New Project Promotes Human Rights Approach to Disability

This article was originally published in the International Bar News (Vol. 59, No. 3, September 2004) and was written by Bengt Lindqvist and Anne Carbert:

In 2000, the United Nations Commission on Human Rights called on the High Commissioner for Human Rights to examine what could be done to strengthen the protection and monitoring of the human rights of persons with disabilities. The ensuing resolution, Resolution 2000/51, reflected the growing awareness of the need to promote equal opportunities and full citizenship for the world's approximately 600 million people with disabilities.

The resulting U.N. study on human rights and disability was published in 2002 and it confirmed that a new human rights paradigm has emerged over the past 20 years. Persons with disabilities are increasingly seen as rights holders rather than objects of charity. As the U.N. study emphasised:

Seeing people with disabilities as subjects rather than objects entails giving them access to the full benefits of basic freedoms that most people take for granted and doing so in a way that is respectful and accommodating of their difference. It means abandoning the tendency to perceive people with disabilities as problems and viewing them instead in terms of their rights.

The emergence of a human rights paradigm presents new opportunities for disability advocacy and for redressing rights abuses. It has finally been recognised that leaving children with disabilities without education, preventing disabled people from forming families, prohibiting ownership of property and limiting the exercise of full legal capacity are nothing but serious violations of human rights. These violations cannot be defended by placing the blame on the existence of a disability. The challenge is to create an inclusive society that respects the dignity and equality of each person, regardless of differences between individuals.

Human rights and disability in international law

The International Year of Disabled Persons in 1981 fueled the shift towards a human rights approach to disability. In the following decade, the international community took steps towards enabling the full participation of persons with disabilities in all spheres of society. These efforts culminated in the adoption of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities by the U.N. General Assembly in 1993. The rules provide concrete and direct advice on disability policy. They state that their purpose is to ensure that girls, boys, women and men with disabilities, as members of their societies, may exercise the same rights and obligations as others.

The Standard Rules document sets out 22 rules and outlines a process for states to identify and remove obstacles to full participation. The rules address awareness-raising, medical care, support services, employment, education, social security, family life and other topics essential to equal opportunities for persons with disabilities. National governments are responsible for taking action to remove obstacles and must do so both by empowering persons with disabilities and by creating an accessible society.

While the Standard Rules were not compulsory when adopted in 1993, they have become an important authority in the interpretation of international human rights obligations. Resolution 2000/51 of the U.N. Commission on Human Rights recognises the Standard Rules as an evaluative instrument and indicates that inequality or discrimination inconsistent with the rules is a violation of human rights. The Standard Rules also informed one of the most important international human rights documents in the disability field: General Comment 5 of the Committee on Economic, Social and Cultural Rights (the body of independent experts that monitors the International Covenant on Economic, Social and Cultural Rights). General comments are issued by treaty monitoring bodies to provide detail on procedures relating to monitoring and also to explain the content of specific rights guaranteed under the treaty. While other U.N. treaty monitoring bodies have made reference to disability in various statements and documents, General Comment 5 is the only detailed analysis of how general human rights guarantees apply to persons with disabilities.

In at least three ways, General Comment 5 is a monumental recognition that persons with disabilities are entitled to the equal effective enjoyment of all human rights:

1. The Committee stated that the Standard Rules are of major importance and constitute a particularly valuable reference guide in identifying more precisely the relevant obligations of states parties under the International Covenant on Economic, Social and Cultural Rights.
2. The General Comment explicitly indicates that the Covenant applies fully to all members of society, including persons with disabilities, and that discrimination on the basis of disability is prohibited by the non-discrimination provision of the Covenant.
3. The Committee requires states to take appropriate measures, to the maximum extent of available resources, to enable persons with disabilities to overcome any disadvantages flowing from their disability that inhibit the enjoyment of Covenant rights. This may involve the provision of supports, services and aids to enable social and economic integration, self-determination and the realisation of Covenant rights. Failure to accommodate a person's disability is clearly discrimination on the grounds of disability and amounts to a human rights violation.

