 |
 |
|
|
|
|
Back to: First Session of the Ad Hoc Committee
Documents of the First Session
Online discussion
Promoting the rights of persons with disabilities
Ad Hoc Committee on an International Convention
The United Nations system and persons with disabilities
Resource on international policy-normative frameworks concerning persons with disabilities
Contents
II. Overview of the human rights of persons with disabilities at the international level
A. Fundamental human rights of persons with disabilities
B. International norms and standards relating to the rights of persons with disabilities
C. Historical overview of policy development at the international level
III. Issues concerning a special instrument on the rights of persons with disabilities
B. Issues related to elaborating a new special instrument on the rights of persons with disabilities
IV. Options for future action to promote the rights of persons with disabilities
The current paper provides brief introductions on (1) an overview of the issue of the human rights of persons with disabilities at the international level (2) issues concerning a special instrument on the rights of persons with disabilities and (3) options for future action to promote the rights of persons with disabilities.
The United Nations Charter[1] affirms the essentiality of “a universal respect for, and observance of, human rights and fundamental freedoms for all without distinction…”
The rights of individuals with disabilities are grounded in a human rights framework based on the United Nations Charter, the Universal Declaration of Human Rights,[2] international covenants on human rights and related human rights instruments.
Persons with disabilities are entitled to exercise their civil, political, social, economic and cultural rights on an equal basis with others under all the international treaties. The full participation of persons with disabilities benefits society as their individual contributions enrich all spheres of life and this is an integral part of individual's and society's well-being and progress for a society for all - with or without disabilities.
The rights of individuals with disabilities have been addressed more generally throughout the development of the international human rights law. The principle of the right to equality, addressed throughout the normative standards set out by the international human rights instruments is the foundation of the rights of individuals with disabilities. In order that the rights of persons with disabilities may be further realized, contemporary international law has increasingly recognized the need for all states to incorporate human rights standards into their national legislation.[3]Although the means chosen to promote full realization of economic, social and cultural rights of persons with disabilities may differ among countries, there is no country exempt from the need for improved policies and laws for individuals with disabilities.
The international human rights instruments address the rights of individuals with disabilities both generally and specifically[4]. There are a number of specific international human rights instruments, which would contribute to the promotion of the human rights of persons with disabilities. Examples of such instruments are: the Convention on the Elimination of All Forms of Discrimination against Women[5]; the Convention against Torture and other Cruel, Inhumane, or Degrading Treatment or Punishment[6] and the Convention on the Rights of the Child[7]
Research has indicated that the consequences of disablement are particularly serious for women. Women with disabilities are discriminated against on two grounds: gender and disability, and often they have less access to essential services such as health care, education and vocational rehabilitation.[8] General Recommendation 18 by the Committee on the Elimination of All Forms of Discrimination against Women specifically deals with the issue of women with disabilities.[9] The optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women[10], which was adopted by the General Assembly in 1999, may also provide an important venue to specifically address the issues concerning women with disabilities.
Disability often arises from war and inhumane treatment. The Convention Against Torture and other Cruel, Inhumane, or Degrading Treatment or Punishmentmay be utilized to ensure that appropriate state action be taken for those who have become disabled as a result of inhumane treatment as well as to promote prevention.[11]
The Convention on the Rights of the Childis an example of a human rights instrument that specifically and generally addresses the rights of children with disabilities.[12]The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography [13] is also relevant to children with disabilities.
In addition to the general international human rights instruments, disability-specific instruments concerning the rights of persons with disabilities have been adopted at the international level. Unlike the aforementioned international legal instruments, these instruments are declarations, resolutions and normative guidelines adopted by the United Nations General Assembly that are not legally binding. These include the Declaration on the Rights of Mentally Retarded Persons, the Declaration on the Rights of Disabled Persons, the World Programme of Action concerning Disabled Persons, the Tallinn Guidelines for Action on Human Resources Development in the Field of Disability,[14] the Principles for the Protection of Persons with Mental Illness[15] and the Standard Rules on the Equalization of Opportunities for Persons with Disabilities[16].
