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UN Programme on Disability   Working for full participation and equality


Human Rights and Disabled Persons*

Part 3 of 6
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CONTENTS

INTRODUCTION
A. Origins of study
B. Background
C. Mandate of the Special Rapporteur
D. Sources and information received
E. Plan of work

Chapter

I.  BASIC LEGAL CONCEPTS
A.  Addressing the question
B.  International human rights standards
C.  Other conventions of universal scope
D.  Regional instruments
E.  Standards of international humanitarian law
F.  Non-conventional provisions
G.  Summary and Assessment
H.  Terminology, definition and statistics

II.  FACTORS CAUSING DISABILITY
A.  Multiple causes
B.  Violations of human rights and of humanitarian law as factors causing disability
C.  Suffering inflicted on non-combatants in situation of armed conflict or civil strife
D. Insufficient care and cruelty towards children and women
E. Specific problems of some other vulnerable groups
F. Underdevelopment and its various manifestations considered as a violation  of human rights
G. Apartheid
H. Problems related to some deliberately inflicted forms of punishment and other treatment
I. Scientific experiments

III. PREJUDICES AND DISCRIMINATION AGAINST DISABLED PERSONS: AREAS,  FORM AND SCOPE
A. Introduction
B. Areas and scope of discrimination
C. Cultural barriers
D. Particularly vulnerable situation of the mentally ill
E.  Institutionalization
F. Elimination of abuses and of acts of discrimination

IV. NATIONAL AND INTERNATIONAL POLICIES AND MEASURES DESIGNED TO ERADICATE DISCRIMINATORY PRACTICES AND GUARANTEE THE  DISABLED THE FULL ENJOYMENT OF HUMAN RIGHTS
A. Preliminary considerations
B. Committal to an institution or rehabilitation in the community
C. Measures taken to limit committal to institutions and to prevent abuses
D. Measures to facilitate the establishment and activities of associations of disabled persons
E. Rights of disabled persons in respect of education, training and vocational   guidance
F. Rights of disabled persons in respect of employment and working  conditions
G. Other rights of disabled persons
H. Measures to guarantee the exercise of the rights of disabled persons and the effectiveness of the remedies available to them

V. PUBLIC INFORMATION AND EDUCATION RECOMMENDATIONS AND PROPOSALS
A. General recommendations
B. Specific proposals

ANNEX. Replies received

II  FACTORS CAUSING DISABILITY

A.  Multiple causes

109.     In the replies received from governmental and non-governmental sources, the causes of disability mentioned most often are the following: heredity, birth defects, lack of care during pregnancy and childbirth because of lack of coverage or ignorance, insalubrious housing, natural disasters, illiteracy and the resulting lack of information on available health services, poor sanitation and hygiene, congenital diseases, malnutrition, traffic accidents, work-related accidents and illnesses, sports accidents, the so-called diseases of “civilization” (cardiovascular disease, mental and nervous disorders, the use of certain chemicals, change of diet and lifestyle, etc.), marriage between close relatives, accidents in the home, respiratory diseases, metabolic diseases (diabetes, kidney failure, etc.), drugs, alcohol, smoking, high blood pressure, old age, Chagas' disease, poliomyelitis, measles, etc. Non-governmental sources also place particular emphasis on factors related to the environment, air and water pollution, scientific experiments conducted without the informed consent of the victims, terrorist violence, wars, intentional physical mutilations carried out by the authorities and other attacks on the physical and mental integrity of persons, as well as violations of human rights and humanitarian law in general.

110.            Although the following table prepared by WHO is based on very different criteria from those used in this study, it gives an idea of the number of cases of disability to which the various causes give rise:[36]

  In millions
Non-contagious somatic illnesses 100
Injuries/wounds 78
Malnutrition 100
Functional psychiatric disorders 40
Chronic alcoholism and drug abuse 100
Congenital diseases 100
Contagious diseases 56

111.     For purely pedagogical reasons, the Special Rapporteur decided in his preliminary report to divide the causes of disability into general and specific ones in order to distinguish, to the extent possible, between causes which do not necessarily entail violations of human rights, such as natural disasters, irreversible diseases and old age, and “specific” causes, such as torture, ill treatment, amputation, environmental pollution, etc., where disability is the direct or indirect consequence of a violation of human rights. The purpose of this distinction is simply to place emphasis on the latter causes and to focus on the two aspects of this problem, namely, human rights violations as causes of disability (chap. II) and violations of which disabled persons are the victims (chap. III).

General causes, which do not necessarily entail violations of human rights

112.     By way of illustration, we will briefly describe some of the general causes of disability to which the Special Rapporteur's attention has been drawn in particular because they are so frequent or so serious. For example, cardiovascular diseases are referred to in some of the reports received as the cause of a great many cases of disability. The way of life in large cities and the tension it produces, as well as the new needs constantly being created and the keen competition in consumer societies, are the cause of these diseases, which are usually regarded as diseases of civilization, development and urban living, and this is why they are much more frequent in industrialized countries.

113.            Neuromuscular diseases are also the cause of many disabilities. There is, unfortunately, no way of preventing or combating many of them. The most common symptom of these diseases is a loss of strength, which may be apparent at birth or start gradually at any age. One of the best known is Duchenne's dystrophy, which, for still unknown reasons, leads to the progressive destruction of the skeletal muscles. It affects men, but is transmitted by women.

114.     Traffic accidents are referred to in nearly all the reports as a cause of disability, although they are obviously more frequent in the more developed countries. According to WHO, 500,000 persons are seriously injured in traffic accidents each year and many of these 500,000 seriously injured persons are probably permanently or temporarily disabled. Industrial accidents are also mentioned in a number of reports as a cause of disability, although to a lesser extent than traffic accidents. According to the International Labour Organisation, 50 million accidents occur annually in industry and many cause disability. Industrial accidents have stayed at the same level in the developed countries, but are on the increase in countries which are in the process of industrializing. This is a result of the difference in the strict application of work safety standards in developed and developing countries. It is also a result of the fact that, when a country is constantly taking on more workers in the industrial sector, they go through a learning period when they are more accident-prone.

