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The right to have property is outlined in the following instruments:
A right to property is contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 1 confers that "…every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
Article 21 of the American Convention on Human Rights confers that "…everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society."
Article 15 of the African Charter on Human and Peoples' Rights confers that "…the right to property shall be guaranteed. It may only be encroached upon in the interest of public or in the general interest of the community and in accordance with the provisions of appropriate law."
Despite the statistical existence of unemployment in every country in the world, work continues to be an essential part of the human condition. For many, it represents the primary source of income upon which their physical survival depends. Not only is it crucial to the enjoyment of survival rights such as food, clothing, or housing, it affects the level of satisfaction of many other human rights, such as the rights to education, culture and health.
Many persons with disabilities are denied employment or given only menial or poorly remunerated jobs. This is true even though it can be demonstrated that with proper assessment, training and placement, the great majority of disabled persons can perform a large range of tasks in accordance with the prevailing work norms. In times of unemployment and economic distress, disabled persons are usually the first to be discharged and the last to be hired. Therefore, measures are needed to ensure that disabled persons have equal opportunities for productive and gainful employment in the open labour market.
A right to work is contained in the European Social Charter. Article 1 provides that "…everyone shall have the opportunity to earn his living in an occupation freely entered upon."; see also the new section on employment, including four pillars, in The Amsterdam Treaty.
Article 6 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights states that "…everyone has the right to work."
Article 15 of the African Charter on Human and Peoples’ Rights provides for a basic "…right to work (…) for everybody."
Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights provides: " State Parties to the present Convention recognise the right to work which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts."
One important international norm concerning the right to work for disabled persons is the Declaration on the Rights of Mentally Retarded Persons. Paragraph 3 of the Declaration states that persons with disabilities have "…the right to perform productive work or to engage in any other meaningful occupation to the fullest possible extent of his capabilities."
Paragraph 7 of the Declaration on the Rights of Disabled Persons deals with the question of a right to work for persons with disabilities. The Declaration states that persons with disabilities have the "…right, according to their capabilities, to secure and retain employment or to engage in a useful, productive and remunerative occupation…".
Rule 7 of The Standard Rules on the Equalization of Opportunities for Persons with Disabilities, describes under the heading Employment that the Member States "…should recognise the principle that persons with disabilities must be empowered to exercise their human rights, particularly in the field of employment." This statement clarifies that people with disabilities have a fundamental right to work. Rule 7 also emphasises that "…in both rural and urban areas, they [persons with disabilities] must have equal opportunities for productive and gainful employment in the labour market."
The right to work is also mentioned in the United Nations Rules for the Protection of Juveniles Deprived of their Liberty. Paragraph 45 of the Rules states that "…wherever possible, juveniles should be provided the opportunity to perform remunerated labour…". The text also provides that "…the type of work should be such as to provide appropriate training…".
There are also two main agreements concerning the right of disabled persons. First, the World Programme of Action concerning Disabled Persons states in paragraph 128 how Member States should "…adopt a policy and supporting structure of services to ensure that disabled persons in both urban and rural areas have equal opportunities for productive and gainful employment in the open labour market." Paragraph 129 consists of proposed methods in which States can support the integration of disabled persons into open employment.
The second international agreement is the Tallinn Guidelines for Action on Human Resource Development in the Field of Disability. Paragraph 33 states: " Disabled persons have the right to be trained for and to work on equal terms in the regular labour force."
Anti-discrimination laws on the subject of employment of persons with disabilities seek to protect persons with disabilities from both direct discrimination and indirect or hidden discrimination, such as technical obstacles or architectural barriers.
