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The Council of Europe is an international organisation in Strasbourg. Its main role is to strengthen democracy, human rights and the rule of law throughout its Member States of 40 countries. The Council of Europe is also active in enhancing Europe’s cultural heritage in all of its diversity. Finally, it acts as forum for examining a whole range of social problems, such as social exclusion, intolerance, the integration of migrants, the threat to private life posed by new technology, and bio-ethical issues.
The Council of Europe comprises:
a decision making body: the Committee of Ministers a deliberative body: the Parliamentary Assembly a voice for local democracy: the Congress of Local and Regional Authorities of Europe.
More than 160 European Conventions serve as a basis for reforming and harmonising Member States' legislation. For issues that do not lend themselves to conventions, the Committee of Ministers adopts recommendations to Governments on what line of action to take.
The European Convention for the Protection of Human Rights and Fundamental Freedoms, the other major treaty of the Council of Europe, is worthy of particular mention.
The Council of Europe has not adopted any specific human rights instruments on disabled persons. It has to be recognised, though, that for a long time the European Social Charter was the first human rights treaty in which disabled persons were explicitly mentioned as carriers of Human Rights.
Other remarkable documents have been adopted within the machinery of the Council of Europe which are legally non-binding but worth mentioning, because they emphasise the Human Rights aspects of disability legislation and policy.
The European Convention for the Protection of Human Rights and Fundamental Freedoms is designed to protect individuals’ fundamental rights and freedoms. This Convention contains the classical human rights guarantees, including the right to life (article 2), the right not to be subject to torture or to inhuman or degrading treatment or punishment (article 3), the right to liberty and security of person (article 5), and the right to respect for private and family life, home and correspondence (article 8). These rights apply to all persons, including disabled persons.
Two articles are particularly interesting in regard to disability. Indeed, according to article 5 (e), "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save the following cases and in accordance with a procedure prescribed by law: (…) e) the lawful detention of persons (¼) of unsound mind ¼". That means that the right to liberty and security may be restricted on grounds of mental disability. While the anti-discrimination clause of article 14 refers to sexual, racial, lingual, religious, or political discrimination, disabled persons are not explicitly mentioned. But disabled people must be contained in the formulation any other status at the end of article 14.
The European Social Charter has led to legal reforms in such areas as the family, the protection of young workers, trade union rights and social insurance. It lays down twenty-three fundamental rights. It contains in Part I, a Declaration of Aims which Contracting States shall pursue by all appropriate means, and in Part II, a set of articles which to a large extent correspond to the provisions in the International Covenant on Economic, Social and Cultural Rights. However, States shall choose from a menu of obligations (10 out of the 19 articles in Part II, or 45 out of the 72 numbered paragraphs of which the 19 articles consist). Furthermore, according to article 20 (Undertakings), "Each of the Contracting Parties undertakes: (¼) (b) To consider itself bound by at least five of the following articles of Part II of this Charter: articles 1, 5, 6, 12, 13, 16 and 19." Regarding the issue of disability, three articles are worth mentioning: article 11 (the right to protection of health), article 13 (the right to social and medical assistance) and article 15 (the right of physically or mentally disabled persons to vocational training, rehabilitation and social resettlement). It is important to note that articles 11 and 15 are not part of the list of article 20 (b).
Articles 11 and 13 are rights applicable to all persons that may be of particular concern to disabled persons. Article 11 states that "…the Contracting Parties undertake (¼) 1. To remove as far as possible the causes of ill-health; 2. To provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health; 3. To prevent as far as possible epidemic, endemic and other diseases." Article 13 states that "…the contracting Parties undertake: 1. To ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and in case of sickness, the care necessitated by his condition; 2. To ensure that persons receiving such assistance shall not, for that reason, suffer from a diminution of their political or social rights; 3. To provide that everyone may receive by appropriate public or private services such advice and personal help as may be required to prevent, to remove, or to alleviate personal or family want¼". Pursuant to Article 15, Contracting Parties undertake to take adequate measures for (1) the provision of training facilities for disabled persons, and (2) the placing of disabled persons in employment, such as specialised placing services, facilities for sheltered employment and measures to encourage employers to admit disabled persons to employment.
