Human rights of persons with disabilities

Economic and Social Council
E/CN.4/2002/18/Add.1
12 February 2002
Original: ENGLISH

COMMISSION ON HUMAN RIGHTS
Fifty-eighth session
Item 4 of the provisional agenda

1. In resolution 2000/51, the Commission on Human Rights invited the United Nations High Commissioner for Human Rights, in cooperation with the Special Rapporteur on disability of the Commission for Social Development, to examine measures to strengthen the protection and monitoring of the human rights of persons with disabilities and solicit inputs and proposals from interested parties.

2. Further to the resolution of the Commission on Human Rights, the Office of the High Commissioner for Human Rights (OHCHR) decided to strengthen its work on disability. It reinforced its cooperation with the Special Rapporteur on disability and decided to place increased emphasis on the issue of disability in two areas: encouraging United Nations human rights mechanisms, including the special rapporteurs and treaty bodies, to pay greater attention to the rights of persons with disabilities; and encouraging the non-governmental organizations (NGOs) concerned with the question of disabilities to increase their interaction with the human rights mechanisms. The first outcome of the project the Office designed for this purpose is the preparation and publication of a study evaluating existing standards and mechanisms in the field of human rights and disability.

3. The study was designed with three aims:

(a) To provide a reference work on human rights and disability;

(b) To review the relevance and functioning of the United Nations human rights system in the context of disability. The study analyses the provisions of the six core human rights treaties and how the treaty monitoring bodies have dealt with the issue, and outlines the involvement in the system of national human rights institutions and civil society;

(c) To suggest options for the future, both to improve the use of existing human rights norms and mechanisms in relation to disability, and to explore the possible need for a new international instrument.

4. The preliminary findings of the study, commissioned from the Research Centre on Human Rights and Disability of the University of Galway, Ireland, were presented at a meeting in Geneva on 14 January 2002 by Mr. Gerard Quinn and Ms. Theresia Degener, the main authors. The meeting was hosted by the High Commissioner for Human Rights, with the participation of the Special Rapporteur on disability. Over 30 States were represented, as well as a number of NGOs and United Nations bodies and agencies.

5. General Assembly resolution 56/168 was also discussed at the meeting. The resolution established an ad hoc committee, open to all States Members of the United Nations and observer States, to consider proposals for a comprehensive and integral international convention to protect and promote the rights and dignity of persons with disabilities, based on the holistic approach of the work done in the fields of social development, human rights and non-discrimination, and taking into account the recommendations of the Commission on Human Rights and the Commission for Social Development. The resolution also called on OHCHR and the Department of Economic and Social Affairs of the Secretariat to cooperate in the process and on the human rights treaty bodies to contribute and share their expertise with the ad hoc committee.

6. At the meeting, participants agreed on the need for a multifaceted approach to disability. There was broad agreement on the need for a focus on the human rights dimension of the issues involved. The preliminary findings of the study underline that the drafting of a new convention should not be seen as an alternative to strengthening attention to disability within the existing international human rights system (“twin-track approach”). The discussions highlighted the need to continue and reinforce social development efforts in the field of disability and to integrate more effectively the United Nations work in that domain with reinforced attention to the matter from a human rights perspective (“multi-track approach”). The importance of the involvement of disability NGOs and organizations in the consultation and drafting process for a new instrument was also emphasized by many participants during the discussion.

7. In the light of Commission resolution 2000/51 and General Assembly resolution 56/168, the Office of the High Commissioner for Human Rights hereby submits for the information of the Commission an executive summary of the findings of the study on human rights and disability, which is currently being finalized.

Annex

Human rights are for all: An Evaluation of the Current Use and Future Potential of the United Nations Human Rights Instruments in the Context of Disability

Executive summary

The present study is about the current use and future potential of the United Nations human rights instruments in the specific field of disability.

Over 600 million people, or approximately 10 per cent of the world’s population, have a disability of one form or another. Over two thirds of them live in developing countries. Only 2 per cent of disabled children in the developing world receive any education or rehabilitation. The link between disability and poverty and social exclusion is direct and strong throughout the world.

