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ADHOC COMMITTEE ON
AN INTERNATIONAL CONVENTION

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Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities
New York, 16-27 June 2003

Panel II: The Principle of Non-Discrimination and Equality from Disability Perspective: Critical Issues concerning Special Measures and Disability, June 171

Critical issues from a disability perspective: Accessibility by Cynthia D. Waddell, Juris Doctor

ICDRI Executive Director and Lecturer-in-Law, Santa Clara University School of Law, California, USA

Mr. Speaker, and fellow members of the Expert Panel, it is indeed a privilege to be here today to contribute to the discussion of the elaboration of a comprehensive and integral international convention on the rights of persons with disabilities. Through the years it has been an honor to work with many NGO's and government representatives individually and so today is a wonderful opportunity to greet all of you here, in one forum, to continue our discussion of issues dear to our community. Many issues of importance to the convention are before us during this meeting and one critical issue from a disability perspective is accessibility.

I want to thank the International Center for Disability Resources on the Internet, a non-profit organization, for making it possible for me to be here today. As Executive Director, I lead our Accessibility Consulting Services in furtherance of our mission to promote the equalization of opportunities for persons with disabilities and the removal of access barriers to electronic and information technology2.

Accessibility is all too familiar with many here in our daily life. Yesterday, during the opening of this session, participants using wheelchairs and scooters pointed out path of travel and clearance issues impacting their ability to be here in this room. And, Mr. Chairman, we also heard requests for meeting documents to be made available in alternate formats for people who are blind or have low vision. As a person with a hearing loss, with years and years of speech and lip reading lessons, I join all stakeholders in the discussion today addressing equality and our full participation in society through accessibility.

My brief discussion today addresses three topics:

  1. The basic purpose of the convention: Non-Discrimination and Equality for persons with disabilities;
  2. Why full participation in society requires mechanisms in law and policy for barrier removal and reasonable accommodation; and
  3. How Universal Design and technical standards for accessible design can drive accessibility mandates for systemic impact.

Due to the time limitations for this discussion this morning, I regret that there is not time to provide comments in depth nor discuss more fully other significant issues within the topic of accessibility. In my opinion, accessibility has many components but I find it critical for us to focus today on accessible design. In particular, this discussion addresses three specific areas of accessible design: 1) the built environment, 2) information and communication, and 3) information and communications technology (ICT). The possibilities that universal standards bring for systemic impact through the proposed convention must be placed before you for consideration.

I. Non-Discrimination and Equality

Both the United Nations Charter and the triad of documents from the International Bill of Human Rights require member States to respect human rights for all: a) the 1948 Universal Declaration on Human Rights3 b) the 1966 International Covenant on Civil and Political Rights4 and the c) 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR)5.

Yet it is in the World Programme of Action (WPA) concerning Disabled Persons, the guiding instrument for the United Nations Decade of Disabled Persons from 1982-1993, where we see the stage being set for the concept of accessibility as a disability rights principle. While the first two goals of the WPA, prevention and rehabilitation, reflect the traditional approach to disability law and policy, the third goal addresses "equalization of opportunities." The equalization of opportunities is defined as "the process through which the general system of society, such as the physical and cultural environment, housing and transportation, social and health services, educational and work opportunities, cultural and social life, including sports and recreational facilities are made accessible to all 6."

A shift has occurred within the past two decades from viewing persons with disabilities as objects of charity to viewing persons with disabilities as holders of disability rights of non-discrimination and equality. For example, one of the major outcomes of the Decade of Disabled Persons was the adoption of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities by the General Assembly in 1993 (Standard Rules). Although it is not a legally binding instrument, the Standard Rules have paved the way for a convention on rights of persons with disabilities.

The Standard Rules have served as an instrument for policy-making as well as a basis for technical and economic cooperation7. In fact, the Standard Rules have become a main source of guidance for interpreting disability rights as pointed out in General Comment 5 by the ICESCR Committee8.

