Section 1.2 - Disability as a Human Rights Issue

1. Changing Ways of Looking at Disability

Over the last forty years, there has been an important change in the way persons with disabilities are seen. Ideas about disability are changing.

(a) The Old Way: Seeing Disability as a Problem of the Person

For centuries, disability has been seen as a ’problem’ of the person who has a particular impairment or something that people regard as being ‘wrong with them’ (for example, having only one leg, low vision, a difficulty learning, etc.). The person with an impairment is thought to have to change, or be ‘fixed’ in order to fit into society – to be able to access their community. Because disability was viewed then as an illness or a pathology, it became the job of the professionals to diagnose what to do about the condition, to fix the problem. This has meant that control over the lives of persons with disabilities has been handed over doctors or others seen as experts. For example, sometimes, doctors, rehabilitation experts or psychologists have decided what support persons with disabilities would receive, where they would live, if they would be ignored, whether they would get food or whether someone without a disability would be given the little food that is available. Sometimes, if the professionals could not ‘fix’ the impairment, a person was ignored and rejected because they didn’t fit into their communities. For example, a child with an intellectual disability was not allowed to go to school because it was assumed he or she could not learn. People were denied the opportunity to work without even being given the chance to show what skills they had for the job. This still happens in many countries and communities.

Seeing disability as the problem of the person affects the way that persons with disabilities are treated by society and by their communities. It means that persons with disabilities may be:

• considered to be less important than persons without disabilities
• treated like helpless victims needing care and protection
• assumed not to deserve or be able to manage the same rights and responsibilities as everyone else

Seeing disability as the problem of the person affects what the society does about the discrimination people with disabilities face. Seeing disability as a ‘personal problem’:

• Makes it the responsibility of the person with the disability and his or her family to find ways to get included in society
• Considers that people with medical knowledge, such as medical researchers and other experts, are authorities on disability and whose scope extends beyond medical issues.
• Overshadows the expertise brought forward by people with disabilities on their own lived experiences and knowledge.

Approaches that start with the idea that disability is an individual problem can be divided into two models: biomedical model and functional model.

i) Biomedical Model

Disability

medical, biological issue, pathology

Person with Disability

a person who has something wrong with them and needs medical treatment or a cure

Experts

doctors, medical researchers

Solution

eliminate disabilities through cures or treatment

ii) Functional Model

Disability

personal issue, something that is not ‘normal’, a pathology

Person with Disability

someone who is unable to ‘function’ in society because they have an impairment, something is wrong with the individual

Experts

physiotherapists, vocational trainers, social workers, rehabilitation professionals, service providers

Solution

improve or provide comfort with rehabilitation, physiotherapy, occupational therapy, life-skills training, counseling, special education, special housing

(b) Rethinking Disability: Seeing Disability as an Interaction between the Person & Society

More recently, a new way of looking at disability has developed. Instead of searching for what is wrong with the person with the disability, this approach changes the focus to what is wrong with society. Thinking this way does not deny that people have impairments but it also recognizes that persons with disabilities are people who have human rights and who are entitled to participate and be involved in their communities. Instead of trying to cure or ‘fix’ individuals, this approach looks for ways that political, social, economic and physical environments and systems exclude persons with disabilities. Disability is not a problem of a particular person, but a result of the way that society and communities are set up and function. Thinking this way, including persons with disabilities in all aspects of society is a public responsibility and something that concerns all members of society.

Approaches that look at disability as a social problem can be divided into two models: an environmental model and a human rights model.

i) Environmental Model

Disability

caused by social/physical environments that do not allow for difference

Person with Disability

a person with differences in a diverse population of people

Experts

people with disabilities

Solution

eliminate systemic barriers, e.g. adapt physical and social environments to accommodate people with disabilities

ii) Human Rights Model

Disability

dimension of human culture / part of the human patchwork quilt

Person with Disability

a person with differences entitled to the rights enjoyed by other people

Experts

persons with disabilities

Solution

recognize that persons with disabilities have the same rights as everyone else meaning that human variation must be taken into account by making laws and policies that include everyone