115.     Natural disasters are also a very important cause of disability, although their quantitative effect is not known, since persons who are disabled as a result of an earthquake, flood or other disaster are not identified according to the source of their disability. During the International Year of Disabled Persons, the Office of the United Nations Disaster Relief Coordinator (UNDRO) conducted research in four developing countries where disasters occurred during the period 1976-1980 for the purpose of studying the conditions of persons who had been disabled in some way as a result of a disaster and it reached the conclusion that the scientific and medical community pays little or no attention to victims who have been disabled. The four countries are Algeria and Guatemala, where earthquakes occurred, and Santo Domingo [Dominican Republic] and Haiti, which were hit by hurricanes, and, according to the report (included in the UNDRO publication on disasters and disability), the long-term effects of disasters on health are not well-documented and this is why the reconstruction plans of disaster-stricken countries include many aspects relating to renovation, but often overlook the physical and mental rehabilitation of persons. The consequences of disasters are usually expressed in monetary terms and human suffering is expressed quantitatively as the number of persons killed or left homeless and injured, but the latter is an amorphous category that is difficult to define and includes many persons who are affected by some kind of disability, whether temporary or permanent. During earthquakes, there is usually one person killed for every three injured; the earthquake at Skopje, Yugoslavia, in 1963, left 1,070 dead and 3,500 injured, 1,200 of whom were permanently disabled.

 

116.     The reports also refer to diseases such as poliomyelitis, which has been eradicated in much of the world, but still strikes more than 400,000 persons in Africa, Asia and Latin America each year. Of the diseases which mainly affect children, reference is also made to measles, which not only kills 2 million children each year, but is also one of the main causes of blindness deafness and mental defects. Over 800 newborn children die as a result of tetanus each year and an even greater number survive with major handicaps. German measles is also a major cause of blindness and deafness. One of the causes of mental defects is the lack of iodine, which, in the first year of life, leads to deafness and dumbness and mental impairments, especially in mountain regions. Vitamin A deficiency is another of the main causes of blindness in developing countries and it weakens children's defences, thus promoting all kinds of infections, which, in many cases, cause death.

 

117.     Chagas' disease is referred to by only one country (Argentina) as a cause of disability, but it has spread throughout Latin America and affects millions of persons. Chagas-Mazza disease affects 4 million persons in Brazil; 3 million in Argentina; and 700,000 in Colombia. In Ecuador, it is estimated that between 10 and 12 percent of the population is infected, while, in Chile, 300,000 persons and, in Venezuela, 1.2 million persons are affected. All in all, the experts calculate that the Trypanosoma cruzi parasite may be carried in the blood of about 30 percent of the population of Latin America. Although only between 20 and 30 percent of the persons infected show unmistakable signs of the disease, they are a serious potential danger, since it has been demonstrated that one of the most common ways the parasite spreads is through blood transfusions, although it may also be spread by the insect vector popularly known in Argentina as vinchuca. The disease prevents persons from leading a normal life and, especially, from working and is also a cause of death.

 

118.     Some replies refer to Down's syndrome (mongolism) and dwarfism (achondroplasia) as non-preventable and incurable diseases, which affect children. Others regard old age as a cause of disability because of the gradual loss of various abilities as the human organism deteriorates.

 

B.  Violations of human rights and of humanitarian law as factors causing disability

119.     The role of violations of human rights and of humanitarian law as causes of disability is the main focus of this chapter, which has been divided into sub topics in order to deal with the problem in all its complexity, i.e. starting with the most obvious manifestations, such as torture and other attacks on the physical or psychological integrity of persons, going on to less specific causes, such as malnutrition, the lack of sanitation and of proper medical care and underdevelopment in general, and then considering the deplorable situation of many disabled persons who also belong to other particularly vulnerable categories or groups, such as immigrants, refugees, etc.

120.     The existence of a causal link between the two phenomena (violations and disability) was first high lighted by some special rapporteurs appointed by the Sub-Commission and the Commission on Human Rights, who drew attention to this twofold problem on a number of occasions in referring to the topics entrusted to them (torture, arbitrary detentions, for example) or the situation of the countries within their terms of reference (Chile, Iran, Afghanistan, El Salvador, etc.). However, it was at the urging of the non-governmental organizations concerned that the admissibility of this question was recognized and the problem of disability could be considered by bodies responsible for the protection of human rights from the standpoint of and in connection with violations.

121.     In addition to the lengthy bibliography that now exists and is composed of reports and studies to which we have referred on the relationship between violations of human rights and disability, it should be noted that the mandate of the bodies affording protection has been expanding and now even includes specific under takings, as, for example, in resolution 1988/13 entitled “The situation of human rights in El Salvador”, by which the Sub-Commission requested the Special Rapporteur on Human Rights and Disability “to undertake all measures that are within his reach tending towards achieving the prompt and regular evacuation of the war wounded and disabled and inform the Sub-commission . . . as to the result of his humanitarian effort”. The Government of El Salvador cooperated with the Special Rapporteur and informed him of the measures it had adopted in that regard, drawing particular attention to those of a legislative and practical nature.

122.     There are quite a few examples of widespread violations of the rules of humanitarian law, which may cause temporary or permanent disability and have particular effects on disabled persons. In the preceding chapter (paras. 61-64), we referred to the Third and Fourth Geneva Conventions of 1949 and Protocols I and II additional thereto, placing particular emphasis on the prohibition of violations of humanitarian law which might cause disability or have a particular impact on disabled persons.

123.            According to Hans Hoegh, Special Representative of the Secretary-General for the Promotion of the United Nations Decade of Disabled Persons, under normal circumstances, disabled persons represent approximately 7 percent of the population of the developing countries.[37]  In conflict situations, however, this figure increases to approximately 10 percent. In Cambodia, for example, tens of thousands of persons have been left disabled as a result of the serious war injuries received since 1970. Although there are no national statistics available on the number of war cripples, local statistics show that persons who have had limbs amputated represent a significant proportion of the disabled population  (over 80 percent). The affected population in the refugee camps is estimated at 6,000 persons.

