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UN Programme on Disability   Working for full participation and equality


Human Rights and Disabled Persons*

Part 4 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

III  PREJUDICES AND DISCRIMINATION AGAINST DISABLED PERSONS: AREAS, FORM AND SCOPE

A. Introduction

181.     This chapter, perhaps more than any other, should highlight the relationship between the goals of “full participation” by disabled persons and the strategies for guaranteeing the “equality” of opportunity and treatment, as well as the link between both these aims and one of the most cherished goals of organizations of disabled persons, namely, to ensure the maximum degree of autonomy and independence for the disabled. This means developing the capacities of the individual to the full, rather than adopting the traditional approach of emphasizing disabilities or handicaps to classify individuals, since these tend to be the direct or aggravated result of the attitude of the community itself towards persons who suffer from some real or apparent[59] physical or mental disorder or functional problem.

182.     Clearly, the disabilities of a person who has not received proper rehabilitation treatment will grow worse and, in some cases, become acute. If he is discriminated against in the work place because of his disability or he is simply afforded no employment opportunity, his dependence and his isolation will be greater. If the educational system does not provide for his specific situation, a disabled person finds himself excluded from it, and without proper instruction his disabilities worsen. If the cultural and sporting activities of society are designed solely for a standard category of person, which does not include him, he will be barred from culture and sport. If means of transport, pavements and buildings are inaccessible to such a person, he will be unable to move about freely. In short, it is such barriers and discrimination which to a large extent create or aggravate disabilities and actually set people apart from society, in many cases making them a burden to the community. This demonstrates conclusively the importance of efforts to achieve the maximum degree of autonomy and independence for disabled persons, not only for their benefit, but also for the benefit of society as a whole.

183.     Mr. Bengt Lindquist, Swedish Minister for Family Affairs and Matters concerning the Disabled and the Elderly, told a group of specialists that:[60] 

The ideas and concepts of equality and full participation for persons with disabilities have been developed very far on paper, but not in reality. In all our countries, in all types of living conditions, the consequences of disability interfere in the lives of disabled persons to a degree which is not at all acceptable. Many of the existing obstacles and limitations occur in areas of fundamental importance to our situation as citizens of our societies. If a person in a wheelchair wants to attend a public meeting, be it social, cultural or political, and if he cannot get into the meeting room because the building is not accessible, his rights as a citizen have been violated. A blind person interested in a public debate who has no access to the daily paper in which the discussion takes place is in a similar situation. When a person is excluded from employment because of the fact that he is disabled, he is being discriminated against as a human being. If a general education system is developed in a developing country and disabled children are excluded, their rights are being violated.

B.  Areas and scope of discrimination

184.     Among the information provided by non-governmental organizations was a document prepared by the World Veterans Federation listing the areas or spheres in which disabled persons find themselves at a distinct disadvantage. They are:

(a)            Education. In all countries, educational institutions are not always accessible to disabled persons and in many cases such persons are not admitted to the same schools as other people. The same applies to vocational training and to academic studies;

(b)            Employment. In addition to the fact that many work places are not physically accessible to severely disabled persons, employers often fail to understand that a physical disability does not necessarily involve mental impairment and even fellow workers themselves may be opposed to the employment of disabled persons;

(c)            Transport. Attention is drawn to the highly discriminatory effect of the failure to provide accessible means of transport and the obstacle which that presents to an independent life for disabled persons;

(d)            Housing. It is noted with astonishment that even now, in highly developed countries, buildings which are not accessible to disabled persons are still being constructed. The use of wheelchairs, for instance, is extremely difficult, or even impossible, in many apartment buildings;

(e)            Buildings in general. The above observations also apply to other premises such as public office buildings, restaurants, cinemas, theatres, libraries, hotels, sports facilities, etc. Apart from the obstacles presented by building design, prejudices often exist which render the access of disabled persons to premises such as restaurants or bars difficult or impossible. It is common to hear the management of such establishments say that there are no tables free when a group of disabled persons attempts to enter.

C. Cultural barriers

185.       Although in most of the replies it is recognized, at least implicitly, that prejudices and discrimination against disabled persons exist, few Governments have made a study of the causes and forms of such practices.  However, with regard to causes, some replies were objective enough to single out traditional attitudes, which expose some categories of disabled persons to feelings of shame, superstitious fear and rejection.[61]  It is worth noting that both governmental and non-governmental sources point to cultural barriers as one of the main obstacles to the integration and full participation of disabled persons in all aspects of social life.

