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| CONTENTS INTRODUCTION
ChapterI. BASIC LEGAL CONCEPTS II. FACTORS CAUSING DISABILITY III. PREJUDICES AND DISCRIMINATION AGAINST DISABLED PERSONS:
AREAS, FORM AND SCOPE IV. NATIONAL AND INTERNATIONAL POLICIES AND MEASURES
DESIGNED TO ERADICATE DISCRIMINATORY PRACTICES AND GUARANTEE THE DISABLED THE FULL
ENJOYMENT OF HUMAN RIGHTS V. PUBLIC INFORMATION AND EDUCATION RECOMMENDATIONS AND
PROPOSALS |
24. This chapter will comprise a preliminary discussion of a number of basic issues, which relate to the main subject of this paper. Thus, for example, an attempt is made to answer the following questions: Do disabled persons enjoy the same rights as others? Do they have specific rights? If they do have such rights, where are those rights established? Are they to be found mostly in declaratory provisions, which afford no legal protection? In the case of certain legally identifiable” groups, such as disabled persons, is mere recognition of equality before the law enough or should some other requirements be added to allow the disabled to exercise their full range of recognized human rights effectively and on an equal basis? Finally, is the right to equal opportunity really that, or just an aspiration?
25. Bearing in mind that this is a study of universal scope, we must concentrate mainly on examining the various relevant international instruments. Of these, we will review both those which set forth broad guidelines (for example, declarations) and those which contain binding and generally applicable standards for all individuals (such as the International Covenants). Naturally we will also include a discussion of those instruments which lay down specific standards regarding disability or which refer to particular categories of disabled persons (such as the Convention on the Rights of the Child).
26. Lastly, it is important to stress that some of the provisions of those instruments are preventive while others are compensatory, although in every instance the common denominator is the protective function. In addition, some standards are designed to attack the factors which cause disability, whereas others seek to protect persons who already suffer from some form of disability. In still other cases, both objectives are combined. Only by reading the entire body of these provisions and using the rules which are characteristic of human rights as the criterion for interpreting them will we be able to grasp fully the core concepts of the subject and its true legal dimension.
27. In accordance with the purposes and principles of the Charter of the United Nations and the International Bill of Human Rights, not only are persons suffering from any form of disability entitled to exercise all the civil, political, economic, social and cultural rights embodied in these and other instruments, but they are recognized as being entitled to exercise them on an equal basis with other persons.
28. These two statements are founded both on general provisions, such as Articles 55 and 56 of the Charter of the United Nations which refer to the fact that all Member States have undertaken to promote “higher standards of living, full employment, and conditions of economic and social progress and development” and on specific provisions, such as article 25 of the Universal Declaration of Human Rights, which recognizes that everyone has “the right to a standard of living adequate for the health and well-being of himself and of his family” as well as “the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control” (emphasis added).
29. Regarding the principle of equal rights, the imperative form of each article of the Universal Declaration is highly instructive. Article 1 stipulates that “All human beings are born free and equal in dignity and rights”. Article 2 states that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion”. Articles 3 and 6 in turn use the expression “Everyone has the right to”. Article 7 states that “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination . . . and against any incitement to such discrimination.”
30. Although only one of the provisions of the Universal Declaration that has been quoted refers specifically to disability, this instrument has been and is of vital importance in promoting and protecting the human rights of the disabled, because these persons have the same dignity and the same rights as all other human beings. Furthermore, the Declaration has served as the basis and the point of reference for many other subsequent instruments and resolutions adopted on the subject.
31. The International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights came into force in 1976. Together they form the most comprehensive international code of binding legal provisions in the area of human rights. The two Covenants develop and supplement the provisions of the Universal Declaration, and the three instruments together make up what has come to be known as the International Bill of Human Rights. Disability is perhaps the area in which the importance of recognizing the indivisibility and interdependence of human rights and fundamental freedoms, as both Covenants do, is most evident and sharp. This means recognizing the urgent need to give equal attention and consideration to the application, promotion and protection of civil and political rights, on the one hand, and economic, social and cultural rights on the other.
32. Beginning with its preamble, this Covenant refers to the need to create conditions “whereby everyone may enjoy” the full range of human rights. Article 1 establishes the right of self-determination, and article 2 guarantees that the rights enunciated in the Covenant will be exercised by all without discrimination of any kind. Article 6 recognizes “the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses and accepts”. Thus, for example, if a disabled person who is able to earn his living by working is in a position of in equality vis-a-vis others, this would represent a violation of that right.
33. Article 7 refers to the right of everyone to the enjoyment of just and favorable conditions of work, which ensure adequate remuneration. The principle of “equal remuneration for work of equal value without distinction of any kind” is established. The unacceptable distinctions obviously extend to those applied to disabled persons, although such distinctions are commonly applied to the disabled, who are customarily paid less because of their condition, despite the fact that their disability does not prevent them from doing the same work as a non-disabled person.
34. Article 10 (2) states that “Special protection should be accorded to mothers during a reasonable period before and after childbirth”. This matter is closely connected with the subject of disability because many cases of disability occur on account of pregnancy or childbirth difficulties.
35. Article 11 recognizes that everyone has the right to an adequate standard of living for himself and his family, including adequate food, clothing and housing. This study presents information which shows that, in the majority of cases, this right is very far from being respected where the disabled are concerned.
36. Article 12 recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. This right is obviously violated when the necessary measures are not taken to prevent undernourishment or malnutrition, when proper medical care is not provided, when the disabled are not given rehabilitation services, when general living conditions are not conducive to mental health, when immunization campaigns to prevent certain diseases that cause perfectly avoidable disabilities are not carried out, when people live in squalid and overcrowded accommodation, etc.