Article 2 (2) of the International Covenant on Economic, Social and Cultural Rights provides that States Parties have a duty to guarantee the rights enunciated in the present Covenant "…without discrimination of any kind as to race, colour, sex, (…) or other status." Therefore, the following rights must be available to all persons without discrimination due to of disabilities:
-the right to work, including the right to the opportunity to gain a living by work freely chosen or accepted (Article 6 (1)); -the right to full realisation of the above right to work (Article 6 (2) ); -the right to enjoy just and favourable conditions of work (Article 7 (a-d) ); and -the right to join trade unions (Article 8)
Thus, article 2 (2) provides substantial protections against discrimination for persons with disabilities in the field of employment.
The Convention concerning Vocational Rehabilitation and Employment (Disabled Persons) guarantees that disabled persons are not subjected to discrimination at work. The emphasises the connection between discrimination against persons with disabilities in employment. Article 4 of the Convention states: "The vocational rehabilitation and employment policy shall be based on the principle of equal opportunity between disabled workers and workers generally (…) special positive measures aimed at effective equality of opportunity and treatment between disabled workers and other workers shall not be regarded as discriminating against other workers."
The ILO also adopted the Convention concerning Discrimination in Respect of Employment and Occupation, which deals with discrimination against persons with disabilities in employment. Article 1(1) of the Convention contains a definition of the term discrimination and article 1(2) provides an exclusion to the anti-discrimination principle.
The Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources also contains a non-discrimination clause in article 1 (5). Another ILO agreement, which is legally binding, is the Recommendation concerning Vocational Rehabilitation and Employment (Disabled Persons). Paragraph 7 of this instrument provides 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." Furthermore, paragraph 4 states that "…vocational rehabilitation measures should be made available to all categories of disabled persons." Paragraph 2 of the Declaration on the Right of Disabled Persons provides that persons with disabilities shall enjoy the right of the declaration related to employment "… without distinction or discrimination (…) either to the disabled person himself or herself or to his or her family." Paragraph 10 consists of a positive duty of a Member State to adopt necessary measures to protected disabled persons: "Disabled persons shall be protected against (…) all treatment of a discriminatory, abusive or degrading nature." Paragraph 6 of the Declaration on the Rights of Mentally Retarded Persons states that mentally retarded persons have "… the right to protection from (…) abuse and degrading treatment." This may also include a commitment to the Member States to eliminate any form of discrimination as mentioned above.
Moreover, The Standard Rules for the Equalization of Opportunities for Persons with Disabilities provides important guidance in the area of discrimination against disabled persons in employment. Rule 7 (1) provides that: "Laws and regulations in the employment field must not discriminate against persons with disabilities and must not raise obstacles to their employment."
Paragraph 63 of the Vienna Declaration and Programme of Action states that all human rights are universal and that "…every person is born equal and have the same right to (…) work (…) any direct discrimination or other negative discriminatory treatment of a disabled person is therefore a violation of his or her human rights." The Declaration also refers to The Standard Rules on the Equalization of Opportunities for Persons with Disabilities.
The main objectives of the World Programme of Action concerning Disabled Persons are to promote effective measures for the realisation of the goals of full participation and equality for persons with disabilities. To accomplish these goals, due regard must be paid to education, training and work opportunities. Under the headline Employment, paragraph 128 of the Programme outlines that Member States should ensure that persons with disabilities "… have equal opportunities for productive and gainful employment in the open labour market." Although the term discrimination is not mentioned the goal of equal opportunity means the elimination of all forms of discrimination.
The Tallinn Guidelines for Action on Human Resources Development in the Field of Disability are quite progressive in that Section E, Paragraph 35 states that "… when a disabled candidate and non-disabled candidate are equal qualified, the disabled candidate should be chosen."
Work protections consist of the right to safe and appropriate working place. Although there are international agreements and norms pertaining to the right of disabled persons to work, often persons with disabilities need special working tasks or standards commensurate with their individual abilities.
The Convention concerning Vocational Rehabilitation and Employment (Disabled Persons) provides in article 3 that "…the said policy shall aim at ensuring that appropriate vocational rehabilitation measures are made available to all categories of disabled persons…". Paragraph 7 of the Recommendation concerning Vocational Rehabilitation and Employment (Disabled Persons) states that "…disabled persons should enjoy equality of opportunity and treatment in respect of access to (…) employment which, wherever possible (…) takes account of their individual suitability for such employment."