C. Historical Overview of Policy Development at the International Level
In the 1940s and 1950s, the United Nations focused on promoting the rights of persons with physical disabilities through a range of social welfare approaches. In the 1960s, initiatives within the disability community, coupled with the adoption of the International Covenant on Civil and Political Rights[17] and the International Covenant on Economic, Social and Cultural Rights[18], resulted in a fundamental reevaluation of the rights of individuals with disabilities within disability policies.
In the 1970s, the growing international concern with human rights for persons with disabilities was specifically addressed by the General Assembly in the Declaration on the Rights of Mentally Retarded Persons,[19] the Declaration on the Rights of Disabled Persons[20] and by proclaiming 1981 as the International Year for Disabled Persons.[21]
The human rights of persons with disabilities became an important part of the international policy agenda in the 1980s. The World Programme of Action concerning Disabled Persons[22] was adopted by the General Assembly at its thirty-seventh session in 1982. The World Programme of Action is a comprehensive global strategy that utilizes “equalization of opportunities” as its guiding principle for the achievement of full participation of persons with disabilities, on the basis of equality, in all aspects of social and economic life and development. The World Programme transformed the disability issue from a "social welfare" issue to that of integrating the human rights of persons with disabilities in all aspects of development processes.
Also in the early 1980s, the Sub-commission on Prevention of Discrimination and Protection of Minorities (currently the Sub-commission on Prevention of Discrimination and Protection of Human Rights) appointed Mr. Leandro Despouy of Argentina as Special Rapporteur to study the connection between human rights, violations of fundamental human freedoms and disability which resulted in his final report, “Human Rights and Disabled Persons.”[23]
Mr. Despouy’s report, a benchmark in the field of human rights and disability, provided a comprehensive framework for the promotion of the human rights of persons with disabilities. The report recognized that in order for the human rights of persons with disabilities to be realized, there must be further development in jurisprudence within the human rights mechanisms and institutions at international and at domestic levels and an increased effort to adjudicate the rights of persons with disabilities at a national level. The available data suggests that many recommendations submitted by Mr. Despouy in his report remain to be substantiated by the international community.
In the 1990s, as a significant outcome of the United Nations Decade of Disabled Persons(1983-1992) the Standard Rules on the Equalization of Opportunities for Persons with Disabilities were adopted by the forty-eighth session of the General Assembly in 1993.[24] The Standard Rules are an international instrument with a human rights perspective for disability-sensitive policy design and evaluation as well as for technical and economic cooperation.
D. Recent developments concerning the broad human rights framework to promote the rights of persons with disabilities
The United Nations conducted a comprehensive comparative study of global disability policies and programmes in 1997, issued as a Report of the Secretary-General, “Review and appraisal of implementation of the World Programme of Action concerning Disabled Persons.”[25] This study indicated that a broad human rights framework must be further developed and established for disability policies and programmes to promote social, economic and cultural rights as well as the civil and political rights of persons with disabilities. Major international conferences and summits that were organized during the first half of the 1990s[26] on a range of development agendas adopted action plans and programmes in which participation, inclusion and improved well being of persons with disabilities were accorded a special emphasis. The study further indicated that in order for the rights of persons with disabilities to be recognized, a broad human rights framework, drawing upon the considerable body of international norms and standards in the social, economic, civil, cultural and political fields is needed[27]. This framework does not simply benefit persons with disabilities but also contributes to the advancement of the rights of all persons in society.
Most recently, the fifty-sixth session of the Commission on Human Rights adopted resolution 2000/51 of 25 April 2000, entitled “Human Rights of Persons with Disabilities.” The resolution invites treaty bodies and their Special Rapporteurs to include the rights of persons with disabilities in the monitoring of the implementation of the relevant human rights instruments. The resolution also urges Governments to include the question of human rights of persons with disabilities in their reporting requirements under the existing human rights treaties and calls for cooperation with the Special Rapporteur on Disability of the Commission for Social Development and the High Commissioner for Human Rights to examine possible measures to strengthen the protection and monitoring of the human rights of persons with disabilities.
