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| CONTENTS INTRODUCTION ChapterI. BASIC LEGAL CONCEPTS II. FACTORS CAUSING DISABILITY III. PREJUDICES AND DISCRIMINATION AGAINST DISABLED PERSONS:
AREAS, FORM AND SCOPE IV. NATIONAL AND INTERNATIONAL POLICIES AND MEASURES
DESIGNED TO ERADICATE DISCRIMINATORY PRACTICES AND GUARANTEE THE DISABLED THE FULL
ENJOYMENT OF HUMAN RIGHTS V. PUBLIC INFORMATION AND EDUCATION RECOMMENDATIONS AND
PROPOSALS |
204. It seems appropriate to point out at the outset of this chapter that its content accords in essentials with the aims and strategies of the World Programme of Action, whose implementation, within the United Nations system, is the responsibility of the Centre for Social Development and Humanitarian Affairs, which has in this regard performed commendable and noteworthy work. We would therefore like to refer to the Centre's many documents and publications,[66] which give a comprehensive and detailed account of its numerous activities and efforts on the subject. In this context, the Special Rapporteur will confine himself to a bare summary of the information received, stressing only those issues which he feels essential in achieving the Programme's objectives.
205. Possibly one of the most striking aspects is the realization of the joint responsibility of governments, the community and disabled persons themselves for achieving these aims. In this context, there is no doubt that one of the most notable features of the Decade has been the leading role played by non-governmental organizations headed by disabled people, and the acknowledgement of their status as experts in their own affairs. At the social level, there has also been an extremely positive development as increasing importance is attached to the integration of disabled persons in the community. This has been suitably reflected in the conceptual transformation of rehabilitation, which has lost its strictly medical character and incorporated the social dimension previously lacking. Nevertheless, more than a few Governments, on the broad pretext of “economic crisis”, have sent replies that often present a picture of a “hands off” State, which believes itself exempt from any social function as a result of the prevailing economic situation.
206. It is therefore important to point out in this introduction that, while joint responsibility may be the dominant concept behind the World Programme of Action, the principal obligation to remove obstacles impeding or hindering the integration and full participation of disabled persons lies with Governments. This means that they cannot be mere onlookers; they must act, sometimes with great vigour, and especially in difficult situations, in order to prevent marginalization and to ensure that equalization of opportunities is not just rhetoric but real and effective.
207. Experience has shown that therapy which involves the isolation of disabled persons not only prevents their full integration into their social milieu but in most cases aggravates existing disabilities or causes new ones. This is because rehabilitation is not a purely medical concept but a comprehensive process, which covers the physical, mental, social and vocational rehabilitation of the individual. This statement in turn has numerous implications. On the one hand, it means that it is only within the community that a process of rehabilitation which aims to achieve the maximum participation of the individual can take place, and on the other hand that the individual must participate in the formulation, choice and evaluation of his or her own rehabilitation process. This last assertion might seem elementary and possibly superfluous, until we remember that for centuries and even now this possibility has been regularly denied to persons with mental disabilities.
208. The World Programme of Action concerning Disabled Persons specifically mentions the growing tendency to integrate rehabilitation services into general public services. It is clearly indicated that this must take place in a natural environment and be supported by mechanisms based in the community itself and in specialized institutions. Furthermore, at the mid-point of the Decade, it was once more stressed that, wherever possible, services for disabled persons must be provided within the existing social, educational, health and labour structures in society and that procedures should be established to permit the effective participation of disabled persons in the decision-making process.
209. Subsequently, at the sixth annual inter-agency meeting on the United Nations Decade of Disabled Persons (Vienna, 5-7 December 1988) the World Health Organization representative[67] pointed out that developing countries had an unfortunate shortage of specialists in every aspect of community-level services. Only 25 percent of disabled persons were actively involved in rehabilitation programmes and in most developing countries the potential demand for rehabilitation services was far greater than could be met in the near future. It was also pointed out that rehabilitation activities should meet the care needs of all disabled persons, including those with locomotor, visual, hearing and mental disabilities.
210. At the same meeting, the representative of the International Labour Organisation[68] said that more needed to be done to integrate disabled persons in the community and that assistance should be offered to them where they lived. Indeed the comments made by this representative are of great importance in that they stressed the need for a critical evaluation of the various approaches taken and results achieved until now with the aim of improving the system and obtaining better results in rehabilitation in the community. The paper submitted by the ILO recommended that the term “community based rehabilitation” should be changed to “community-integration programme” whenever a rehabilitation agency was setting up programmes geared to equalization of opportunities in training and employment and the socio-economic integration of disabled persons. It further emphasized that as local conditions were very varied there was no single global approach to organizing community-based rehabilitation.
211. The Food and Agriculture Organization of the United Nations,[69] for its part, reported that it had not specifically worked on the reintegration of blind or partially sighted persons into society (Onchocerciasis Control Programme in Senegal, Mali and Guinea), as they had never been excluded but were simply a burden on the society which supported them. With the improvement in their physical condition the “reintegration” occurred quite naturally, whether the community remained in its old area or moved to the new onchocerciasis-freed areas.
212. At the International Meeting on Human Resources in the Field of Disability, which took place in Tallinn, Estonian Soviet Socialist Republic, from 14 to 22 August 1989,[70] it was pointed out that “the abilities of disabled persons and their families should be strengthened through community-based supplementary services provided by Governments and non-governmental organizations.... These services should promote self determination and enable disabled persons to participate in the development of society.” Many speakers considered that, while community-based rehabilitation was an approach best suited to rural areas, it was also appropriate for urban areas due to the severe deprivation experienced in them by disabled persons. It was agreed that the involvement of the family and the community was essential to such rehabilitation. Lastly, the importance of this approach was emphasized because even now disabled persons continue to be deprived of opportunities to develop their potential, their productive capabilities and their self-reliance and are thus cut off from the main stream of national development.