Within the Standard Rules we find Accessibility explicitly addressed in the "Target Areas for Equal Participation9:

" Rule 5 Accessibility - Access to the Physical Environment (Built Environment) and Access to Information and Communication
" Rule 6 Education - Integrated Setting and Effective Communication
" Rule 7 Employment - Accessible Design of Workplace, Technology and Communication
" Rule 8 Income Maintenance & Social Security - Accessibility is Implied
" Rule 9 Family Life & Personal Integrity- Accessible Housing and Effective Communication Implied
" Rule 10 Culture- Accessibility of Built Environment and Information and Communication
" Rule 11 Recreation and Sports- Accessibility of Built Environment and Information and Communication; and
" Rule 12 Religion - Accessibility of Built Environment and Information and Communication.

Accessibility has become a critical concept for addressing non-discrimination and equality in our global society and in programs of our member states.

II. Barrier Removal and Reasonable Accommodation

I believe that all of us here today would agree that non-discrimination and equality do not occur without accessibility. The target areas for equal participation in the Standard Rules recognize that accessibility removes barriers and promotes equality through full participation and inclusion in society.

If our goal is to remove physical barriers in society, then attention should be paid to Universal Design and human factor principles10. Today significant technical standards have emerged defining the accessibility of products, the built environment and information and communications technology or ICT.

Before discussing these technical standards, I would like to offer a definition to set the context of this discussion on accessibility. For the limited purposes of our discussion, let us define accessibility as the following:

Accessibility is the accessible design of products, services and the environment where the user interface is flexible enough to accommodate the widest range of user needs, preferences and abilities.

A. Access to the Built Environment

The emergence of Universal Design as a concept has contributed to the development of technical standards for building codes as well as specifications for the design of transportation systems. By designing our environment for everyone, people with disabilities are viewed as customers and users.

Perhaps the medical model perpetuated segregation and design barriers because people with disabilities were not expected to fully participate in society. Architectural standards for accessible elements now inform designers on how to build accessible environments and at the same time also remove attitudinal barriers.

In the United States, one of the first significant impacts was the establishment of a building code specifying the accessible elements for designing buildings, public pathways and car parks. Members of the construction industry, building code societies and disability organizations came to the table to draft this important regulation after the Americans with Disabilities Act was enacted. I recall that at that time, it frequently did not occur to people as to why there were no people with mobility disabilities in inaccessible buildings. People would say, "Why should we remove barriers in construction? I don't see anyone needing access!" And the same comments were heard in regards to transportation. I frankly do not understand why some thought that people with disabilities would not need to enter buildings or use transportation.

Developed in partnership with the community of people with disabilities, user interfaces and technical design standards have evolved so that accessible elements and spaces can be created for buildings, houses, facilities, outdoor environments and transportation systems to name a few. By implementing accessible design, our global society can promote non-discrimination and counter segregation, economic marginalization and other human rights violations.

B. Access to Information and Communication

Similarly, if access to print information is not available through alternate formats, such as Braille, large print or electronic format, then our global society fails to enable independence and empowerment for those who cannot access it. By taking user preference into account, information is not barred from our community. For example, the Americans with Disabilities Act11 in the United States requires the provision of alternate formats for access to government services, meetings and documents as well as employment and education.

With respect to communication, all of us understand the value of foreign language translators at this United Nations meeting. The provision of real-time captioning displayed on a computer screen to my left enables me to also have access to the content of this meeting.

"Communication" can mean the transfer of information, including, but not limited to, my verbal presentation today, the printed agenda or textbook on your desk or even the content on a web site. "Effective communication" has been defined in U.S. disability rights law as having three components: timeliness of delivery, accuracy of the translation, and provision in a manner and medium appropriate to the significance of the message and the abilities of the individual with the disability12. Examples of effective communication through alternate forms of communication include:

" Sign language interpretation for people who are deaf
" Real time captioning for access to aural content at conferences and meetings for people who are deaf or hard of hearing
" Captioning for television, videos and DVD for people with hearing loss
" Relay services, TTY, assistive listening systems, text and video messaging for people with hearing or speech loss; and
" Interactive Voice Response for people with visual or mobility disabilities.

The right to accessibility through effective communication is critical in our daily life and yet the benefits extend beyond our community of people with disabilities. For example, captioning on television and videos also benefits illiterate populations as well as people learning a second language.