General Comment 5 is a unique and valuable tool for advocates who are endeavouring to apply human rights protections in the disability context. It is an authoritative interpretation, highly persuasive at the international level and in national courts and tribunals. In particular, the interpretation of the non-discrimination article is relevant to the interpretation of parallel provisions in all international human rights treaties and in national constitutions and human rights legislation. The non-discrimination principle makes all general human rights guarantees applicable to the specific situation of persons with disabilities.

Towards the enforcement of human rights for persons with disabilities

The increasing activities at the international level, particularly the dissemination and implementation of the Standard Rules, have had an impact at the national level around the world. Growing awareness of the rights of persons with disabilities has strengthened disability rights advocacy and encouraged national legislative reform, as well as the creation of structures for participatory policy development and social planning. The U.N. study on human rights and disability found that at least 39 states have adopted non-discrimination or equal opportunity legislation that applies to disability. National human rights institutions are also increasingly addressing disability discrimination.

Many governments and disability rights advocates are calling for greater international leadership to protect the human rights of persons with disabilities. In December 2001, after much international pressure, the U.N. General Assembly adopted a resolution establishing 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. This past spring, an international working group prepared a draft convention for consideration. A thematic convention would explicitly recognise the human rights approach to disability and could create a specific mechanism to monitor the progress of states parties in implementing human rights for persons with disabilities.

In addition to a new thematic convention, it is important to enhance the disability dimension within the U.N. human rights treaty-monitoring system. Relevant mainstreaming activities would include developing additional general comments on disability, developing the disability dimension in guidelines and questionnaires to states parties, drafting special protocols and undertaking thematic studies and similar activities on the subject of disability. The Standard Rules and General Comment 5 would serve as guides to monitoring the human rights of persons with disabilities within the existing U.N. monitoring mechanisms.

Launch of D.R.P.I.

Detailed information on the discrimination faced by persons with disabilities is essential to effective enforcement at international, national or local levels. This includes sufficient evidence for legal challenges. As part of the effort to gather data on the human rights situation of persons with disabilities and to encourage change, a broad research and development project, Disability Rights Promotion International, has been launched to establish model monitoring projects in a number of countries. The monitoring sites will develop the capacity to expose, report and address disability rights violations. The monitoring projects will be coordinated locally to ensure that the monitoring activities, and resulting efforts to influence human rights standard setting, make a difference in the quality of life of persons with disabilities. Established organizations of people with disabilities will play a central role in the monitoring process. Training opportunities in human rights and international human rights law will be offered to representatives of international and national disability organizations as a part of the project. D.R.P.I.'s implementation phase is currently under way with the support of the Office of the High Commissioner for Human Rights and the major international disability organizations

The international developments that have launched this new human rights era in the disability field are paving the way for full participation of persons with disabilities in practice, at the local level. The expertise of the legal profession worldwide will be essential in calling attention to the abuses experienced by persons with disabilities and in seeking justice and promoting law reform. Lawyers, disability activists and human rights advocates must join forces to use the emerging opportunities effectively and work towards a world where all human beings can fully enjoy their human rights and fundamental freedoms.

Resources

G Quinn and T Degener, Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability (Geneva: Office of the High Commissioner for Human Rights, 2002) is available online at www.ohchr.org.

The Standard Rules on the Equalization of Opportunities for Persons with Disabilities, U.N. Doc A/RES/48/96, and the Draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, A/AC.265/2004/WG/1 Annex 1, are available on the U.N. Enable website at www.un.org/esa/socdev/enable/index.html.

General Comment 5: Persons with Disabilities, U.N. Doc E/1995/22, issued by the Committee on Economic, Social and Cultural Rights in 1994, can be found on the U.N. treaty body database at www.unhchr.ch/tbs/doc.nsf.