Paragraph 44 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty states that "…all protective national and international standards applicable to child labour and young workers should apply to juveniles deprived of their liberty." Thus, juveniles with disabilities who are deprived of their liberty are protected under this provision.
The World Programme of Action concerning Disabled Persons describes in several paragraphs measures which should be adopted to ensure work protection and avoid work-related injury / illnesses. Paragraph 95 of the Programme states that "…the technology to prevent and control most disablement is available and improving but is not always fully utilised. Member States should take appropriate measures for the prevention of impairment and disability and ensure the dissemination of relevant knowledge and technology."
Moreover, concerning disability rehabilitation, not only in the area of employment, the report Disability prevention and rehabilitation37 gives an overview of - rehabilitation services, - rehabilitation technology and - the problems which are combined with such a task, e.g. organisation, manpower or administrative problems.
The development of work skills is important for disabled persons in that the improvement of work skills enhances independence and builds self-esteem. The following programmes and policies have been adopted in order to enable persons with disabilities to develop their work skills.
Article 1 (5) of the Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources obliges Member States to implement programmes and policies to "…encourage and enable all persons, on an equal basis and without any discrimination whatsoever, to develop and use their capabilities for work…".
The Recommendation concerning Vocational Rehabilitation of the Disabled outlines various principles and methods of vocational guidance, vocational training and placement of disabled persons. Paragraph 3 states that "…all necessary and practicable measures should be taken to establish or develop specialised vocational guidance service for disabled person requiring aid in choosing or changing their occupations."
Paragraph 53 of the Recommendation concerning Vocational Guidance and Vocational Training in the Development of Human Resources provides that "…persons who are handicapped or disabled should have access to vocational guidance and vocational training programmes provided for the general population." If the person or group requires special measures, "…special adjusted programmes should be provided."
Article 9, 10 and 15 of the European Social Charter enunciate a right to vocational guidance and training. Article 9 provides that States should "…provide or promote, as necessary, a service which will assist all persons, including the handicapped, to solve problems related to occupational choice and progress, with due regard to the individual’s characteristics and their relation to occupational opportunity…". This assistance should be available free of charge, both to young persons, including school children, and to adults. Article 10 states: "… the Contracting Parties undertake: (…) To provide or promote, as necessary, the technical and vocational training of all persons, including the handicapped, in consultation with employers’ and workers’ organisations, and to grant facilities for access to higher technical and university education, based solely on individual aptitude." Article 15 outlines the right of persons with physical or mental disabilities to vocational training, rehabilitation and social resettlement.
Paragraph 6 of the Declaration on the Rights of Disabled Persons states that "…disabled persons have the right to (…) education, vocational training and rehabilitation, (…) which will enable them to develop their capabilities and skills to the maximum and will hasten the processes of their social integration or reintegration."
Moreover, Rule 7(2) of The Standard Rules on the Equalization of Opportunities for Persons with Disabilities provides that "States should actively support the integration of persons with disabilities into open employment. This active support could occur through a variety of measures, such as vocational training…". Rule 19 (3) states that "States should develop training programmes in consultation with organisations of persons with disabilities, and persons with disabilities should be involved as teachers, instructors or advisers in staff training programmes."
Paragraph 132 of the World Programme of Action concerning Disabled Persons consists of a list of services that should be provided by Governments to ensure that disabled persons have equal opportunities for productive and gainful employment. Such services should include a) vocational assessment and guidance, b) vocational training, c) placements and d) follow-up. Sheltered employment should be made available for those who, because of their special needs or particularly severe disabilities, may not be able to cope with the demands of competitive employment.
