INTERNATIONAL NORMS
AND STANDARDS RELATING TO DISABILITY
Part I. National Frameworks. 5/5
  
4. Responsibilities of States
The International Court of Justice gave currency to this idea in the Barcelona Traction Case by recognizing that basic rights of human persons create obligations erga omnes. Since the judgement of the International Court of Justice in the Barcelona Traction Case, there has been growing acceptance in contemporary international law of the principle that all States have a legitimate interest in and the right to protest against human rights violations wherever they might occur. It might be argued that violations of human rights, condemned by the Security Council of the United Nations, amount to international crimes. Some international criminal treaties expressly address what are human rights violations, including genocide, torture, hostage-taking, apartheid, war crimes, the disappearance of individuals, slavery and certain forms of terrorism. Often there is a human rights dimension to international crime. The European Court of Human Rights held the Netherlands responsible in X and Y v. The Netherlands (91 Eur. Ct. H.R. (Ser.A) 1885), for not having enacted appropriate criminal legislation to vindicate the rights of a mentally handicapped girl who had been raped.
Apart from ensuring a forum to redress rights violations, states should play an active role in preventing such rights violations and enforcing protective measures on behalf of persons with disabilities.
The implementation of legislation depends to a large extent on the political will of States to comply with international standards. A network of governmental, non-governmental and international support should work to ensure the effective implementation of international norms and standards. The following is a list of advocacy actions that can help improve the status of persons with disabilities.
4.1 Collection of Statistics
Collection of information and data on persons with disabilities is important to understand the situation of disabled persons in each country. Analysis of this information will give policy makers and legislators the necessary background and is helpful in the formulation of effective policies. In Rule 13 of The Standard Rules on the Equalization of Opportunities for Persons with Disabilities States are urged to collect information on the living conditions of persons with disabilities. Such data should be collected at regular intervals as part of the official statistical system of countries. Data collection on prevalence of disability may be included in national census material, giving possibilities for its correlation with data on income, level of education and other relevant variables. Data can also be collected through household surveys, which can be undertaken in close collaboration with, inter alia, universities, research institutes and organizations of persons with disabilities. The data collection should include questions on programmes and services and their use.
The Statistics Division of the United Nations Secretariat works towards the development of a realistic and practical system of data collection in countries and to prepare technical manuals and documents on how to collect such statistics. The Statistical Commission of the United Nations decided in 1997 to include disability as a topic in the Principles and Recommendations for Population and Housing Censuses. However, the Secretary-General stated in his report 2000 World Population and Housing Census Programme that the method to be preferred when collecting data on disability is to conduct a specialised disability survey.
States should consider establishing a database on disability, which would include statistics on services and programmes, as well as data on different groups of persons with disabilities. The United Nations disability statistics database provides a framework that countries can use in preparation of their own national statistical databases. The United Nations disability statistics database is an essential resource when it comes to monitoring progress made on the international level concerning the situation of disabled persons.
4.2 Awareness-raising
In The Standard Rules on the Equalization of Opportunities for Persons with Disabilities (rule 1), it is stated that "States should take action to raise awareness in society about persons with disabilities, their rights, their needs, their potential and their contribution." States should also distribute information on available services and programmes that would reach all concerned, disabled persons as well as the general public. Information directed to persons with disabilities should be available in forms that can be used and understood by people with visual, hearing or other communication limitations.
States should initiate information campaigns and public education programmes concerning disability issues, conveying the message that persons with disabilities have the equal rights and obligations as others. Persons with disabilities and their families should be involved in the making of public information and education programmes. States should also, according to Rule 1, aim at raising the level of awareness of persons with disabilities concerning their rights and potential. Increased awareness will assist persons with disabilities to take advantage of the opportunities available to them. The World Programme of Action concerning Disabled Persons (paragraph 154) stipulates that disabled persons and their organizations should be given equal access, employment, adequate resources and professional training with regard to public information, so they may express themselves freely through the media and communicate their points of view and experiences to the general public.
