 and Add.l. The Special Rapporteur has also followed closely intergovernmental activities, national policies and activities of non-governmental organizations aimed at ensuring the prevention of disability and greater integration and participation by disabled persons. Close contact has been maintained in particular-directly or through the Centre for Human Rights-with activities undertaken under the aegis of the Centre for Social Development and Humanitarian Affairs in implementation of the World Programme of Action concerning Disabled Persons.
21. The main sources used in compiling this report have basically been the relevant international instruments, in particular those of universal scope, and the re plies sent by Governments and inter-governmental and non-governmental organizations to the questionnaire and to the numerous additional requests made of them. Account has also been taken of documents prepared by experts on disability and meetings of experts held mainly under the auspices of the United Nations. For purely methodological reasons it has been found preferable to group together in an annex all the replies received and the extensive reference material.
22. Lastly, the Special Rapporteur would like to express his appreciation to the members of the Sub-Commission for the information provided, and in particular for their suggestions and valuable advice on both technical and substantive matters. He would also like to emphasize the contribution made by delegations from observer Governments, various United Nations bodies, in particular the Centre for Social Development and Humanitarian Affairs, specialized agencies such as ILO and WHO, and in particular the assistance received from non-governmental organizations headed by disabled per sons, without whose decisive support this report could never have been written and to whom it is only right that it should be dedicated.
23. In the light of the foregoing, the present study has been broken down into five chapters and has been prepared in accordance with the plan of work contained in the progress report of 1988 which, it will be recalled, was discussed by the Sub-Commission at its fortieth session. Chapter I deals in particular with legal issues regarding disabled persons and the formulation of an ad equate definition of disability. Chapter II discusses factors causing disability, with particular reference to violations of human rights and humanitarian law as such factors. Chapter III describes the prejudices, discrimination and other violations of human rights to which disabled persons are subjected. Chapter IV sets out the national and international policies and measures designed to eradicate discriminatory practices and guarantee the disabled the full enjoyment of human rights. Chapter V is concerned with public information and education. Lastly, attention is drawn to the conclusions and recommendations of the Special Rapporteur based on the study.
* Human Rights Studies Series, Number 6. Centre for Human Rights: Geneva (United Nations publication, Sales No. E.92.XIV.4).
* New York: Bantam Books, 1988.
[1] Source: World Health Organization (WHO).
[2] Human Rights—A Compilation of International Instruments (United Nations publications, Sales No. E.88.XIV.1).
[3] See [General Assembly] resolutions 31/123 and 34/154.
[4] World Programme of Action concerning Disabled Persons, published by the Division of Economic and Social Information and the Centre for Social Development and Humanitarian Affairs (November 1983, DESI.S97) [A/37/251/Add.1 and Corr.1, annex, sect. VIII, recommendation I (IV)] <http://www.un.org/esa/socdev/enable/diswpa00.htm >.
[5] E/CN.4/Sub.2/1985/SR.23, para. 69; see also the background paper by the Branch for Equality of Men and Women for the fifth interagency meeting held in Vienna in February 1987.
[6] E/CN.4/Sub.2/1985/SR.23, para. 63.
[7] Ibid., paras. 63 and 72.
[8] See E/CN.4/Sub.2/1985/SR.23, paras. 31, 37 and 40. See also note 50.