A number of initiatives have been taken to address the issue of elaborating a new disability-specific international instrument. The first initiative emerged in the Global Meeting of Experts to Review the Implementation of the World Programme of Action concerning Disabled Persons at the Mid-point of the United Nations Decade of Disabled Persons.[28] The Government of Italy, in reference to the expert meetings held in Stockholm and Ljubljana, raised the issue of the possibility of an international convention in 1987 at the forty-second session of the General Assembly[29]. At the forty-fourth session of the Assembly, in 1989, the Government of Sweden proposed the elaboration of an international instrument on the rights of persons with disabilities[30]. However, a consensus was not reached on a legally binding instrument; many representatives expressed the view that existing human rights instruments would seem to guarantee persons with disabilities the same rights as persons without disabilities.
Agreement was ultimately reached on elaboration of a non-binding instrument on the rights of persons with disabilities. In May 1990, the Economic and Social Council authorized the Commission on Social Development to consider establishment of a working group, funded by voluntary contributions, to elaborate the Standard Rules on the Equalization of Opportunities for Persons with Disabilities[31]. Following a series of technical meetings and consideration by the Commission for Social Development, the Standard Rules were unanimously adopted by the General Assembly at its forty-eighth session in 1993[32].
Mr. Bengt Lindqvist was appointed by the Secretary-General as Special Rapporteur on Disability of the Commission for Social Development initially from 1994-1997. In February 1997, the Special Rapporteur presented his report on the results of his first mandate to the thirty-fifth session of the Commission for Social Development[33] and outlined options to further implement the Standard Rules. The Economic and Social Council decided "to renew his mandate …for a further period of three years (1997-2000)"[34]. In February 2000, Mr. Lindqvist reported on the results of his second mandate to the thirty-eighth session of the Commission for Social Development.[35] The year 2000 session of the Economic and Social Council decided to "renew (his)mandate….for a further period through the year 2002.[36]"
The question of elaborating a new international instrument on the rights of persons with disabilities was discussed in the report on the second mandate of the Special Rapporteur on Disability of the Commission for Social Development.[37] Following its consideration of the item, the Commission recommended that the year 2000 session of the Economic and Social Council adopt a resolution on “Further promotion of equalization of opportunities by, for and with persons with disabilities”[38] which, inter alia, requests “the Special Rapporteur, in consultation with his panel of experts, to …present his views on further developing the proposals contained in his report…and on forms for complementing and developing the Standard Rules” and to submit a report to the fortieth session of the Commission in 2002. The report of the Special Rapporteur also will be an input to the fourth quinquennial review and appraisal on the implementation of the World Programme of Action concerning Disabled Persons which will examine the progress made and obstacles encountered in implementation of the Programme of Action in the past five years as well as for the period of a decade after the United Nations Decade of Disabled Persons (1983-1992).
President Vincente Fox of Mexico, during general debate of the fifty-sixth session of the General Assembly (2001), called upon the international community to combat poverty and social exclusion; he stated that societies should involve all citizens as stakeholders and that a just world must be inclusive of all groups. For that reason Mexico had proposed establishment of a "Special Committee" to study the elaboration of an international convention on promoting the rights of persons with disabilities.
The United Nations General Assembly adopted the resolution 56/168, which established an Ad Hoc Committee to consider proposals for a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities, based on the work done in the field of human rights and social development. The Ad hoc committee will have its first meeting from 29 July-9 August 2002 at United Nations New York headquarters.
As part of the implementation of General Assembly resolution 56/168, The Meeting on the Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities (Mexico City, 11-14 June 2002) was organized by the Government of Mexico, with the support of the United Nations Department of Economic and Social Affairs and the subregional office in Mexico Economic Commission for Latin America and the Caribbean (ECLAC). The report of the meeting will also be made available at the following internet home page: www.sre.gob.mx/discapacidad
Experience would suggest that there are advantages and disadvantages to elaborating a new international instrument specifically addressing the human rights of persons with disabilities.[39]
There are extensive lists of existing norms, principles, declarations, standards, and guidelines dealing with disability issues that are dispersed throughout various instruments. The existing human rights mechanisms at the international level have not yet fully addressed the rights of persons with disabilities within their respective mandates.
