This Resource provides concise analytical information on international norms and standards concerning persons with disabilities that have been adopted under the auspices of the United Nations System or other inter-governmental bodies and organizations. It is a reference tool that contains information resources on the international and regional normative standards to promote the rights of persons with disabilities in society within a broad human rights framework, encompassing the full range of human rights from civil and political to economic, social and cultural rights and the different mechanisms by which these norms and standards have been adopted in to local laws. Further, this Resource is a practical guide to putting into practice rights on behalf of persons with disabilities. It also provides an educational tool designed to assist Governments, national and international policy makers, intergovernmental organizations, international organizations, non-governmental organizations, researchers in the area of disability rights, civil society organizations concerned with disability issues and the global disability community to identify effective measures to promote, protect and integrate the rights of persons with disabilities into all areas of national legislation, policies and programmes and to promote increased awareness of internationally accepted norms on: 1) the equalization of opportunities for persons with disabilities; 2) the full and effective integration of persons with disabilities in social life and development; and 3) standards to protect and promote the rights of persons with disabilities. It is hoped that the Resource may provide a practical tool to effect the commitment of the international, national and local communities to the goals and objectives of international human rights standards pertaining to persons with disabilities, identify obstacles and challenges in implementing these rights and develop an agenda for the empowerment of persons with disabilities.
The Resource is divided into five parts. The Background to the Resource introduces international human rights norms and the specific international norms on disability rights. Part I discusses the national framework for the protection of human rights and disability rights. Part II discusses the international human rights guarantees, which address disability rights. Part III explores the regional human rights mechanisms available for the protection of disability rights. Part IV reviews the different categories of rights protection for persons with disabilities and Part V discusses the rights of persons with disabilities belonging to special groups.
It is hoped that this draft Resource posted on the Internet will encourage scholars, practitioners and specialists in international law and policy to make comments on this draft and generally contribute their thoughts on the innovative application of international norms and standards to advance the status of persons with disabilities.
The United Nations from its very inception has been concerned with the status and rights of persons with disabilities, and has also recognized that discrimination against persons with disabilities adversely affects the economic and social development of entire communities. The United Nations has sought to promote the right of persons with disabilities in its very founding principles, which are based on fundamental freedoms and equality of all human beings.
The Charter of the United Nations requires member States to respect human rights for all without any distinction as to race, sex, language or religion and forms the nucleus for the protection of rights for persons with disabilities.
Specific articles of the Charter provide the foundation on which disability rights can be built. These articles are as follows:
The Universal Declaration of Human Rights forms the fundamental normative basis on which international norms and standards concerning persons with disabilities have evolved. The Universal Declaration contains a number of provisions, which constitute the foundation for resolutions regarding disabilities based on the principle of equal rights. They are as follows:
Apart from the Universal Declaration of Human Rights there are six core human rights conventions that relate to the rights of persons with disabilities. The International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR) ratified in 1966 are the two basic human rights treaties and together with the Universal Declaration of Human Rights constitute the International Bill of Rights. The other four core human rights conventions are the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)(1949); the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979); the Convention on the Rights of the Child (CRC) (1989); and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (1966). While all six conventions stipulate the principle of non- discrimination, the last mentioned treaties specify the general rights enunciated in the ICCPR and ICESCR.
The provisions on anti-discrimination in the ICCPR have special
relevance to rights of persons with disabilities. These rights are as
The right to life (article 6) and the right to freedom from torture and other cruel, inhuman or degrading treatment and punishment (article 7) have special relevance to disability. The right to be recognised as a person before the law (article 16) too has special significance to persons with disabilities. Both articles 14 and 15 recognise the right to access to justice, including the right to the free assistance of an interpreter in court. One of the most important rights in relation to persons with disabilities is enunciated in article 25, which establishes that citizens are entitled to "access on general terms of equality, to public service in his country".
The provisions of the ICESCR pertaining to anti-discrimination too relate to rights of persons with disabilities. Article 2, paragraph 2 of the Convention encourages states parties to, " undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. According to General Comment No.3 of the Committee on Economic, Social and Cultural Rights, states must take steps which are deliberate, concrete and targeted and must be taken within a reasonably short time after the Covenant's entry into force in a particular country. General Comment No.3 also emphasises that " even in times of severe resource constraint…the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes."
