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Back to: Second Session of the Ad Hoc Committee
Documents of the Second Session
A/AC.265/2003/CRP/9
Ad Hoc Committee on a Comprehensive and Integral
International Convention on Protection and Promotion of the Rights and
Dignity of Persons with Disabilities
New York, 16-27 June 2003
The Danish Institute for Human Rights would like to contribute to the second session of the Ad Hoc Committee the attached discussion paper on the founding principles of a convention on the rights of persons with disabilities. It would be much appreciated if the paper could be printed and made available to the participants of the session.
(Signed) Morten Kjærum
Executive Director
The Universal Declaration of Human Rights, the UN Covenants of Civil and Political Rights and each of the four specialised UN Conventions on Human Rights[2] explicitly list a number of founding principles specific for each instrument. These principles are, as a rule, contained in the Preambles of the Declaration, Covenants and Conventions and serve to establish their overall aims of the instrument.[3] The rights and freedoms afforded to individuals and the duties and limitations undertaken by the States Parties under these Instruments are derived from the founding principles. Also, the principles serve as points of reference in the interpretation and implementation of the instruments by for example treaty monitoring bodies.
This paper gives a presentation of the most likely founding principles of a new comprehensive convention on the rights of persons with disabilities. The understanding of the principles under general human rights law is described and the relevance of the principle in the context of persons with disabilities is discussed.
The principles discussed in this paper are those contained in a) the Draft Conventions on Rights of Persons with Disabilities and b) the existing human rights provisions on rights of persons with disabilities.
a) Officially tabled Draft Conventions:[4]
1. The Mexican Draft Convention is “motivated by the principles of dignity and equality intrinsic to human beings and the values of dignity, independence, equality of opportunities, and > solidarity with persons with disabilities”.[5]
2. The European Union Draft Convention is not yet available, but it seems that the European Union in its Position Paper to the Ad-Hoc Committee will express the view that the following fundamental principles should be included in the Convention: Dignity, Non-discrimination, Equality, Participation and Autonomy”.
b) Existing human rights instruments and provisions on rights of persons with disabilities (where founding principles or goals are stated):
Human equality is central to the system of thought postulated in human rights law. The founding premise is that all persons possess inestimable self-worth and that they are inherently equal in terms of self-worth, regardless of their differences. Thus distinctions between persons stemming from factors that are arbitrary from a moral point of view should be treated as invalid. [11]
During the last thirty years, it has become evident that disability in itself constitutes a barrier for the full enjoyment of human rights. The response under human rights law is to establish that the State has an obligation to ensure that persons with disabilities enjoy human rights on an equal footing with others. This approach is illustrated for example by the placement of Article 26 on “the integration of persons with disabilities” under the Chapter on Equality in the EU Charter of Fundamental Rights. Another demonstration is found in the title of the UN Standard Rules on the Equalisation of Opportunities for Persons with Disabilities.
Although the notion of ‘equality’ is essential to human rights law, a single, unified understanding of the concept has yet to crystallise. Three different separate understandings of the obligation to ensure equality under human rights law have emerged: formal equality, equality of opportunities or equality of results.
Formal or juridical equality. Formal equality means equality within the framework of the law. This view was adopted by classical liberalists and implies that the role of the state should be reduced to prohibiting less favourable treatment of individuals who are similarly situated and to bestowing individuals with identical rights. The ‘similarly situated’ test being the yardstick of advocates of formal equality ignores the reasons why two situations may be similar.[12] A system of formal equality would for example ignore disability as a reason for differences in situations and would fail to prescribe ‘reasonable accommodation’ to compensate for a disability. [13]
Material equality or ‘equality of opportunities’. Material equality acknowledges the importance of individual and group differences and takes account of both personal and environmental barriers, which may inhibit societal participation. According to this understanding of equality, ignoring differences may result in invalid differentiation. Thus positive actions may be required to accommodate differences. Implicitly, the end goal is understood to be a society that is genuinely inclusive, a society that values difference and respects the equality of all human beings regardless of difference. [14]
Both in international law doctrine and in case law, the notion of material equality is gaining increasing support.[15] In their General Comments, the Committees of Human Rights and Economic, Social and Cultural Rights, leave no doubt that material equality is the yardstick to be used. The Human Rights Committee stated that: “…the principle of equality sometimes requires that States parties take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination…”.[16] In turn, the Committee on Economic, Social and Cultural Rights stated that “The obligation of States parties ... requires Governments to do much more than merely to abstain from taking measures which might have a negative impact on persons with disabilities. The obligation in the case of such a vulnerable and disadvantaged group is to take positive action.”[17]
Both the Standard Rules of 1993 and the World Programme of Action concerning Disabled Persons of 1982 embrace the term ‘equality of opportunities’. The concept of ‘equality of opportunity’ encompasses material equality and entails equality of rights as well as equality of duties and obligations. This notion helps to raise awareness that persons with disabilities are not asking to be given special privileges, but rather that environmental barriers and the causes of disadvantage and vulnerability should be eliminated. In the words of the standard rules: “As persons with disabilities achieve equal rights, they should also have equal obligations. As those rights are being achieved, societies should raise their expectations of persons with disabilities.”[18]
In all international human rights instruments making specific provisions for persons with disabilities, one of the central messages is that States have a positive obligation to ensure that persons with disabilities to enjoy access to human rights. The Convention on the Rights of the Child speaks of “special care and extension of assistance”. The African Charter on Human and People’s Rights provides for “special measures of protection in keeping with their needs”. [19] The San Salvador Protocol allows for “special attention”. The Revised European Social Charter contains an obligation to undertake “all measures ... including technical aids…”. Finally, the EU Charter of Fundamental Rights provides for the right “to benefit from measures …”.[20] The ILO Convention Concerning Vocational Rehabilitation and Employment (Disabled Persons) No. 159 (1983) states explicitly that the policy of States parties shall be based on the principle of equality of opportunity and that special measures shall not be regarded as discriminatory.[21]
The model of equality of opportunity has been criticised for neglecting persons who have been perceived as lacking an ability to function or to exercise rights even if given the opportunity.[22] The underlying premise of this criticism seems to be either that persons, who with any amount of assistance do not have the ability to work, also would not have the capacity to enjoy other rights; or that equality of opportunities can only apply meaningfully to opportunities with regard to employment. Both assumptions are wrong. The inherent dignity and worth of all persons means that all have an entitlement to equality of opportunities with regard to all human rights. All rights can be applied with meaning to the individual situation of each person. An application of the ‘equality of opportunities’ standard to the right to vote at elections by secret ballot would for example lead to an obligation to provide ballot papers in Braille for blind persons.