Paragraph 9 of the Tallinn Guidelines for Action on Human Resources Development in the Field of Disability states: " The abilities of disabled persons (…) should be strengthened through community-based supplementary services provided by Governments or non-governmental organisations. These services should promote self-determination and enable disabled persons to participate in the development of society." In relation to employment, paragraph 33 provides that "…disabled persons have the right to be trained and to work equal terms in the regular labour force."
Affirmative action policies are necessary in order to ensure effective equality of opportunities for disabled persons to compete on an equal basis with non-disabled persons.
Paragraph 11 (a) of the Recommendation concerning Vocational Rehabilitation and Employment (Disabled Persons) encourages States to take measures to create job opportunities in the open market.
The Recommendation concerning Vocational Rehabilitation of the Disabled outlines various methods of widening employment opportunities and sheltered employment for persons with disabilities. Paragraph 29 states that measures should be based on the following principles: "Disabled persons should be afforded an equal opportunity with the non-disabled to perform work for which they are qualified; disabled persons should have the full opportunity to accept suitable work with employers of their own choice; and emphasis should be placed on the abilities and work capacities of disabled persons and not of their disabilities." Paragraph 30 specifies that the measures to be taken include research designed to analyse and demonstrate the working capacity of disabled persons and widespread and sustained publicity. Paragraphs 32 and 35 deal especially with sheltered employment.
Article 15 (2) of the European Social Charter provides that State Parties must provide "…adequate measures for the placing of disabled persons in employment, such as specialised placing service, facilities for sheltered employment and measures to encourage employers to admit disabled persons to employment."
Paragraph 129 of the World Programme of Action concerning Disabled Persons provides that Member States should support the integration of disabled persons into open employment market. States could do this through a variety of measures, such as incentive-oriented quota schemes, reserved or designated employment, loans or grants for small businesses and co-operatives, exclusive contracts or priority production rights, tax concessions, contract compliance or other technical or financial assistance to employing disabled workers.
Paragraph 7(2) of The Standard Rules on the Equalization of Opportunities for Persons with Disabilities provides that States should actively support the integration of persons with disabilities into open employment and lists ways in which States could fulfil this aim. Furthermore, Rule 7 (8) provides that "…measures should be taken to include persons with disabilities in training and employment programmes in the private and informal sectors."
Paragraph 35 of the Tallinn Guidelines for Action on Human Resources Development in the Field of Disability states that the opportunities of employment "…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, co-operatives and other group income-generating schemes." The paragraph continues: " 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 non-disabled candidate are equally qualified, the disabled candidate should be chosen."
In accordance to fair employment policies, one part of these measures is the recruitment of persons with disabilities. The recruitment of this minority provides special necessities related to fair wages, equitable possibilities to work at a corresponding level to their abilities, and a higher attention to re-integration. Such policies affect not only the Governments of the Member States in the field of implementation in national law, but also working organisations of employers and employees. Further on, recruitment policies mean both a reflection on the creative legal procedure related to passive instruments of employment access and regulations concerning active measures to ensure access by direct recruitment, and to ensure and establish a higher number of workers with disabilities in the free labour market.
The ILO adopted several conventions related to disability and employment. The Convention concerning Vocational Rehabilitation and Employment (Disabled Persons) contains a more or less concrete description of recruitment policies. For example, article 3 states that "…the said policy shall aim (…) at promoting employment opportunities for disabled persons in the open labour market." Article 7 states: "The competent authorities shall take measures with a view to providing and evaluating other related services to enable disabled persons to secure, retain and advance in employment…". Also, the Recommendation concerning Vocational Rehabilitation and Employment (Disabled Persons) describes a duty for Member States to support full access to the open labour market through recruitment policies. For instance, in paragraph 11, lit. b relates to the special group of persons with disabilities which can not participate in the open labour market: " Appropriate government support for the establishment of various types of sheltered employment for disabled persons for whom access to open employment is not practicable."