C. Access to Technologies

It should not be a surprise that as technology evolves, technical design standards have been implemented based on Universal Design and human factor principles. In the United States in 1998, our Congress enacted an amendment to our Rehabilitation Act requiring that the federal government procure accessible electronic and information technology when it spends money. In 2001, our U.S. Access Board published the Electronic and Information Technology Accessibility Standards13. Also known as Section 508, these standards outline the user interface requirements for accessibility for people with disabilities that must be part of the technology design.

For the first time in U.S. history, we have legislation requiring functionality in the design of our electronic and information technology including hardware, software, operating systems, web-based intranet and internet information and applications, telecommunications products, video and multimedia products and self-contained products such as fax machines, copiers, hand-helds and kiosks.

As the world's largest consumer of electronic and information technology, our federal government is required to use the power of the purse to push the electronic and information technology industries to design accessible products. All vendors, whether they be U.S. or foreign, must design for all if they seek to participate in the federal government market.

As a result, a marketplace incentive has now been created to design for accessibility since 1) the federal government must procure products meeting the Electronic and Information Technology Accessibility Standards and 2) a vendor can challenge and ultimately void a government contract award to another vendor if they can prove that their product is more accessible. These factors provide an economic benefit for devoting research and development to design for all. In addition, a growing number of U.S. State governments are adopting Section 508 legislation in some form since they also want their products and services to reach the widest possible audience.

As an expert in this field, I came to it, ironically enough, when a blind City Commissioner filed a complaint in my office alleging that a City web site was not accessible. As the Americans with Disabilities Act Compliance Officer, I looked at the problem and began to realize that those of us with hearing loss would soon experience barriers on the web as audio streaming without captioning became popular. As a result, I wrote the first accessible web design standard in the U.S. that became recognized as a best practice by the federal government. Accessible web design is the coding of a web site so that the content presentation is flexible enough to accommodate the needs of the broadest range of users possible, regardless of age, language, or disability.

For example, accessible web design enables people who are blind or have low vision to access the content of the web page through the use of screenreaders that audibly read the web page out loud. People who cannot use a mouse, or have mobility disabilities can navigate an accessible web site and there are many other examples benefiting our community. The web design standard and the work of many other advocates across the country led to passage of this federal procurement law for accessible technology in 1998. Imagine how it has impacted the workplace for people with disabilities!

And just last week, the International Organization for Standardization released a technical specification for designing software that is, in their own words, "easier to use for the elderly, the disabled, and the rest of us14."

I would also like to draw to your attention the fact that during this past year at least three meetings reported a call for accessible information and communications technology (ICT):

" March 2003 Manila Declaration on Accessible Information and Communications Technology (ICT)15;
" April 2003 Quito Declaration16; and the
" June 2003 Bangkok Declaration17.

As Rapporteur for the Manila activity, I would like to highlight two outcome documents: the Manila Declaration on Accessible Information and Communications Technology (ICT) and the Manila Accessible ICT Design Recommendations18.

The Manila outcome documents recognize that accessible ICT with reasonable accommodation empowers and enables persons with disabilities to enjoy full and equal participation in society and noted:

[T]hat the world was at a significant crossroad where ICT accessibility barriers need to be addressed at all levels effectively and urgently, and call for progress on the elaboration of a comprehensive and integrated international convention on the rights of persons with disabilities in the context of development..."19

Participants of the Manila workshop and seminar also issued an urgent request for three work products as follow-up:

  1. Preparation of a global comparative study on norms and standards related to accessible ICT with reasonable accommodation;
  2. Development, testing and evaluation of a pilot validator to test and evaluate online Web site compliance with the minimum threshold of accessibility with reasonable accommodation as set forth in the Manila Accessible ICT Design Recommendations; and
  3. Preparation of a scheme for training and resource materials on norms, standards and substantive aspects of accessibility with reasonable accommodation to build national capacities and to provide input to activities of the accessible ICT network20.

III. Accessibility Mandates and Impact

A. Business Benefits

Before we look at accessibility mandates and impact, a few words on benefits to business. Although there is no time to fully discuss the business benefits for accessibility, I would like to highlight the following points for your consideration.