213. At the seventh annual inter-agency meeting, which took place in Vienna from 6 to 8 December 1989,[71] it was acknowledged that the concept of community-based rehabilitation had received considerable attention over the past decade and that it was extremely important to utilize and build on existing resources in disabled persons themselves, their families and their communities. The World Programme of Action was seen as the guiding principle in the evolution of this concept and the participants recognized the need for a further clarification of the concept of community-based rehabilitation as a multidisciplinary and inter-sectoral approach. Lastly, it was pointed out that the preparatory work on the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care had adopted this approach. Principle 3 states that “Every person with a mental illness shall have the right to live, as far as possible, in the community,”[72] and principle 7 that “Every patient shall have the right to be treated and cared for, as far as possible, in the community in which he or she lives.”[73]
214. An integrationist trend can also be discerned at the national level, at least judging by Government replies. Most Governments are clearly turning away from committal to institutions as a priority strategy. The stress is now on reintegration into the family and the community with a view to encouraging the maximum integration of disabled persons in social life. However, institutionalization is still a last resort in situations provided for under the law which appear to be of extreme seriousness, for example when an individual suffering from serious mental illness is found guilty of a crime[74] or when medical and social reports indicate that the minimum welfare of the individual cannot be guaranteed outside of an institution.[75] In some replies abuses arising from committal, such as sterilization or castration, were mentioned, in particular concerning persons with mental disabilities, and the replies indicated the intention to eliminate these abuses.
215. In order to prevent the institutional abuses often suffered by disabled persons, especially those with mental illnesses, some States have set up supervisory committees, or other relevant bodies, and have established standards to regulate admission to and retention in mental health-care services. For instance, the Mental Health Act of Alberta, Canada, protects the right of patients to be informed of the reason for admission or to be issued with certificates for renewal of detention. Throughout the committal period, the patients have the right to apply to a review panel for cancellation of the admission certificate or renewal certificate. The Act also protects the confidentiality of a patient's diagnosis and records and prohibits any disclosure that would be detrimental to the patient's personal interest, reputation or privacy.[76] Another set of national regulations worthy of mention is the Mental Health Act 1959 of the United Kingdom, which provides for the detention in psychiatric hospitals of mentally disordered patients. However, the compendium of national legislation contained in annex III to the report of Mrs. Erica-Irene Daes is sufficiently illustrative and comprehensive on this subject, and the reader is therefore referred to it.
216. Going beyond legal remedies, which are in any case inadequate, non-governmental organizations emphasize the need for genuine alternatives to allow disabled persons to integrate in society. The lack of community-based services is what often leads to disabled persons being confined to institutions. They have the right to normalize their lives through the provision of “alternative residential options” which do not impose restrictions on their freedom and enable them to integrate. These options include the possibility of allocating housing for the rehabilitation of persons recently discharged from institutions, and also apartments in cooperative or public housing specially adapted for them. If they are able to live with their families or on their own, there should be community services enabling them to live independently.
217. Certain of the support services offered by some European Governments to disabled persons living in their own homes show the way ahead in this field. These include, for instance, domestic and personal care arrangements which cover cooking, cleaning, laundry, ironing, personal hygiene, vocational and cultural activities, substitution of direct relative, psychological care, etc. In some cases these services are provided by the municipality and include occupational therapy, social workers, home helps and occasionally small grants to adapt accommodation or to buy electronic aids affording greater independence in the home.
218. Without denying the need to increase the economic aid given for such services, the non-governmental organizations maintain that, where public resources are in short supply, it is particularly important to mobilize the resources of the community and of disabled persons themselves. Especially in developing countries, primary health-care services must be used as much as possible for prevention and medical rehabilitation, the generation of local technical assistance, and the establishment of integrated schools. Furthermore, disabled persons' cooperatives should be encouraged and opportunities for self-employment should be created.
219. The non-governmental organizations have expressed skepticism concerning the effectiveness until now of the scarce legal resources to prevent institutional abuse, and indicated, as we shall see, that they need to be strengthened. Neither have they concealed their belief that the many cultural factors which lead individuals casually to abandon their close relatives in such places have also influenced the unscrupulous management of some institutions and the abuses regularly committed in them.
220. Finally, there is no common terminology in existence among the organizations to describe the exceptional cases in which committal is advisable. Some of them use the phrase “only as a last resort” or “in those cases in which there is no really valid alternative”; some, on the other hand, apply the criterion “where other methods of treatment have clearly failed”.[77] How ever, it is indisputable that in those few cases in which committal is accepted it does not lose its restrictive nature and whatever formulation is used should always take into account “that the society has done everything in its power in order to avoid it”. This is very important as it translates into words that are not only moral but legal, society's obligation to adjust to the needs of disabled persons. It is far more logical and just that society should adapt to the basic needs of disabled persons than that they should be required not only to overcome the objective impediments arising from their disability but also to adapt themselves to society's foolish excesses.