Equality of Results. According to this third understanding of equality, each person is entitled to a certain representation for example in higher education or the job market, regardless of his or her contribution or capacity to contribute.
International human rights law on discrimination has not gone so far as to require the establishment of equality of results, but national schemes providing for example strict quotas for employees are permitted. Some states, including ten out of fifteen European Union Member States, do for example provide strict employment quotas as an intrinsic part of their disability employment policy.[23]
The European Court of Justice case law on discrimination on the grounds of gender illustrates that an international human rights law requirement of equality of results for persons with disability would be quite controversial. The European Court of Justice has maintained that it would not accept positive action schemes, which produce such equal results with regard to gender. At the same time, the Court has permitted quotas to ensure equality of opportunities by accepting strict quotas at the stages prior to the point of employment selection, e.g. a quota of 50% of women among candidates to be interviewed for a position. [24]
Some have argued that the equal results approach is a leftover from the medical model of disability, that it is based on the idea that persons with disabilities are inferior and that workers who obtain employment through the schemes risk being stigmatised.[25] Others, however, have argued that the equal results approach may be an effective tool in contributing to the well being of persons with disabilities on the relative short-term. Also, national organisations of persons with disabilities frequently adhere to this approach. [26] This approach has not, however, dominated thinking about international human rights standards on persons with disabilities.[27]
Non-discrimination. Where equality is the positively formulated principle and ideal, non-discrimination is the ensuing standard as it has been formulated in international human rights treaties, case law and national legislation. ‘Equality and non-discrimination’ are often mentioned together as a set phrase.
Non-discrimination clauses are contained in all the basic human rights conventions, including for example the International Covenant on Civil and Political Rights in Article 26, the European Convention on Human Rights Article 14, the American Convention on Human Rights Article 24 and the African Charter on Human and People’s Rights Article 2. Although disability has not been listed as a ground for discrimination, it is widely accepted that the ban against discrimination also applies to discrimination on the grounds of disability. The omission in for example the International Covenant of Civil and Political Rights (1966) Article 26 has since been attributed to the lack of awareness of the importance of addressing the issue of disability explicitly.[28]
International Courts, including the European Court of Justice, the European Court of Human Rights[29] and the International Court of Justice[30], have applied standards of direct and indirect discrimination or the equivalent. Direct discrimination occurs when a similarly situated person is treated less favourably because of a particular characteristic, e.g. disability, and this treatment is not objectively justifiable. Indirect discrimination is the result of a differentiation on the basis of an apparently neutral criterion, which has the effect that a group, e.g. persons with disabilities, is disadvantaged compared to another group, and no objective justification exists for the applied criterion.[31] Direct discrimination can be said to reflect a principle of formal equality, whereas a model banning also indirect discrimination would adhere (at least partly) to the principle of material equality.
As the concept of equality has developed, so have the requirements, which must be fulfilled to avoid that an action or omission to take action on the part of a State be considered discriminatory treatment. An example is the European Court of Human Rights, which repeatedly in its case law has established that failure to undertake positive measures may constitute discrimination. [32]
Accessibility and Assistance Services. Unlike other common grounds of discrimination such as race or gender, it is clear that equality of opportunities for (severely) disabled persons can only be achieved through continuous accommodation, technical and personal assistance services. Disability does not become irrelevant once past discrimination has been remedied. Even after a person with (severe) disabilities has, for example, been employed, he or she will continue to require technical and personal assistance. [33]
Accommodation includes the duty to ensure accessibility to the physical environment, services, activities, information and documentation for all persons including persons with disabilities. A key concept in regard to accessibility is that of ‘ universal design’. The use of universal design ensures the planning and production of a physical environment, services, information, etc, which are accessible to all persons, including persons with disabilities. Universal design allows for one, unified product or environment for all persons, thereby making many special solutions for persons with disabilities redundant. The right to accessibility has been widely recognised, and has included in for example the UN Standard Rules as Rule no. 5 on Accessibility. The UN Committee on Economic Social and Cultural Rights in its General Comment no. 5 on persons with disabilities also speaks of need to ensure accessibility. [34]
Technical and personal assistance services are the services that fill the gap between the existing barriers in society and the needs of the individual person with disabilities. The right to assistive services has also been widely recognised as central to the equality of opportunities of persons with disabilities. Examples hereof include the UN Standard Rules, Rule no. 4 on Support Services. The UN Committee on Economic Social and Cultural Rights in its General Comment no. 5 on persons with disabilities also mentions the need to ensure adequate support services. [35]
‘Reasonable accommodation’ is a more recent extension of the non-discrimination standard. The duty to provide reasonable accommodation is imposed on private and State employers with regard to physical and social environment, which unchanged would constitute a barrier preventing persons with disability from being employed.[36] The right to reasonable accommodation has been included in inter alia the US American Disability Act of 1990 (ADA), the European Framework Directive for Equal Treatment in Employment and Occupation of 2000[37] as well as the Canadian Human Rights Act.[38] As opposed to international human rights law, national legislation and the EU Framework Employment Directive impose obligations on employers and service providers and are not designed only to have an impact on the measures taken by the State. In that sense, one can regard this concept as the result of the most detailed elaboration of the human rights model on disability.[39]
Internationally, the standard is also gaining increasing support. According to the authoritative interpretation of the Committee of Economic, Social and Cultural Rights, the term “disability-based discrimination” includes “any distinction, exclusion or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social and cultural rights”.[40]
Additionally, Standard Rule no. 7 on Employment of the UN Standard Rules on Equalisation of Opportunities for Persons with Disabilities provides that States should encourage employers to make reasonable adjustments to accommodate persons with disabilities. The Standard Rules do not, however, take a specific stand on whether or not a failure to provide reasonable accommodation on the part of the employer should constitute a violation of national law.