There is a view that a sufficiently specific, legally binding instrument could be a much better resource than the present dispersed measures in that a new instrument could bring clarity to the current understanding of the rights of persons with disabilities and how they fit into the general human rights framework.
A counter-argument to the elaboration of a new international instrument is that it could have the unintended consequence of marginalizing the rights of persons with disabilities within the United Nations human rights mechanisms as well as within the overall work of the United Nations in the field of disability. This unintended consequence, coupled with resource constraints that already limit United Nations human rights mechanisms, may involve relevant considerations[40].
Another issue is that the level and the extent of compliance by States to the international norms relating to disability would play a significant role in determining how effective an international instrument can be for promoting the rights of persons with disabilities. While binding legal instruments have clear normative force, nonbinding instruments: declarations, resolutions, codes of conduct, guidelines and decisions of international bodies are gaining recognition as important sources of international law.[41]
The concept of norms has always been a dynamic one and the status of a particular instrument may change over time; Non-binding instruments lead to the formation of binding agreements. Norms that are informal or limited when negotiated may over time acquire legitimacy and normative force[42].
A number of experts from the human rights community as well as advocates for disability rights share the view that the issue of a new international instrument should also be examined in the context of [43]:
a) The present constraints and potential for adjudication of the human rights of persons with disabilities faced by the existing United Nations human rights mechanisms. These have not yet been fully explored either by legal experts or advocates for the rights of persons with disabilities.
b) General problems of accessibility to the institutional resources for utilizing legal, administrative or other official procedures to adjudicate the rights of persons with disabilities.
c) The access and the use of the domestic (national) judicial system and the issue of underutilization of international law in the domestic courts.
d) Empowerment of the disability community as well as the community at large - the issue of capacity building in the disability community as well as non-traditional sectors of society to address issues of concern to them in the existing judicial and administrative fora and through promoting general awareness and education to inform both the disability community and society as a whole about the human rights of persons with disabilities as a critical human rights issue.
e) Mainstreaming of disability in a broader policy and legal discourse - networking among the disability community and their advocates, the supporting non-governmental community, academic institutions, legal experts and practitioners to forge a sense of integrated community to prioritize the agenda for protecting and promoting the rights of persons with disabilities.
As a result of consultation, interpretation and implementation of the vast existing body of international norms and standards concerning persons with disabilities, new networks and communities of disability-sensitized policy makers, programme specialists, academics and advocates have emerged. Together, they are contributing to the universal application of the international norms and standards, which would thereby further the advancement of the rights of all.[44] In considering plans for future action, the following points may be incorporated in recommendations to promote a society for all:
Organization of innovative forums in which legal and policy professionals, academics and civil society can exchange knowledge and experience as well as obtain technical guidance and advice on development of disability-sensitive policies and laws.
Human rights for persons with disabilities encompass human rights in all spheres of life. The future work of the disability community has the potential to integrate the resources of “traditional” human rights communities, focusing on political and civil rights and "non-traditional" human rights communities, focussing on economic, social and cultural rights, as well as civil society organizations that have not yet focussed on issues concerning persons with disabilities. Together newly emerging disability-sensitized communities would work toward the goal of a society for all in promoting economic, social and cultural rights from a disability perspective, which would play a significant role in the common endeavour of the international community to achieve a society accessible for all.
The issue of human rights of persons with disabilities will be further discussed within the frameworks of the fourth review and appraisal on the implementation of the World Programme of Action concerning Disabled Persons in 2002 as well as in the report of the Special Rapporteur on Disability of the Commission for Social Development (ECOSOC resolution 2000/10) to the fortieth session of the Commission for Social Development in 2002.
Further information and resources related to the rights of persons with disabilities on the World Wide Web of the Internet are available as follows:
The technical reports above include electronic links to a number of key international instruments related to the rights of persons with disabilities and a brief description of work by the United Nations programme on disability. Another significant report, developed from the Interregional Seminar and Symposium on International Norms and Standards relating to Disability (Hong Kong, SAR, 13-17 December 1999), organized by the Equal Opportunities Commission of Hong Kong Special Administrative Region and the University of Hong Kong, in cooperation with the United Nations, is available at http://www.worldenable.net/hongkong99/default.htm.