221. It should be recalled that the Plan of Action for the International Year of Disabled Persons (1981) urged the establishment of national committees to plan, coordinate and execute the activities of the Year. Although some countries had already established similar committees during the 1960s and 1970s, the great majority of Governments only set them up in response to this request. This is evidenced by the fact that during the International Year it was reported that national committees existed in 141 countries and territories. However, it seems that by the end of the Year most of the national committees had been dissolved.[78]
222. The World Programme of Action, after pointing out the obligation of Governments to establish a focal point to look into and follow the activities of various ministries, other government agencies and non-governmental organizations, stated under the heading “Participation of disabled persons in decision-making” that member States should increase their assistance to organizations of disabled persons and help them organize and coordinate the representation of the interests and concerns of disabled persons. It [The World Programme] also said that Member States should actively seek out and encourage in every possible way -- including through financial support -- the development of organizations composed of, or representing, disabled persons. It further recognized the importance of such organizations influencing government policies and decisions in all areas that concerned them. This means that the Programme of Action acknowledges that non-governmental organizations composed of disabled persons or representing their interests have one of the most important roles to play in implementing the Plan and achieving the objectives of the Decade.
223. The leading role achieved by these organizations is perhaps one of the most striking features of the Decade and the positive impact of their activities has yet to be adequately appreciated. What appears to be an issue at the present time is not the indisputable legitimacy of these associations' activities but rather the broadening of the legal base enabling disabled persons to participate as citizens with full rights in the decision making process at all levels of the planning, implementation, monitoring and valuation of policies and programmes. This was one of the main concerns of the Tallinn meeting and some of the guidelines formulated there are aimed at encouraging grass-roots initiatives. For instance, articles 14 and 16 [of the “Tallinn Guidelines for Action on Human Resources Development in the Field of Disability”*] contain the following provisions:
14. Local community initiatives should be especially promoted. Disabled persons and their families should be encouraged to form grass-roots organizations, with governmental recognition of their importance and governmental support in the form of financing and training.
15. Governmental and non-governmental organizations concerned with disability issues should allow disabled persons to participate as equal partners.
16. The efficient functioning of governmental and non governmental organizations concerned with disability calls for training in organizational and management skills.
224. At the Global Meeting of Experts held in Stockholm in August 1987, the participants agreed on the importance of encouraging non-governmental organizations, especially as they often act as a vehicle for self-development and at the same time can effectively influence certain decisions made by Governments and other sectors of society. More recently, the International Meeting on the Roles and Functions of National Coordinating Committees on Disability in Developing Countries (Beijing, China, 5- 11 November 1 990) adopted “Guidelines for the Establishment and Development of National Coordinating Committees on Disability.” Among the goals of those committees are those aimed at developing national policy are legislation on disability and related issues and at inspiring effective measures for the prevention of disability, for rehabilitation and for the realization of goals of “full participation” of persons with disability in social life and development. Further more, on 20 February 1991, the Social Committee of the Economic and Social Council adopted a draft resolution* urging the establishment and strengthening of national coordinating committees and similar bodies on disability. For this reason the Secretary-General was requested to distribute as widely as possible, with copies in Braille, the “Guidelines” adopted in Beijing.
225. The idea has gradually taken shape that if disabled persons have equal rights they should also have equal obligations, and that is why their involvement in the building of society is both a “right” and a “duty”. This concept has given a new impulse and direction to the work of the relevant organizations, which do not confine themselves to merely defending rights but have also undertaken other activities such as promotion of equality of opportunity through the provision of certain services, for example leadership training, vocational training, the encouragement of job-creation schemes, etc. In Argentina, “PAR”, which is an organization made up of disabled persons, has done much valuable work in finding employment. Disabled Peoples' International is sponsoring self-help movements through regional seminars, congresses and its own newspaper. The World Blind Union not only sponsors conventions of the blind but also helps them to create their own national organizations. The League of the Red Cross and the Red Crescent Societies has adopted first-aid training for the disabled and consults disabled persons about the planning, implementation and evaluation of programmes that are of concern to them. There are in fact many examples that could be given of such work which bear witness to the change in the approach to responsibility, and the results of this have been particularly encouraging, especially in developing countries, where basic needs are still not met and social security is virtually non-existent.
226. It is clear from the information received from Governments that in almost all States disabled persons have the right to associate in organizations, societies and federations.[79] Many replies specify that disabled persons have the right and means to influence the decision making process.[80] On the other hand, in other States, the power to make decisions is kept in the hands of govern mental bodies[81] and some Governments appoint their own representatives in organizations of disabled persons.[82] On the whole Governments are clearly taking initiatives to encourage the activities of such organizations, especially in consultation and advice, while in some countries the authorities delegate extensive powers to voluntary associations in the application of policies for the disabled.[83] In addition, the replies highlighted the important role played by trade unions with regard to the rehabilitation and vocational integration of the disabled and their access to equality of opportunity and treatment.
227. It has already been pointed out that, at the international level, the Centre for Social Development and Humanitarian Affairs is the United Nations body responsible for implementing the World Programme of Action and, through the department for the disabled, it maintains close relations with non-governmental organizations throughout the world. The annual inter-agency meetings on the Decade, organized by the United Nations office at Vienna, have been instrumental in establishing an important working link for cooperation between the United Nations system and the main non-governmental organizations concerned. In December 1985 a number of non-governmental organizations with offices in Vienna combined to form an NGO committee on disabled persons for the purpose of enhancing assistance to the United Nations in the implementation of the World Programme of Action.
228. Finally, it must be stressed that it is largely due to the information activities carried out by these bodies, especially those of a transnational nature, such as Disabled Peoples' International, that it has been possible for the issue of disability to be looked at from the human rights point of view. Furthermore, what might seem obvious today was not so less than a decade ago, and to write a report on the violation of the human rights of disabled persons has been a very real achievement by these organizations and is further testimony to their determined struggle. In addition to this acknowledgement, the Special Rapporteur would like to express once more his deepest gratitude for the cooperation he has received from them.