124.     It is obvious that the nature and extent of the harm suffered by the victims of a situation of violence or an armed conflict depends to a large extent on the combat methods used and the use of certain particularly harmful firearms, bombs, explosives, etc. Land mines are one of the most frequent sources of disability, both in international armed conflicts such as the Iran-Iraq war and in internal armed conflicts, for example in El Salvador, and also in conflicts of a mixed nature, as in Afghanistan before the withdrawal of Soviet troops. Unfortunately this conflict is continuing in the form of a civil war, and the number of victims is increasing. In Afghanistan, but especially in Pakistan, there are special sections in hospitals that are filled with persons injured by exploding mines.[38]

125.     The devastating effects of the use of chemical weapons on life, the environment and the survivors' health is a topic of growing concern for the international community and the United Nations in particular. Thus, at its fortieth session, the Sub-Commission adopted resolution 1988/27 of 1 September 1988, entitled “Respect for the right to life: elimination of chemical weapons”. The resolution stated that the Sub-Commission was deeply shocked and saddened by the destruction of human life, life-long disabilities and great suffering caused by chemical weapons and indicated the necessity for the international community to take urgent and effective measures to prevent the future use of chemical weapons in violation of international law in order to protect human life.

126.     In a specially prepared report on violations of international humanitarian law, Disabled Peoples' International (DPI) indicated that, although all wars have their wounded, very frequently a large number of permanent disabilities are the result of illegal military operations, ill-treatment of prisoners of war, refusal to attend to the wounded or interference with the humanitarian action of civilians. The report goes on to indicate the gravity and frequency of certain attacks on refugees or places of refuge housing defenceless persons often deprived of any food aid or medical supplies. It also mentions the repeated armed attacks on hospitals and health staff as signed to wounded, ill or disabled persons. These are reprehensible acts from every point of view, says the organization, and no strategic considerations can justify them. What is more, persons who have suffered serious injury or have any type of disability are not only defenceless but are obviously at a disadvantage in terms of escaping the attack.

C. Suffering inflicted on non-combatants in situations of armed conflict or civil strife

127.     Unlike the past, when wars generally took place on the battlefield and most victims were soldiers or combatants, today, as a result of the proliferation of internal conflicts (in which the civilian population is much more exposed) and because of the development of certain weapons with enormous destructive power, the number of civilians affected by the violence is considerably greater than the number of combatants themselves.[39] According to available information, women and children account for over three quarters of the victims of armed conflicts in over 50 countries.[40] In the last decade over 1 million children in poor countries have died as a direct consequence of war. For each dead child, three more are estimated to have been injured or physically disabled and many more psychologically damaged.[41]

128.            Although the most relevant aspects relating to women and children will be dealt with specifically in section D of this chapter, the above-mentioned information clearly illustrates the huge influence of armed conflicts and situations of violence in creating disabilities and also highlights their negative impact on the population in general and on disabled persons in particular. In this connection, we also believe it is important to stress the extremely complex and delicate situation in which persons with any type of mental disability frequently find themselves during these conflicts. Under such circumstances persons with disabilities are often deprived of all care and even of their most vital needs. Obviously this state of affairs usually leads to isolation, depression, distress, and therefore an increase in mental disturbances. At other times persons opt for concealment and, terrorized, flee society in the hope of finding refuge in places where they are not always safe and where it is difficult for them to find any help.

129.     Also in connection with the suffering inflicted on non-combatants, the Special Rapporteur has received extensive information on events in Afghanistan, Angola, Cambodia, East Timor, El Salvador, Ethiopia, Mozambique, Sri Lanka, etc. However, most of the communications he has received on this question refer to the situation in the Israeli-occupied Arab territories. By way of illustration, some 1,000 Palestinians have died and tens of thousands have been injured since the intifada began. According to a letter addressed to the Special Rapporteur by the representative of Palestine to the United Nations, between December 1987 and February 1991 over 8,000 Palestinians were permanently disabled as a result of Israeli policy in the occupied territories.[42]

D.  Insufficient care and cruelty towards children and women

130.     The non-governmental organizations stress the fact that the rising wave of terrorism, the increase in military repression in certain regions, the frequent use of weapons with high destructive power and shortages imposed by war have truly devastating consequences for the most vulnerable and defenceless groups of society such as women and children. A recent survey of Afghan refugees and persons displaced within their own country highlighted the fact that the main victims of air bombings were women, children, adolescents and elderly people.

1.  Children

131.     The Special Rapporteur on States of Emergency indicates in his latest report that in South Africa, which has systematically resorted to the adoption of emergency measures, between June 1986 and August 1987 approximately 30,000 persons were detained for periods of more than 30 days, of whom 40 percent were children under 18 years of age. The reports of the Ad Hoc Working Group of Experts on Southern Africa mention many cases of torture and inhuman treatment of civilians and young children. The thousands and thousands of child soldiers in Iran, Afghanistan and many other countries in the world complete this partial listing of acts of cruelty towards children.

132.     It would not be right to ignore the tragic situation of displaced or refugee children, of whom there are approximately 15 million today and who, in addition to the risks from the conflicts themselves, must suffer the heart-rending trauma of being uprooted. In many cases they are also forced to change residence frequently. The displaced are frequently subjected to military controls when travelling from one temporary camp to another, and they are not allowed to resume their normal lives. Unlike refugees, who because they have crossed frontiers can have the immediate support and protection of the United Nations High Commissioner for Refugees, displaced persons usually have greater difficulty in obtaining international protection since they remain in their own countries. This raises a series of problems when one or both parties to the conflict limit or prevent access to aid and rehabilitation.[43]

133.     Among the injuries that are usual causes of permanent disabilities in children during armed conflicts are injuries to the brain and spinal cord, bone deformities in the arms and legs and loss of sight, hearing or mental capacity. That is to say, diseases producing disabilities that have not yet been eradicated, such as meningitis, tuberculosis, poliomyelitis, etc., have now been joined by diseases that are the result of war and of lack of care, such as: compound fractures, bone and tendon infections and deformities due to delay in medical care or lack of proper treatment. In the case of children, it is particularly serious when the bones in the deformed limbs begin to grow.