This exercise has been adapted from: Oliver, M. (1990) The Politics of Disablement. Macmillan, Basingstoke. )

2. From Charity to Rights

Thinking about disability from a human rights approach has meant a shift from seeing persons with disabilities as people who receive charity to people who hold rights. Consider the differences:

To achieve full recognition of persons with disabilities as rights-holders people need to understand that:

• the needs of persons with disabilities are not ‘special’. If someone owns a car and wants to drive on a highway, we don’t say they have a ‘special’ need for a highway. In the same way, if someone has a wheelchair and needs a sidewalk without potholes to move on, that should not be considered a ‘special’ need.
• the issues are politicized. Discrimination and injustice are present when persons with disabilities can’t go to school, don’t get jobs and live in poverty.
• separate but equal is not equal. Services that limit a person’s freedom do not support a person’s autonomy (independent choice), dignity (sense of self-worth) and human rights.
• persons with disabilities have to be recognized as decision-makers. There is no need for other people to decide what they want or what is good for them. They know best what they need and want.

Look at the following contrasting terms. The first term in the pair is from a charity perspective, the second is from a disability rights perspective:

Our understanding of disability has changed and continues to change in response to increasing understanding and recognition of the rights of persons with disabilities. We are moving away from seeing disability as a matter of charity to seeing disability as an issue of ensuring human rights and equality for everyone. People are recognizing that persons with disabilities are entitled to the same basic human rights that others enjoy. Persons with disabilities are part of the community.

Universal design, education for all, equal opportunity and anti-discrimination laws are all examples of this new approach to disability.

3. Human Rights and Disability Rights

(a) What are Human Rights?

Human rights are entitlements held by all people. They are universal, which means that they apply equally to everyone around the world. The Universal Declaration of Human Rights, made by the countries of the United Nations in 1948, states that all human beings are born free and equal in dignity and rights and that everyone is entitled to all rights and freedoms, without distinction of any kind.

Human rights help us to respect each other and live with each other. In other words, they are not only rights to be requested or demanded but rights to be respected and be responsible for. The rights that apply to you also apply to others.

Human rights can be divided into four kinds of rights:

Social rights

Social rights improve the well-being and standard of living of all members of society. They give people security as they live together in families, schools, and communities. Some examples from United Nations human rights treaties include:

• the right to the highest attainable standard of physical and mental health
• the right to adequate housing, food and sanitation
• the right to inclusive and accessible education

Economic rights

Economic rights deal with income-generating activities or income supports that allow people to have the necessities of life. Some examples from United Nations human rights treaties include:

• the right to own property
• the right to social security including social insurance
• the right to earn a living from work that is freely chosen
• the right to equal pay for equal work
• the right to access technical and vocational training programs

Cultural rights

Cultural rights deal with protecting, developing and enjoying one’s cultural identity. Some examples from United Nations human rights treaties include:

• the right to participate in mainstream culture, arts, recreation, leisure and sport
• the right to create unique disability culture
• the right to cultural materials in accessible formats
• the right to access places of cultural performances

Civil and Political rights

Civil and political rights allow people to have equal citizenship. Some examples from United Nations human rights treaties include:

• the right to life, liberty and security of person
• the right to freedom of opinion
• the right to protection from torture and violence
• the right to vote and run for political office

Human rights are indivisible and interdependent. That means that no one type of right is more important than another. For people to be free from fear and want, they must be able to enjoy all of their rights - economic, social and cultural rights as well as civil and political rights.

(b) What are Disability Rights?