229. In this area, the basic idea of the World Programme of Action is to promote policies which recognize the right of disabled persons to equal educational opportunities. The Programme stipulates in this case that the education of the disabled should as far as possible be carried out within the general education system, pointing out that at least 10 percent of the disabled population are children who have the right to education, even though this may necessitate special educational services. The Tallinn Guidelines contain recommendations for specific programmes and training materials, the provision of special education teachers as consultants to regular education teachers, the setting up of resource rooms with specialized personnel and materials, the running of special courses in regular schools, etc.
230. It is evident from the replies received that, in regard to education and training, considerable efforts are being made in most countries with three broad aims: to ensure the fullest possible integration of the disabled in ordinary school systems, to train specialized teachers and advisers, and to make sure that the necessary equipment is available to bring disabled persons up to the same level of education as other pupils and thus enable them to become self-sufficient and self-supporting rather than being ensnared in the social security system. The setting up of special education institutions is necessary, for example, when the nature or gravity of the disability prevents the persons concerned from attending normal classes.[84] The Government of Sweden has pointed out in its reply that qualified technical and teaching staff are available to assist in the education of those with a disability and that special educational conditions are provided for the mentally retarded, just as the deaf are taught by sign language.
231. In Belgium, where schooling is obligatory for 12 years, a juvenile court has the power to exempt disabled children from compulsory education. Courses and university studies are available for the training of special education teachers. Canada points out that current policy is tending towards abandonment of the principle that the disabled should be educated separately. Special services are run by the Ministry of Education in Venezuela, providing education for disabled children from a very early age and job-related training for adolescents and adults. At the national level there are 16 public and private institutions operating at university level, which train teaching and technical staff in individual aspects of special education. In Cyprus, an act has been passed on special education and the Government assumes responsibility for the education of children with slight mental retardation and physical or sensory disabilities between the ages of 5 and 18. The general policy is not to separate such children from the others, although special schools are available where this is not possible. In the Philippines, special education is provided for blind and deaf children and children with orthopaedic disabilities and mental retardation, although in some schools they are integrated in the general education system. Qatar reports that it provides special educational services for children with disabilities, with separate institutions for boys and for girls. If they cannot be educated in Qatar, they may be sent abroad, the expenses being borne by the State. Lastly, the replies received indicated that African countries have not set up separate special education facilities, but most make provision in specialized residential or day schools for students with visual, hearing or mental disabilities.
232. UNESCO's action in the educational field, as set out in the Medium-Term Plan (1990-1995) is very significant. It addresses the educational needs of children and young persons with disabilities by means of an integrated education approach and community-based programmes. Within this framework, UNESCO's aim is to establish a link with the facilities normally available within the education sector and with operational activities in Member States. During the first biennium, efforts will be concentrated on three main areas:
(a) Planning, organization and management of special education provision;
(b) Teacher-training to meet special needs in the classroom;
(c) Early identification of disability in children rapid remedial action and education of the parents. In this connection, UNESCO, in addition to drawing up manuals on special education, has published a number of works and is currently preparing a publication on education for disabled children and adolescents and on the use of Braille.
233. At the start of this chapter (paras. 207-213) we referred at some length to the subject of rehabilitation in the broad sense. Accordingly, we can now confine our selves to summarizing the information received, especially from governmental sources, since non-governmental organizations generally agree that rehabilitation has to be considered as a whole and not subdivided between the various services and agencies responsible for training, on the one hand, and employment and health on the other. It is therefore of interest to know how Governments are incorporating these ideas in their policies and how they are gradually refining the machinery for cooperation between themselves on the one hand and non-governmental organizations and specialized agencies of the United Nations on the other.
234. Training for independent day-to-day living has become a focus in some countries. In others, reintegration and vocational rehabilitation programmes are being implemented as part of non-formal as well as formal education. Many States report on the implementation of community-based rehabilitation programmes. Two-fold results can be achieved by this approach, namely expansion of the rehabilitation services and promotion of the integration of disabled persons. In this case, the community has a part to play in the planning, initiation and provision of the service, as has been done, for example, in some regions of Thailand for mentally disabled persons and in India for the blind. Nepal has also recently trained a number of instructors who are actively involved in the implementation of community-based rehabilitation programmes for persons with impaired vision.
235. Some Governments report that they have set up sheltered workshops in rural areas[85] and emphasize the importance of training persons with a disability for agricultural tasks or as craftsmen.[86] The USSR reported positive results from home training and Sweden highlighted the results achieved by in-service training. Apprenticeships with craftsmen have also been mentioned by various sources as a useful means of reintegration in society. Other forms of preparatory training have been found necessary in the case of persons with a severe or multiple disability and the need for medical assessment and therapy to be carried out in parallel was frequently stressed. Other replies emphasized the importance in local communities of making use of acquired skills, including those of disabled persons, for use in training programmes. Almost all replies stressed the importance of respect and confidence for the training and reintegration of disabled persons, as well as the encouragement of a feeling of self-esteem.
236. In regard to the training of professional and auxiliary staff, the replies indicated the efforts made by Governments to expand training facilities and training programmes for rehabilitation, counselling and skills training, in both community- and institution-based programmes. Pakistan reported an expansion of medical and paramedical facilities to enable them to be used both for training and for the provision of services. In Thailand, for example, rural health workers, parents and those providing care to persons with mental disorders are being given special training. India has also been providing short-term training courses for teachers working in the regular school system, to enable them to educate and train disabled children. To remedy the shortage of trained professional and auxiliary staff in the Congo, bilateral agencies have been conducting courses for community workers. Some countries report a lack of rehabilitation specialists, physiotherapists and specialists in the education of persons with physical disabilities and mental disorders. Nigeria emphasized the training of personnel working in hospitals and rehabilitation centres, while indicating that it is also looking into ways of increasing the number of occupational and speech therapists. There is in general a tendency for the training of disabled persons to be directed toward self-employment activities, which provide more realistic opportunities for the disabled to use their skills and generate income.