134.     From the psychosocial point of view, the traumas caused children by conflicts usually have a very harmful effect on them psychologically. Many children, deprived of the security that is the basis for a child's natural development and subjected to constant tension for a lengthy period of time, become chronically sad and anxious and display behavioural disturbances of varying degrees of intensity.[44]

135.            Unfortunately, during armed conflicts some developing countries assign all existing rehabilitation services to adults, especially combatants and the military. In such circumstances, children and women are generally given no assistance at all, while in other cases assistance is minimal. In the armed conflicts in Angola and Mozambique, for example, less than 10 to 20 percent of the children received inexpensive prosthetic devices. In Nicaragua and El Salvador, only 20 percent of children in need were provided with the necessary services. From 1 to 10 percent of the Afghan refugees receiving care in Afghanistan were children.[45]

136.     The Special Rapporteur wishes to pay a tribute to the UNICEF strategy for the prevention of disability since it includes a higher degree of early detection of disability and intervention at the community level to respond adequately in cases of children with traumatic injuries. It also includes greater supply of prosthetic devices, the production of wheelchairs and inexpensive prosthetic and orthopaedic devices and the training of highly-skilled therapists able to deal with emergency situations.

137.     In addition to situations of violence and their effects on children, emphasis should also be placed on other factors that might have a negative influence on children, such as child labour. Working at a young age can have terrible consequences for the child's mental and physical development. Children are not physically equipped to withstand long hours of exhausting and monotonous work. Their bodies are much less resistant to the effects of fatigue and effort than are those of adults. Many of them are already suffering from malnutrition, which further saps their stamina and makes them more vulnerable to disease. Carrying heavy weights and working in uncomfortable circumstances in small factories can produce deformities, especially of the bones. Children working in the manufacturing sector are more exposed to accidents and occupational hazards than adults. They have less experience in handling tools, tire much more easily than adults and have a shorter attention span: a split second's carelessness can mean a permanent disability.[46]

138.     In most of the world, prenatal diseases and diseases in infancy as a result of malnutrition are cited as major causes of disability in children. Infants who are given food of low nutritional value and drink non potable water suffer from severe diarrhoea which, if the child survives, leads to chronic anaemia due to lack of iron, which in turn contributes to a poor state of general health and is a factor in learning disorders. Lack of proper nutrition is mentioned in the majority of the replies received as one of the factors most affecting children's mental or physical growth. As mentioned earlier, lack of vitamin A causes blindness in hundreds of thousands of children every year and lack of iodine causes loss of hearing, goitre, a marked decline in mental faculties and cretinism. In this connection, the provisions of article 24 of the Convention on the Rights of the Child, which in paragraph 2 (c) recognizes the child's right to “the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution;” are very encouraging.

139.     The human rights protection bodies, and the Sub-Commission in particular, have taken a deep interest in the prevention of certain traditional practices, such as female circumcision, which because it causes injuries in children is considered to be a serious abuse of children. This has contributed considerably to the adoption of various provisions in the Convention on the Rights of the Child. One of them, contained in article 19, stipulates that children shall be protected from all forms of physical or mental violence, injury or abuse . . . including sexual abuse. Similarly, under article 24, paragraph 3 States parties shall take all effective and appropriate measures “with a view to abolishing traditional practices prejudicial to the health of children.” Finally, the physical and psychological ill-treatment of children, both within and outside the family, is a topic that has been poorly understood in the past but that is an extremely serious cause of disability in both developed and developing countries. The harm that can be caused in children by their parents or other persons beating, insulting, humiliating and maltreating them can be so great that in many cases it causes mental illness, social maladjustment, difficulties in school or at work, sexual impairment, etc, Another problem, of complexity requiring separate study, is the traffic in children’s organs that is taking place in developing countries especially.

2.  Women

140.     Much of what has been said concerning the situation of children during armed conflicts also applies to women as a sector of the civilian population that is particularly affected by violence. Thus we would now like to focus our attention on the negative consequences for women of the persistence of certain cultural barriers that make them the victims of a two-fold discrimination: as women and as disabled persons. Much has been written on discrimination against women, but very little has so far been done to deal adequately with the problem of disabled women. The few attempts made have been based on a mistaken approach, since they treat the acute problem of disability as part of the general topic of discrimination against women. However, sex and disability are two separate factors which, when combined in the same person, usually reinforce each other and compound prejudices.

141.     It has been proved that women in many countries are disadvantaged with respect to men from the social, cultural and economic points of view, which makes it very difficult for them to have access to health services, education, vocational training, employment, etc. This statement, which is valid for women in general, also applies to disabled women. For the latter, however, the lack of access to health services will certainly aggravate their disability or make it difficult for them to be rehabilitated quickly by making their participation in community life even more problematic.

142.     All the arguments adduced in favour of women's full participation in the various spheres of cultural, political, economic life, etc., are doubly applicable to disabled women, not only regarding equal rights, but also with respect to the negative consequences for society in general of neglecting any human resource, for the community's failure to use it turns it into a burden for that community. It is sufficient to realize that over 250 million disabled persons throughout the world are women to understand the importance of the issue and its close links to all development questions. Women make up three quarters of disabled persons in the developing countries, with the highest proportion in Asia. From 65 percent to 70 percent, i.e. the great majority, live in rural areas.[47]

143.     The Nairobi Forward-looking Strategies for the Advancement of Women mention women with physical and mental disabilities under the “areas of special concern”. Paragraph 296, after identifying the factors that contribute to the rising numbers of disabled persons, states that the recognition of their human dignity and human rights and the full participation by disabled persons in society are still limited. These are additional problems for disabled women who have domestic and other responsibilities. Among the recommendations to Governments are the adoption of the Declaration on the Rights of Disabled Persons and the World Programme of Action, which provide an overall framework for action, especially regarding problems specific to women that have not been fully appreciated by society because they are still not well known or understood.

144.            Paragraph 296 concludes by recommending that: “Community-based occupational and social rehabilitation measures, support services to help them with their domestic responsibilities, as well as opportunities for the participation of such women in all aspects of life should be provided. The rights of intellectually disabled women to obtain health information and advice and to consent to or refuse medical treatment should be respected; similarly, the rights of intellectually disabled minors should be respected.”

145.     Finally, the Special Rapporteur would like to express his disappointment at the virtually total lack of bibliographic material on the specific problem of women with disabilities. It is all the more surprising to find such a lack in women's literature, which is obviously very familiar with discrimination.