A dramatic shift in perspective has taken place over the past two decades from an approach motivated by charity towards the disabled to one based on rights. In essence, the human rights perspective on disability means viewing people with disabilities as subjects and not as objects. It entails moving away from viewing people with disabilities as problems towards viewing them as holders of rights. Importantly, it means locating problems outside the disabled person and addressing the manner in which various economic and social processes accommodate the difference of disability - or not, as the case may be. The debate about the rights of the disabled is therefore connected to a larger debate about the place of difference in society.

The disability rights debate is not so much about the enjoyment of specific rights as it is about ensuring the equal effective enjoyment of all human rights, without discrimination, by people with disabilities. The non-discrimination principle helps make human rights in general relevant in the specific context of disability, just as it does in the contexts of age, sex and children. Non-discrimination, and the equal effective enjoyment of all human rights by people with disabilities are therefore the dominant theme of the long-overdue reform in the way disability and the disabled are viewed throughout the world.

The process of ensuring that people with disabilities enjoy their human rights is slow and uneven. But it is taking place, in all economic and social systems. It is inspired by the values that underpin human rights: the inestimable dignity of each and every human being, the concept of autonomy or self-determination that demands that the person be placed at the centre of all decisions affecting him/her, the inherent equality of all regardless of difference, and the ethic of solidarity that requires society to sustain the freedom of the person with appropriate social supports.

The shift to the human rights perspective has been authoritatively endorsed at the level of the United Nations over the past two decades. This is best exemplified by the United Nations Standard Rules on the Equalization of Opportunities for People with Disabilities were adopted by the General Assembly in resolution 48/96 of 20 December 1993. The Rules are monitored by a United Nations Special Rapporteur, Bengt Lindqvist, who has received his mandate from the United Nations Commission for Social Development. The Rules, and especially the role played by the Special Rapporteur, continue to make a vital contribution to the process of raising consciousness about the human rights of persons with disabilities and in stimulating positive change throughout the world.

The United Nations human rights treaty bodies have considerable potential in this field but have generally been underused so far in advancing the rights of persons with disabilities. The study will focus on the bodies monitoring six main United Nations human rights treaties: the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Convention against Torture, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women and the International Convention on the Elimination of All Forms of Racial Discrimination. The main thesis of the study is that the process of disability reform that is taking place across the globe could be immeasurably strengthened and accelerated if greater and more targeted use were made of these instruments.

It has to be emphasized that the primary responsibility for ensuring respect for the human rights of persons with disabilities rests with States. That is, the use and value of the United Nations human rights machinery is vindicated by meaningful domestic reform. The human rights instruments provide not merely guidance, but place obligations on States parties to reform.

States parties are demonstrably moving in the direction of the human rights perspective on disability. Recent research shows that 39 States in all parts of the world have adopted non-discrimination or equal opportunity legislation in the context of disability. States parties’ dialogue with the human rights treaty bodies is constructive in the context of their efforts to secure disability reform; a significant amount of good practice now exists on a worldwide basis which can be usefully propagated through the human rights treaty system.

The shift to the human rights perspective is also reflected in the fact that national institutions for the promotion and protection of human rights throughout the world have begun to take an active interest in disability issues. This is important since these institutions help in providing a bridge between international human rights law and domestic debates about disability law and policy reform. National institutions are strategic partners in the process of change, and their increasing engagement on the issue of human rights for persons with disabilities is a highly encouraging sign for the future.

People with disabilities themselves are now framing their long-felt sense of grievance and injustice into the language of rights. Isolated injustices need no longer be experienced in isolation. NGOs working with disability issues such as the collaborative project Disability Awareness in Action are beginning to see themselves also as human rights NGOs. They are beginning to collect and process hard information on alleged violations of the human rights of persons with disabilities. While still relatively limited, their human rights capacities are growing. A similar process of self-transformation is under way within traditional human rights NGOs, which are increasingly approaching disability as a mainstream human rights issue. This is important, since these NGOs have highly developed structures, and the development of a healthy synergy between disability NGOs and traditional human rights NGOs is not only long overdue, but inevitable.

All in all, the time is right for a stock-taking of the current use and future potential of the United Nations human rights instruments in the context of disability.

Aims of the study

The study has three main aims.