United Nations, New York
– revised 10 July 2002
N.B. This paper has not yet been formally edited
NOTES:
* Background Paper prepared by the Division for Social Policy and Development of the United Nations Secretariat for the “Informal Consultative Meetings on International Norms and Standards for Persons with Disabilities.” (9 February 2001).
[1] Signed in San Francisco on 26 June 1945 and entered into force on 24 October 1945.
[2] Adopted by General Assembly resolution 217 A (III) on 10 December 1948.
[3] See Compilation of International Norms and Standards Relating to Disability, a comprehensive manual on applicable international norms and standards at http://www.un.org/esa/socdev/enable/discom00.htm
[4] Specific provisions concerning persons with disabilities are included in: The Universal Declaration of Human Rights (Article 25), the African Charter of Human and People’s Rights (Article 18[4]),[4] and a General Comment given by the Committee on Economic, Social and Cultural Rights.[4] The draft for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights[4] would possibly provide an additional means for persons with disabilities to address their rights in the economic, social and cultural spheres.
[5] Adopted by General Assembly resolution 34/180 of 18 December 1979. Entered into force on 3 September 1981 in accordance with article 27 (1).
[6] Adopted by General Assembly resolution 39/46 of 10 December 1984. Entered into force on 26 June 1987 in accordance with article 27 (1).
[7] Adopted by General Assembly resolution 44/25 on 20 November 1989 and entered into force on 2 September 1990 in accordance with article 49 (1).
[8] For further information on the subject of women with disabilities, visit http://www.worldenable.net/women/
[9] General Recommendation No.18, 10th session (1991), Committee on the Elimination of Discrimination against Women, available at http://www.un.org/womenwatch/daw/cedaw/recommendations.htm
[10] Adopted by General Assembly resolution 54/4 of 15 October 1999.
[11] Article 2 states “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture under its jurisdiction.” Article 16 addresses prevention even beyond what is considered to be torture: “Each State Party shall undertake to prevent in any territory under its jurisdiction other cruel, inhumane or degrading treatment or punishment which do not amount to torture.”
[12] . Article 2 notes “State Parties shall respect and ensure the rights set forth in this present Convention without discrimination of any kind irrespective of the child’s or his or her parent’s race, colour, sex, language, religion, political or either opinion, national, ethnic or social origin, property, disability, birth or status.” Article 23 states “State 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.”
[13] Adopted by General Assembly resolution 54/263 of 26 June 2000.
[14] Adopted by General Assembly resolution 44/70 of 15 March 1990.
[15] Adopted by General Assembly resolution 46/119 of 17 December 1991.
[16] Adopted by General Assembly resolution 48/96 of 1 January 1994.
[17] Adopted by General Assembly resolution 2200 A (XXI) of 16 December 1966. Entered into force on 23 March 1976 in accordance with Article 49.
[18] Adopted by General Assembly resolution 2200 A (XXI) of 16 December 1966. Entered into force on 3 January 1976 in accordance with Article 27.
[19] Adopted by General Assembly resolution 2856 (XXVI) of 20 December 1971.
[20] Adopted by General Assembly resolution 3447 (XXX) of 9 December 1975.
[21] Adopted by General Assembly resolution 31/123 of 16 December 1976.
[22] Adopted by General Assembly resolution 37/52 of 3 December 1982.
[23] Adopted by ECOSOC resolution 1992/48 of March 1992.
[24] Adopted by General Assembly resolution 48/96 of 20 December 1993.
[25] Report of the Secretary-General A/52/351 of 16 September 1997.
[26] Reaffirmation of the human rights of persons with disabilities in documents such as the Vienna Declaration and Programme of Action (A/CONF.157/23 of 25 July 1993), the Copenhagen Declaration and Programme of Action (A/CONF.166/9 of 12 March 1995) and the Beijing Declaration and Platform for Action (A/CONF.177/20 of 15 September 1995) and their follow-ups: Vienna+5 Review (A/53/372 of 11 September 1998); Geneva Social Summit+5 (A/S-24/8/REV.1 of 1 July 2000); Beijing+5 Review (A/S-23/10/REV.1 of 10 June 2000); also reflect an increasing awareness.