By mandating accessibility, the convention can create a marketplace incentive for businesses to design accessibly. There would be business reasons for investment in the accessible design of facilities, products and services, especially if procurement required accessibility. Imagine competitive bidding on products and services as to which is the most accessible? Already we are seeing the fruits of this result through the US procurement law for accessible electronic and information technology.

Another business benefit for accessibility is that it can reduce the cost of assistive computer technology since accessible design requires "hooks" for their use. Expensive customization of products would be reduced with accessible design increasing the customer base use of products - not to mention the increased employment opportunities for people with disabilities. In other words, economies of scale can reduce the cost of assistive computer technology and maximize the consumer base use of products and services.

I would like to conclude this topic by providing just two types of accessible web benefits for businesses and sustainable development. Accessibility enables businesses to use low technology to access high technology such as the Internet. If we invest billions of dollars to connect our communities worldwide through communications and Internet infrastructure and do not address accessible design, then what is the value if we are connected but cannot use it? Today we know that accessible design of web sites enables people with disabilities to have access to content, but did you know that it also benefits people with slow modems and low bandwidth? It also enables access to the content on the web through alternate Internet access devices such as cell phones, information appliances and personal digital assistants.

Perhaps the most significant benefit for web accessibility is that accessible web design enables global consumers with limited resources to participate in e-commerce thereby contributing to a stable, sustainable electronic infrastructure.

B. Accessibility Mandates

Today I would like to offer for your consideration a few accessibility mandates for the convention. First, there should be a mandate that all new construction must implement accessible design standards. This means that new construction would not be built with barriers. In addition, this mandate should include a mechanism for altering existing construction to remove barriers. For example, if a building is subject to renovations, then perhaps that might be the ideal time to provide some incentive for removing architectural barriers.

Second, all government documents must be available in alternate format upon request. This would also mean that the Convention document itself would be available in accessible formats. This does not mean that States would be required to spend money or resources in advance of a request. In certain cases, it might be preferable to the requestor that the document be available in an accessible format on the web where they could listen to it read out loud by their screen reader software, read it through a refreshable Braille display or hear it with a telephone.

Third, effective communication must be provided at governmental meetings upon request such as Sign Language Interpreters, real time captioning or an assistive listening device. In my opinion, Sign Language is a language that should be recognized as such. Regarding the provision of assistive listening devices, one example is the U.S. approach to providing access through a special receiver issued to a user in a public forum. For example, during this meeting I utilized a standard teleloop attachment to the United Nations listening system plug-in jack because I had telecoil switches on my hearing aids. This technique worked because the UN listening system for translation meets the international technical standards for the plug-in jack and transmission. It is possible that the United Nations probably does not know it has an assistive listening capability already in place.

Finally, a suggested fourth mandate should be that all new procurement of information and communications technology by States must meet accessible design standards. This does not mean that everyone has to rush out and spend precious resources immediately. This mandate only says that when States spend money on ICT, they ensure it is accessible.

I sincerely believe this mandate can be accomplished especially when the ICT industry requires certainty in technical design requirements in order to compete. State procurement of accessible ICT must be made a priority so that a global marketplace incentive is in place for creating accessible ICT.

C. Accessibility Impact and Conclusion

In conclusion, unless there is a mechanism for ensuring accessibility in new construction, dollars for reconstruction and development worldwide will build inaccessible buildings, facilities and transportation. The economics are serious. The lowest cost for implementation of accessibility is at the new construction phase. The highest cost for accessibility is when it is added later or after the fact.

For example, consider the reconstruction dollars that have gone into and continue to go into the infrastructure of Afghanistan and Iraq. Will the reconstruction monies build an accessible environment? As a point of reference, please note the Ad Hoc Committee resource and tool for action from Lebanon entitled "Universal Design Standards and Accessibility for the Disabled - Design Manual for Barrier Free Environment."21

And if digital divide and communication barriers are not addressed, then barriers will continue to emerge as technology evolves. For example, we could spend monies on a global technology and communications infrastructure and be connected, but if it is not designed for accessibility, we will not be able to use it. This is the same as the builder who built an inaccessible building and believed that since there were no people using wheelchairs in his building, then there was no need for accessible design.