237. As already pointed out, ILO as an intergovernmental organization has been very actively engaged in vocational training and guidance. One of the paramount aims of its policy has been to ensure the right to participation of children by means of active vocational rehabilitation programmes. The adoption of ILO standards on vocational rehabilitation has greatly stimulated world-wide action in promoting and developing vocational rehabilitation and employment services for all categories of disabled persons. According to an ILO brochure entitled “Experiences and reflections on a new concept of service provision for disabled people”, experience of providing services has shown that it is essential to maintain close contacts with local sources, to give disabled persons adequate information about those services, to provide follow-up at each level of training and to under take a general evaluation of what has been achieved.
238. In addition to what was said earlier regarding the training activities of UNHCR and those of the Centre for Social Development and Humanitarian Affairs especially its role in coordinating the policies and programmes of different organizations actively engaged in this field it is important to emphasize the work of WHO, which has published a useful manual entitled Training in the community for people with disabilities (1989), now available in all the working languages of the United Nations.
239. The African Rehabilitation Institute is also playing a key part in responding to the training needs of disabled people throughout the continent, ensuring the coordination of measures and programmes between the different African countries and channelling the contributions of the various international donor organizations. Lastly, the International Committee of the Red Cross and the Red Crescent has set up a special fund for the rehabilitation of disabled persons (mainly war victims) and its programmes concentrate on making the fullest use of local resources and on training craftsmen and disabled persons themselves in the production of prostheses and similar devices which are not manufactured in the country.
240. The World Programme of Action calls for Member States to adopt policies to ensure that disabled persons have equal opportunities for productive and gainful employment in the open labour market. Measures in support of the integration of the disabled in the labour market include employment quotas with corresponding incentives, reserved or earmarked employment, loans or grants to small businesses and cooperatives, exclusive contracts or priority production rights, tax exemptions, preferential purchasing and other forms of technical or financial aid to firms employing disabled workers.
241. Measures for providing work for disabled persons obviously depend largely on the condition of the individual, although such measures all have two distinct but often complementary aims. They should be directed, on the one hand, at alleviating the inevitable disadvantages and often considerable suffering of disabled persons and at the same time facilitate their integration in the labour market, so as to make them financially independent and productive members of society, capable of paying their taxes and in a position to reduce their demands for services.[87] Particular emphasis has been placed on the need to give the workforce proper training as an important means of preventing disabilities caused by industrial accidents. This aspect is also a major concern of the ILO, as reflected in its occupational health and safety programme. If adopted and applied, the ILO Vocational Rehabilitation and Employment Convention will guarantee that disabled persons are not subjected to discrimination at work. The following provisions of existing ILO standards may be given by way of examples: (a) the ILO Vocational Rehabilitation and Employment Convention No. 159 (1983) emphasizes that a national policy on the vocational rehabilitation and employment of disabled persons must be based on the principle of equal opportunity and treatment of disabled men and women workers; (b) the ILO Vocational Rehabilitation and Employment Recommendation No. 168 (1983) states that: “Disabled persons should enjoy equality of opportunity and treatment in respect of access to, retention of and advancement in employment which, wherever possible, corresponds to their own choice and takes account of their individual suitability for such employment”.
242. The Tallinn Guidelines contain the following provisions on the promotion of employment:
Disabled persons have the right to be trained for and to work on equal terms in the regular labour force. Community-based rehabilitation programmes should be encouraged to provide better job opportunities in developing countries.
Employment opportunities can be promoted primarily by measures relating to employment and salary standards that apply to all workers and secondarily by measures offering special support and incentives. In addition to formal employment, opportunities should be broadened to include self-employment, cooperatives and other group income generating schemes. Where special national employment drives have been launched for youth and unemployed persons, disabled persons should be included. Disabled persons should be actively recruited, and when a disabled candidate and a non-disabled candidate are equally qualified, the disabled candidate should be chosen.
Employers' and workers' organizations should adopt, in cooperation with organizations of disabled persons, policies that promote the training and employment of disabled and non-disabled persons on an equal basis, including disabled women.
Policies for affirmative action should be formulated and implemented to increase the employment of disabled women. Governments and non-governmental organizations should support the creation of income-generating projects involving disabled women.
243. According to the information given, many States have developed and introduced programmes to create jobs for persons with disabilities, preferential treatment being accorded to those persons.[88] The programmes also encourage or require the recruitment of a certain percentage of the labour force from persons with disabilities. Several countries have set minimum quotas of posts for disabled persons and also established special workshops and sections for persons with disabilities.[89] Financial incentives available to employers are another means of ensuring that preferential treatment is given to disabled persons. Although a number of countries have not provided information on this aspect,[90] others have mentioned subsidies or tax concessions which are granted to employers who comply with the requirements.[91] Some countries have also set up an incentives system for persons with disabilities to encourage them to take up gainful employment. In India, the granting of credits on very favourable conditions in order to encourage the launching of small-scale business ventures is an example of such incentives. In other countries, managers are required to notify social welfare services of vacancies suitable for disabled persons. Another two States report that there is an obligation on official services to assist disabled persons in finding work.[92]
244. In some countries, the authorities and the trade unions ensure close cooperation between training centres for the disabled, government services and firms with a view to guaranteeing maximum opportunities for employment of the disabled. In the developing countries work in cooperatives has been found to be much more effective than other forms of assistance that have a charitable motive. Self-help cooperatives for disabled persons, for example, are a good way of promoting self-employment. Such bodies have also received the support of large international cooperative movements.