Disabled persons frequently live in deplorable conditions, owing to the presence of physical and social barriers, which prevent their integration and full participation in the community. Millions of children and adults worldwide are segregated and deprived of their rights and are, in effect, living on the margins. This is unacceptable.
Mary Robinson, UN High Commissioner for Human Rights (1997-2002)

Discrimination takes many forms. At times, it is embedded in laws and in practices. Yet more often, discrimination is less visible. It manifests itself in attitudes and in the belief that persons with disabilities are unable to learn and to work, or to take part in political decision-making that affects them. Or that persons with disabilities need charity to survive rather than rights. Discrimination also appears in the form of an inaccessible environment which prevents persons with disabilities from participating freely and independently in everyday activities. (UN High Commissioner on Human Rights Addresses World Congress of WFD, July 18, 2011)
Navanethem Pillay, UN High Commissioner for Human Rights (2008-)

‘Disability rights’ are not a separate or a new category of human rights. Disability rights include the full range of human rights (civil, cultural, economic, political and social) applied to situations faced by persons with disabilities.

Up until now, human rights have rarely been implemented in ways that reflect the experiences of persons with disabilities. It is hoped that with the United Nations Convention on the Rights of Persons with Disabilities (UN), this situation will be improved. The UN clearly states that persons with disabilities are entitled to enjoy the full range of human rights, without discrimination.

(c) UN Convention on the Rights of Persons with Disabilities (CRPD)

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) was adopted by the UN General Assembly in 2006 and came into force in May, 2008. Once a country ratifies the CRPD, it has a legal duty to do what it says.

Persons with disabilities, disability organizations and their allies played an active role in deciding what would be included in the UN. The UN does not create new rights for persons with disabilities. Instead, it explains what existing civil, cultural, economic, political and social rights mean in situations faced by persons with disabilities. The rights covered by the UN are outlined in the text box on this page.

It is important to know whether your country has signed and ratified the UN. If a country has only signed the UN, it does not have a legal duty to do what it says. But, by signing, the country takes on a moral duty to not take actions that go against the treaty. Signing also shows that the country is willing to consider the next step to ratify the UN. Once a country ratifies the UN, it has a legal duty to do what it says.

An updated list of the countries that have signed and ratified the UN can be found on the website of the United Nations Treaty Collection. Another place to find this information is on the United Nations Enable website.

(d) Other United Nations Human Rights Treaties

DRPI has adopted the ‘twin-track approach’ to advancing the rights of persons with disabilities. Track one involves using the UN; track two involves using the other important United Nations human rights treaties that protect and promote the rights of persons with disabilities. Both tracks are followed at the same time.

These other important treaties apply to all persons, including all persons with disabilities:

International Covenant on Economic, Social and Cultural Rights (1976) (ICESCR)

This treaty deals specifically with economic, social and cultural rights.

International Covenant on Civil and Political Rights (1976) (ICCPR)

This treaty deals specifically with civil and political rights.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (1984) (CAT)

Persons with disabilities and especially those who live in institutionalized settings, are particularly vulnerable to torture and other forms of cruel, inhuman or degrading treatment. This type of treatment is not allowed under the CAT.

Convention on the Elimination of All Forms of Discrimination Against Women (1981) (CEDAW)

This treaty applies to all women and girls, including women and girls with disabilities. It covers all types of rights – civil, cultural, economic, political and social.

Convention of the Rights of the Child (1990) (CRC)

This treaty applies to all girls and boys, including girls and boys with disabilities. It covers all types of rights – civil, cultural, economic, political and social.

International Convention on the Elimination of All Forms of Racial Discrimination (1969) (CERD)

This treaty applies to all members of racial groups and/or minorities, including members of racial groups and minorities with disabilities. It applies to persons with disabilities who suffer discrimination because they are part of a racial group or minority.

International Convention on the Protection of the Rights of All Migrant Workers and their Families (2003) (CRMW)

This treaty applies to all migrant workers and their families, including all migrant workers who have disabilities and their families. It deals with rights violations faced by persons with disabilities who are migrant workers or part of the family of a migrant worker.

As with the UN, it is important to know whether your country has ratified these treaties. If your country has ratified any of these treaties, it is legally required to do what the treaties say.

Updated lists of the countries that have signed and ratified each of these treaties can be found on the website of the United Nations Treaty Collection.

(e) General Human Rights Principles

In addition to guaranteeing specific rights like ‘the right to health’, the UN and other human rights treaties also include general principles that can be used to address many areas of rights. The general principles provide guidance about how each right in the treaty can be understood and ensured.