General Comment No. 5 is a definitive analysis of the States parties obligations under the ICESCR in the context of disability. It recognizes that:
"[t]hrough neglect, ignorance, prejudice and false assumptions, as well as through exclusion, distinction or separation, persons with disabilities have very often been prevented from exercising their economic, social or cultural rights on an equal basis with persons without disabilities. The effects of disability-based discrimination have been particularly severe in the fields of education, employment, housing, transport, cultural life, and access to public places and services." (para. 15)
State party obligations in relation to non-state parties are enumerated thus:
"[in] the absence of Government intervention there will always be instances in which the operation of the free market will produce unsatisfactory results for persons with disabilities, either individually or as a group, and in such circumstances it is incumbent on Governments to step in and take appropriate measures to temper, complement, compensate for, or override the results produced by market forces." (para. 12)
States parties are encouraged to take affirmative action to:
" reduce structural disadvantages and to give appropriate preferential treatment to people with disabilities in order to achieve the objectives of full participation and equality within society for all persons with disabilities." (para. 9) Further, states parties are, " required to take appropriate measures, to the maximum extent of their available resources, to enable such persons to seek to overcome any disadvantages, in terms of the enjoyment of the rights specified in the Covenant, flowing from their disability." (para. 5) The General Comment No. 5 also states that, "it is also necessary to ensure that support services, including assistance devices are available for persons with disabilities, to assist them to increase their level of independence in their daily living and to exercise their rights." (para. 33)
The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment is of special importance in preventing disability as a result of torture. In furtherance of its obligations under the Convention, states parties are to take necessary steps under Article 2 of the convention. The article reads as follows: 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior office or a public authority may not be invoked as a justification of torture.
The Convention on the Elimination of All Forms of Discrimination Against Women covers all women, whether disabled or not. Women with disabilities face discrimination both because of their gender and disability. Moreover, certain gender specific cultural or traditional practices can cause disability among women as well as cause further harm to disabled women.
Unlike other human rights conventions, the Convention on the Rights of the Child in article 23 focuses directly on children with disabilities. Even though no direct obligations have been placed on state parties to take measures to ensure that children with disabilities enjoy a life of dignity, self reliance and integration with the community, article 23, paragraph 1-4 recognizes the importance of participation in the community, education, training health care, rehabilitation employment and recreation opportunities for children with disabilities. The Committee on the Rights of the Child has however established that the fact that article 23 is dedicated to children with disabilities should not mean that the rights of children with disabilities are confined to that article.
The International Convention on the Elimination of All Forms of Racial Discrimination, like CEDAW is aimed at preventing double discrimination. Persons with disabilities of particular racial or minority groups are more vulnerable to discrimination on account of both race and disability. The Convention, as noted by General Recommendation XXV of the Committee on the Elimination of All Forms of Racial Discrimination covers gender related racial discrimination and by analogy, an inference could be drawn that it covers disabled persons of different racial or ethnic groups.
In the past few decades, the United Nations has given considerable attention to the rights of persons with disabilities. Increased crisis situations such as widespread hunger, wars, and ecological disasters afflicting many communities around the world have increased the numbers of persons with disabilities. Apart from general human rights conventions, the United Nations has created extensive policy on issues of disability. In 1971, the Declaration on the Rights of Mentally Retarded Persons was adopted by the General Assembly. Article 1 of the Declaration on the Rights of Mentally Retarded Persons proclaims that mentally retarded persons have the same rights as other human beings. In addition, Article 2 states that mentally retarded persons have the right to proper medical care and physical therapy and to such education, training, rehabilitation and guidance as will enable them to develop their ability and maximum potentials. Also, mentally retarded persons have the right to economic security and a decent standard of living (article 3). Article 6 provides that mentally disabled persons have a right to protection from exploitation, abuse and degrading treatment. Furthermore, the Assembly declared that there should be legal safeguards available to protect the mentally retarded from abuse.