245. Reference has already been made to the important part played by ILO in regard to working conditions and work safety, and in particular to the currently valid standards issued by that Organisation. Non-governmental organizations have also attached great importance to working conditions and in particular to cases of failure to comply with regulations governing health and safety at work. Where a disability has occurred at the worksite, they demand that the person concerned should be reintegrated as soon as the rehabilitation process allows.[93] If the consequences of the disability prevent the resumption of previous activities, the disabled person should be offered employment suited to his capacities. Temporary wage subsidies should also be provided to compensate for the losses sustained and the distress suffered during a disabled person's period of inactivity. It was stated that all countries should pay priority attention to employment, which is an important part of activities for the development of human resources at the national level. Many countries have received ILO assistance in this connection.
246. As was stated previously, the physical barriers of architecture and buildings are among the main obstacles to the full integration of disabled persons into social, economic and cultural life. It should be noted, how ever, that this is one of the areas in which the greatest results have been achieved, at least in the course of the Decade. Available information reveals that significant progress has been made in the steps taken by Governments to facilitate the access of disabled persons to buildings and transport services particularly in the public sector.
247. Some States report that they have adopted measures intended to facilitate full access to buildings, including levelling off pavements, laying paving, marking parking areas, installing automatic doors, widening lifts and installing toilet facilities for wheelchair users.[94] Others report the adoption of measures to facilitate access to such public places as stadiums, commercial centres and shops.[95] As regards the problem of suitable housing, some countries have given priority to improving housing[96] and to making it easier for disabled persons to move around inside. Steps have also been taken to grant interest-free loans for building and renovating housing. [97]
248. As regards transport services accessible to disabled persons, the steps taken and the regulations brought into force in many States give evidence of considerable improvements. Some Governments also supply free or low cost transport cards in cities and rural districts.[98] Others provide specially designed motor vehicles (cars with manual controls, etc.[99]) and many facilitate their import if they are not manufactured locally.[100]
249. At the request of the General Assembly, a study was carried out in 1981 by the Centre for Social Development and Humanitarian Affairs, entitled “Access to United Nations buildings, documents and information facilities for persons with sensorial disabilities.” The three-part study was compiled by experts who were themselves disabled persons, and covered the United Nations buildings in New York, Geneva and Vienna. It was observed that in all three cases considerable investments were required to facilitate full and equal access by disabled persons to the facilities and the meetings which took place in them. Recently a number of improvements have been introduced in the United Nations Industrial Development Organization (IJNIDO), the Economic and Social Commission for Western Asia (ESCWA), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the United Nations Environment Programme (UNEP), the Food and Agriculture Organization of the United Nations (FAO) and the United Nations Children's Fund (UNICEF).
250. The World Programme of Action emphasizes the great importance of leisure, sports and other recreational activities for disabled persons. It also lays down that States have an obligation to ensure that disabled persons have an opportunity to use their creative, artistic and intellectual capacities to the maximum, not only for their own benefit, but also for the enrichment of the community. Examples of this are the grants awarded in the United Kingdom [of Great Britain] and Northern Ireland by the Arts Council to a number of theatre companies, particularly the British Theatre of the Deaf, Graece and Strathcona. The Arts Council has also prepared a deontological code, which includes the employment of disabled persons. The Carnegie Trust has sponsored the production of “Arts for Everyone”, which is a practical guide to the arts for persons suffering from any form of disability. China has set up the Disabled Artists' Company.
251. The available information reveals considerable efforts by Governments and local communities to facilitate access by disabled persons to museums, art galleries, libraries, etc. A number of States earmark funds for the publication of journals and books in Braille and for recording cassettes.[101] In recreational activities, the Office of Tourism of the Canadian Government has sponsored research projects to identify hotels or tourist accommodation accessible to travellers with sight or hearing disabilities and particularly motor disabilities. The Canadian parks have introduced programmes to create itineraries for such persons.
252. The World Programme of Action rightly stresses the paramount importance of sport for disabled persons, since sports activities are one of the most efficient means of enabling such persons to fulfil themselves physically and mentally. Such activities also have a positive effect in that they assist the development of the personality and facilitate family and professional integration while encouraging social contacts. Another very important aspect of sport is as a means of treatment and therapy. Rehabilitation through sport is in the case of disabled persons a doubly beneficial resource.
253. Many government replies describe the various measures adopted for developing sport and permitting disabled persons to have access to it. To illustrate this, we consider it important to mention the case of Paraguay, the Government of which has made provision for the building in various parts of the country of sports complexes which, in addition to their social function, carry out a very important role vis-a-vis disabled persons; first of all, they are accessible; secondly, they provide sports activities for disabled persons, thirdly, they serve as centres for meeting, contact and social integration; and, fourthly, they also perform rehabilitation.[102] It may be noted that Paraguay is one of the developing countries which has earmarked most funds for this type of activity, and has provided that all income from games and lotteries will be devoted to this purpose. This seems to us an example worthy of imitation.
254. Another noteworthy example can be found in the activities of the International Boy Scout Movement for the integration of disabled children. Its programme on scouting with the disabled has been shown to be an extremely efficient means of bringing together children with disabilities and children without. The importance of practices of this nature for stimulating and developing feelings of solidarity while at the same time eliminating prejudices and other cultural barriers which generally have their roots in childhood, will be evident to all.