37. Article 13 recognizes the right of everyone to education. In the case of disabled persons, this means both that they must have effective access to education in the communal schools and that special education should be provided for them where necessary.
38. Finally, article 15 recognizes the right of every one to take part in cultural life. This right is violated, for example, when access is not possible to facilities in which cultural activities take place (cinemas, theatres, libraries, sports stadiums, museums, etc.), when no alternatives are provided to enable the disabled to participate, or when they are excluded on account of prejudices in respect of their ability to participate.
39. This instrument ensures to all individuals with out distinction of any kind, such as race, color or sex, all the rights established therein, and its article 2 establishes that everyone shall have an effective remedy to put an end to any violation of those rights. This provision, as we shall see later, is of fundamental importance for the disabled, because Governments do not always recognize the legal protection of their rights and almost never provide any special measures to assist the disabled in taking action against any violations of those rights.
40. The Covenant, which uses language similar to that of the Universal Declaration of Human Rights (art. 5) and to the actual title of the United Nations Convention against Torture and Other Cruel, Inhuman or De grading Treatment or Punishment, establishes in its article 7 that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. It further provides that “no one shall be subjected without his free consent to medical or scientific experimentation”. It is common knowledge that both phenomena to day are a major cause of various kinds of disability.
41. Article 9 refers to the whole area of criminal judicial proceedings, the right to defense and the right to be informed of the reasons for one's arrest. This article is of considerable importance as far as protection is concerned, especially for those persons who suffer any kind of mental disability, to prevent them from being subjected to arbitrary and unnecessary arrest or any other kind of institutional abuse.
42. In article 17, it is stated that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation”. This article is directly linked to the situation of persons who are committed to institutions and whose most elementary rights are habitually infringed, as for example their right to privacy. Article 23 recognizes the right of men and women of marriageable age to marry and to found a family. Especially in the case of the mentally ill, this article is often violated all over the world, for apart from the fact that in a great many instances the persons have no real disability, their families or the authorities of the institution to which they are committed infringe the right, which everyone has, to marry and found a family. This right is also violated in cases of enforced sterilization.
43. Article 25 establishes the right of everyone to take part in the conduct of public affairs, directly or through freely chosen representatives; to vote and be elected at periodic elections by universal suffrage; and to have access, on general terms of equality, to public service in his country. This right is violated, for example, when a mentally disabled person is not allowed to exercise his right to vote, even though he is in a position to do so; or when the blind are denied the vote on the pre text that secrecy will not be maintained; or when the polling station is not accessible to persons with restricted movement; or when a candidate for a position in the public service is discriminated against and denied this opportunity on account of the prejudice that because he has a particular disability he is not qualified to hold that post.
44. Lastly, and as indicated at the beginning of this chapter, only by reading both instruments consecutively can one appreciate the interdependence between civil and political rights and economic, social and cultural rights, and above all, the importance of that interdependence in all matters relating to persons with a disability. It can happen, and has in fact happened, that some Governments ensure optimum living standards for disabled per sons but limit their exercise of certain political rights, such as the vote.
45. In addition to those basic instruments, the International Convention on the Suppression and Punishment of the Crime of Apartheid provides in article II, that the term “the crime of apartheid” shall apply to “the infliction upon the members of a racial group or groups of serious bodily or mental harm, by the infringement of their freedom or dignity, or by subjecting them to torture or to cruel, inhuman or degrading treatment or punishment”.
46. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was adopted in 1984, contains universally applicable standards which are of great importance for pre venting disability. Under article 2, each State party undertakes to adopt effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Under no circumstances may an order from a superior officer, or exceptional circumstances such as a state of war or a threat of war, internal political instability or any other public emergency, be invoked as a justification for torture. Article 14 of the Convention goes beyond the purely preventive aspect and contains binding provisions for compensation whereby Governments ensure that the victim of an act of torture obtains redress and has a right to fair and adequate compensation, including the means for as full rehabilitation as possible.
47. The United Nations human rights bodies have paid particular attention to the need to prevent injury to children and to afford disabled children adequate protection. This attention was largely responsible for the inclusion of special provisions in the Convention on the Rights of the Child. Thus, for example, article 19 of the Convention provides for the protection of the child from all forms of physical or mental violence, injury or abuse, including sexual abuse.
48. Its [Convention on the Rights of the Child] article 23 provides that:
1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.
2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child.
3. Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child’s achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.
4. States Parties shall promote, in the spirit of international cooperation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services, with the aim of enabling States Parties, to improve their capabilities and skills and to widen their experience in these areas. In this regard, particular account shall be taken of the needs of developing countries.
49. Some provisions of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families may be regarded as relevant to the protection of this group of persons from disability. In particular, article 16 (2) provides that migrant workers and members of their families shall be entitled to effective protection by the State against violence, physical injury, threats and intimidation, whether by public officials or by private individuals, groups or institutions. Under article 28 of the Convention, migrant workers and members of their families shall have the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State concerned.
50. Since its establishment over 70 years ago, the International Labour Organisation (ILO) has never ceased to advocate that disabled persons, whatever the cause or nature of their disability, should be afforded every opportunity for vocational rehabilitation, including vocational guidance, training or readaptation as well as opportunities for employment, whether open or under sheltered conditions.
51. ILO Recommendation No. 99 of 1955 concerning Vocational Rehabilitation of the Disabled was a landmark in the promotion of the right of the disabled to participate fully in opportunities for training and employment. Moreover, the fact that many countries the world over have based their vocational rehabilitation laws and practices on this recommendation proves what a wide impact this ILO instrument has had. The same recommendation gave impetus to the ILO's technical cooperation activities in this field.