E.  Specific problems of some other vulnerable groups

1.  Refugees

146.     The situation of refugees has at least two readily recognizable points of contact with the subject of disability. Firstly, these are persons who have had to leave their country in order to escape from wars, armed conflicts, political persecution and so on: in other words, who in one way or another have experienced violence at close range and who have accordingly run all the risks and encountered all the dangers it involves as a causative factor in disability. Secondly, even when the refugees are already settled in the receiving country, they have in any case, as a rule, to cope with various difficulties, which per se make them a particularly vulnerable population.

147.     The additional obstacles faced by a refugee who is also a disabled person have to be assessed against this background. What is more, in many countries the fact that an applicant for refugee status is disabled is customarily taken as grounds for rejecting his application; everyone will remember with sadness the tragic situation of thousands upon thousands of disabled refugees who have spent years in transit status in Thailand and other countries of South-East Asia awaiting a visa that never arrives or that arrives only for those refugees who satisfy the conditions of physical and mental wholeness bureaucratically required by immigration laws.

148.     Until the establishment of the Trust Fund for Handicapped Refugees  (TFHR), set up with funds originating from the Nobel Peace Prize granted to the United Nations High Commissioner for Refugees in 1981 and donated for that purpose, little or nothing was known about the tragic situation of disabled persons in refugee and displaced persons' camps. This noble gesture by UNHCR threw some light on what was happening, although none of the mass media showed any great interest in the matter. It is nevertheless true that the resources allotted to the Trust Fund are used to alleviate the unhappy situation of these refugees. For example disabled persons in need of special treatment that cannot be provided in the country where they have taken refuge have been moved. A total of 322 persons were moved in the first four years and the number has been increasing since then.

149.     There are no detailed figures for the number of refugees suffering from this or that disability, and the piecemeal information at the Special Rapporteur's disposal is not up to date. A few figures can, however, be quoted to illustrate the scale of the problem. According to a UNHCR report, 22 projects concerning disabled persons were in the process of implementation at a total outlay of $983,396 at the end of 1986. These projects were being carried out in Africa, Asia, Europe and Latin America and their combined beneficiaries totalled 10,755. These 22 projects covered 19 countries and were serving twice as many people in 1986 as the year before. Even then Pakistan was the country with the largest number of disabled refugees (3,088 with mental impairments, 4,050 with physical disabilities).

150.     The same report states that some 300 handicapped persons, 65 percent with physical and organic disabilities and the remaining 35 percent suffering from psychiatric disorders, mental retardation or psychosomatic consequences of torture, arrived in third world countries in 1986. It is also reported that between 1985 and 1986 the figure increased. Some developed countries have concluded agreements to receive disabled refugees. The Netherlands, for example, informed the Special Rapporteur that it had launched such a policy in 1978 and increased its scope with effect from 1981.

151.     Among the causes of disability, apart from the common causes, the report states that refugees are most affected by poverty, poor health and hygiene and inadequate health education. It is stated further that they suffer more than the rest of the population from hereditary physical and mental disabilities, congenital diseases, malnutrition and accidents. UNHCR encourages rehabilitation projects, emphasizing refugee participation. It makes it a practice to subsidize rehabilitation communities, although it provides direct subsidies only in exceptional cases. Its purpose is always to facilitate contact for the disabled refugees with the local associations concerned. Under the heading of special education it also subsidizes programmes and employs teams of instructors, therapists, counsellors, etc. As to employment, it  [UNHCR] always endeavours to place the refugees concerned in work, either by setting up small businesses or through productive participation, especially in the informal sector of the economy.

152.     The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) reported that it provides education, health care and auxiliary services for disabled persons registered in five areas: Jordan, Lebanon, Syrian Arab Republic and Israeli-occupied territories. Prevention and the rehabilitation of disabled persons are included in UNRWA regular programmes, in collaboration with local and international non-governmental organizations. These measures comprise maternal and child health care, preventive programmes that include immunization, nutrition and supplementary feeding, and health education. Medical services of care, prevention and cure were rendered to a total of 1,845,175 refugees in 1986 and 3.5 million children received health education in 635 schools run by the organization.

2.  Indigenous inhabitants

153.     At various sessions of the Sub-Commission, non-governmental organizations concerned with protection of the human rights of indigenous populations have reported that the risk of disability among those populations is extremely high because their working conditions are often exhausting and highly dangerous, their level of living is usually lower than that of the rest of the population and the preventive-medical services available to them are often of very poor quality. Furthermore, disabled persons belonging to such groups do not usually have access to suitable rehabilitation services or adequate government help. In short, the characteristics making up a vulnerable group, which in the case of disabled persons is subject to twofold discrimination were highlighted by almost everyone who spoke on this topic.

154.            Settlement, the expansion of extractive industries such as mining and logging, large-scale development projects, such as hydroelectric dams, and so on, are affecting an increasing number of indigenous populations that until very recently depended essentially on hunting and fishing for their livelihood. These activities result in loss of land, the enclosure of hunting grounds and the destruction of wild fauna and flora, making the indigenous communities increasingly dependent on prepared foods containing large quantities of unwholesome sugars and fats. These, and excessive glucides, greatly increase the incidence of cardiovascular diseases and cancer[48] and may also be a factor in diabetes.[49]  To sum up, the systematic changes in diet brought about by industrial projects imposed on the population, or by emigration, not merely destroy the indigenous economy but can also enslave the mind.

155.            Although they may seem much less obvious than any physical disability, learning disorders are a particular source of danger because they may affect an entire population and even impair its capacity to resist exploitation. Consequently, ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries marks a genuine step forward; it recognizes the right of such peoples to take control of their own development, to administer their territories and to require the State to take steps to protect their environment. Special rules are laid down to these ends in articles 4 and 7 and in part II of the Convention. Be that as it may, the Convention has attracted very few ratifications and indigenous peoples and non-governmental organizations are urging the need for a greater United Nations commitment in this connection. The Conference on Environment and Development, which is to be held in Brazil in June 1992 will provide an exceptional opportunity to spell out rights and responsibilities with regard to the environment of indigenous populations.

3.  Migrant workers

156.     The special situation of migrant workers and their families as groups falling victim to discrimination is a topic which has long been a focus of attention in the United Nations, to the point where, as already stated, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families was adopted on 18 December 1990. Over and above the rules laid down in that instrument, the travaux preparatoires are very illuminating, for they draw attention to the precarious situation that frequently overtakes persons in this category and the increased discrimination which disabilities often bring with them.