1.  Access to education

186.     Further to the information provided by the World Veterans Federation, the Special Rapporteur considers it worthwhile emphasizing the impact of such cultural barriers on all aspects of the economic, working, educational and everyday life of disabled persons.  With regard to education, for example, paragraph 120 of the World Programme of Action stipulates that education should, as far as possible, be provided within the ordinary school system, without any discrimination against handicapped children or adults.  However, this condition is not always met, because of the prejudices of the authorities and teachers, of the parents of other children, or even of the parents of disabled children.  Consequently, in many instances where the child’s disability does not constitute an obstacle in itself, discrimination prevents him from entering the ordinary school system.  In some cases, it is the law itself which stipulates that disabled children must attend special schools, which is tantamount to official segregation.  In other cases, the obstacle to school attendance is the lack of means of transport, both in cities and in rural areas, although the phenomenon is much more common in the latter.  Shortcomings in building design have a similar effect, making access to school buildings and movement inside them difficult, and also barring access to toilets etc., a very common phenomenon.

2.  Unemployment

187.     From the reports received, it emerges that unemployment is one of the main problems of disabled persons. According to ILO, the level of unemployment among disabled persons is two or three times as high as for other persons, and in many developing countries where unemployment is very widespread, the employment prospects of disabled persons are minimal or nonexistent.  For example, the unemployment figures for Europe are as follows:  in the United Kingdom [of Great Britain and Northern Ireland], the estimated level of unemployment amongst disabled persons in 1978 was 14 percent, compared with 5.5 percent for the rest of the population; in France in the same year, the unemployment rate amongst disabled persons was three times as high as for the rest of the population; the Netherlands and Denmark had unemployment rates of 7 percent in 1978, and only 11.5 percent and 17.5 percent respectively of their registered workers with disabilities were able to find work; in the Federal Republic of Germany, the average period of unemployment for workers with disabilities is 16 months, compared with 10 months for the rest of the population.[62]  Although these figures are 10 years old, they provide a clear indication of the comparative levels of unemployment among disabled persons and for the rest of the population.

188.     Still with regard to the major problem of unemployment, Finland, which is a developed country and highly advanced with regard to the treatment of disabled persons, recognizes in its official report that, while a special employment service does exist and employers receive subsidies for employing disabled persons, their conditions continue to deteriorate in relation to the general rise in unemployment.  The official report of Canada states that, despite the fact that the law prohibits discrimination against disabled persons, many cases of unequal treatment on the labour market have been discovered and the unemployment rate is estimated at more than 50 percent. The Australian authorities state that there is some labour discrimination against disabled persons in regard to equal opportunities to acquire skills and training, equal employment opportunities, equality in working conditions and career advancement.  They also state that many disabled persons live below the poverty line.

189.     In developing countries, the extremely high percentage of unemployed disabled persons means that they are forced to resort to begging in order to survive or that the favoured few who obtain jobs are forced to accept very low levels of pay.  Moreover, in some countries, employers compel disabled persons to refrain from joining unions if they want a job.  The World Federation of the Deaf notes that, in addition to the lack of technical assistance and necessary interpretation services, prejudices in general are one of the main factors making it difficult or impossible for persons with hearing disabilities to become fully integrated into the labour market.

3.  Private life

190.     The examples provided by the governmental and non-governmental sources on the negative effect of prejudices on the daily lives of disabled persons are many and varied.  With regard to marriage, the Government of [the People’s Republic of] China provides an authentic illustration of the special situation that can arise when a disabled young man and an able-bodied girl have a love affair.  While there is nothing abnormal or reproachable in such a situation, it is commonly disapproved of by both sets of parents, friends and relatives.  In such circumstances, it is easy to imagine the marriage ending in separation or divorce.  In this as in many other similar cases, it is not only the disorder or functional disability that generally prevents integration or lasting marriage, but the behaviour of society towards disabled persons (other examples can be found in paras. 197 and 198).

4. Legal barriers

191.     As stated earlier, because of the special situation of disabled persons, a number of “positive actions” must be taken to ensure that they are genuinely able to enjoy their most fundamental rights on a basis of equality. Nevertheless, many non-governmental organizations have informed the Special Rapporteur of failures to meet this requirement. In some countries, for example, deaf and dumb persons are deprived of the right to a defence because the judicial and investigating authorities do not have permanent interpreters, which are essential in such cases.