52. On 20 June 1983, the plenary International Labour Conference adopted a Convention (No. 159) and a Recommendation (No. 168) concerning vocational rehabilitation of the disabled. Both instruments made an appeal for renewed efforts to ensure that disabled persons are ensured equal access to training and employment. They also emphasized the important role of employers' and workers' organizations and of the community itself in attaining this goal. The direct intervention of these organizations should be of considerable influence in ending the discriminatory practices, which unfortunately still hamper the access of disabled workers to the labour market. The Convention and the Recommendation also stress the need to pay greater attention to the training and employment of disabled persons in rural areas, outline new criteria for creating jobs and, perhaps most importantly, point out the need to consult disabled persons themselves in planning and formulating policies and programs that will affect their integration or re integration into active working life.
53. As was mentioned before, these ILO standards opened up for the organization, its member States and all those involved in the vocational rehabilitation of disabled persons, a wide area where practical steps could be taken within the framework of the United Nations Decade of Disabled Persons. At the same time, the implementation of these provisions will be of great assistance in helping disabled persons to enjoy their human rights, especially those related to their social and economic welfare.
54. Three regional intergovernmental organizations the Council of Europe, the Organization of African Unity and the Organization of American States have adopted international instruments concerning human rights, including the human rights of the disabled.
55. On 4 November 1950, under the auspices of the Council of Europe, the Convention for the Protection of Human Rights and Fundamental Freedoms was adopted in Rome. This Convention incorporates many of the rights set forth in the Universal Declaration of Human Rights and includes the prohibition of torture and cruel, inhuman or degrading treatment or punishment, stipulated in its article 3.
56. Particular reference was made to the rights of disabled persons in the European Social Charter, adopted in Turin on 18 October 1961, article 15 of which is entitled: “The right of physically or mentally disabled persons to vocational training, rehabilitation and social resettlement”.
57. On 24 July 1986 the Council of the European Communities adopted a Recommendation on the employment of disabled people in the European Community.[9] The Recommendation 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 persons, in which member States are called on to step up preventive measures to eliminate impairments, disabilities and handicaps, implement a comprehensive and coordinated policy of rehabilitation, and encourage the full participation of disabled persons in their rehabilitation and in the life of the community.
58. The African Charter on Human and Peoples' Rights, adopted in 1981 in Nairobi, stipulates in article 18.4: “The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs.”
59. The American Convention on Human Rights does not explicitly address the subject of disability, referring to it implicitly as do the European Convention, the International Covenant on Civil and Political Rights, etc. However, two articles of the American Declaration of the Rights and Duties of Man, adopted in Bogota in 1948, 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” (emphasis added).
60. On 14 November 1988 the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights was adopted. In article 18 the Protocol states that disabled persons have the right to special protection. It declares that they have the right to appropriate work programmes, special training for their families, social groups and the consideration of the requirements of disabled persons in urban development plans.
61. As examples of standards of international humanitarian law, whose violation often results in or aggravates disability or has particular consequences for disabled persons, it would be appropriate to mention the Third and Fourth Geneva Conventions of 1949, relative to the Treatment of Prisoners of War and the Protection of Civilian Persons in Time of War, respectively.[10] Furthermore, article 3, which is common to the four Geneva Conventions and governs armed conflict not of an international character, prohibits at any time and in any place whatsoever violence to life and person, mutilation, cruel treatment, etc.
62. Part II of Protocol I, additional to the Geneva Conventions of 1949, in articles 8 to 34, contains provisions intended to ameliorate the condition of the wounded, sick and shipwrecked in time of international armed conflict. Article 35 prohibits the employment of methods and material of warfare of a nature to cause superfluous injury, unnecessary suffering, or widespread, long-term and severe damage to the natural environment. In accordance with article 44, any combatant who falls into the power of an adverse Party shall be a prisoner of war; article 45 provides measures for the protection of prisoners of war.
63. Part IV (articles 48-79) provides for the protection of civilian populations who fall into the power of an adverse Party. Articles 48-71 are additional to the provisions of the Fourth Geneva Convention concerning the protection of the civilian population and civilian objects against the dangers of military operations, and set out a series of norms to achieve this. The main one of these (art. 48) is to ensure that the Parties to a conflict shall at all times distinguish between the civilian population and combatants and shall direct their operations only against military objectives. Methods of warfare such as the starvation of civilians and attacks on the natural environment are specifically prohibited. Articles 72-79 deal with the treatment of persons in the power of a party to the conflict. Articles 76-78 are measures designed to protect women and children, in particular against rape, forced prostitution and any other form of indecent assault. Article 79 states that journalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians and shall be protected under the Conventions and the Protocol.
64. Protocol II relates to armed conflicts not of an international character, including conflicts between the armed forces of a government and dissident armed forces or other organized armed groups which exercise control over a part of its territory. Article 4 provides that all persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, shall be treated humanely, with out any adverse distinction. It includes a list of acts, which shall remain prohibited at any time and in any place whatsoever, in particular murder, torture, mutilation and corporal punishment. Article 5 lays down minimum provisions with regard to persons deprived of their liberty for reasons related to armed conflict and norms for the protection of persons prosecuted and punished for criminal offences related to the armed conflict.
65. Over more than 20 years, the General Assembly, Economic and Social Council and other bodies concerned with human rights have adopted various declarations and resolutions aimed directly or indirectly at promoting and protecting the human rights of disabled persons.