The first aim is clarify the relevance of the six United Nations human rights treaties to disability. In order to do this the study will identify the various obligations of States parties under the treaties and explain how the relevant enforcement mechanisms work in the context of disability. It will hopefully constitute a useful reference work for all stakeholders, including the States parties, the treaty monitoring bodies, the Office of the High Commissioner for Human Rights, national human rights institutions and civil society. It does not purport to be exhaustive. It creates added value to the existing literature by demonstrating the relevance of the human rights protections provided for under the six treaties to disability. More refined analysis will be needed as the debate moves on.

The second aim of the study is to review how the system actually works in practice with respect to disability, by looking at how States parties report to the treaty monitoring bodies on human rights and disability and how the treaty monitoring bodies respond. A total of approximately 147 recent periodic States parties reports were examined. They were selected on the basis of the availability of documentation and to ensure a reasonable geographic spread. No criticism of any State party is intended. The object of this analysis was simply to derive some sense of how States parties saw themselves as discharging their obligations in the specific context of disability. Indeed, no criticism is intended of the treaty monitoring bodies. Their attention and scarce resources are drawn in many different directions, and that they have developed a sense of the relevance of the various human rights treaties in the context of disability is a testament of their understanding that disability is a human rights issue. While our analysis with respect to the evaluative component of the study does not purport to be scientific, it nevertheless provides a sufficient basis for general conclusions to be drawn - conclusions that will hopefully help to mainstream disability issues in a more sustained and focused manner.

The third aim of the study - the main one - is to provide options for the future. As such, it provides observations, comments and recommendations as to how the various stakeholders might enhance the use of the six human rights instruments in the context of disability. The study aims at strengthening the system, while arguing for the adoption of a thematic convention on the rights of persons with disabilities. For a variety of reasons, the authors conclude that such a convention is necessary and would underpin - and not undermine - the existing instruments in the field of disability.

Outline of the study

The study is divided into three Parts.

Part I, From “soft law” to “hard law” examines the nature of the shift to the human rights perspective in the context of disability. It is composed of three chapters.

Chapter 1 explains the relevance of human rights values and doctrine to disability. It asserts that the core problem in the field of disability is the relative invisibility of persons with disabilities, both in society as well as under the existing international human rights instruments. It concludes that the main human rights challenge is accommodating the difference of disability and making people with disabilities visible within the treaty system.

Chapter 2 recounts briefly how the shift of perspective was given authoritative expression in a wide variety of instruments adopted in the context of the United Nations system over the past two decades. It sets the stage for an examination of how the United Nations human rights treaty system is currently accommodating the rights of persons with disabilities.

Chapter 3 presents the United Nations human rights treaty system and provides the bridge between so-called “soft law” and “hard law”. One important operating principle of the study is that it is necessary to cross over this bridge and to make full use of the human rights treaties in the context of disability.

Part II of the study, Review of the current use of the United Nations human rights instruments – main findings, provides a detailed analysis of the actual and potential relevance of each of the six human rights treaties in the context of disability. This part is composed of six chapters corresponding to the six treaties.

The analysis contained in Part II is intended to be part expository and part evaluative. The expository dimension involves making the contents of these treaties transparently relevant in the context of disability. Each of the rights protected is examined and its relevance elucidated. The evaluative part is made up of a series of case studies on how the provisions of the respective treaties are applied in general in the context of disability.

Chapter 4 deals with freedom and disability under the ICCPR. This treaty is looked at first because the key ethic of the worldwide disability rights movement is freedom and participation. In other words, what people with disabilities aspire to most is to have access to the same rights - and civic responsibilities - as all other persons. Consistent respect for the ICCPR rights of the disabled would not merely protect people with disabilities against abuses, but would also be a huge help in breaking down barriers to the mainstream. In the sample of States parties’ reports surveyed, many States continue to report on disability as a welfare issue and not as a rights issue under the ICCPR. The authors found approximately nine individual complaints addressing disability issues submitted to the Human Rights Committee under the first Optional Protocol to the Covenant. Most were found inadmissible. At least one complaint has led to very positive case law on the treatment of prisoners with disabilities. In essence, the Committee held that it is the duty of States parties to accommodate the needs of prisoners with special needs. This shows an awareness on the part of the Committee that it is not enough to treat all persons the same, but that added allowance (or “reasonable accommodation”) may be necessary to make rights “real” for people with disabilities. This positive normative development offers great promise for persons with disabilities.