192.     At the other extreme, there are also fairly numerous complaints from non-governmental sources concerning what might be termed “negative actions” resulting in the legal exclusion of disabled persons from many acts of daily life. In many countries, even today, deaf and dumb persons who are unable to express themselves in writing are considered legally incapacitated, although other effective means of communication, such as sign language, already exist or have been developed. Another similar example is the barring of blind persons from acting as guardians, when they are actually perfectly able to act as parents, and thus also as guardians. Finally, the Pan-American Congress of the Blind reports that, in some Latin American countries, sightless persons are not permitted to vote or stand for election, on the grounds that it is difficult for them to vote responsibly or preserve secrecy.

D. Particularly vulnerable situation of the mentally ill

193.            However, it is in the sphere of mental disability that these legal barriers are most in evidence. There is general agreement that persons with mental disabilities are among the groups most discriminated against and the special report prepared by Mrs. Erica-Irene Daes entitled “Principles, guidelines and guarantees for the protection of persons detained on grounds of mental ill-health or suffering from mental disorder” fully confirms this view.[63]

194.            According to information received from the International League of Societies for Persons with Mental Handicap, a meeting of lawyers representing various associations held at Marburg, Germany, in June 1989, reached the following conclusions:

(a)            In everyday life, mentally handicapped persons are not treated equally with their neighbours, colleagues, etc. In addition to being frequently refused entry to bars, restaurants, swimming pools, discotheques, etc., they are often not allowed into hotels and regularly face enormous difficulties in finding accommodation, even in apartments, particularly when they are in groups;

(b)            In the legal sphere, for example, many instances of discrimination can be found in immigration laws. Many national laws prevent mentally handicapped persons from entering the country, not only as permanent residents, but even as tourists, for a limited period of time. Attention is drawn to the fact that it is in the most developed Western countries (Canada, France, Switzerland, United States) that this type of restrictive legislation is most frequently applied on the grounds, in many cases, that the presence of mentally handicapped persons from abroad will impose “excessive demands on health or social services”;[64]

(c)            It is also regrettable that, in some countries, mentally handicapped children are denied the opportunity to develop and learn, although there is abundant evidence to show that even seriously mentally handicapped persons can acquire and improve practical skills and attain a high level of proficiency in manual work;

(d)            The worst form of discrimination against the mentally handicapped is the campaign to legalize the termination of life of severely handicapped new-born children;

(e)            Finally, attention is drawn to the deplorable treatment to which mentally handicapped persons are frequently subjected in psychiatric hospitals, a question which is dealt with specifically below.

E. Institutionalization

195.     In this connection, it should be recalled that the Sub-Commission's Special Rapporteur, Mrs. Erica Irene Daes, in her report relating specifically to persons detained on grounds of mental ill-health or suffering from mental disorder, showed that some persons had been subjected to privation in psychiatric institutions, as well as to many other forms of psychiatric maltreatment and misuses of psychiatry, including even torture by drugs, in contravention of medical ethics and of the relevant international instruments.[65]

196.     As this is a question which has been duly considered in the above-mentioned report and in the various discussions in the Working Group on the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, we shall refer only briefly here to the acute problem of the abuses and problems which regularly arise from the internment of the mentally ill in psychiatric institutions. However, this reference, although brief, is justified, since the next chapter will deal with the various alternatives to institutionalization. The Special Rapporteur is aware of the importance of bringing fully to light the tragic situation obtaining in some psychiatric establishments and of the many and profound after-effects of confinement in them, so as to finally bring about a change of policy in this area.

197.     It is an established fact that, while only a small minority of disabled persons are institutionalized, such confinement is ultimately one of the most severe and common forms of exclusion of such persons. Many facilities, by virtue of being located in unpopulated rural areas, are physically remote from the community, which only serves to increase this exclusion. Life within them bears little or no relation to the life of the community at large, or even that of other disabled persons living out side. In institutions, freedom to associate is usually limited by segregation of the sexes. It is very common for inmates to have their mail opened and be denied other means of communication with the outside world. They are generally prevented from marrying and having children and, in some cases, even from voting. Internment also tends to lead to excessive use of drugs and other forms of behaviour control. Even the most modern, well equipped and well-staffed institutions have a somewhat dehumanizing character since institutionalization is based on the assumption that the persons concerned are incapable of leading an independent life as members of the community, so that inmates tend to become passive and dependent. The very fact that they are segregated from society promotes this tendency and causes inmates to develop what has been called an “institutional mentality”, itself a further disability in that it impedes their reintegration into the community.