4.3 Policy-making and Planning
When policymakers and the legislators have information of the status of disabled persons they will be able to more readily address national policy concerning disabled persons. States should ensure that disability aspects are included in all relevant policy-making and national planning. This is stated in rule 14, in The Standard Rules on the Equalization of Opportunities for Persons with Disabilities. States should initiate and plan adequate policies for persons with disabilities at the national level; nevertheless, action at regional and local levels should be stimulated and supported by the State. The needs and concerns of persons with disabilities should be incorporated into general development plans and not be treated separately. National long-term programmes on achieving the objectives of the World Programme of Action concerning Disabled Persons should be an integral component of the State's general policy for socio-economic development. Local communities should be encouraged to develop programmes and measures for persons with disabilities.
States should involve organizations of persons with disabilities in all decision-making relating to plans and programmes concerning persons with disabilities or affecting in any way their economic and social status. According to rule 18 in The Standard Rules, States should recognise the right of the organizations of persons with disabilities to represent disabled persons at national, regional and local levels. Member States should recognise the advisory role of these organizations, and direct contact with them should be established. This way the organizations can influence Government policies and decisions in areas that concern them.
Moreover, the Consultative Expert Meeting on Law and Disability Policies, held in Berkeley (USA), 8-12 December 1998, elaborated goals which are expected to assist interested countries better to plan, design and carry out practical action concerning persons with disabilities in at last three key areas:
- Improved formulation of legislative frameworks that will promote application of
- relevant international norms and standards concerning the rights of persons with disabilities
- Increased awareness and understanding of the situation of persons with disabilities that will contribute to decisions by policy-makers and program planers and managers, in both substantive and policy dialogues, to incorporate international norms and standards concerning persons with disabilities in legislative mandates and administrative guidance
- Empowered civil society for disability action so that it can participate effectively and knowledgeably in discourses on law and policies concerning persons with disabilities.
4.4 Ombudsman
The Swedish idea of a high ranking official vested with jurisdiction to inquire into claims of administrative and human rights violations has been adopted in many parts of the world. Through informal enquiry the ombudsman is often able to ascertain the facts of a complaint much more expeditiously than a court. The reports of the ombudsman carry great weight and Governments feel obliged to act upon them. The reports of the ombudsman are published. The ombudsman is able to handle many kinds of administrative enquiries which courts are reluctant to undertake. The ombudsman could have a very important role regarding claims of persons with disabilities.
4.5 National Committees
Disability is a multidimensional issue that concerns many different actors; therefore, there is a need for co-ordination of work between all actors. The World Programme of Action concerning Disabled Persons and rule 17 of The Standard Rules on the Equalization of Opportunities for Persons with Disabilities require States to establish national co-ordinating committees, or similar bodies, to serve as a national focal point on disability matters. The Guidelines for the Establishment and Development of National Co-ordinating Committees on Disability or Similar Bodies elaborates in a more detailed way the role and functioning of national co-ordinating committees. The national co-ordinating committees or similar bodies should be permanent and based on legal, as well as appropriate administrative regulation. The committee's function is to review, co-ordinate and advice on the activities of all agencies and non-governmental organizations working for and on behalf of persons with disabilities. It acts in a professional advisory capacity in relation to Government and policy-makers on all issues affecting the well being of persons with disabilities. The national co-ordinating committee should be provided with sufficient autonomy and resources to fulfil its responsibilities. The national co-ordinating committee should be composed of representatives from different sectors of society. Representatives could be drawn from government ministries concerned with social and medical welfare, employment, transport, housing, education, culture and planning, from non-governmental organizations and from organizations of persons with disabilities. Organizations of persons with disabilities should have considerable influence in the national co-ordinating committees in order to ensure proper feedback of their concerns.