66. The Declaration on Social Progress and Development, adopted by the General Assembly by resolution 2542 (XXIV) of 11 December 1969, states in article 10 that social progress and development shall aim at the continuous raising of the material and spiritual standards of living of all members of society, with respect for and in compliance with human rights and fundamental freedoms, through the attainment of the Declaration's main goals. These goals include the assurance of a steady improvement in levels of living, the achievement of the highest standards of health and the provision of health protection for the entire population, if possible free of charge. In article 11, section (c) of the Declaration, the goal of the protection of the rights and the assuring of the welfare of the disabled and protection for the physically or mentally disadvantaged is included.
67. In resolution 2856 (XXVI) of 20 December 1971, the General Assembly proclaimed the Declaration on the Rights of Mentally Retarded Persons and called for national and international action to ensure that it would be used as a common basis and frame of reference for the rights contained in it. According to the Declaration, the mentally retarded person should enjoy the same rights as other human beings, including the right to proper medical care, economic security, the right to training and rehabilitation, and the right to live with his own family or with foster parents. Furthermore, the Assembly declared that there should be proper legal safe guards to protect the mentally retarded person against every form of abuse if it should become necessary to restrict or deny his or her rights.
68. The relevant bodies of the United Nations are currently considering the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, which are intended to serve, inter alia, as a guide to Governments, specialized agencies, national, regional and international organizations, competent non-governmental organizations and individuals and to stimulate a constant endeavour to overcome economic and other practical difficulties in the way of their adoption and application, since they represent minimum United Nations standards for the protection of fundamental freedoms and human and legal rights of persons with mental illness.
69. In resolution 3318 (XXIX) of 14 December 1974 the General Assembly adopted and proclaimed the Declaration on the Protection of Women and Children in Emergency and Armed Conflict, and called for the strict observance of the Declaration by all Member States. In article 1 the Declaration states that attacks and bombings on the civilian population, inflicting incalculable suffering, especially on women and children, who are the most vulnerable members of the population, shall be prohibited and condemned. Article 2 condemns the use of chemical and bacteriological weapons in the course of military operations as this constitutes one of the most flagrant violations of the Geneva Protocol of 1925,[11] the Geneva Conventions of 1949 and the principles of international humanitarian law.
70. The Declaration also states that ''All efforts shall be made by States involved in armed conflicts . . . to spare women and children from the ravages of war'', and that ''All the necessary steps shall be taken to ensure the prohibition of measures such as persecution, torture, punitive measures, degrading treatment and violence, particularly against that part of the civilian population that consists of women and children”.
71. In 1975 the General Assembly adopted the Declaration on the Rights of Disabled Persons, which proclaimed that disabled persons have the same civil and political rights as other human beings. The Declaration states that disabled persons should receive equal treatment and services, which will enable them to develop their capabilities and skills to the maximum and will hasten the process of their social integration or reintegration.
72. As they are particularly relevant, articles 5-11 [of the Declaration] are reproduced in full:
Article 5
Disabled persons are entitled to the measures designed to enable them to become as self-reliant as possible.
Article 6
Disabled persons have the right to medical, psychological and functional treatment, including prosthetic and orthetic appliances, 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 process of their social integration or reintegration.
Article 7
Disabled persons have the right to economic and social security and to a decent level of living. They have the right, according to their capabilities, to secure and retain employment or to engage in a useful, productive and remunerative occupation and to join trade unions.
Article 8
Disabled persons are entitled to have their special needs taken into consideration at all stages of economic and social planning.
Article 9
Disabled persons have the right to live with their families or with foster parents and to participate in all social, creative or recreational activities. No disabled person shall be subjected, as far as his or her residence is concerned, to differential treatment other than that required by his or her condition or by the improvement, which he or she may derive there from. If the stay of a disabled person in a specialized establishment is indispensable, the environment and living conditions therein shall be as close as possible to those of the normal life of a person of his or her age.
Article 10
Disabled persons shall be protected against all exploitation, all regulations and all treatment of a discriminatory, abusive or degrading nature.
Article 11
Disabled persons shall be able to avail themselves of qualified legal aid when such aid proves indispensable for the protection of their persons and property. If judicial proceedings are instituted against them, the legal procedure applied shall take their physical and mental condition fully into account.
73. In resolution 31/82 of 13 December 1976, the General Assembly recommended that “all Member States should take account of the rights and principles laid down in the Declaration on the Rights of Disabled Persons in establishing their policies, plans and programmes” and that “all international organizations and agencies concerned should include in their programmes provisions ensuring the effective implementation of those rights and principles”.
74. In decision 1979/24, adopted on 9 May 1979, the Economic and Social Council took note of the Declaration on the Rights of Deaf-Blind Persons, which had been formulated and adopted by the Helen Keller World Conference on Services to Deaf-Blind Youths and Adults on 16 September 1977, and decided to bring it to the attention of the General Assembly as part of the documentation submitted under the question of the International Year of Disabled Persons.
75. Article 1 of the Declaration reiterated the fundamental principle that:
Every deaf-blind person is entitled to enjoy the universal rights that are guaranteed to all people by the Universal Declaration of Human Rights and the rights provided for all disabled persons by the Declaration on the Rights of Disabled Persons.
76. In addition to the provisions already mentioned, there are many other international instruments protecting human rights, which, inasmuch as they are designed to prevent certain abuses which might cause disability, deserve recognition for their preventive value. For example, in 1955 the First United Nations Congress for the Prevention of Crime and the Treatment of Offenders adopted the Standard Minimum Rules for the Treatment of Prisoners, article 31 of which states that corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences.