255. This is certainly one of the favourite subjects of the non-governmental organizations, while its incomparable importance and topicality make it one of the key points of this report. In order to deal with it appropriately, its various components need to be clearly delimited, namely:
(a) the problem of punishing acts of discrimination against disabled persons;
(b) the recognition of their specific rights and the effectiveness of legal remedies for their defence;
(c) the problems of statutory guardianship in the event of the institutionalization of persons suffering from mental disorders; and
(d) the issue of the international monitoring or supervision of due respect for the human rights and fundamental freedoms of disabled persons.
256. The legal treatment of acts of discrimination against disabled persons is undergoing a process of complete transformation. Summarizing the contents of paragraphs 200-203 of this report, we might say that domestic legislation initially only prohibited discrimination in specific areas of social life, for example, education laws prohibited it in education; labour conventions prohibited it in labour, and so on successively covering the whole field of the professions, social security, etc. Only recently, particularly in the last few decades, have Governments begun to promulgate anti-discrimination laws of a general nature. Disabled persons have, however, always encountered enormous difficulties in persuading Governments and courts to apply these general laws to their particular case. The present trend, which consists in the adoption of specific laws which not only prohibit all types of discrimination but also penalize discriminatory acts, is extremely encouraging.
257. The legal protection of the specific rights of disabled persons gives rise to a series of problems relating to the dissimilarity of treatment accorded to them in the various domestic legal systems. Generally speaking, it is only in exceptional instances that substantive law recognizes their existence (civil codes, procedural codes etc.) and, where this is done, the regulations are usually vague or inadequate, which contributes to the fact that courts and administrative tribunals are reluctant to recognize disabled persons as an “identifiable class” liable to be the particular victims of violations.[103] On other occasions courts have considered that the legal interest is too imprecise and have given priority to economic interests. An example of this is the case of Blair and Ors v. Venture Stores Retailers Pty. Ltd, a 1984 decision of the Equal Opportunity Board, Victoria, Australia. As may be recalled, in May 1983 Venture Stores took over the premises and closed off a lift, which formerly gave customers access to the first-floor sales area. Three women who used wheelchairs took the store to court on the grounds that they had been discriminated against under article 27 H (2) of the Equal Opportunity Act 1977. The Board stated that the closing off of access to the lift had nothing to do with the issue of access to the first floor by persons in wheelchairs, since the decision had been taken for motives of profitability, and the provision of the services required would have been excessive and onerous for Venture Stores.[104]
258. This is why it is very important to reiterate yet again that the recognition of the specific rights of disabled persons is not a matter which is concluded by merely listing those rights which are clearly embodied in the various legal instruments or recognized by case-law in the courts, the basic elements of which have been set out in this chapter. From a legal point of view the problem is somewhat more complex, in that the specific rights of disabled persons exactly parallel their needs, the satisfaction of which is an indispensable condition for their enjoyment of human rights, on an equal basis with the rest of society. In short, the “needs” of disabled persons and their “specific rights” are simply two sides of the same coin.[105]
259. The installation of ramps for disabled persons in public buildings, schools, polling stations, etc., can in no sense be construed as the recognition of special privileges on their behalf, but merely as compliance by Governments with their legal obligation to guarantee education for all and the exercise of political rights, also for everyone, on an equal basis. In other words, we are faced with requirements, which in themselves are rights but which at the same time are means of implementing other rights. We have already said that in a criminal trial in which the accused is a deaf mute, the absence of an interpreter would not only mean the negation of a specific right and the transgression of a procedural norm, but purely and simply the deprivation of the right of defence.
260. The definition of these specific rights of disabled persons as their actual needs, the satisfaction of which is an essential condition for them to be able to enjoy human rights on an equal basis with others, not only engenders obligations for Governments, as we have just seen, but also obligations for society. In the specific case of forced institutionalization, we said that, over and above the interests of the individual, society must do whatever it can to avoid that institutionalization. This entails, inter alia, the primary obligation of the community to adapt to the elementary needs of disabled persons. Apart from this, there is also the specific issue of abuse in institutionalization and during institutionalization in special establishments. This requires the domestic legislation of States to make clear provision for effective remedies capable of preventing or terminating an arbitrary or unnecessary institutionalization. Moreover, the non-governmental organizations which are most active in this area propose that the right of disabled persons to receive care, even in special institutions, also includes the right to oppose institutionalization.
261. The Special Rapporteur wishes to point out that in view of the sensitive and complex nature of the problem of institutionalization, it will always be useful for the decisions of administrative bodies to be reviewed and assessed by a legal authority. With regard to habeas corpus, he considers that universal experience is sufficiently instructive for its adoption to be advisable in countries -- the majority -- which have not yet included it in their domestic legislation. Lastly, he would point out that this should be the proper remedy not only when a legal authority considers whether a case of institutionalization is arbitrary, but also when ending it as it has ceased to be necessary, or when the conditions of the institutionalization have deteriorated or been aggravated or when there is evidence of ill-treatment. The last mentioned, indeed, is a decisive factor in checking and cutting down the abuses, which still frequently occur.
262. The international protection of the rights of disabled persons is one of today's most topical issues, since the United Nations Decade of Disabled Persons will very soon come to an end and so far no provision has been made for any monitoring mechanism of this type. The discussions in the Economic and Social Council on drafting an international convention on the subject led to the conclusion that the immediate future was not the moment for undertaking this activity, for reasons of circumstance rather than substance. In any case the lack of a specific convention like those adopted for other vulnerable groups - women, refugees, immigrants, etc. - does not mean that there are no international standards to protect disabled persons. Throughout chapter I we had occasion to refer in detail to the extensive, although admittedly scattered, range of international standards in existence. However, the problem, which still remains, is the lack of an international monitoring body to supervise, in particular, compliance with the various regulations for the protection of the human rights of disabled persons. The proposal of an appropriate monitoring mechanism perhaps constitutes the most delicate aspect of the man date entrusted to the Special Rapporteur, and it is this which has aroused the greatest expectations among the non-governmental organizations.