The International Meeting on the Roles and Functions of National Co-ordinating Committees on Disability in Developing Countries, held in Beijing, 5 - 11 November 1990, adopted Guidelines for the Establishment and Development of National Co-ordinating Committees on Disability or Similar Bodies. The goals of these guidelines aimed at developing national policy and legislation on disability and at inspiring effective measures for the prevention of disability, for rehabilitation and for realisation of goals of full participation of persons with disability in social life and development. These Committees have a very important role to play in the monitoring of these national policies, legislation or measures.
4.6 Personnel Training
Rule 19 in The Standard Rules on the Equalization of Opportunities for Persons with Disabilities stipulates that States are responsible for ensuring the adequate training of personnel, at all levels, involved in the planning and provision of programmes and services concerning disabled persons. States should also see to it that all authorities providing services in the disability field give adequate training to their personnel. When developing training programmes, States should consult organizations of persons with disabilities. Disabled persons should be involved as teachers, instructors or advisers in personnel training programmes. On a regional level, the regional commissions of the United Nations should also provide for personnel training.
The training of community workers is also of great strategic importance. It should involve disabled persons and include the development of appropriate values, competence and technologies. States should ensure that community workers receive, in addition to specialised knowledge and skills, comprehensive information concerning the social, nutritional, medical, educational and vocational needs of the disabled persons. Community workers can provide most of the services needed by disabled persons if they are provided with adequate training and supervision. This can be a valuable asset in overcoming personnel shortages. States should also expand the knowledge and responsibilities of persons working in related fields who provide other services, such as teachers, social workers, administrators and community leaders.
4.7 The Role of Non-Governmental Organizations
One of the most important roles of Non Governmental Organization (NGO)'s is to monitor human rights protections in their own or in other countries and advocate for the protection of these rights with national Governments and international bodies. The role of NGO's is essential for the effective protection of human rights at both national and international levels, as it is NGOs that raise public awareness on human rights, as well as hold responsible parties accountable for rights violations.
An advocacy effort generally include the following:
- Identifying a clear issue, concern or problem that citizen action play a role in resolving;
- Investigating the nature and extent of the problem/concern;
- Defining a clear position and desired outcomes (e.g., articulate the entitlements or the rights desired and offer policy or legislative proposals, etc.);
- Articulating the strategy (goals, target and actions to be taken);
- Building alliances in support of the proposition;
- Educating the public and lobby for the changes needed.
At the Global Meeting of Experts, held in Stockholm in 1987, the participants agreed on the importance of encouraging non-governmental organizations, as they often act as a vehicle for self-development, and at the same time can effectively influence certain decisions made by Governments and other sectors of society. NGOs are not confined to protect rights, but have also undertaken other activities, such as promotion of equality of opportunity through the provision of certain services (e.g. leadership training, vocational training).
The role of non- governmental organizations in monitoring state parties actions and making sure states parties comply with international norms is one of the most important mechanism in the protection of human rights. This can be done in the following manner:
- The channelling of independent information to members of treaty bodies. No States' report can be examined adequately without reference to other sources of information.
- Promoting knowledge and understanding of the reporting process. NGOs play the lead role in encouraging individuals and groups to reflect on their situation in the context of their rights and in channelling any submissions they might wish to make to members if treaty bodies.
- NGOs are also crucial to the ongoing effectiveness of the reporting process following the examination by the treaty bodies. Without their lobbying and campaigns of public information, there is a danger that recommendations of the treaty bodies may either remain unimplemented be carried through in an inadequate manner.
NGO participation in the reporting process may occur at different stages. The stages are set out below.
4.8 NGO Action Before Submission of a Report
A problem with the reporting process is that most of the treaty bodies suffer from a failure of many States to submit reports in conformity with the periodicity requirements. Skilful dissemination and employment of all relevant information by NGOs can do much to encourage tardy States in meeting their responsibilities. Sometimes, the delay in the submission of reports is due to the fact that the State Party is overwhelmed in attempting to meet the reporting obligations under a range of instruments or simply lacks the technical expertise to compile reports, which meet the reporting requirements. In those cases, NGOs can explore with Governments the extent to which they might offer assistance, either through the provision of training or direct participation in the drafting process.