On the one hand, criticism has been advanced that this concept allows for indirect discrimination to continue, as long as some (minor) adjustment is made to accommodate the specific situation of the individual with a disability. [41] In this light, reasonable accommodation could be seen as leaving unchallenged underlying discriminatory policies and practices. On the other hand, an effective implementation might significantly improve the inclusion of persons with disability in the work force. As opposed to the duties following direct and indirect discrimination standards, this obligation does not require a comparison with a person or group in a similar situation. Also, it is constructed to respond to the special needs of an individual as opposed to a general group. The right to reasonable accommodation is said to be the way of the future and “a crucially important right for those encountering barriers in the labour market.”[42]
Human dignity is the anchor norm of human rights. Each individual is deemed to be of inestimable value and nobody is insignificant. People are to be valued not just because they are economically or otherwise useful, but because of their inherent self-worth.[43]
Inherent human dignity and worth has, together with the principle of equality, been recognised as a founding principle of human rights in the Preambles of each of the UN conventions constituting the International Bill of Rights.[44]
Under the Council of Europe, no founding principles are referred to in the Preambles of the European Convention of Human Rights and the European Social Charter.[45] The case law of the European Court of Human Rights has however on numerous occasions recognised human dignity and human freedom as “the very essence of the Convention”.[46] The Court has also stated that the Convention “must be understood and interpreted as a whole [and that it forms] an integrated system for the protection of human dignity”. [47]
The EU Charter of Fundamental Rights recognises that the Union is founded on the “universal values of human dignity, freedom, equality and solidarity”. The EU Charter of Fundamental Rights has been divided into six Chapters on material rights: one for each of the universal values, Citizen’s Rights and Justice. Chapter One on Human Dignity covers the rights to dignity, life, integrity and the prohibitions against torture and forced labour. Also the African Charter of Human and People’s Rights in its Preamble considers that “freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples”.
Human dignity is a crucial concept with regard to human rights in general and in the context of persons with disability specifically. Human dignity is a decisive factor in the switch from the ‘medical model’ to the ‘human rights model’. As opposed to the medical model, the human rights model focuses on the inherent value of human beings and subsequently, only if necessary, on the person’s medical characteristics. The solution to the problem is not to be found within the person with a disability, but in the response of society to disability.[48]
The relevance of the principle of and right to human dignity is emphasised by its mention in UN instruments on persons with disabilities. The UN Standard Rules in the Preamble “reaffirm the commitment to human rights and fundamental freedoms, social justice and the dignity and worth of the human person”. The UN Convention on the Rights of the Child Article 23 recognises that a “mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity”.
If one acknowledges that the essence of respect for human rights is respect for dignity of each person and that persons with disabilities as a group do not have equal opportunities to fully enjoy human rights, then it logically follows that persons with disabilities as a group are vulnerable as regards respect for their inherent dignity and worth.
Although there have been developments in the understanding of the concept of autonomy, its essence is freedom.[49] In human rights law, the concept of personal autonomy has however developed to a relatively broad notion, encompassing rights falling under the following five headings:
This panoply of rights may at a first glance seem contradictory or lacking in correlation: on the one hand freedom to be left alone and on the other the right to interrelate with others. This is a consequence of a) the traditional liberal thinking on the need to protect the individual from a paternalistic state, b) the importance of the concept in thinking on deliberative and participatory democracies, c) the fact that true personal self-determination requires influence on the political process, i.e. participation in collective decision-making, and d) the need for meaningful interrelations with other human beings in order to develop one’s personality and identity.[50]
The five rights and freedoms derived from the principle of autonomy have clear relevance to the situation of persons with disabilities. Persons with disabilities continue to suffer from less than equal opportunities in seeking self-realisation and inclusion in community and political life. Issues of privacy are also highly relevant for persons with disabilities whose dependence on technical and personal aids may lead to situations of vulnerability. Finally, the rights to integrity and liberty are also highly relevant with regard to persons with disabilities, for example in the context of treatment and incarceration of persons with mental disabilities.
Interestingly, the principle of autonomy bridges both civil/political rights and socio-economic rights. Civil and political rights derived from the principle of autonomy are e.g. the right to privacy and freedom of thought. Socio-economic rights derived from the same principle are e.g. the right to accessibility and support services enabling an independent life. In spite of the fact that the interdependence and indivisibility of the two sets of human rights has been enshrined in all of the key human rights standards from the Universal Declaration of 1948 and onwards, socio-economic rights continue to suffer from misconceptions of being qualitatively and morally distinct from civil- and political rights. There is a movement towards greater recognition of value and need for socio-economic rights. One indication of this is the recent empowerment of the European Committee of Social Rights to examine collective complaints of violations of the European Social Charter lodged by certain European and national organisations.[51] The principle of autonomy serves to underline the interrelation between the two sets of rights.