Article 1 of the Declaration on the Rights of Disabled Persons adopted in 1975 defines a person with disabilities as "…any person unable to secure by himself, wholly or partly, the necessities of a normal individual and / or social life, as a result of deficiency, either congenital or not, in his or her physical or mental capabilities." In the Preamble of the Declaration, the General Assembly called for "…national and international action to ensure that it will be used as a common basis and frame of reference for the protection of [the rights contained within the Declaration] " Article 4 asserts broad social and economic rights for disabled persons and provides that disabled persons have the same civil and political rights as other human beings. Article 5 provides that "…disabled persons are entitled to the measures designed to enable them to become as self- reliant as possible." Article 6 states that persons with disabilities have the "…right to medical, psychological and functional treatment (...) to medical and social rehabilitation, education, vocational training and rehabilitation, aid, counselling, placement services and other services which will enable them to develop their capabilities and skills to the maximum and will hasten the processes of their social integration or reintegration." Article 7 provides that disabled persons have the right to economic and social security and to a decent level of living. "Disabled persons are entitled to have their special needs taken into account at all stages of economic and social planning" (article 8). Also, Article 9 states that disabled persons have the right "…to live with their families or with foster parents and to participate in all social, creative or recreational activities." The Declaration also prohibits discrimination. For example, article 10 states: "Disabled persons shall be protected against all exploitation, all regulations and all treatment of a discriminatory, abusive or degrading nature." The Declaration further requires that disabled persons be "…provided with qualified legal aid where such aid is indispensable for the protection of disabled persons themselves and their property" (article 11). Finally, the Declaration states that persons with disabilities and their families have a right to receive information on the rights contained in the Declaration (article 13).
In the 1980's the activity that began in the 1970's picked up momentum and the next decade witnessed an acceleration of activity on rights on behalf of persons with disability. The year 1981 was declared the International Year of Disabled Persons by a General Assembly resolution 31/123 of 16 December 1976. An important United Nations Voluntary Fund on Disability was established by General Assembly Resolution 32/133 in connection with the International Year of Disabled Persons. The Fund was later renamed the Voluntary Fund for the United Nations Decade of Disabled Persons (1983-1992). The theme was Full Participation and Equality, defined as the right of persons with disabilities to participate fully in their societies, to enjoy equal living conditions, and to have an equal share in improved conditions. The resolution proclaimed that the year 1981 be devoted to the full integration of disabled persons in society; the encouragement of academic research projects to facilitate the participation of persons with disabilities in daily life; the education of the public in regard to the rights of persons with disabilities; understanding and accepting persons with disabilities; and encouraging persons with disabilities to form organizations to express their views.
One of the most important outcomes of the International Year of Disabled Persons was the formulation of the World Programme of Action Concerning Disabled Persons, which was adopted by the General Assembly in 1982. The World Programme represents the first world wide international long-term policy in relation to disabled persons. The Programme proposed three actions:
The World Programme of Action Concerning Disabled Persons consists of three chapters:
The purpose of the World Programme is to promote effective measures for prevention of disability, rehabilitation and the realisation of the goals of Full Participation of disabled persons in social life and development and of Equality. The Programme adds a human rights dimension by recognising the Equalization of Opportunities as an important objective for achieving full participation by disabled persons in all areas of life.
The Programme marks a shift towards a rights based model and an explicit recognition of the right of all persons to equal opportunity. In paragraph 12, the WPA defines "equalization of opportunities" 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". The General Assembly adopted the resolution Implementation of the World Programme of Action Concerning Disabled Persons the year following the adoption of the World Programme.
The 1987 review in Stockholm of the Implementation of the World Programme of Action concerning Disabled Persons in Stockholm recommended the drafting of a convention on the human rights of persons with disabilities. In 1994, a long-term strategy was adopted to implement the World Programme of Action concerning Disabled Persons to the Year 2000.
The General Assembly declared the period of 1983 to 1992 the United Nations Decade of Disabled Persons. The General Assembly encouraged Member States to use the decade to implement the World Programme of Action. In 1989, the General Assembly adopted the Tallinn Guidelines for Action on Human Resources Development in the Field of Disability. The Guidelines provide a framework for the education and employment of persons with disabilities within government ministries and on all levels of national policy-making. The aim of the Tallinn Guidelines is to promote the human resources development of persons with disabilities. Guideline 6 states that human resource development "…is a process centred on the human person that seeks to realise the full potential and capabilities of human beings." Guideline 9 provides that "…the abilities of disabled persons and their families should be strengthened through community-based supplementary services provided by Governments and non-governmental organizations."