Chapter 5 deals with the ethic of social justice and disability in the context of disability. Disability is one of the best areas in which to assert and prove the indivisibility and interdependence of civil, political, economic, social and cultural rights. Using formal law to break down barriers to the mainstream is necessary but not sufficient. People with disabilities must be afforded freedom, but also the means to take advantage of it. This can be done by providing relevant social supports and, in particular, by respecting economic, social and cultural rights. The authors decided to place this chapter after the one on the ICCPR in view of the standing danger that ICESCR rights will be viewed as being of primary importance in the context of disability since they are so obviously connected with social support. In the admirable General Comment No. 5 on persons with disabilities adopted by the Committee on Economic, Social and Cultural Rights in 1994, the Committee views the rights in the Covenant as providing the indispensable means of empowering people with disabilities in their own lives and providing ongoing support for a life of active participation in society. The right to health (art. 12), for example, is interpreted by the Committee as having a direct link to participation in society. In the sample of States parties’ reports surveyed, States parties tend not to draw the link between ICESCR rights and the achievement of the goals of independence, autonomy and participation. Notwithstanding this, General Comment No. 5 remains a landmark and the Covenant in general has a hugely important role to play in sensitizing all stakeholders to how appropriate social supports and rights can best be used to break down barriers and enable people with disabilities to participate in all spheres of life.

Chapter 6 deals with the important question of protecting people with disabilities against torture and cruel, inhuman or degrading treatment under the Torture Convention. This is especially relevant to the many millions of people with disabilities who live in institutions or in other types of residential care. Disability reinforces the imbalance of power in many such institutions and heightens the vulnerability of people with disabilities to abuse. Disability issues tend not to figure prominently in the sample of periodic reports surveyed. One individual complaint concerning the situation of disabled prisoners that was submitted to the Committee against Torture (CAT) was ruled inadmissible on the grounds that domestic remedies had not been exhausted.

Chapter 7 deals with the Convention on the Elimination of All Forms of Discrimination Against Women insofar as much as it is relevant to women with disabilities. General Comment No. 5 refers to a tendency to think of people with disabilities as genderless. The Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) has itself adopted General Recommendation 18 on women with disabilities which requests States parties to include information on women with disabilities in their periodic reports with respect to their exercise of several rights contained in the Convention. In the sample of periodic reports surveyed there was little consistent reporting on the double discrimination experienced by women with disabilities.

Chapter 8 deals with the Convention on the Rights of the Child, insofar as it is relevant to children with disabilities. The Convention is unique among the human rights treaties in that it contains a specific article on disabled children (art. 23). This article is, of course, without prejudice to the general applicability of all of the Convention’s provisions to children with disabilities. The Committee on the Rights of the Child (CRC) has an impressively high level of awareness of disability issues. In 1997, it held an important day of general discussion on disabled children which has had a very positive impact on how the Committee addresses the situation pertaining to children with disabilities. The Committee seems to be well on the way to developing a coherent perspective on children with disabilities.

Chapter 9 deals with another sub-group of the disabled, namely, disabled persons who also belong to racial or other minority groups. While such persons may be discriminated against largely on account of their race, the possibility of double discrimination cannot be discounted. Indeed, the phenomenon of double discrimination on the ground of race and disability was expressly acknowledged at the World Conference against Racism, Racial Discrimination, Xenophobia and Racial Intolerance. Many States parties already include information on discrimination on the ground of disability on a regular basis in their periodic reports to CERD, generally by providing background information on their general anti-discrimination laws. This provides CERD with a useful opportunity for dialogue with States parties on double discrimination.

Part III of the study outlines options for the future. It is composed of four chapters.

Chapter 10 contains the authors’ analysis of a detailed questionnaire which was sent out to disability NGOs around the world. There were about 80 responses from international NGOs, regional NGOs and domestic NGOs from every part of the world. The response rate was good given the limitation on time. It had been decided to send the questionnaire to disability NGOs and not to traditional human rights NGOs in order to gauge whether and how they address the issues as human rights issues and what their views on the existing treaty system are.