77. In resolution 34/169 of 17 December 1979, the General Assembly adopted the Code of Conduct for Law Enforcement Officials and transmitted it to Governments with the recommendation that favourable consideration should be given to its use within the framework of national legislation or practice as a body of principles for observance by law enforcement officials. Article 5 of the Code reads as follows:
No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment.
78. In resolution 37/194 of 18 December 1982, the General Assembly adopted the Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment. The first of the Principles of Medical Ethics states that:
Health personnel, particularly physicians, charged with the medical care of prisoners and detainees have a duty to provide them with protection of their physical and mental health and treatment of disease of the same quality and standard as is afforded to those who are not imprisoned or detained.
79. Principle 2 states that:
It is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment.
80. Further to what was stated in the introduction, it should be noted that on 16 December 1976 the General Assembly, in resolution 31/123, proclaimed the year 1981 International Year of Disabled Persons. The theme and objective of the Year were “full participation and equality”, defined as the right of disabled persons to participate fully in the social life and development of their societies, to enjoy living conditions equal to those of their fellow citizens, and to have an equal share in improved conditions resulting from socio-economic development. Other objectives included increasing public awareness, understanding and acceptance of disabled persons and encouraging them to form organizations through which they could effectively express their views and call for action to improve their situation.
81. On 3 December 1982, the General Assembly, in resolution 37/53, proclaimed the period 1983-1992 United Nations Decade of Disabled Persons and encouraged Member States to utilize this period as one of the means to implement the World Programme of Action concerning Disabled Persons. This programme, which is currently being implemented and to which we will make numerous references throughout this document, recognizes “equalization of opportunities” as an objective as well as a means of achieving full participation in all areas of social, cultural and economic life. The explicit recognition of the right of every human being to the “equalization of opportunities” gives a clear legal consistency to the juridical treatment of issues concerning disabled persons, and adds a human rights dimension which, previously, there was an unwillingness to acknowledge.
82. The most important development in recent times has been Economic and Social Council resolution 1990/26 of 24 May 1990, authorizing the Commission for Social Development to establish an ad hoc working group of government experts to elaborate standard rules on the equalization of opportunities for disabled children, youth and adults.[12] This instrument, which is in the process of formulation, is of fundamental interest to us. It will in fact be the first international instrument not only to be universal in scope and to refer specifically to disabled persons, but to contain an extremely broad and comprehensive statement of the right of disabled persons to equal opportunities. Furthermore, the standard nature of the rules to be formulated emphasizes their highly legal and imperative character.
83. The three main conclusions to emerge from the extensive catologue of international instruments which we have analysed are:
(a) The principle of equality of rights inherent in the concept of human rights and expressly embodied in all the instruments confers on disabled persons the same rights as on other persons in general;
(b) Disabled persons also have specific rights. See, for example, the next paragraph and chapter IV;
(c) These rights do not appear in any formal listing but are scattered throughout a number of legal instruments, or have been recognized by the courts. In fact, what might be termed the specific rights of disabled per sons are only the material and legal expression of the minimum contribution which the community or the State should make towards ensuring that such persons can enjoy on an equal basis all the human rights enjoyed by individuals in general. Strictly speaking, this is not even what is known in legal terminology as “positive discrimination” (affirmative action) but simply equalization.
84. Lastly, the specific rights of disabled persons the right of a deaf-mute to have an interpreter during trial proceedings, etc. - in addition to being rights per se, are also the means of realizing other fundamental human rights on an equal basis, such as, in this case, the right of defence. The lack of an interpreter in criminal proceedings where the accused is a deaf-mute not only infringes a procedural norm but purely and simply negates the right of defence.
85. Lastly, the question of the protection of the human rights of disabled persons has a dual dimension. On the one hand, there is the problem of specific guarantees interpreter, specialized legal assistance, etc. so as to guarantee a fair and equitable judgement and on the other hand there is the acute problem of the lack of specific effective resources to put an end to the violations of which, as disabled persons, they are victims. These two issues will be dealt with in chapter IV.
86. In his preliminary report (E/CN.4/Sub.2/ 1985/32), the Special Rapporteur described the unduly narrow interpretation and, in some cases, the pejorative connotation of the terms used in everyday language and in legal texts to refer to disability and disabled persons.[13] Spanish, for example, has numerous terms to describe disabled persons: minusválidos, inválidos, impedidos, lisiados, incapacitados, paralíticos, mutilados, retrasa dos, etc., and while each expression has its own connotation, the terms may on occasion be used indiscriminately and in many cases involve what amounts to a devaluation of the person. For example, the Spanish term inválido, means “without value”. However, this latter expression has become current internationally with a sense other than its literal meaning. The International Labour Organisation (ILO) in its various conventions generally uses in Spanish the expression inválidos o personas inválidas, while the various United Nations bodies tend to use the term impedidos. The present trend is to discourage any reference, which describes a person in terms of his functional limitations, for example, los ciegos (“the blind”) and to prefer expressions such as una persona con una deficiencia visual (“a person with impaired vision”). French shows similar trends and the expression non voyant is more and more tending to replace the word aveugle.