None of the basic UN and regional human rights instruments mentions the principle of autonomy directly.[52] The UN Covenants of 1966 and the regional Human Rights Instruments protect privacy, integrity and a number of political freedoms rather than subsuming to a general protection of the principle of personal autonomy or self-determination.
Case law of for example the European Court of Human Rights does however refer to the principle of autonomy as a founding principle of human rights. Although the European Court of Human Rights has not established that a right to personal autonomy or self-determination is contained in the Convention, it has on numerous occasions stated that it considers the notion of personal autonomy to be an important principle underlying the interpretation of the guarantees contained in the European Convention of Human Rights.[53] The concept of personal autonomy has been taken to warrant a relatively broad protection, including the right to establish details of one’s identity as a human being, [54] the right to make choices over his own body [55], the right to privacy[56] and the freedoms of thought, conscience and religion.[57] The Court does not seem to have discussed the principle of personal autonomy in relation to the rights to political participation or social and occupational integration.
Also when dealing specifically with the human rights of persons with disabilities, international human rights instruments have not mentioned the principle of autonomy specifically.
The most recent instruments, i.e. the revised European Social Charter and the EU Charter of Fundamental Rights, specifically refer to rights of persons with disabilities to “independence, social integration and participation in life of the community”. The EU Charter of Fundamental Rights additionally mentions the right to “occupational integration”. Thus these two European instruments cover a great deal of the broad scope of the principle of autonomy. This is also concurred by the Explanatory Report to the revised Social Charter, which describes Article 15 of the revised Social Charter as affording a right to “independent social integration, personal autonomy and participation in the life of the community in general”.[58]
In the UN system, the General Comment on persons with disabilities by the Committee on Economic, Social and Cultural Rights refers to the goal of achieving an “integrated, self-determined and independent life”.[59] Here again, although the principle of autonomy is not mentioned specifically, the rights mentioned come close to covering the scope of the principle.
The UN Standard Rules formulate two goals: “full and equal enjoyment of human rights and participation in society”. Autonomy or self-determination is not mentioned in the Standard Rules. In stead, the concepts of independence and participation are mentioned several times.[60]
The Convention on the Rights of the Child again does not directly mention the principle of autonomy. According to Article 23, States Parties should promote the self-reliance of children with disabilities.[61] The African Charter Article 18(4) makes no mention of what the special measures of protection of persons with disabilities should be designed to achieve. The Inter-American San Salvador Article 18 establishes a right to achieving the “greatest possible development of his personality”.
‘Independent Living’. The right to independent living has been acclaimed to be a fundamental human right with special relevance for persons with disabilities[62] – an embodiment of the principle of autonomy. It has clearly influenced the language of the Standard Rules[63] and can be traced back to the civil rights movement in the US in the 1970s. Centres for independent living were set up to enable persons with disabilities to live in the community and organise to fight discrimination. It implies the need and the right for persons with disabilities to have control over the services that they receive and to become politically empowered to achieve full equality of opportunities in all spheres of life. The explanatory report to the revised Social Charter, specifies that the “the words ‘effective exercise of the right to independence’ contained in the introductory sentence to [Article 15] imply, inter alia, that disabled persons should have the right to an independent life”.[64]
The right to independence or an independent life embodies one (very important) aspect of the principle of autonomy. It underlines the right to live a life outside of institutions, where barriers for full social inclusion are removed and the necessary technical aids and personal assistance are provided. The right to independence is however not as broad as the overarching principle of autonomy, which has been a general principle throughout the history of human rights. The right to independence most probably does not bridge both civil/political rights and economic, social and cultural rights. [65] Also, it is doubtful whether the concept of independence contains the same reference to the positive right to participate in decision-making, for example at political level, or whether it covers protection of personal integrity and privacy?
‘Self-determination’. Where autonomy is a principle underlying human rights law, personal self-determination is a fundamental right.[66] Where autonomy is mostly used in the sense of personal autonomy, self-determination has in human rights law mostly been used with reference to the right to self-determination of peoples in the context of colonial countries, indigenous peoples and national minorities. See for example the first sentences of the first Articles in the two UN Covenants of human rights of 1966: “All peoples have the right to self-determination.”
In its General Comment on persons with disabilities, the Committee on Economic, Social and Cultural Rights used the term ‘self-determination’ in the meaning of the individual’s right to self-determination.[67]
In the case law of the European Court of Human Rights, the concept of self-determination has both been used in relation of the self-determination of peoples [68] and in relation with personal autonomy in the sense of a fundamental right at the basis of several rights contained in the Convention especially the right to liberty under Article 5 and the right to private life under Article 8. [69] Thus it would seem that the European Court of Human Rights understands the individual’s fundamental right to self-determination to encompass especially the ‘freedom form interference and independence’ aspects of the principle of personal autonomy.
In conclusion it would seem firstly that although ‘autonomy’ has not been mentioned directly in any of the most prominent UN or regional instruments on the rights of persons with disabilities, rights derived from the principles have been widely recognised as essential to the protection of persons with disabilities. Secondly, the contexts in which ‘autonomy’ has been used seem to indicate that a narrow understanding of the concept of ‘autonomy’ is most common: Freedom from interferences and the right to independence are more universally recognised as falling under the ambit of personal autonomy, whereas participation is seen as a separate concept.
The notion of human rights elaborated in international and regional instruments is one of inclusion, as opposed to the age-old practices of excluding groups of human beings. Most successful has been the fight to include women and persons excluded on grounds of their race. The notion of Inclusion describes the ideal situation in which equality and respect for the inherent dignity of all human beings has been realised. [70] However, the word ‘inclusion’ does not yet seem to have found its way into the text of human rights conventions or treaties. [71]
In stead, the principle of participation has been widely used in the drafting of human rights law and especially in relation to groups prone to social exclusion on the grounds recognised under human rights law, such as sex, race, age and disability.[72] ‘Participation’ and ‘Inclusion’ are similar concepts, but where inclusion is directed towards the majority who exclude a (passive) minority, ‘participation’ is directed both towards the majority who should allow for participation and the minority wanting to participate actively.