An analysis of the responses reveals the extent to which the disability NGOs have themselves made the transition to the rights-based perspective on disability. Many of the NGOs that responded to the questionnaire stated that they saw themselves primarily as human rights NGOs. Many of them use United Nations human rights doctrine in their own work. Some of them already have some experience of engagement with the United Nations human rights treaty system and generally had positive things to say about this experience. Most of them felt inhibited by a general lack of material and human resources and were deterred by the seeming inaccessibility of information about how the human rights treaties worked in the context of disability.

These findings are highly positive. They show how the shift to the human rights perspective is being mirrored in the self-understandings of the disability NGOs, who are willing and interested in engaging with the United Nations human rights machinery. They also reveal factors inhibiting such engagement. The analysis of the findings could usefully be complemented in the future with an analysis of how traditional human rights NGOs are themselves beginning to absorb disability as a mainstream human rights issue. Doubtless a convergence of perspective is now under way.

Chapter 11 looks at the experiences and views of national human rights institutions and factors in their views. It contains the authors’ analysis of a questionnaire sent to national institutions and again, the response rate was good given the limitation on time. An analysis of the responses reveals that national institutions are in fact acutely aware of the human rights perspective on disability. Many of them have already produced important studies and reports on the question of the human rights of persons with disabilities. Some of these reports have been highly influential in helping to reform domestic disability law and policy. All of the respondent national institutions expressed a keen interest in the field and also a willingness to step up their activities in this regard. This is a highly positive and encouraging finding and augurs well for the future.

Chapter 12 sets out a range of observations, comments and recommendations designed to enhance the future use of the United Nations human rights system in the context of disability. For the sake of completeness, they are addressed to a wide variety of stakeholders in the field.

State practice with respect to periodic reporting on disability is clearly improving. This is, no doubt, due to the increasing attention paid to disability and human rights in the United Nations system over the past two decades and especially under the United Nations Standard Rules on the Equalization of Opportunities for People with Disabilities. With respect to the States parties, the authors make three recommendations designed to ensure heightened visibility for disability in the treaty system. Specifically, they recommend: (a) that States parties step up their efforts to report regularly on the situation affecting the rights of persons with disabilities; (b) that they consult with disability NGOs when compiling their respective periodic reports, it being understood that final responsibility for reports rests exclusively with the States parties; and (c) that they consider nominating persons with disabilities for membership in the six treaty monitoring bodies.

The treaty monitoring bodies do an excellent job overall on the issue of disability given their limited resources and the obvious need to deal with a wide variety of issues and groups. Again, the spirit and language of the United Nations Standard Rules has had an impact in this regard. The following recommendations are made in the spirit of assisting the treaty monitoring bodies to enhance further their treatment of disability issues. Specifically, the authors recommend: (a) that they emulate the good practice of the Committee on Economic, Social and Cultural Rights and adopt general comments on the nature of State obligations under the respective treaties in the context of disability; (b) that they emulate the good practice of the Committee on the Rights of the Child by setting aside a thematic day of discussion, or similar occasion, on disability; (c) that the list of issues sent to States parties by those treaty monitoring bodies that issue such documents more regularly request information on the enjoyment of human rights by persons with disabilities, in keeping with the thematic priorities to be set in general comments; (d) that the dialogue with States parties feature disability issues on a more regular basis; (e) that concluding observations contain references to disability, where necessary, in order to identify areas where more sustained attention is required and to request more detailed information from States parties in subsequent reports; (f) that concluding observations be used more regularly to highlight good practice for the benefit of all the stakeholders.