87. The keen controversy over terminology, which exists in Spanish does not seem to be as fierce in other languages. On the basis of his own analysis which appears in paragraphs 8 and 9 of his preliminary report and in view of the comments and suggestions made at earlier sessions of the Sub-Commission, the Special Rapporteur decided to use as equivalent terms the expressions “disabled” (in English), handicape' (in French), < ??????? > (“invalid” in Russian) and personas con discapacidad (in Spanish). Although the Sub-Commission's resolution 1984/20, like the World Programme of Action, refers to impedidos, the Special Rapporteur has preferred the above expression in Spanish since the term discapacidad is a clearer and more scientifically accurate way of describing an ability different from the norm, which when preceded by the words persona con removes all pejorative connotations. Lastly, where, thankfully, some terminological standardization has begun to appear is in the expression enfermos mentales, since the Working Group of the Commission on Human Rights on the Question of the Draft Body of principles and guarantees for the Protection of Mentally-Ill Persons adopted the use of this term by consensus.[14]
88. This is the moment to point out that the terminology issue is closely related to the problem of the definition and neither can fail to take account of the international instruments in force or the domestic legislation of different States. It is therefore necessary to take account of existing definitions and to respect the terminology used by each body, organization or Government. This explains why the Special Rapporteur, having expressed his preference for the expression personas con discapacidad, uses many other terms in the course of the study, particularly when quoting international instruments, provisions of domestic law, or documents or replies from Governments or organizations.
89. The World Health Organization (WHO), in the context of its health experience, makes the following distinction between impairment, disability and handicap which was included in the World Programme of Action:
Impairment: Any loss or abnormality of psychological, physiological, or anatomical structure or function.
Disability: Any restriction or lack (resulting from an impairment) of ability to perform an activity in the manner or within the range considered normal for a human being.
Handicap: A disadvantage for a given individual, resulting from an impairment or disability, that limits or prevents the fulfilment of a role that is normal, depending on age, sex, social and cultural factors, for that individual.
90. According to the definition contained in the Declaration on the Rights of Disabled Persons, the term “disabled person” means “any person unable to ensure by himself or herself, wholly or partly, the necessities of a normal individual and/or social life, as a result of a deficiency, either congenital or not, in his or her physical or mental capabilities”. The International Labour Organisation (ILO), in its Vocational Rehabilitation and Employment (Disabled Persons) Convention No. 159, Recommendation No. 99 concerning Vocational Rehabilitation of the Disabled and Recommendation No. 168 on Vocational Rehabilitation and Employment (Disabled Persons) states that “ ‘disabled person’ means an individual whose prospects of securing, retaining and advancing in suitable employment are substantially reduced as a result of a duly recognized physical or mental impairment”. In its explanatory notes on the implementation of the above instruments, ILO reproduced the definitions of the World Health Organization for clarification purposes. However, it was pointed out that the use of the words “impairment”, “disability” and “handicap” might give rise to some difficulty of interpretation when applied to the provisions of those ILO instruments.
91. According to the World Programme of Action, handicap is a function of the relationship between disabled persons and their environment. It occurs when they encounter cultural, physical or social barriers, which prevent their access to the various systems of society that are available to other citizens. Thus, handicap is the loss or limitation of opportunities to take part in the life of the community on an equal level with others, representing socialization of an impairment or disability.
92. A WHO Expert Committee on Disability Prevention and Rehabilitation,[15] meeting in 1981, agreed with reference to the definitions of the International Classification of Impairments, Disabilities and Handicaps (ICIDH) that impairments and disabilities may be visible or invisible, temporary or permanent and progressive or regressive. Members gave the following examples to illustrate their interpretation of the terms: A patient with hypertension (disease) is affected by cerebral haemorrhage (impairment) which leads to right sided hemiplegia causing walking, writing and speech difficulties (disabilities). If the patient does not recover sufficiently to resume work or to be able to live an independent life, his disadvantage is considered a handicap.[16]
93. The Committee pointed out that classifications, characterizing long-term consequences of disease and trauma, such as WHO's ICIDH, had been tried only recently. The disease process was described at points in its progression beyond its active state in the following way:
(i) From its cause or origin (etiology);
(ii) To its active state (pathology);
(iii) To the long-term consequences of health status or organic function (impairment);
(iv) In terms of long-term functional change in body appearance or movement (disability);
(v) From the perspective of limitations confronted in socio-economic or life-supporting roles attributable to the interaction between the person with impairments or disabilities and environmental constraints (handicaps).[17]
94. Reasonable agreement among the health and medical community on specific parts of the ICIDH concepts and classifications was expressed. For example, it was generally agreed[18] that: impairment includes description of the loss or abnormality of psychological, physiological, or anatomical structure or function at the level of the organ or anatomical structure or function: disability includes description of human function and activity at the level of the person; and handicap includes description of restrictive circumstances or disadvantages at the level of social and economic roles. However, disagreements do arise when linking these concepts to specific operational definitions and also problems occur when applying the ICIDH in social policy and programme formulation and implementation.
95. The Special Rapporteur wishes to point out that there is a close relationship and considerable overlap between elements in the impairment, disability and handicap definitions. This is exemplified in the failure to specify the degree of severity of disability, which is often a predictor of handicap and in the problems of grading and problems of boundaries with handicap and impairment, which are particularly important in the field of mental disability. In any case, the WHO definition is extremely useful, at least for statistical purposes, in giving some degree of homogeneity to domestic legislation and even in standardizing criteria internationally. The Statistical Office of the United Nations uses this definition as well as country classifications in disability cross tabulations for censuses and surveys.
96. It is essential to bear in mind that the definitions of the WHO Classification were made in the context of health experience and are therefore basically clinical and do not incorporate the social and cultural aspects which are necessarily present in disability and impairment. For example, persons may be treated as if they were disabled and subjected to many kinds of restrictions (occupational, social, educational, etc.) although from a clinical point of view they are not actually disabled. Frequently, persons who have been disfigured by burns, although not incapacitated, are treated as disabled persons simply because of the external effects. Something similar is usually the case with persons who have abnormal heads or facial features, but whose mental and physical faculties are unimpaired.