The importance of the principle of full and equal participation with regard to human rights of persons with disabilities is evident from its prominent place in the most recent instruments. Both the Standard Rules of 1993, the World Programme of Action Concerning Disabled Persons of 1982, the Convention on the Rights of the Child, the European Social Charter and the European Union Charter of Fundamental Rights state that equal participation for persons with disabilities must be strived for. [73]
Six core denotations of the principle of ‘participation’ may be derived from the context in which it has been used:
The principle of participation is ubiquitously applicable, as is underscored by the reference to the principle of participation in practically all provisions of the Standard Rules. [78] Also the Convention on the Rights of the Child, the Revised Social Charter and the EU Charter of Fundamental Rights refer to “(active) participation in (life in) the community” indicating its relevance to all spheres of life. The World Programme of Action Concerning Disabled Persons of 1982 speaks of full participation and equality in relation to “elements that are generally available in the community [and] that are necessary for the fundamental elements of living, including family life, education, employment, housing, financial and personal security, participation in social and political groups, religious activity, intimate and sexual relationships, access to public facilities, freedom of movement and the general style of daily living.”[79]
Participation evokes an ideal of equal partners living side by side in an integrated, inclusive society where all are equally entitled and enabled to the exercise of rights and obligations. ‘Participation’ has positive connotations and ensures a modern and rights-based approach to the widespread marginalisation and isolation of persons with disabilities.
Traditionally, the core meaning of ‘participation’ has been linked to the right of the individual to political participation as provided for in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention of Human Rights.[80] The International Covenant on Civil and Political Rights provides both a right and an opportunity to “take part in the conduct of public affairs” and “to vote and be elected”. Other rights with a direct bearing on political participation include freedoms of thought, expression, assembly and association. Effective political participation of persons with disability is seen as instrumental in the quest for equal enjoyment of all human rights if one assumes that equal political participation would lead to optimal state policies and higher awareness throughout society. However ‘participation in life in community’ calls for change throughout society immediately - without waiting for what a change in political participation alone would lead to.
Several human rights instruments on the rights of persons with disabilities recognise the need to ensure social and occupational integration or integration into the community of persons with disabilities. According to the Standard Rules, the concept of integration was introduced after the Second World War.[81] The proliferation of the concept in most of the key human rights instruments on persons with disabilities shows that it has retained its validity. The instruments adhering to the goal of integration include, for example, the Standard Rules,[82] the World Programme of Action, the,[83] the revised European Social Charter and the EU Charter of Fundamental Rights.
The concept of ‘integration’ has been most commonly used in relation to a condition in which different ethnic groups are able to retain their uniqueness, while achieving equal opportunities in an atmosphere of mutual tolerance.[84] Translated to the situation of persons with disabilities, it means that equality of opportunities is achieved in a unified setting, which is constructed to accommodate persons with disabilities on an equal footing with others.
The connotations of the concept of ‘integration’ have however become somewhat disputed. Some argue that the concept of ‘integration’ presumes the existence of difference and distinction between groups and that its usage therefore upholds this perception of difference. Standing alone, it would seem that the concept of ‘integration’ lacks some of the positive connotations of ‘participation’, such as for example the equal entitlement to inclusion in a unified society as opposed to an integration relying on the tolerance of other members of society. Also, one may ask whether ‘integration’ makes due reference to the will of persons with disabilities to play an active role in society with both equal rights and equal duties. Finally, integration of persons with disabilities is mostly used with regard to education, housing and employment and does not have the same broad application on all aspects of life in the community as the principle of participation.
The ideal of solidarity between human beings has played a prominent role in the history of human rights. Fraternity was one of three ideals proclaimed in the French revolution; a feeling of solidarity is also invoked when mention is made of the “human family” in the Preambles of the Universal Declaration of Human Rights and UN Covenants of Human Rights. The Convention on the Rights of the Child makes a special reference to ‘solidarity’ in its Preamble.
The EU Charter of Fundamental Rights also states that the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity. The provisions in Chapter Four on Solidarity of the EU Charter of Fundamental Rights mainly relate to economic and social rights.[85] Interestingly, it seems that the degree of protection granted through provisions in the Chapter on Solidarity is lower than that given under provisions in the other Chapters of the Charter. These provisions take the form of principles, which only give rise to rights to the extent that they are already implemented by national law or Community law.[86]
See also the African Charter on Human and People’s Rights Article 29, which provides that the individual shall also have the duty to preserve and strengthen social and national solidarity, particularly when the latter is threatened.
In relation to persons with disabilities, the principle of solidarity emphasises a) that all persons with or without disabilities, by virtue of being human, are equally entitled to the full enjoyment of human rights, b) that persons with disabilities have an entitlement to social support regardless of ‘use value’ to others, c) that civil/political and socio-economic rights are interrelated and indivisible, [87] d) that full enjoyment of human rights of persons with disabilities can only be achieved through concerted efforts of all players on social scene, including other individuals and business, and e) that there is a moral obligation to ensure full enjoyment of human rights of persons with disabilities, which goes beyond requirements set by strict legal standards in international human rights instruments.