The Guidelines outline a series of strategies for promoting the human resource development of persons with disabilities. These strategies include the promotion of education, training and employment for disabled persons, as well as community awareness. In particular, guideline 33 provides that "…disabled persons have the right to be trained for and to work on equal terms in the regular labour force." Guideline 23 states that "…education at the primary, secondary and higher levels should be available to disabled persons within the regular educational system and in regular school settings, as well as in vocational training programmes." Guideline 28 provides that "…in addition to being offered formal skills training and education, disabled persons should be offered training in social and self-help skills to prepare them from independent living." The thrust of the guidelines is that disabled persons are "…agents of their own destiny rather than objects of care…" (guideline 8).
In 1991, the General Assembly adopted the Principles for the Protection of Persons with Mental Illness for the Improvement of Mental Health Care. The Principles define the basic rights and fundamental freedoms of persons with disabilities and was considered a new development in the field of treatment of mental health.
The Principles represent minimum United Nations standards for protecting the fundamental freedoms and legal rights of those with mental illness. They are intended to be used by Governments, special agencies, national and regional organizations, international organizations, and non-governmental organizations as a guide.
Principle 1 (2) provides that "…all persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person." Other rights of persons with mental illnesses which are included in the Principles concern the protection of minors, determination of mental illness, medical examination, confidentiality, consent to treatment, and rights and conditions in mental health facilities. Principle 23 requires States to implement these Principles through appropriate legislative, judicial, administrative, educational and other measures. According to principle 24, the Principles apply to all persons who are admitted to a mental health facility.
The major outcomes of the last decade were the designation of December 3rd as the annual International Day of Disabled Persons (General Assembly Resolution 48/98 of 20 December 1993) and the subsequent adoption of The Standard Rules on the Equalization of Opportunities for Persons with Disabilities. The Standard Rules consist of four major sections: 1) Preconditions for equal participation; 2) Target areas for equal participation, 3) Implementation measures; and 4) Monitoring mechanisms.
The Rules summarise the message of the World Programme of Action concerning Disabled Persons and are designed to provide Governments with policy guidelines and options, which can be incorporated into national legislation. The long-term strategy presents a framework for collaborative action at the national, regional and international levels to achieve the aim expressed by the Assembly in resolution 48/99 of a society for all by the year 2010. The Strategy outlines a sequence of suggested actions by interested Governments for the period 1995-2010, together with associated targets, time-frames for action and an ancillary set of support measures at the regional and international levels to realize that aim.
Although The Standard Rules on the Equalization of Opportunities for Persons with Disabilities are not legally binding and do not have the full force of law, they have been adopted by a large number of States and imply a strong moral and political commitment on behalf of States to take action for the equalization of opportunities for disabled persons. The Standard Rules is, in fact, the first universal instrument to refer specifically to disabled persons, as well as to contain an extremely broad statement of the rights to equal opportunities.
The first chapter of the Rules, Preconditions for Equal Participation, consists of four preconditions for equal participation: these are awareness raising (rule 1), medical care (rule 2), rehabilitation (rule 3) and support services (rule 4).
Rule 1 provides that "States should take action to raise awareness in society about persons with disabilities, their rights, their needs, their potential and their contribution." An important component of awareness raising is to focus the education campaign on children as a means of shaping a positive attitude towards persons with disabilities among future generations (rule 1 (9)).
Rule 2 provides that States should ensure the provision of effective medical care to persons with disabilities.
Also, rule 3 states that in order to assist disabled persons "…to reach and sustain their optimum level of independence and functioning," States should ensure the provision of rehabilitation services to persons with disabilities. Rule 4 provides further that States should ensure the development and supply of support services, including assistive devices for persons with disabilities, to assist them to increase their level of independence in their daily living and to exercise their rights. Together, these two Rules aim to ensure that persons with disabilities are able to achieve a level of functioning that allows them to interact in general society.
The second chapter of the Standard Rules deals with Target Areas for Equal Participation (rules 5 to 12). The selected target areas include accessibility, education, employment, income maintenance and social security, family life and personal integrity, culture, recreation and sports, and religion. The notion of accessibility involves the creation of a physical environment, which is appropriate for people with disabilities. Rule 5 asks States to introduce (a) programmes of action to make the physical environment more accessible and (b) undertake measures to provide access to information and communication.