Here are the general human rights principles stated in the UN and other United Nations human rights treaties that are important to persons with disabilities:

Dignity

Dignity refers to the inherent worth of every person. Human rights are about protecting and promoting the self-respect of all person. Everyone should feel respected in their community and their society and in their everyday activities.

Example: Mirela was in a fire and has scars that cover her head and upper body. She has had difficulty finding a job and she is very poor. Because of the respect her friends and colleagues have for her, she is not forced to live in an institution or beg for money. Instead, she is invited to join a group of women who have a business raising chickens and selling their eggs. In this way, she is able to make the money she requires to meet her basic needs, and she has a sense of dignity.

Autonomy

Autonomy is the right of a person to make his or her own choices independently or with support. Autonomy means that the person is placed at the centre of all decisions affecting him or her.

Example: Robert has speech that is difficult to understand. When he goes to the community clinic, the doctor or his family or friends makes sure that Robert has someone with him who Robert trusts and who can assist Robert to communicate. With that support, Robert can ask the doctor questions and make decisions about his treatment.

Participation, Inclusion & Accessibility

Inclusion is the right of all persons to participate fully and effectively. It involves making sure that society is organized to be accessible and is without physical or social barriers. This includes access to transportation; elections; clean water; sanitation; technology; appropriate sources of communication and media to ensure information. It also means that there have to be non-discriminatory attitudes and facilitation or accommodation to limit the impact of disability.

Example: Priyanga, who is blind, is welcome to attend the same school and classes as her brothers and sisters who are not blind. The school and the teacher think it is important for all children to have a chance to learn and so they try to accommodate her not being able to see by having Braille books and tactile learning tools.

Non-Discrimination & Equality

Rights are guaranteed to everyone. It is discrimination for people to be denied their rights based on disability, race, sex, language, religion, political or other opinion, national or social origin, property, birth or age.

Discrimination happens when favouritism is shown to one group of people over another. It may be based on prejudice and is unfair. Laws, policies, programs, actions or failures to act that result in denying persons with disabilities the ability to exercise their human rights, is discrimination.

Everyone has the right to enjoy human rights equally. Rights, responsibilities and opportunities do not depend on whether someone is born with or without a disability. This does not mean that persons with disabilities will be treated exactly the same as persons without disabilities. Instead, society must be sure that persons with disabilities have what they need to exercise their rights fully – sometimes what a person with a disability needs to exercise his or her rights equally will be the same as what is needed by a person without a disability and sometimes it will be different.

Example of non-discrimination: Anna, a woman with an intellectual disability, is able to marry and have children. The laws of her country allow her to exercise these rights even though she has an impairment. Also, Anna knows that if her husband beats her, the police must act to protect her. They cannot ignore the abuse because she has a disability.

Example of equality: Nak, a man who is deaf, and his friend Dusit, who does not have a disability, are both able to get enough information about the candidates who are running for election to be able to exercise their right to vote. Both Nak and Dusit travel to a gathering where the candidates are speaking by using the same public bus. Since both sign language interpretation and a loudspeaker have been arranged by the event organizers, both Nak and Dusit can understand what the candidates are saying.

Respect for Difference

Respect for difference involves recognizing and accepting persons with disabilities as part of human diversity. Difference is not a reason to deny someone his or her rights and dignity. The responsibility to change does not fall on the individual but on the community and the government and society who must recognize diversity and find ways to be inclusive of the difference that disability represents.

Example: Eghosa has a disability that requires him to walk with a cane. In order to remain mobile and self-sufficient, the buses in his community have to be accessible. The bus driver on Eghosa’s regular route recognizes his needs and allows him time to walk from where he waits to the bus. The driver also allows Eghosa the extra few seconds it takes to reach his seat before starting to move the bus. Instead of worrying about losing time on his route, the driver thinks about the individual needs of his passengers.

All of the general human rights principles apply equally to men, women, boys and girls.

Disability rights monitors will use these general human rights principles when collecting information about the human rights situation of persons with disabilities in their countries.

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