None of the UN or regional provisions dealing specifically with the human rights of persons with disabilities mentions of the principle of solidarity.[88]
‘Solidarity rights’ is another name given to so-called ‘third generation rights’, covering emerging rights to for example development, peace, a healthy environment and biodiversity. Characteristic of these rights is that they impose joint obligations on several States, that their fulfilment requires the concerted effort of all players on the international social scene and that the right-holders are both groups and individuals.[89]
‘Social justice’. The UN Standard Rules on Equalisation of Opportunities for Persons with Disabilities express a commitment to human rights and fundamental freedoms, social justice and the dignity and worth of the human person.[90] Like ‘solidarity’, the concept of ‘social justice’ implies a) an ideal of true equality between human beings, b) an entitlement to social support in accordance with one’s needs, c) an interrelatedness and indivisibility between civil/political and socio-economic rights. In addition, one may argue that the ideal of ‘social justice’ also invokes a motivation to unite in a common effort in the best interests of society as a whole as opposed to merely obeying narrow individual interests.
The Universal Declaration of Human Rights, the two Covenants of Human Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Discrimination Against Women and the Convention Against Torture all recognise that equal and inalienable rights of all members of the human family are the foundation of freedom, justice and peace in the world. [91] ‘Justice’ in the Bill of Rights and the UN Charter [92] has been understood as a reference to rule of law, possibly with suggestions of natural law. The most likely interpretation would probably be the broadest interpretation: that ‘justice’ refers to equity and fairness in a broader sense, including social justice.[93]
In light of the fact that ‘social justice’ and ‘justice’ are founding principles of UN human rights instruments, one could argue that they were more likely candidate than ‘solidarity’ as a founding principle of a new Convention on the Rights of Persons with Disabilities.
On the basis of the preceding observations, one may conclude that five groups of principles have crystallised as the most relevant with regard to the situation of persons with disabilities. In order to ensure full enjoyment of human rights by persons with disabilities, a new convention on the rights of persons with disabilities should build on one principle from each of these groups. The five groups of principles are:
With regard to the first group, choosing ‘ Equality of Opportunities’ would establish that the convention recognises a goal of material equality, as opposed to formal equality or equality of results. It would bring the convention in line with the level of protection afforded under other international human rights instruments such as the International Covenants of Human Rights, the European Social Charter and the UN Standard Rules. Equality of Opportunities serves to underline that also the failure to provide reasonable accommodation for a disability may constitute discrimination.
Human Dignity is the essence of human rights law and has been mentioned directly in the Preambles of the Declaration and Covenants making up the UN Bill of Rights and the four UN Conventions of Human Rights. Persons with disability as a group are especially vulnerable as regards respect for their inherent dignity and worth. Thus it is essential that ‘dignity’ be included as a founding principle of a new convention on the rights of persons with disabilities.
Recognition of the principles of Personal autonomy or Independence are important in response to the special vulnerability of persons with disabilities as a group. The two most likely choices would be Personal Autonomy, which is a general principle of human rights law and expresses the broadest protection, and Independence, which has gained special significance in the context of human rights protection of persons with disabilities. These principles serve to underline that persons with disabilities are entitled to measures, which ensure their equal opportunities for personal development, including for example housing in mainstream settings and adequate technical and personal support services.
The principle of Participation has been established as an essential notion in the human rights protection of persons with disabilities and is mentioned in all keynote Articles and Instruments dealing with the human rights of persons with disabilities. Participation evokes a society where persons with disabilities play an active role as partners in all aspects of life and are entitled and enabled to live a life in mainstream settings.
Reference to the principle of Social Justice in the new convention on the rights of persons with disabilities would be likely following its inclusion in the UN Standard Rules and the reference to ‘Justice’ in the Preambles of the UN Declaration of Human Rights, the two human rights covenants and most of the UN Conventions on Human Rights. Reference to the principle of Social Justice serves to recall the common interests of all to live in a just and fair society, which enables all to fully enjoy their human rights.
[1] This paper has been prepared by the Danish Institute for Human Rights, National Department, Project Manager Maria Ventegodt Liisberg, as a contribution to the Second Ad-Hoc Committee Session on an International Convention on the Rights of Persons with Disabilities scheduled to take place on 16 to 27 June 2003.
[2] International Covenant on Civil and Political Rights (1966), International Covenant on Economic, Social and Cultural Rights (1966), Convention on the Elimination of All Forms of Racial Discrimination (1965), Convention on the Elimination of All Discrimination Against Women (1979), Convention on the Rights of the Child (1989), Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).
[3] One could argue that Article 3 of the Convention of the Rights of the Child is an exception to the rule that principles are merely contained in the Preambles of the Conventions. Article 3 establishes that the best interests of the child shall be a primary consideration in all actions concerning children.
[4] Draft Conventions, which have not been tabled officially, include a draft by the Danish Society of Polio and Accident Victims (Chairman Justice Holger Kallehauge). The Convention sets as its goals the achievement of inter alia equality, respect of the right to self-determination, independent living, accessibility and participation, Articles 1(2) and 2(2).
5] Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, Preamble, working paper by Mexico, http://www.un.org/esa/socdev/enable/rights/adhocmeetaac265w1e.htm
[6] Standard Rules on the Equalization of Opportunities for Persons with Disabilities, GA Res. 48/96 of 20 December 1993, (UN Standard Rules), Preamble.
[7] Committee on Economic, Social and Cultural Rights, General Comment no.5, (1994), UN Doc. E/C.12/1994/13, para. 16.
[8] ILO Convention no.159, Preamble.
[9] Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988, (San Salvador Protocol), Article 18.
[10] European Council, European Social Charter (revised) of 1996, ETS 163, (Revised European Social Charter), Article 15. Charter of Fundamental Rights of the European Union of 2000, (EU Charter), Article 26. The EU Charter includes ‘occupational integration’.
11] Gerard Quinn and Theresia Degener. Study on the Current Use and Future Potential of the UN Human Rights Instruments in the Context of Disability, Study Commissioned by the United Nations High Commissioner for Human Rights. 2002. Published on http://www.sre.gob.mx/discapacidad/paperunhchr.htm, Chapter 1, p.4. (Quinn & Degener Study).