Rule 6 of the Standard Rules, stipulates that States are requested to "…recognise the principle of equal primary, secondary and tertiary educational opportunities for children, youth and adults with disabilities, in integrated settings. They should ensure that the education of persons with disabilities is an integral part of the educational system." Rule 6 (8) provides that in countries where the general school system does "…not yet adequately meet the needs of all persons with disabilities, special education may be considered."
To attain independence, appropriate employment for disabled persons is essential. As stated in Rule 7 of the Standard Rules, "States should recognise the principle that persons with disabilities must be empowered to exercise their human rights, particularly in the field of employment." One of the key aspects in social policy reform in recent years has been the recognition that disabled persons have been excluded from access to employment in the public and private sector for reasons unrelated to their ability to do the job. Rule 7 (1) provides that employment laws "…must not discriminate against persons with disabilities and must not raise obstacles to their employment." The Standard Rules also encourage States to actively support the integration of persons with disabilities into open employment (7 (2)); design and adapt workplaces and premises so that they become accessible to disabled persons (7 (3) (a)); support the use of new technologies and the production of assistive devices, tools and equipment (7 (3) (b)); and provide appropriate training and placement and ongoing support such as personal assistance and interpreter services (7 (3) (c)).
Rule 8 concerns income maintenance and social security. The Preamble to Rule 8 provides that States are responsible for the provision of social security and income maintenance for persons with disabilities. Rule 8 (3) encourages States to also provide income support and social security protection to individuals who are involved in caring for a disabled person. However, pursuant to Rules 8 (4) and (5), social security systems should include incentives to restore the income-earning capacity of persons with disabilities and incentives for disabled persons to seek employment. Thus, social security programmes should be structured to encourage people to seek and secure employment and should not be provided as a substitute for employment.
Rule 9 (2) encourages States to promote the full participation of persons with disabilities in family life. In particular, persons with disabilities must not be denied the opportunity to express their sexual identity and experience parenthood.
Rules 10 - 12 require States to ensure that people with disabilities have equal opportunities to participate in cultural activities, recreation and sports, and religious life. True equalization of opportunities means that disabled persons are ensured equal participation in all areas of life, including cultural, recreational, sports, and religious life.
Chapter III of the Standard Rules stipulates the various implementation measures for States to follow. States are responsible for:
The final chapter of the Standard Rules (chapter 4) describes a monitoring mechanism designed to further the effective implementation of the Rules. Paragraph 2 of Chapter 4 provides that the Rules are to be monitored within the framework of the sessions of the Commission for Social Development. In addition, a Special Rapporteur is to be appointed to monitor the implementation of the Rules. The Special Rapporteur, assisted by the Secretariat, shall prepare reports for submission to the Commission for Social Development (paragraph 8) and provide advisory services on the implementation and monitoring of the Rules (paragraph 6).
Rule 15 of Chapter III deals explicitly with legislation. It provides: "States have a responsibility to create the legal basis for measures to achieve the objectives of full participation and equality for persons with disabilities."
Apart from specific United Nations resolutions on disability, two major studies have influenced disability rights in the last two decades. The first was a report entitled Principles, Guidelines and Guarantees for the Protection of Persons Detained on Grounds of Mental Ill- Health or Suffering from Mental Disorder (1986), prepared by Erica -Irene A. Daes who was appointed Special Rapporteur by the Sub-Commission on Prevention of Discrimination and protection of Minorities. In 1993, Leandro Despouy a Special Rapporteur appointed by the Sub-Commission prepared a report entitled Human Rights and Disabled Persons (1993). This report examines human rights abuses in the area of disability and look at certain human rights abuses as causes of disability.
Within the United Nations Secretariat, a number of offices also assist in co-ordinating national and international efforts in the field of disability. The offices include the Division of Human Rights (DHR), the Department of International Economic and Social Affairs (DESA), the Department of Public Information (DPI), the Division of Narcotic Drugs (DND) and the United Nations Conference on Trade and Development (UNCTD).
Other organizations and programmes of the United Nations have also adopted approaches related to development that are of significance to the World Programme of Action concerning Disabled Persons, inter alia:
The specialized agencies of the United Nations involved in promoting, supporting and carrying out field activities have an important advisory role to perform. The work of these agencies includes disability presentation, nutrition, hygiene, education of children and adults, vocational training and job placement.