157.     At the national level, paradoxically, certain immigration laws have been the means of revealing the discriminatory criteria applied against persons with a disability, since in many cases they were and, as we shall see later on, still are denied admission to the country.

F.  Underdevelopment and its various manifestations considered as a violation of human rights

158.     Both the Sub-Commission's discussions and most of the replies received emphasize the important role of underdevelopment in the occurrence and intensification of disabilities[50]. Owing to a vicious circle, mass shortcomings in the area of education, nutrition and health care bring about an increase in the disabled population that cannot contribute to development, thus increasing the public burden on third-world countries. The problem is therefore generally presented as a denial of the right to development as recognized by the United Nations: a right whose fulfilment is considered one of the most effective means of overcoming disabilities and strengthening protection of the human rights of disabled persons.

159.     Many of the replies agree in singling out the following among the causative factors of underdevelopment-related disability: indigence, poor food and housing, lack of public hygiene, degradation of the environment, inadequate education and health information, the well-known effect of illiteracy, etc.

160.     Unlike the factors making for disability which we have identified at the beginning of this chapter and elsewhere in it -- torture, amputation, etc. -- the causes we are examining now certainly justify reference to a cause-and-effect relationship between the phenomenon (hunger, malnutrition, etc.) and the resultant disability, but in this case the direct relationship between victim and victimizer apparent in the case of torture, for example, is missing. In essentials, the difference lies firstly in the distinctive nature of the causes of disability (violation of civil rights in the one case and of economic, social or cultural rights in the other) and secondly in the practical difficulties of fixing the blame. It is easier to punish the perpetrators of an inhuman, cruel or degrading act than to identify those responsible for hunger or poverty. There is no doubt, however, that death from starvation constitutes a denial of the right to life and an act of cruelty as blameworthy as torture.

161.     Hunger is a scourge that is still ravaging a large proportion of mankind; where it does not lead to the early death of the hungry, it results in a chronic state of malnutrition that slowly reduces people's mental and physical capacity. It has consequently come to be said that hunger is the sickness of slaves, for it affects those who, by their very status, are subjected to the hardest, heaviest and most dangerous kinds of work, with the result that they consume more energy and need to be better fed. According to the table prepared by WHO and referred to above (see para. 110), more than 100 million persons that is to say, more than 20 percent of all disabled persons are suffering from disabilities of various kinds resulting from dietary deficiencies. The replies, in their turn, make it clear that the commonest causes of disability in most parts of the world are prenatal diseases or diseases of early infancy due to malnutrition.

162.     The lack of an adequate health system has repeatedly been ranked among the main causes of disability. Not only does it impede the decisive task of prevention but many avoidable disabilities grow worse or become permanent for lack of attention. Furthermore the lack or inadequacy of medical attention during pregnancy or confinement is, according to UNICEF, one of the most powerful factors in disabilities among children. The non-governmental organizations emphasize that the problems resulting from inadequate health care can be solved only through the establishment of a network of health services where basic care is accessible to all regardless of economic circumstances or geographic location. Similarly several Governments and non-governmental organizations include insalubrious housing among the causes of many disabilities, since it serves as a breeding-ground for a great many diseases, makes for accidents, leaves its inhabitants exposed to the worst fates in the event of natural disasters, and so on. Lastly, many replies refer to article 8 of the Declaration on the Right to Development, which provides that States should undertake all necessary measures for the realization of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income.

163.     The extraordinarily rapid progress of science and technology, proceeding in disregard of nature's laws and nature's capacity for self-cleansing and self-reproduction, has resulted in an alarming deterioration and degradation of our natural environment. Yet only in the last few years has it come to be realized more and more that desertification,[51] uncontrolled deforestation soil exhaustion, depletion of the ozone layer, pollution and toxic wastes produce a wide range of adverse effects on human health and are the causes of disabilities of various kinds. Disasters such as the fire at the Chernobyl nuclear power station in the Soviet Union and the accident at the Bhopal chemical plant in India are no more than examples of the tragic effect which contamination and environmental pollution have on health and the generation of disabilities.

164.     It should also be remembered that at several sessions of the Sub-Commission growing concern has been expressed about the use of pesticides and feeding stuffs that contain hormones, antibiotics or other additives and that are still being exported to developing countries even after they have been prohibited in their country of origin as a result of their harmful effects. Furthermore the preliminary report submitted by the Special Rapporteur on “Human rights and the environment” (E/CN.4/Sub.2/1991/8) gives a series of similar examples which clearly illustrate this point.

165.            Another of the main causes of disability consists of injuries or diseases caused by working with dangerous substances or under unsuitable conditions. Problems are created in this connection by the transfer of unsuitable, defective or obsolete technology or equipment from developed to developing countries, by excessively long hours of work with inadequate rest breaks, etc. Some participants in the Sub-Commission's sessions have expressed their deep concern at the degree of noncompliance with safety standards in industrial and agricultural work. It has been said that, in countries where those standards had recently been lowered, there had been a striking increase in work-related disabilities.[52] The effects of dangerous substances often go beyond the actual worker and are felt by his entire family. For example, reports from Bhopal refer to a high incidence of disabled babies, miscarriages and stillbirths due to exposure of the parents to chemicals, which, as we know, killed more than 2,000 people and left many thousands permanently disabled.

166.     Lastly the Special Rapporteur draws some encouragement from the measures taken by United Nations bodies to prohibit the movement of toxic and dangerous products and wastes to, and their dumping in, other countries and the export of dangerous chemicals or pharmaceuticals. Many disabilities are due to defective baby foods and to the distribution in developing countries of drugs which have been superseded or prohibited in the developed countries owing to their dangerous side effects. Such acts, whatever they may be called, are genuine violations of human rights and should be treated as such by the international community.

167.     A factor which is intimately bound up with disability, and which in some degree combines many of those already examined is indigence: extreme poverty, or “the supreme evil” as it used to be called by Father Joseph Wresinski, the founder of the International Movement ATD Fourth World, which has been doing commendable work on behalf of the poorest for several decades. Indigence, besides being in itself the most palpable expression of social exclusion and denial of the enjoyment of all human rights, is a direct cause of disability as well as a factor that worsens both disability and discrimination against disabled persons.