In accordance with equitable recruitment policies, other international norms have to be addressed such as The Standard Rules on the Equalization of Opportunities for Persons with Disabilities. Therein, States and other organisations are asked to support the aim of ensuring such recruitment policies. As an example, Rule 7 (6) proclaims: "States, workers’ organisations and employers should co-operate to ensure equitable recruitment and promotion policies, employment conditions, rates to pay, measures to improve the work environment in order to prevent injuries and impairments and measures for the rehabilitation of employees who have sustained employment-related injuries." Further on, the Standards Rules describe in Rule 7(7) the final idea of all measures enunciated before, namely: " The aims should always be for persons with disabilities to obtain employment, small units of sheltered or supported employment may be an alternative. It is important that the quality of such programmes be assessed in terms of their relevance and sufficiency…".
Paragraph 131 of the World Programme of Action concerning Disabled Persons provides that "…there should be mutual co-operation at the central and local level between Governments and employers’ and workers’ organisations in order to develop a joint strategy and joint action…". And further on: " Such co-operation could concern recruitment policies, measures to improve the work environment in order to prevent handicapping injuries and impairments and measures for rehabilitation of employees impaired in the job."
The payment to persons with disabilities is probably one of the most neglected parts in the process of improving employment conditions, because the fundamental problem of adopting measures to create work possibilities represents the main concern. But the next logical step must be the arrangement of the external conditions around the employment work itself, which includes the working place, physical access, special equipment and fair job-arrangements. To realise these rights for persons with disabilities, it is necessary to give a structure of the corresponding international norms dealing with equitable employment conditions and fair rates.
Paragraph 7 of the Recommendation concerning Vocational Rehabilitation and Employment (Disabled Persons) provides that "…disabled persons should enjoy equality of opportunity and treatment in respect of access to, retention of and advancement in employment…". Paragraph 10 proclaims that "…measures should be taken to promote employment opportunities for disabled persons, which conform to the employment and salary standards applicable to workers generally." Furthermore, paragraph 11 provides a wide range of possible measures, which should be adopted.
As a legally binding instrument, the International Covenant on Economic, Social and Cultural Rights, states in article 7 that States recognise the right of everyone, such as persons with disabilities, the enjoyment of just and favourable work conditions. This includes four main standards: remuneration; safe and healthy working conditions; equal opportunity to be promoted to an appropriate higher level; rest, leisure and reasonable limitation of working hours, as well as periodic holidays with pay and remuneration for public holidays.
The Standard Rules for the Equalization of Opportunities for Persons with Disabilities provide in Rule 7 several different measures, which should be adopted to realise and ensure fair and equitable employment conditions. Rule 7(3) provides that "States’ action programmes should include: Measures to design and adapt workplace and work premises in such a way that they become accessible to persons with different disabilities; support for the use of new technologies and the development and production of assistant devices, tools and equipment for persons with disabilities to enable them to gain and maintain employment; and provisions of appropriate training and placement and ongoing support such as personal assistance and interpreter services." Furthermore, the Standard Rules mention statements related to working conditions: " In their capacity as employers, States should create favourable conditions for the employment of the persons with disabilities in the public sector."
In the context of fair working conditions, the World Programme of Action concerning Disabled Persons demonstrates, in paragraphs 131 and 133, ideas similar to the Standard Rules. Paragraph 131 states that "There should be mutual co-operation at the central and local level between Government and employers’ and workers’ organisations in order to develop a join strategy and joint action with a view to ensuring more and better employment opportunities for disabled persons. Such co-operation could concern recruitment policies such as measures to improve the work environment in order to prevent handicapping injuries and impairments, measures for rehabilitation of employees impaired in the job, e.g. by adjusting and work contents to their requirements." And concerning the special situation of States as employers, paragraph 133 mentions that "…[w]hen acting as employers, central and local Government should promote employment of disabled persons in the public sector. Laws and regulations should not raise obstacles to the employment of disabled persons."
37 An outcome of the WHO Expert Committee on Disability Prevention and Rehabilitation, WHO, Geneva 1981
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