As I said my paper, "The Growing Digital Divide in Access for People with Disabilities: Overcoming Barriers to Participation," technology changes but civil rights do not22. Architecture, whether it be information and communications technology or a physical building, still needs to meet the user interface requirement for accessibility.

We will be efficient with our limited resources if we provide incentives for building accessibility early into product development cycles. Public policy and development programs should be infused with accessibility mandates so that monies do not have to be spent later to fix barriers created by inattention to this issue.

Accessible design promotes non-discrimination and equality as well as the efficient use of our resources. It counters segregation, economic marginalization and other human rights violations. It must be protected as a human right and addressed in the convention.

Thank You.

[Note: On 18 July 2003 Cynthia Waddell was engaged by the United Nations Development Programme to write a policy paper for accessible ICT as recommended in the Manila "Interregional Seminar and Regional Demonstration Workshop on Accessible ICT and Persons with Disabilities" held in March 2003. The paper will be posted and made available as soon as it is completed.]

-----------------------------------

Notes

1. Presentation began with pictorial montage slide show and a description of persons with disabilities participating in society through the accessible design of the build environment, transportation, telecommunications, electronic and information technologies as well as sign language and documents in alternative formats.
2. See
http://www.icdri.org/CynthiaW/cynthia_d.htm
3. General Assembly resolution 217A(III), United Nations Doc A/810 at 71 (1948).
4. G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.
5. G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976.
6. World Programme of Action concerning Disabled Persons adopted by the United Nations General Assembly, thirty-seventh session, resolution 37/52 of 3 December 1982 http://www.un.org/esa/socdev/enable/diswpa01.htm#definition
7. The Standard Rules on the Equalization of Opportunities for Persons with Disabilities adopted by the United Nations General Assembly, forty-eighth session, resolution 48/96, annex, of 20 December 1993 http://www.un.org/esa/socdev/enable/dissre00.htm
8. General Comment No. 5, Persons with disabilities, para. 7: "[t]he Standard Rules are of major importance and constitute a particularly valuable reference guide in identifying more precisely the relevant obligations of States parties under the Covenant."
9. See http://www.un.org/esa/socdev/enable/dissre05.htm
10. For example, see the Center for Universal Design at North Carolina State University in Raleigh, North Carolina at http://www.design.ncsu.edu/cud/. See also the Americans with Disabilities Act Accessibility Guidelines (ADAAG) published by the U.S. Access Board at http://www.access-board.gov/adaag/html/adaag.htm
11. ADAAG, op cit.
12. See "The Growing Digital Divide in Access for People with Disabilities: Overcoming Barriers to Participation" by Cynthia Waddell; a paper commissioned by the US Department of Commerce and the National Science Foundation for the first national conference convened by the White House on the impact of the digital economy at http://www.icdri.org/CynthiaW/the_digital_divide.htm
13. Electronic and Information Technology Accessibility Standards, 36 CFR Part 1194 at http://www.access-board.gov/sec508/508standards.htm
14. 3 June 2003 "ISO Guidelines for Designing Software for Users with Disabilities" at http://www.iso.ch/iso/en/commcentre/pressreleases/2003/Ref858.html
15. Manila Declaration on Accessible ICT, Posted online at http://www.worldenable.net/manila2003/declaration.htm
16. Quito Declaration posted online at http://www.worldenable.net/quito2003
17. Bangkok Declaration posted online at http://www.worldenable.net/bangkok2003
18. Posted online at http://www.worldenable.net/manila2003
19. Manila Accessible ICT Design Recommendations posted at http://www.worldenable.net/manila2003/DesignRecommendations.htm
20. Manila Declaration, ibid.
21. The Lebanon Report is posted online as a reference in support of Accessibility as a thematic priority for the second meeting of the Ad Hoc Committee on an international convention at http://www.un.org/esa/socdev/enable/designm
22. Waddell, op cit. at http://www.icdri.org/CynthiaW/the_digital_divide.htm

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