198.     In addition to horrible misuses of psychiatry of the kind frequently reported in the media, particularly when they have resulted in the death of an inmate the ordinary routine of institutions can give rise to appalling situations, which are usually unknown or inconceivable to anyone who has never visited an establishment of this type. For example, non-governmental organizations report that one typical aspect of life within institutions is the virtually total loss of privacy for inmates. They usually have to share their accommodation with one or more other persons, which in itself results in a complete lack of privacy. Moreover, visitors are received in communal areas, thus precluding any natural display of affection which is so necessary for such persons when they meet their loved ones. It is also not unusual for visits to become less frequent and less regular, particularly if the institution is far from the city. However modern and efficient the institution, the inmates will tend to lose any real concept of the outside world, their only contact with it being through television, or the visits of relatives or friends, if any. Even in developed countries, persons in institutions have been known to spend years, and some times the rest of their lives, without anyone claiming them, despite their being equipped to live as members of the community.

199.     It may seem surprising, but some developing countries point out that, in present circumstances, extreme poverty, overpopulation and unsanitary conditions as regards the family and the local environment prevent the authorities from adopting any approach other than committing disabled persons to institutions. In Thailand, for example, chronic patients who remain in hospital for more than five years usually occupy more than 30 percent of hospital beds. Although in 1986 a mobile treatment programme was introduced, 22 percent of chronic psychiatric patients continue to be confined in institutions. Despite this policy of treatment outside institutions, most mental health services continue to be overextended and patients do not participate actively in seeking solutions.

F. Elimination of abuses and of acts of discrimination

200.     The existence of effective remedies to prevent this type of abuse (habeas corpus, for example) and the introduction of laws penalizing discrimination is a question of the utmost importance, which will be dealt with fully at the end of the following chapter. For the moment, it is worth noting that this is a question which is widely discussed in non-governmental circles but which, with a few exceptions, Governments have been very slow to take up.

201.     One such exception is the United States Re habilitation Act of 1973, section 504 of which provides that “No otherwise qualified handicapped individual . . . shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any programme or activity receiving Federal financial assistance”. This prohibition was extended to the private sector in l990 by the Americans with Disabilities Act (ADA'90). Another similar example is the Anti-Discrimination Act of New South Wales, Australia, which makes it unlawful to discriminate against an intellectually handicapped person on the basis of her or his intellectual impairment in six important areas of social life, namely, work, accommodation, public education, provision of goods and services, membership of trade unions and membership of clubs. In 1988, Argentina adopted Act No. 23,592 under which various forms of discrimination, including those directed specifically against disabled persons, were made punishable offences. Sweden is currently preparing an antidiscrimination law and it has been agreed that an ombudsman will be appointed to supervise its implementation.

202.     The Special Rapporteur shares the view that anti-discrimination legislation, particularly when it refers specifically to disabled persons, is an appropriate way of combating certain reprehensible attitudes, particularly in so far as it affords the possibility of suing owners of bars, hotels and other public premises who have practised discrimination and to bring claims against national or local authorities whose officials have been guilty of discrimination. The Special Rapporteur nevertheless considers public information and education campaigns conducted by the public authorities, trade unions and organizations of disabled persons to be of vital importance in eradicating prejudices, which continue to exist, and in putting an end to discrimination.

203.            Another decisive step in combating discrimination would be a systematic review of national laws and the incorporation in them of the principles and guidelines contained in the various international instruments which prohibit, with increasing specificity, any form of discrimination against disabled persons. An example of this is the application clause of the Principles for the Protection of Persons with Mental Illness, which states: “These Principles shall be applied without discrimination of any kind such as on grounds of disability, race, colour, sex, language, religion . . .” (emphasis added). More recently, General Assembly resolution 45/113 entitled “United Nations Rules for the Protection of Juveniles Deprived of Their Liberty”, contains in paragraph 4 of its annex, the following statement:

The Rules should be applied impartially without discrimination of any kind as to race, colour, sex, age, language, religion, nationality. political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability . . . (emphasis added).

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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.

[59] See the end of para. 96.

[60] Bengt Lindquist, “Handicapped rights”, Report of the International Expert Meeting on Legislation for Equalization of Opportunities for People with Disabilities, 2-6 June 1986, Vienna, p. 69.

[61] Canada, Chad, China, Ethiopia, Germany, Ghana, Jamaica.

[62] Rehabilitation International, No. 3, 1985.

[63] E/CN.4/Sub.2/1983/17/Rev.1.

[64] See the Canadian Immigration Act, art. 19.2, clause 2 (2).

[65] E/CN.4/Sub.2/1983/17/Rev.1, paras. 145-147.

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United Nations, 2003-04
Department of Economic and Social Affairs
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