97. Since WHO adopted and published the ICIDH in 1976, the organization has been encouraged to continue to revise the Classification, and particularly to incorporate social and environmental factors in the definition of handicap and give special attention to the problem of impairments and disabilities regarding mental health and mental handicap. General Assembly resolution 37/53 may in particular be recalled in this context along with WHO's proposals in this regard which were put forward at the fifth inter-agency meeting at Vienna from 18 to 20 February 1987.[19] The revision has not materialized, however,[20] and it is to be hoped that it will do so before 1993, the final year of the United Nations Decade of Disabled Persons.*
98. The importance of refining the definition is obvious when it is observed that two thirds of the Governments, which sent replies to the Special Rapporteur use the international WHO definition contained in the World Programme of Action. Compared to the developed countries, an even greater proportion of developing and least developed countries reported that they used those definitions. Furthermore, 18 countries reported that, while their Governments had adopted no legal definitions of those terms, they nonetheless used the international definitions. Sixteen of these also happened to be among the developing or least developed countries. Other States, which submitted information to the Centre did not have general legal definitions of disability or disabled persons but there were legal definitions in respect of different legal regimes (Social Insurance Act, Special Education Act, Labour Act) and applied to different disabled groups (victims of labour accidents and injuries, disabled children, mentally ill persons).[21]
99. At the same time, the domestic legislation of many States provides a concept of “disabled person” based on the qualifications referred to above, but in relation to the individual's functional capacities in the social, labour and other types of environment. The definition of “disabled person'' varies considerably from one country to another, and even within the same State it can differ from one legislative sector to another. The concept of total or partial incapacity for work due to illness or accident appears as a universal criterion in systems of disability insurance and workers' compensation for industrial accidents,[22] and it also seems to constitute the basis of all the legislation on the disabled in a number of countries.[23] Some of the replies reveal a tendency to adopt broader concepts, which take into account the possibility of participating on an equal basis and in an independent manner in all spheres of social life,[24] including as is sometimes expressly stated leisure and recreational activities. It remains to be determined how far these new concepts have permeated into the law, administrative practice and judicial decisions.
100. In defining a disabled person, domestic laws use different criteria, characteristics or classifications. For example, some [laws] include total and partial impairment of senses, and physical and intellectual capacities.[25] Others refer to a handicap or deviation of a social nature,[26] injury or illness,[27] or incapacity to accomplish physiological functions[28] or to obtain and keep employment.[29] Some definitions refer to age as a factor of disability.[30] These definitions usually also reflect the consequences for the individual cultural, social, economic and environmental that stem from the disability. Of these the following may be mentioned: inability to function normally in certain areas of social life,[31] and restricted possibilities of education, rehabilitation and employment.[32]
101. Since the revision of the WHO International Classification has not yet taken place and since a set of standard rules on the equalization of opportunities for disabled persons is in preparation, the Special Rapporteur considers that it will be sufficient to restrict himself to outlining some basic criteria which the future definition should contain so that it will encompass, in addition to the medical and clinical aspects of disability, the social and cultural factors attendant on disability. It may be recalled here that the members of the Sub-Commission at its fortieth session agreed with the proposal to formulate a definition, the essential criterion of which would be the existence of specific long-term problems affecting the person or behaviour of the disabled person and constituting major long-term obstacles to the enjoyment of human rights, to equality of opportunity and treatment. to social participation and to independent living.
102. During the discussion many of the experts stressed the advantages of this formula[33] as being neither too broad nor too restrictive. The balance which was required in the definition involved both clinical and socio-cultural aspects. Too broad or too vague a formula from the clinical point of view ran the risk of undermining its primary objective, which was to protect the human rights of persons who really needed protection, in other words, those who suffered from some type of disability and were therefore in a situation of genuine disadvantage. It was this that justified, or rather required, special attention (regulation). On the other hand, a narrow definition from the socio-cultural point of view meant that a large number of persons who obviously needed protection might be cut off from it. In other words, where this aspect was concerned, the definition needed to be capable of a broad interpretation in order to be compatible with concepts applicable to human rights and to serve as a universal reference.
103. From the medical point of view, the Special Rapporteur considers that the expressions “functional change” or “disorder”, “permanent or prolonged”, “physical or mental” reflect simply, clearly and generically the clinical elements contained in the WHO International Classification. The notion of “considerable disadvantages” (having regard to age and social environment), “for the purposes of his family, social, educational and occupational integration and/or the enjoyment of human rights”, introduces the socio-cultural factors which are missing from the International Classification, but which have been incorporated into the domestic legislation of many countries.
104. While the Special Rapporteur makes no claim to formulate a universally valid definition -- the drafting of which should be the responsibility of the Ad Hoc open-ended working group of government experts to elaborate standard rules on the equalization of opportunities for disabled persons -- he considers that the conjunction of these clinical and socio-cultural elements, on which there is a clear consensus, enables a disabled person to be defined as follows: “Any person suffering from a permanent or prolonged functional disorder, whether physical or mental, which having regard to his age and social environment entails considerable disadvantages for the purpose of his family, social, educational or occupational integration, and for the effective enjoyment of his human rights, shall be considered disabled.” This formula, it should be reiterated, not only takes clinical aspects into account, but also the specific issues which affect disabled persons and create certain obstacles to the enjoyment of their human rights, to equality of opportunities and treatment, to their participation in society and to their independence.