263. As will be seen, in the final part of this report the Special Rapporteur sums up the many consultations which he has conducted and puts forward the following alternatives: (a) the establishment of an international ombudsman for disabled persons his solution is the one which seems to find most favour with the non-governmental organizations; and (b) entrusting the Committee on Economic, Social and Cultural Rights with the task of supervision, once the Economic and Social Council has broadened the terms of its mandate. The preferred solution of the Special Rapporteur, as will be seen in the final paragraphs of this report, is the latter, or (c) a combination of the two alternatives.
* Human Rights Studies Series, Number 6. Centre for Human Rights: Geneva (United Nations publication, Sales No. E.92.XIV.4).
* Bantam Books: 1988.
[66] See, for example, Manual on equalization of opportunity for disabled persons (ST/ESA/177). The Centre for Social Development and Humanitarian Affairs has an occasional publication Disabled Persons Bulletin. Document ST/ESA/176, Study on disability: situation, strategies and policies, was published in 1986.
[67] Rehabilitation in the Community: the Basis for a National Delivery System for Rehabilitation and Related Materials. Sixth inter-agency meeting on the United Nations Decade of Disabled Persons, Vienna, 5-7 December 1988, agenda item 3, Summary paper No. 2, prepared by WHO.
[68] Vocational Rehabilitation of Disabled Persons: Current Programme and Future Plans (progress report as of July 1989). Seventh inter-agency meeting on the United Nations Decade of Disabled Persons, Vienna, 6-8 December 1989, agenda item 1, Summary paper No. 7, prepared by ILO (English only).
[69] Ibid. Progress report No. 14, prepared by FAO, p. 2.
[70] See General Assembly resolution 44/70 of 8 December 1989.
[71] See ACC/1988/PG/15, pp. 6, 7.
[72] E/CN.4/1991/39.
[73] Ibid.
[74] Denmark.
[75] Bulgaria, Canada, China, Cuba, Czech and Slovak Federal Republic, Ghana, Kenya, Norway, Turkey, Ukrainian Soviet Socialist Republic, USSR.
[76] See the Mental Health Act of Alberta, art. 37, para. 4, and art. 24, paras. 1, 2, 3.
[77] Statement by Disabled Peoples’ International. See E/CN.4/Sub.2/1984/SR.24.
[78] See ACC/1988/PG/15, para. 19.
* General Assembly resolution 44/70, annex, of 8 December 1989.
* Adopted by the Economic and Social Council as resolution 1991/8 of 30 May 1991.
[79] Canada, Cuba, China, Dominican Republic, Ghana, Mali, Norway, Philippines, Senegal, Sweden, Trinidad and Tobago, Ukrainian Soviet Socialist Republic, USSR.
[80] Bahrain, Canada, Finland, Norway, Senegal, Sweden, USSR.
[81] Canada, Cuba, Ghana, Philippines, Saudi Arabia.
[82] Philippines, Trinidad and Tobago.
[83] Singapore, United Kingdom.
[84] Bahrain, Bangladesh, China, Finland, India, Nepal, Pakistan, Swaziland, Thailand, Ukrainian Soviet Socialist Republic, USSR.
[85] Canada, China, Jamaica, Ukrainian Soviet Socialist Republic, USSR.
[86] Jamaica, Poland.
[87] United National Development Programme.
[88] Bahrain, Belgium, Canada, Ghana, India, Jamaica, Japan, Mexico, Philippines, Poland, Switzerland, Ukrainian Soviet Socialist Republic, USSR.
[89] Germany, Ghana, Jamaica, Japan, Ukrainian Soviet Socialist Republic, USSR.
[90] Germany, Uruguay.
[91] Australia, China, Finland, Malta, Pakistan, Philippines, Sweden, USSR.
[92] Australia, Jordan.
[93] Rehabilitation International.
[94] Canada, China, Ecuador, Germany, Greece, Jamaica, Malta, Norway, Portugal, Sweden.
[95] China, Ecuador, Germany, New Zealand.
[96] Ukrainian Soviet Socialist Republic, USSR.
[97] Bahrain, Ukrainian Soviet Socialist Republic, USSR.
[98] China, Germany, Greece, Sweden, Ukrainian Soviet Socialist Republic, USSR.
[99] Bulgaria, Ukrainian Soviet Socialist Republic, USSR.
[100] Argentina.
[101] Canada, China, Finland, Sweden, United Kingdom.
[102] Work programmes of the Paraguayan Directorate of Public Welfare and Social Assistance (DIBEN), which is doing important work on disability prevention, rehabilitation of the disabled and equalization of opportunities.
[103] E/CN.4/Sub.2/1985/SR.23, para.43.
[104] See Quentin E. Angus. “Is there a need for special ‘Disabled Legislation’?”, Report of the International Expert Meeting on Legislation for Equalization of Opportunities for People with Disabilities, Vienna, 2-6 June 1986, pp. 70, 71.
[105] The idea of need as a source of law is relatively new and has gradually been supplementing and in some areas replacing the idea of interest. (It will be recalled that Iering recently defined a right as “a legally protected interest”.) Nevertheless, the concept of need, in its social content, is currently gaining ground and it is undoubtedly the case that human rights have been a decisive factor in this gradual change of direction.