[12]Aart Hendriks: “ The Significance of Equality and Non-Discrimination for the Protection of Rights and Dignity of Disabled Persons”. Theresia Degener and Yolan Koster-Dreese, eds., Human Rigths and Disabled Persons, 40-62. 1995. Martin Nijhoff Publishers. Netherlands. (Hendriks, 1995). p.46-48
[13] Quinn & Degener Study, Chapter 1, p.4.
[14] Quinn & Degener Study, Chapter 1, p.3.
[15] Hendriks, 1995. p.48-49
[16] Committee on Human Rights, General Comment no. 18, Non-Discrimination, (1989), A/45/40, para.10
[17] Committee on Economic, Social and Cultural Rights, General Comment no.5, (1994), UN Doc. E/C.12/1994/13, para. 9.
[18] UN Standard Rules, Title and Introduction, para.24-27. World Programme, GA Res. 37/52 of 3 December 1982, Chapter F on Equalization of Opportunities, para.21-30.
[19] African Charter on Human and People’s Rights of 1981 (African Charter)
[20] Convention on the Rights of the Child of 1989, Art. 23, African Charter Art. 18(4), San Salvador Protocol Art. 18, Revised European Social Charter, Art. 15, EU Charter Art. 26.
[21] The ILO Convention Concerning Vocational Rehabilitation and Employment (Disabled Persons) No. 159 (1983), (ILO Convention no. 159), Article 4
[22] Quinn & Degener Study, Chapter 1, p.6.
[23] Lisa Waddington: “ Evolving Disability Policies: From Social-Welfare to Human Rights – An International Trend from a European Perspective”. Netherlands Quaterly of Human Rights, Vol. 19/2, 141-165, 2001. (Waddington, 2001). p.150-52.
[24] Lisa Waddington and Mark Bell: “ More Equal Than Others: Distinguishing European Union Equality Directives”. Common Market Law Review 38: 587-611, 2001. Kluwer Law International. Printed in the Netherlands. (Waddington & Bell, 2001). p. 601-3. C-450/93, Kalanke v. Freie Hansestadt Bremen, [1995] ECR I-3069; C-158/97, Badeck v. Hessischer Ministerpräsident, [2000] ECR I-01875.
[25] Waddington, 2001. p.152.
[26] Waddington, 2001. p.164
[27] Quinn & Degener Study, Chapter 1, p.5
[28] Committee on Economic, Social and Cultural Rights, General Comment no.5, (1994), para. 5 and 6.
[29] Lester, Lord of Herne Hill and David Pannick, eds.: “ Human Rights and Practice”. Butterworths, London, Edinburgh and Dublin, 1999. p. 229.
[30] Hendriks, 1995. p.49.
[31] Lisa Waddington and Aart Hendriks: “ The Expanding Concept of Employment Discrimination in Europe: From Direct and Indirect Discrimination to Reasonable Accommodation Discrimination”. The International Journal of Comparative Labour Law and Industrial Relations, Volume 18/3, 403-427, 2002. Kluwer Law International. Printed in the Netherlands. (Waddington & Hendriks, 2002). p.407
[32] The European Court of Human of Human Rights has in some cases established positive obligations where a strict wording of the Convention would not warrant it. See for example European Court of Human Rights Judgment Airey v. Ireland of 9 October 1979, application no. 6289/73, para. 24 where the court stated that “The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”. However see also Botta v. Italy of 24 Frebruary 1998, application no. 21439/93, where the Court found no obligation under the Convention for a State to ensure accessibility for persons in wheelchairs to private bathing establishments.
[33] Theresia Degener: “ Disabled Persons and Human Rights: The Legal Framework.” Theresia Degener and Yolan Koster-Dreese, eds., Human Rigths and Disabled Persons, 9-39. 1995. Martin Nijhoff Publishers. Netherlands. p.16.
[34] Committee on Economic, Social and Cultural Rights, General Comment no.5, (1994), para. 17 and 33.
[35] Committee on Economic, Social and Cultural Rights, General Comment no.5, (1994), para. 17 and
[36] Waddington & Hendriks, 2002. p.406.
[37] Directive 2000/43/EC, O.J. 2000, L303/16.
[38] Canadian Human Rights Act of 1976-77 with later amendments, Art. 15(2), according to which an otherwise discriminatory practice would be legal if it had a bona fide justification and an accommodation of the needs would impose undue hardship.
[39] Waddington, 2001. p.161.
[40] Committee on Economic, Social and Cultural Rights, General Comment no.5, (1994), para. 15.
[41] Waddington & Bell, 2001. p. 594.
[42] Waddington & Hendriks, 2002. p. 426.
[43] Quinn & Degener Study, Chapter 1, p.2.
[44] UN Charter, Universal Declaration of Human Rights, International Covenants of Civil, Political, Economic, Social and Cultural Rights, Convention on the Rights of the Child, Convention on the Elimination of All Racial Discrimination, Convention on the Elimination of All Discrimination Against Women, Convention on Against Torture.
[45] A new Article 26 on the right to dignity at work has been introduced in the revised European Social Charter.
[46] See for example ECHR Judgment: Case of Pretty v.United Kingdom of 29 April 2002, Application no. 2346/02, para. 65.
[47] ECHR Judgment: Case of Refah Partisi and others v. Turkey of 31 July 2001, Application no. 41340/98, para.43.
[48] Quinn & Degener Study, Chapter 1, p.2.
[49] Rendtorff, Jacob Dahl and Peter Kemp: “Basic Ethical Principles in European Bioethics and Biolaw”,Vol.1. Report to the European Commission of the BIOMED-II Project. Centre for Ethics and Law, Copenhagen, Institut Borja de Bioethica, Barcelona. 2000. Printed in Impremta Barnola, Guissona. (Rendtorff & Kemp, 2000). p. 25-26.
[50] Rendtorff & Kemp, 2000. p. 25-31.