105. Differences in definitions, both within countries (and sometimes from one agency or service to an other) and among countries, as well as the technical shortcomings of censuses (in some countries, population censuses do not even identify disabled persons) and particular social attitudes of uneasiness or shame towards disabled persons, make it very difficult to establish reliable statistics on the number of persons composing this population, the origin of its problems and, still less, the way disabilities will develop over time. The Government reports thus vary greatly in this regard and the only common feature they have is that they all accept WHO estimates as valid.
106. If these are correct and we accept as valid the figure of 500 million disabled persons in the world l00 million of them are children. In addition, some 300 million live in developing countries and therefore have to cope with their disability in what are usually adverse economic and social conditions. It is estimated that only I percent of these 300 million persons have access to assistance, rehabilitation and appropriate services, with the result that there may well be 297 million disabled persons in these countries who have no possibility of living a dignified life, with full participation in society and equality of opportunity. According to an ILO estimate, one third of the total number of disabled persons are women, i.e. about 160 million. In referring to the causes of disability in the next chapter, we shall give a much fuller statistical picture.
107. Many replies, particularly those from developing countries, consider that the number of disabled persons as a percentage of the total population estimated at between 6 and 10 percent at present will increase in the years to come, despite the progress some of them have made in respect of health and rehabilitation. One reason is that life expectancy is longer in much of the world and the number of disabled persons increases with age. In the developing countries, moreover, account must be taken of the high rate of population growth. It is estimated that, during the next 40 years, the world population will increase from 5 billion to slightly more than 8 billion, but the group of persons aged 65 and over is expected to double in the developed countries and to quadruple in the developing countries and, in all countries, this is the group with the largest proportion of disabled persons. It should also be pointed out that economic and technological advances are leading to new causes of disability, such as traffic accidents, industrial accidents, heart and circulatory disease, drug abuse and environmental pollution. This means that there are countries which are beginning, as a result of the progress made, to eliminate some causes of disability (malnutrition, poliomyelitis, measles, etc.), but new causes are emerging and they require different policies of prevention.
108. It should also be recalled that the World Programme of Action concerning Disabled Persons recommends that Governments should collect data on disabled persons through national population censuses, household surveys, etc., and disseminate the information obtained. In accordance with this recommendation, the Statistical Office completed a microcomputer database in 1988 called “United Nations Disability Statistics Database” (DISTAT). The first statistical compendium on disabled persons was published in 1990[34] it contains detailed information on 55 countries and covers 12 demographic and socio-economic topics, namely, age, sex, residence, educational level, economic activity, marital status, family environment, causes of disability and special auxiliary means used. The main objective of the publication is to draw attention to the work being done at the national level in favour of disabled persons, but, above all, to make headway in the preparation of international statistics.[35] Perhaps the key aspect of the compendium is the valuable information it provides on various methods of obtaining new statistics to facilitate the comparison of data and the broader use of the conclusions by persons responsible for planning, policy-making and research.
* Human Rights Studies Series, Number 6. Centre for Human Rights: Geneva (United Nations publication, Sales No. E.92.XIV.4).
* Bantam Books: 1988.
[9] See Official Journal No. L225/443 of 12 August 1986.
[10] For the texts of the Conventions, see United Nations, Treaty Series, vol. 75, Nos. 970-973. For the texts of the Protocols, see International Committee of the Red Cross, Protocols and additional to the Geneva Conventions of 12 August 1949, Geneva, 1977.
[11] League of Nations, Treaty Series, vol. XCIV, No. 2138, p. 65.
[12] See also resolution 32/2 of 24 April 1991 of the Commission for Social Development in document E/1991/26-E/CN.5/1991/9.
[13] E/CN.4/Sub.2/1985/32, paras. 8 and 9.
[14] 9 November 1990.
[15] Disability prevention and rehabilitation. Report of the WHO Expert Committee on Disability Prevention and Rehabilitation, (World Health Organization, Technical Report Series No. 668, 1981) and ICP/RHB/920, pp. 1-11.
[16] Ibid.
[17] Mary Chamie, “The status and the use of the international classification of impairments, disabilities and handicaps (ICIDH)”, World Health Statistics Quarterly, 43 (1990), p. 273.
[18] Ibid.
[19] See Summary document No. 1, Concepts of Disability, prepared by WHO, fifth inter-agency meeting (Vienna, February 1987) and documents E/CN.5/1987/7 and A/41/605 and Corr. 1.
[20] See Official Records of the Economic and Social Council, 1987, Supplement No. 7, paras. 92-101, and draft resolution IX, and CSDHA/DDP/GME/7.
* Editor’s note: the period 1983 to 1992 was proclaimed the United Nations Decade of Disabled Persons by General Assembly resolution 37/53 of 3 December 1982.
[21] Belgium, Bulgaria, Canada, Chile, Cyprus, Czech and Slovak Federal Republic, Finland, Netherlands, Paraguay.
[22] Bangladesh, Belgium.
[23] Ethiopia, USSR.
[24] China, Cyprus, Finland, Netherlands.
[25] Chad, Jordan, Kenya, Singapore, Uruguay.
[26] Norway.
[27] Czech and Slovak Federal Republic, Finland, Romania.
[28] China, Morocco.
[29] Bangladesh, Trinidad and Tobago.
[30] Norway, Trinidad and Tobago.
[31] China, Ethiopia, Finland, Jordan, Mauritius, Norway, Poland, Singapore.
[32] Czech and Slovak Federal Republic, Jordan, Kenya.
[33] E/CN.4/Sub.2/1988/SR.11, para. 29, and SR. 12, para. 9.
[34] See ST/ESA/STAT/SER.Y/4.
[35] For a discussion on this matter see Development of Statistics of Disabled Persons: Case Studies (United Nations publication, Sales No. E.86.XVII.17).