[27] The normative language excels in its capacity to empower individuals and groups and is also empowering in relation to economic and social rights as well as civil and political rights.
[28] Global Meeting of Experts to Review the Implementation of the World Programme of Action concerning Disabled Persons(Stockholm, Sweden, 17-22 August 1987)
[29] A/C.3/42/SR.16
[30] A/C.3/44/SR.16
[31] ECOSOC resolution 1999/26 of 24 May 1990
[32] Adopted by General Assembly resolution 48/96 of 20 December 1993
[33] A/52/56, annex
[34] ECOSOC resolution 1997/19
[35] E/CN.5/200/3 annex
[36] ECOSOC resolution 2000/10
[37] E/CN.5/2000/3, annex. Commission for Social Development, 38th Session, 8-17 February 2000.
[38] E/2000/10 of 27 July 2000
[39] An expert meeting on International Norms and Standards relating to Disability was held at Boalt Hall School of Law, University of California at Berkeley (8-12 December 1998). Fourteen experts from various world regions contributed to the workshop. The meeting produced a set of recommendations on policy options and technical guidelines so that countries are better able to draft national legal frameworks related in particular to the equalization of opportunities by, for and with persons with disabilities. The report is on the Internet at http://www.un.org/esa/socdev/disberk0.htm.
[40] See, e.g., Patrick Flood, THE EFFECTIVENESS OF THE UNITED NATIONS HUMAN RIGHTS INSTITUTIONS: Westport, Conn.:Praeger Publishers(1998); Caroline Dommen, Claiming Environmental Rights: Some Possibilities Offered By the United Nations' Human Rights Mechanisms, 11 Georgetown International Environmental Law Review 1(Fall 1998); For discussion concerning implementation of the human rights norms at the grass roots level, linking regional systems with systems with universal scope: George Mugwanya, Realizing Universal Human Rights Norms Through Regional Human Rights Mechanisms, 10 Indiana International and Comparative Law Review 35(1999). For discussion on broader issues concerning effectiveness of the human rights institutions and implementing mechanisms, see, e.g., Thomas Buergenthal, International Human Rights Law and Institutions: Accomplishments and Prospects, 63 Washington Law Review 1(1988); David Weissbrodt, The Role of International Organizations in the Implementation of Human Rights and Humanitarian Law in Situations of Armed Conflict. 21 Vanderbilt Journal of Transnational Law 313 (1988); Benedetto Conforti, ENFORCING INTERNATIONAL HUMAN RIGHTS IN DOMESTIC COURTS(1997)
[41] Countries under some circumstances may comply with legally nonbinding instruments as well as they do with binding ones. The nonbinding legal norms are generally observed, and are expected to be so, giving them a predictive value similar to those norms expressed in hard law. Paul C. Szasz, International Norm-Making, in Environmental Change and International Law 41-70; see also Paul C. Szasz, General Law-Making Processes, in United Nations Legal Order 35, 45-47, 96-98 (Oscar Schachter & Christopher C. Joyner eds., 1995).
[42] See Edith Brown Weiss, International Compliance with Nonbinding Accords,Studies in Transnational Legal Policy No.29, The American Society of International Law (1996)
[43]For detailed discussion, "United Nations Consultative Meeting on International Norms and Standards relating to Disability (Berkeley, California USA, 8-12 December 1998),visit internet website http://www.un.org/esa/socdev/disberk0.htm and for "Interregional Seminar and Symposium on International Norms and Standards relating to Disability (Hong Kong, SAR, 13-17 December 1999) at the Internet at http://www.worldenable.net/hongkong99/default.htm. A recent seminar on human rights and disability organized by the Special Rapporteur on Disability of the Commission for Social Development "International Seminar on human rights and disability (4-10 November 2000, Stockholm, Sweden)" also had an extensive discussion on the practical issues concerning "making international norms more accessible" to promote the rights of persons with disabilities.
[44] Paragraph 26 of General Assembly report A/54/388