168.     In a letter addressed to the Special Rapporteur by the non-governmental organization ATD Fourth World it is stated that:

Disability in all its forms, being present in all social settings, is nevertheless part of the daily life of families and groups in a situation of extreme poverty, whether in the poorest regions of the world or in poverty-stricken areas of industrialized countries. Indeed, disability is so intimately bound up with poverty that it is difficult to isolate as a problem. Is it a cause of poverty? Is it a result? The greater the poverty, the greater the risks of disability become. Through their living conditions, working conditions, state of health, ignorance and so on, the poorest are especially exposed to the onset of various disabilities, not merely at birth and in infancy but at every stage in life. As a result, infirmities and handicaps accumulate in the course of a single person's or a single group's life. This is illustrated by various statistics, for example those indicating the increased risk of disability incurred by certain categories of workers in the most dangerous and unhealthiest sectors. Similarly the leprosy map of Africa covers much the same territory as the hunger map. While the correlation between extreme poverty and disability is very widely acknowledged in the case of the developing countries, it is less clearly perceived with reference to the poorest milieux in the industrialized countries.

169. The [non-]organization [ATD Fourth World] goes on to state that:

Indigence worsens the consequences of disability and leads to situations of multiple discrimination. The consequences of disability are more serious, longer-lasting and harder to bear for the poorest and their families, while entire groups are weakened by the fact that a large number of their members are afflicted in this way. This is especially true in that the means of overcoming the difficulties of living with certain physical or mental deficiencies the prevention, reeducation and vocational training services are largely lacking in the most underprivileged ranks of society. Thus one and the same disability or infirmity may have very different consequences according to the victim's socio-economic status and level of training. For example, a lawyer who has partly lost the use of one leg will be able to keep his practice, whereas an unskilled agricultural labourer may well be left with no source of livelihood. Furthermore, the low level or even complete absence of education in the poorest circles virtually rules out access to the resources of vocational retraining, all the more so since those resources are rarely designed with the situation of the poorest in mind. In the industrialized countries there is a tendency for children, young people and adults in a situation of extreme poverty to be hedged about with administrative rules on disability that allow no scope for promotion, training or integration in society.

G. Apartheid

170.     There are two main reasons why it is relevant to include apartheid in this study: firstly, the prevailing system in South Africa is the cause of many disabilities among the majority black population of the country; and, secondly, disabled persons who belong to that majority are in turn victims of a twofold discrimination. The living conditions of the vast majority of the coloured population, especially in Soweto and the Bantustans, are characterized by a lack of drinking water and of adequate sewerage. Moreover, malnutrition and generally poor sanitation mean that the number of disabled persons is very high in this community. Furthermore, the constant oppression and permanent violence practised by the white minority against the coloured population significantly increase the number of disabled persons.

171.     In connection with this two-fold discrimination, Disabled Peoples' International (DPI) reported to the Commission on Human Rights an incident which received much publicity at the time and which provides a particularly graphic example of such an aberration. It concerned a group of foreigners who were visiting South Africa and were involved in a car accident. All the members of the group received immediate medical care except for one, who was black and was denied medical care by the emergency services, as a result of which he will be quadriplegic for the rest of his life. The DPI stated that this incident illustrates the relationship between apartheid and disability and expressed its distress at the fact that this is happening daily to the majority population in the country and only came to light in this case because the victim was a foreigner.

172.            According to a WHO report, the tension that apartheid creates in the black population is affecting mental health. It gives as an example the massive forced expulsions, which have been ordered to achieve the bantustanization of some unpopulated areas of the country in order to

perpetuate white economic and political supremacy through the creation of a mobile group of migrant labourers with wretched living conditions. Further more, the situation of coloured people with mental disabilities is extremely serious and goes so far as to include their employment as free labour by private enterprise with the agreement of the Government. Although the Special Rapporteur lacks recent information, until a few years ago there was not a single black psychiatrist in the whole of South Africa, and vital decisions concerning thousands of African mental patients were taken by doctors working part-time who, in addition to having been trained in another culture with racist characteristics, did not even speak the language of their patients. The availability of beds for psychiatric care per 1,000 inhabitants of the white population is 3.3 times greater than for the black population.

173.     While considerable progress has recently been made in South Africa in the field of human rights, and particularly in the legal abolition of apartheid, the Special Rapporteur believes that the situation is still far from satisfactory and for this reason has preferred to fulfil his mandate by highlighting aspects linking disability with apartheid, as he was asked to do by the Sub-Commission.

H.  Problems related to some deliberately inflicted forms of punishment and other treatment

174.     On various occasions in the Sub-Commission, representatives of non-governmental organizations for disabled persons and other participants have joined in identifying the following practices as serious violations of international law and human rights:[53] amputation as punishment; the institutionalization of disabled persons; institutional abuse, including the use of drugs; forced sterilization, castration and female circumcision; and the blinding of detainees as an alternative to detention. Many speakers have emphasized that no religious tenet or other cultural factor could justify or excuse such acts, which they regard as being contrary to binding human rights standards prohibiting torture and other cruel, inhuman or degrading treatment or punishment.

175.            Mutilations, particularly the amputation of the extremities of captured combatants in time of armed conflict, have been condemned as an aberrant practice, common in some regions, which is contrary to the Geneva Conventions and human rights standards. Several non-governmental organizations have pointed out that forced sterilization is more often used on disabled women than men in order to prevent them from having children. Often, disabled women are sterilized for eugenic reasons or simply because they are often victims of rape. Indeed, sterilization is sometimes a prerequisite for entry into an institution.[54]

176.     For many years the Sub-Commission has been closely studying traditional practices, for example sexual mutilation, which affect human rights, as well as ways of eradicating those which harm families and the community, and of encouraging practices that are beneficial.[55]  In that regard, particular attention should be paid to relevant aspects of the report submitted on the subject by the Special Rapporteur, Mrs.. Halima Warzazi (E/CN.4/ Sub.2/1991/6).