As one can see, the concept of human rights and disability as contained in the European Social Charter is based on the traditional institutional approach to disability. It has been revised in order to update and adapt the substantive contents of the Charter in order to take into account, in particular, the fundamental social changes, which have occurred since the text was adopted. The new article 15 of the Revised Charter25 will read as follows:
"The right of persons with disabilities to independence, social integration and participation in the life of the community: With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular: to take the necessary measures to provide persons with disabilities with guidance, education and vocational training in the framework of general schemes wherever possible or, where this is not possible, through specialised bodies, public or private; to promote their access to employment through all measures tending to encourage employers to hire and keep in employment persons with disabilities in the ordinary working environment and to adjust the working conditions to the needs of the disabled or, where this is not possible by reason of the disability, by arranging for a creating sheltered employment according to the level of disability. In certain cases, such measures may require recourse to specialised placement and support services; to promote their full social integration and participation in the life of the community in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure."
This version is more comprehensive than the previous one and is based more on a human rights approach. It will enter into force after the "…three Members States of the Council of Europe have expressed their consent to be bound by this Charter." (article K).
Beside the above mentioned norms there are other European instruments:
Recommendation on the Situation of the Mentally Ill26
Recommendation on Rehabilitation Policies for Disabled27
The Recommendation on a Coherent Policy for the Rehabilitation of People with Disabilities28 adheres to the principle of independent living and full integration into society. This recommendation is extremely progressive in that it recognises the rights of disabled persons to be different. It is the first international instrument, which applies the right to be different to the situation of disabled persons, in particular with respect to the whole rehabilitation process.
The European Union is a regional organisation with currently 15 democratic member States voluntarily joined by a political desire to present a united front to the great challenges of our age. These challenges include: promoting European unity, improving living and working conditions of citizens, fostering economic development, balanced trade and fair competition, reducing economic disparities between regions, help developing countries, and preserving peace and freedom29.
Instruments are further-reaching activities concerning the civil and political rights of disabled people within the European Union. Although the mandate of the organisation has been expanded by the Treaty on European Union30, the organisation’s main concern lies in the field of economic, monetary and political issues. Accordingly, disability issues have been dealt with as a matter of social policy, the main emphasis being in the field of employment. The Recommendation on the Employment of Disabled People in the European Community31 is based on the principle that disabled people have the right to equal opportunity in training and employment. The Council of the European Communities, the Commission, and the Committee of Ministers have adopted various resolutions on an appropriate policy for the rehabilitation of disabled people, in which Member States are called on to step up preventive measures to eliminate impairments, disabilities and handicaps, implement a comprehensive and co-ordinated policy of rehabilitation, and encourage the full participation of disabled people in their rehabilitation and in the life of the community. Another significant resolution was passed by the European Parliament in April 1993 on the upsurge of violence against handicapped persons32.
The Charter of the Organisation of American States established the Organisation of American States (OAS), which has among its principles and purposes the strengthening of peace and security, ensuring peaceful settlement of disputes, providing for a common action in the event of aggression, and promoting economic, social and cultural development.
It also proclaims the fundamental rights of the individual without distinction as to race, nationality, creed or sex. It was within the framework of the OAS that the Inter-American Commission on Human Rights was established, and that the American Declaration on the Rights and Duties of Man, as well as the American Convention on Human Rights, were elaborated.
There is no reference regarding disability in the Charter of the Organisation of American States, but some articles might be relevant to the rights of persons with disabilities. According to article 2: "The Organisation of American States, in order to put into practice the principles on which it is founded and to fulfil its regional obligations under the Charter of the United Nations, proclaims the following essential purposes: (...) f) to promote by co-operative action, their economic, social and cultural development ...".
Furthermore, article 31 states that "…to accelerate their economic and social development (...) the Member States agree to dedicate every effort to achieve the following basic goals: "(…) (g) Fair wages, employment opportunities and acceptable working conditions for all; (h) rapid eradication of illiteracy and expansion of educational opportunities for all; (i) protection of man’s potential trough the extension and application of modern medical science; (...) (k) adequate housing for all sectors of the population; (l) urban conditions that offer opportunities for a healthful, productive, and full life ...".
Two articles of the American Declaration of the Rights and Duties of Man refer to general statements that apply to disabled people. Article 1 states: "Every human being has the right to life, liberty and the security of his person." Furthermore, article 2 provides that "…all persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor." Two other articles of American Declaration of the Rights and Duties of Man are clearly relevant. Article XI states that "…every person has the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent permitted by public and community resources." In addition, article XVI proclaims the right of every person to enjoy the protection of the State from the consequences of "…unemployment, old age and any disabilities arising from causes beyond his control that make it physically and mentally impossible for him to earn a living." The American Declaration is binding through the O.A.S. Charter, even if States have not ratified the American Convention. It also reflects customary law.