The Commission on Human Rights and the Office of the High Commissioner for Human Rights have demonstrated their engagement with the issue of human rights and disability. This is important at the symbolic level, but it is also significant from a practical point of view given the pivotal role played by the Office in the overall United Nations human rights system. The authors’ recommendations in this regard are geared towards enhancing this engagement. Specifically, they recommend that the Commission on Human Rights encourage the Office: (a) to make knowledge concerning the relevance and operation of the United Nations human rights system in the specific context of disability more accessible by adding a disability-specific dimension to its web site (with appropriate and extensive links to the relevant activities of other sectors of the United Nations, the specialized agencies and national institutions); (b) to plan, after consultation with the stakeholders, a series of more focused thematic studies and practical manuals on subjects such as the human rights of institutionalized persons, the right to education for disabled children, the principle of non-discrimination and the value of human diversity in the context of genetics, bioethics and disability, and the human rights issues connected with intellectual disability; (c) to assign at least one staff member on a full-time basis to the question of disability and human rights issues; (d) to indicate that it welcomes applications for internships from disabled persons; (e) to play a role in stimulating university-based human rights programmes to become more actively involved in human rights and disability; (f) to take a leading role in advancing the cause of the human rights of persons with disabilities within the wider United Nations system, with due regard to the equal ownership of the issue by all relevant institutional stakeholders. It is important that the human rights perspective on disability continue to be increasingly mainstreamed throughout the United Nations system, including in the relevant development activities. It is also important that the issue should be multi-tracked among all the concerned entities. More guidance from OHCHR could aid immeasurably in the process of mainstreaming, as well as enhance the contributions of the various and diverse elements of the system. The authors also recommend that the Office explore options for bringing together the treaty monitoring bodies to discuss the relevance and the potential contribution of their respective treaties in the context of disability.

With respect to the United Nations Commission on Human Rights, the authors recommend that it maintain and enhance the process of mainstreaming disability as a human rights issue in its work and that it give active consideration to the appointment of a Special Rapporteur on the human rights of persons with disabilities. The authors believe that there is a need for such an entity to raise the visibility of the disability issue as a human rights issue and to provide a focal point for disability in the human rights system.

With respect to the national human rights institutions, the authors recommend that they actively consider forming a forum or working group on disability and human rights. Such a forum would enable the national institutions to develop a deeper understanding of disability as a human rights issue and enable them to exchange valuable experiences.

With respect to civil society, the authors recommend that the disability NGOs combine their resources and form an international Disability Human Rights Watch or similar body that could help raise levels of awareness as well as human rights capacities within the disability sector. Such a grouping should develop close ties with the mainstream human rights NGOs in order to learn from their experiences and also in order to influence them to adopt disability as a human rights issue. The authors highlight good practice in the form of funding from the Swedish International Development Agency for a project on the human rights of children with disabilities. Given that the majority of people with disabilities live in developing countries, the authors believe that other donor countries should fund human rights projects in the area of disability as part of their development, democratization and human rights programmes.

Chapter 13 deals with the possibility of augmenting the existing human rights system in the context of disability with the adoption of a thematic treaty on the rights of persons with disabilities. In November 2001, the General Assembly adopted a historic resolution to establish an ad hoc committee, open to the participation of all Member States, to consider proposals for a comprehensive and integral international convention to protect and promote the rights and dignity of persons with disabilities, based on the holistic approach in the work done in the field of social development, human rights and non-discrimination and taking into account the recommendations of the Commission on Human Rights and the Commission for Social Development.

The authors find the arguments for such a convention to be highly persuasive. Such a convention would enable attention to be focused on disability and tailor general human rights norms to meet the particular circumstances of persons with disabilities. It would add visibility to the disability issue within the human rights system. It would have practical advantages for all the stakeholders in that States parties would be clearer on their precise obligations in the disability field, and civil society would also be able to focus on one coherent set of norms rather than six different sets of norms. These advantages were long ago spelled out by Leandro Despouy, the Special Rapporteur of the Sub-Commission, in his study on disability, Human Rights and Disabled Persons, published in 1992.

The authors view such a convention as underpinning – and not undermining – the web of existing human rights treaties insofar as they relate to disability. That is, such a convention should enable the relevant treaty monitoring body to develop normative expertise in the field which should, in turn, help to stimulate the mainstreaming of disability into the existing human rights system. A convention would address collectively people with physical, sensory, mental or intellectual disabilities. The drafting process should provide an occasion for considering how best to use all human rights - civil and political, as well as economic, social and cultural, to achieve the goal of full participation in society of people with disabilities. The convention should include appropriate protections, especially for those persons with disabilities who are institutionalized.

All in all, the United Nations is entering an exciting phase of its activities in the field of human rights and disabilities. Disability issues are being brought home into the human rights domain. The authors are confident that the range of suggestions and recommendations contained in the study and outlined above will lead to more and better use of the six human rights treaties in the context of disability. They are also confident that a thematic treaty would immeasurably advance the rights of persons with disabilities, while at the same time enhancing the capacity of the existing instruments to respond appropriately.

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