177.     Finally, among the institutional abuses of which disabled persons are often victims, as well as maltreatment, the administration of drugs and other aspects which will be looked at in chapter m, the use of psychiatry for political ends and the improper detention in psychiatric hospitals of political opponents or disabled persons when it is not needed or not advisable, have been condemned.

178.     In conclusion, the Special Rapporteur would like to reaffirm his belief, already expressed in his preliminary report,[56] that certain punishments, such as amputation, which are deliberately intended to disable the individual, are contrary to international humanitarian law. A correct interpretation of article 4 of the International Covenant on Civil and Political Rights - and, in the same context, articles 15 and 27 of the European Convention on Human Rights and the American Convention on Human Rights, respectively - allows us to conclude that cruel, inhuman or degrading treatment or punishment is prohibited at all times and in all circumstances and that no emergency situation can authorize them. Any penalty, whether based on principles that are legal or religious or both, which entails cruel or inhuman punishment or treatment is a violation of human rights in the light of the international norms in force.

I. Scientific experiments

179.     Without question some of the most serious human rights violations that cause disability are scientific experiments conducted without the victims' informed consent. Such acts are prohibited particularly by the Geneva Conventions and article 7 of the International Covenant on Civil and Political Rights. Earlier they formed the subject of important decisions by the allied military tribunals set up to punish Second World War criminals on the basis of the Charter and the Judgement of the Nuremberg Tribunal.[57]  At the moment the transplantation of children's organs is one of the most sensitive of a great many complex problems. According to a WHO report there has always been a shortage of organs available for transplants and for this reason many countries have established procedures intended to increase supply. Nevertheless there is sufficient evidence to indicate an increase in the commercial traffic in human organs, particularly from living donors who are unrelated to the recipients. There are grounds for fearing that as a result there could exist a traffic in human beings of which children, as always, are the main victims.[58]

180.     It is felt that these problems call for further in depth study of an ethical and normative nature, particularly in view of recent genetic and biological developments. The Special Rapporteur considers that such an analysis, which is extremely necessary, should take the form of a separate study because of the highly complex technical problems involved. Cooperation with WHO and various bioethical and life sciences associations would be desirable for such an undertaking.

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* Human Rights Studies Series, Number 6. Centre for Human Rights:  Geneva  (United Nations publication, Sales No. E.92.XIV.4).

* Bantam Books: 1988.

[36] OMS, La Vaz, Vol. 1, No. 2, Montevideo, June 1987.

[37] Referred to in Disabled Persons, Victims of Armed Conflicts and Civil Unrest, Eighth inter-agency meeting on the United Nations Decade of Disabled Persons, 1983-1992, Vienna, 5-7 December 1990, agenda item 4, paper No. 1 (The Case of Refugees).  Prepared by the United Nations High Commissioner for Refugees, Geneva, 1990, p. 1 (English only).

[38] E/CN.4/Sub.2/1988/SR.11, para.16.

[39] E/CN.4/Sub.2/1985/SR.23, paras. 11, 32 and 46, and E/CN.4/Sub.2/1988/SR.11, paras. 42 and 61.

[40] AWEPAA:  Conference Report on Child Survival on the Frontline, Harare, Zimbabwe, 21-25 April 1990.  See also note 37 above.

[41] According to a WHO report, more than three quarters of the victims of organized violence are women and children.  See also note 37 above.

[42] See documents S/21363 and A/45/84, paras. 160-170, A/45/576, paras. 54-186, and A/45/726, paras. 15 and 16, and also Disabled Persons, Victims of Armed Conflicts and Civil Unrest.  Eighth inter-agency meeting on the United Nations Decade of Disabled Persons, agenda item 4, paper No. 3, prepared by UNWRA, op. Cit., p. 143.

[43] Children and Armed Conflict.  Additional reading material from Part Six: Children in Especially Difficult Circumstances, a UNICEF Sourcebook on Children and Development in the 1990s.  Published on the occasion of the World Summit for Children, 29-30 September 1990, at the United Nations, New York, p. 12.

[44] Ibid. p. 11.

[45] Relief and Rehabilitation of Traumatized Children in War Situations, Eighth inter-agency meeting on the United Nations Decade of Disabled Persons, 1983-1992, Vienna, 5-7 December 1990, agenda item 4, paper No. 2.  See note 37, above.

[46] For more substantial information see: Child Labour: A Threat to Health and Development.  Second (revised) addition, published by Defence for Children International, Geneva, Switzerland, 1985; and the report by Mr. Vitit Muntarbhorn, Special Rapporteur on the sale of children, child prostitution and child pornography (E/CN.4/1991/51).

[47] Activities on Women and Disability: Division for the Advancement of Women/Centre for Social Development and Humanitarian Affairs.  Sixth inter-agency meeting on the United Nations Decade of Disabled Persons, 1983-1992, Vienna, 5-7 December 1988, agenda item 1, Background paper No. 9, pp. 1-2.

[48] B. Whitaker, “Revised and updated report on the question of the prevention and punishment of the crime of genocide”, United Nations document E/CN.4/Sub.2/1985/6 and Corr. 1, paras. 40-41.

[49] J.A. Kruse, “The Inupiat and development: How do they mix?”, United States Arctic Interests, W. E. Westermeyer and K. M. Shusterich, eds. (New York, Springer Verlag, 1984), pp. 134-157.

[50] E/CN.4/Sub.2/1985/SR.23, paras. 31, 40 and 41; E/CN.4/Sub.2/1988/SR.11, paras. 17, 22, 24, 30, 42; E/CN.4/Sub.2/1988/SR.12, paras. 7, 19, 20, 26, 34, 55, 57.

[51] See E/CN.4/Sub.2/1988/SR.12, para. 42.

[52] Ibid., para. 26.

[53] E/CN.4/Sub.2/1985/NGO/10; E/CN.4/Sub.2/1985/SR.23, paras. 39, 47.

[54] E/CN.4/Sub.2/1988/SR.12, para. 28.

[55] See E/CN.4/1986/42.

[56] E/CN.4/Sub.2/1985/32, paras. 18, 27-29.

[57] See, for example, document E/2087 and Economic and Social Council resolutions 305 (XI) and 386 (XIII).

[58] Human Organ Transplantation (World Health Organization, ED87/12, 19 November 1990), p. 4.

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