The American Convention on Human Rights does not explicitly address the subject of disability. However, it is referred to implicitly and contains the classical human rights guarantees, as does the European Convention for the Protection of Human Rights and Fundamental Freedoms, so it’s article 27 (2) forbids suspension of guarantees essential to the protection of non-derivable human rights, among which includes the right to life, included in article 4 (1).
Article 18 of The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights specifically refers to the rights of disabled persons. It states that disabled persons are entitled to special attention to help them achieve the greatest possible development of their personality. Pursuant to article 18, States Parties agree to undertake programs aimed at providing disabled persons with resources needed to attain the greatest possible development of their personality. States Parties also agree to provide special training to the families of the handicapped.
The Convention on the Elimination of All Forms of Discrimination against Women is relevant as disabled women may be victims of discrimination on the grounds of their sex in addition to discrimination on the grounds of their disability. The Convention sets out internationally accepted principles on the rights of women, which are applicable to all women in all fields and prescribes the measures to be taken to ensure that women everywhere can enjoy equal rights with men.
Moreover, a Draft Inter-American Convention on the Elimination of all Forms of Discrimination against People with Disabilities33 is in process and will stress, beside a definition of disability, that measures must be taken - to eliminate discrimination in all services, programs and activities provided by government authorities - to eliminate discrimination by private entities - to ensure that newly constructed buildings do not contain any barriers for persons with disabilities - to ensure that all public officials are fully trained to enforce such laws So all in all the aim of this draft convention is the prevention and elimination of every type of discrimination against persons with disabilities. Further on a full participation / integration shall be reached.
The African Charter on Human and Peoples’ Rights having been ratified by an absolute majority of States after an energetic consciousness-raising campaign conducted by certain Heads of State of the OAU and certain NGOs. The Charter contains a list of the prerogatives and obligations, which are protected and also of the organs for the protection and defence of those same values. Part I includes rights and duties applying to individuals and groups alike, e.g. the right to life (article 4). The Charter places special emphasis on the rights and duties of the community, especially the family, society and nation. Lastly, the Charter accords a place to the so-called third generation rights, mainly the rights to peace, solidarity, a healthy environment and development.
Article 18 (4) of the Charter provides that the disabled have the right to special measures of protection in keeping with their physical or moral needs. Article 16 (1) provides that every individual shall have the right to enjoy the best attainable state of physical and mental health.
No particular instruments on disability have been adopted in Asia, but some workshops are organised within Asia34.
In April 1992, the Economic and Social Commission for Asia and the Pacific proclaimed the Asian and Pacific Decade of Disabled Persons35 to last from 1993 until 2002. This regional decade of disabled persons aims to help to promote the human rights of disabled persons in a region which has probably the largest number of the world’s disabled persons. The Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region and the Agenda for Action for the Asian and Pacific Decade of Disabled Persons, 1993-2002 contain some of the major topics of the World Programme of Action concerning Disabled Persons and The Standard Rules on the Equalization of Opportunities for Persons with Disabilities.
25 Adopted by the Council of Europe, 3 May 1996, not yet been entered into force
26 EC Recommendation No. 818, adopted by the Parliamentary Assembly in 1977
27 EC Recommendation No. 1185, adopted by the Parliamentary Assembly in 1992
28 EC Recommendation No. (92) 6, adopted by the Parliamentary Assembly in April 1992
29 The EU institutions and bodies are the following: the European Parliament, the Council, the Commission, the Court of Justice, the court of Auditors, the Economic and Social Committee, the Committee of the Regions, the Central Bank of Europe and the European Investment Bank.
30 Treaty of Maastricht, came into force 1993
31 86/379/ECC: Council Recommendation of 24 July 1986 on the employment of disabled people in the Community, Official Journal of the EC No. L 225, 12/08/1986 P.0043-0047.
32 Official Journal of the EC No. C 150/270
33 Adopted at the Meeting of Experts to Examine the Draft Inter American Convention on the Elimination of All Forms of Discrimination by Reason of Disability, Washington D.C. (USA) 3-4 March 1998
34 e.g. the United Nations Workshop fo the Asian-Pacific Region on Human Rights Issues, Jakarta, 26-28 January 1993
35 UN Doc. A/CONF 157/P C/61/Add.1
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