4.9 NGO Participation in the Reporting Process in the Context of the Examination by a Treaty Body
Independent submissions are usually accepted by members of the treaty bodies as an aid towards the carrying out of the scrutiny of State reports. The impact of such submissions can be greatly enhanced by the making of direct contact with Committee members. Possibilities range from formal interventions in Committee meetings or professional working groups to informal encounters outside the sessions. Whatever the forms of the meetings, they can prove invaluable assistance in emphasising certain matters such as the situation of women with disabilities and providing fuller background briefings.
NGOs organizations can immediately contest any inaccurate or misleading statements made by government representatives. Also, by attending the meetings NGO's have the opportunity to make new submissions based on the direction taken by the proceedings. An NGO might consider drafting its own alternative concluding observations in the hope that they might be of assistance to the Committee.
4.10 NGO Action Following Examination of a Report
It is essential that NGO's ensure that attention continues to be paid to the treaty body proceedings. In this context, the role of the NGO is to disseminate, promote, publish and interpret international human rights that prohibit discrimination against persons with disabilities.
4.11 NGO Monitoring
Monitoring assists Governments to measure progress while holding governments accountable for rights protection. Monitoring provides an opportunity for challenges to be identified so that suitable measures can be implemented to overcome the obstacles. Persons with disabilities, lawyers, legislators, representatives of government ministries, health care personnel and other experts from NGOs may then survey and evaluate existing legislation and recommend legislative reforms and new procedures for the effective implementation of the legislation.
Some international instruments require countries to set up monitoring mechanisms. As examples, we can refer to the World Programme of Action concerning Disabled Persons and The Standard Rules on the Equalization of Opportunities for Persons with Disabilities:
Paragraph 194 of the
World Programme of Action states that monitoring and evaluation should be carried out at periodic intervals at international and regional levels, as well as at the national level. It states, after pointing out the obligation of governments to establish a focal point to look into and follow the activities of various ministries, other government agencies and NGOs, that Member States should increase their assistance to organizations of persons with disabilities and help them organise and co-ordinate the representation of the interests and concerns of persons with disabilities. NGOs composed of disabled persons or representing their interests have one of the most important roles to play in implementing the Plan and achieving the objectives of the Decade.
Rule 20 of The Standard Rules:
"National Monitoring and evaluation of disability programmes in the implementation of the Rules: States are responsible for the continuous monitoring and evaluation of the implementation of national programmes and services concerning the equalization of opportunities for persons with disabilities.
- States should periodically and systematically evaluate national disability programmes and disseminate both the bases and the results of the evaluation.
- States should develop and adopt terminology and criteria for the evaluation of disability-related programmes and services.
- Such criteria and terminology should be developed in close co-operation with organizations of persons with disabilities from the earliest conceptual and planning stages.
- States should participate in international co-operation in order to develop common standards for national evaluation in the disability field. States should encourage national co-ordinating committees to participate also.
- The evaluation of various programmes in the disability field should be built in at the planning stage, so that the overall efficacy in fulfilling their policy objectives can be evaluated."
The monitoring implementation of rights and recommendations can be appreciated at the national level, the regional level and the international level.
4.12 Special Rapporteur
The office of the Special Rapporteur on Disability of the Commission for Social Development was set up by the UN in 1994, in accordance with the Standard Rules on the Equalization of Opportunities for Persons with Disabilities. The work of the Special Rapporteur consists of monitoring the implementation of the Standard Rules through communicating directly with States and NGOs, and generally advancing the status of persons with disabilities throughout the world. The Special Rapporteur works with a panel of experts on disability issues, and is assisted by the UN Secretariat. The first Special Rapporteur, Bengt Lindqvist (Sweden), was appointed in 1994, and his mandate was renewed twice, in 1997 and 2000, by resolutions of the Economic and Social Council. For the period 2003-2005, the Secretary-General appointed Ms. Hessa Al-Thani (Qatar) as the new Special Rapporteur on Disability.
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