[51] The additional protocol No. 158, which entered into force in 1998, empowers the Committee to take non-binding decisions on the merits, on the basis of which the Committee of Ministers may recommend the State concerned to take special measures. As of 17 April 2003, 12 States Parties to the revised European Social Charter have accepted the collective complaints procedure, only Finland has recognised the right of national NGOs to lodge collective complaints against it. See list of ratifications: http://www.coe.int/T/E/Human_Rights/Esc/2_General_Presentation/Signatures_ratifications.asp
See list of organisations entitled to lodge complaints: http://www.coe.int/T/E/Human%5FRights/Esc/5%5FCollective%5Fcomplaints/Organisations_entitled/Index.asp
[52] UN Covenants of Civil, Political, Economic, Social and Cultural Rights, Convention on the Rights of the Child; Convention on Elimination of All Racial Discrimination; Convention on Elimination of All Discrimination Against Women, Convention Against Torture; UN Standard Rules; American Convention on Human Rights (1969) and San Salvador Protocol; African Charter; European Convention of Human Rights (1950); European Social Charter (1961), revised European Social Charter; EU Charter.
[53] See for example the following judgments by the Court: Pretty v.United Kingdom of 29 April 2002, Application no. 2346/02, para. 61 on Article 8. Keenan v. United Kingdom of 3 April 2001, Application no. 27229/95, para. 91 on Article 2.
[54] ECHR Judgment I v. United Kingdom of 11 July 2002, application no. 25680/94, para.70 in relation to the rights of transsexuals under Article 8 on the right to private and family life.
[55] ECHR Judgments on limitations and obligations of the State in preventing persons from inflicting self-harm or committing suicide under Articles 2 on the right to life and Article 8: Case of Keenan v. United Kingdom of 3 April 2001, application no. 27229/95, para. 91. Case of Pretty v.United Kingdom of 29 April 2002, Application no. 2346/02, para. 61. Case of Laskey, Jaggard and Brown v. United Kingdom of 19 February 1997, application no.21627/93, para. 44.
[56] ECHR Judgment, Case of Odievre v. France of 13 February 2003, application no.42326/98, dissenting opinion of Judges Wildhaber, Bratza, Bonello, Loucaides, Cabral Barreto, Tulkens and Pellonää, para.4, in relation to the right of a mother to keep her identity hidden from a child whom she has given away for adoption.
[57] ECHR Judgment, Case of Kokkinakis v. Greece of 25 May 1995, application no.14307/88, partly dissenting opinion of Judge Martens, using term ‘human freedom’ rather than ‘personal autonomy’ (same in I v. UK, para.70, Christine Goodwin v. UK, para.90).
[58] Revised European Social Charter, ETS no.163, Explanatory Report, para. 63.
[59] Committee on Economic, Social and Cultural Rights, General Comment no.5, (1994), UN , para. 16.
[60] UN Standard Rules no. 3, 4 and 6(9). For more on Participation, please see Chapter 5 on ‘Participation, Inclusion and Integration.
[61] Convention of the Rights of the Child, Art. 23(1).
[62] Degener, 1995. p. 14 and 16.
[63] UN Standard Rules. See Rules 3, 4 and 6(9).
[64] European Social Charter, ETS no.163, Explanatory Report, para. 63.
65] For an argumention on how autonomy bridges over all human rights, see Gerard Quinn: “ The International Covenant of Civil and Political Rights and Disability: A Conceptual Framework”, Theresia Degener and Yolan Koster-Dreese, eds., Human Rigths and Disabled Persons, 69-93. 1995. Martin Nijhoff Publishers. Netherlands. p.76 and p.79.
[66] See for example Case of Pretty v. United Kingdom of 29 April 2002, Application no. 2346/02, para. 61: “though no case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of the Convention.”
[67] UN Standard Rules no. 3, 4 and 6(9).Committee on Economic, Social and Cultural Rights, General Comment no.5, (1994), UN Doc. E/C.12/1994/13, para. 16.
[68] See for the most part case law on the freedom of assembly and association of Kurdish minority in Turkey, e.g. case of Freedom and Democracy Party (Özdep) v. Turkey, application no.23885/94, para.41.
[69] Case of Pretty v. United Kingdom of 29 April 2002, Application no. 2346/02, para. 61. Case of Sheffield and Horsham v. United Kingdom of 30 July 1998, application no. 22985/93, dissenting opinion of Judge van Dijk, para.5. Case of Malone v. United Kingdom of 2 August 1984, application no. 8691/79, concurring opinion of Judge Pettiti.
[70] Fons Coomans, et. al. (eds): “ Human Rights From Exclusion to Inclusion; Principles and Practice, An Anthology from the Work of Theo van Boven”. 2000. Kluwer Law International. Printed in the Netherlands. p.282.
[71] Note however Inclusion International, which is one of seven international disability NGOs with consultative status with the UN.
[72] See for example the section titles in Kathleen Mahoney, et. Al. (eds): Human Rights in the 21st Century: A Global Challenge. 1993 Kluwer Academic Publishers. Printed in the Netherlands.
[73] UN Standard Rules (Preamble), World Programme of Action Concerning Disabled Persons, General Assembly Resolution 37/52 of 3 December 1982, para. 1. Convention on the Rights of the Child Art. 23, Revised European Social Charter Art. 15, EU Charter Art. 26.
[74] UN Standard Rules, Introduction, para. 14, 15, 21. 25 and rule no. 6.
[75] See as an example Article 5 of the European Disability Forum Proposal for a Directive Implementing the Principle of Equal Treatment for Persons With Disabilities. www.edf-feph.org
[76] UN Standard Rules, Rule no. 4. Committee on Economic, Social and Cultural Rights, General Comment no.5, (1994), para. 17 and 33.
[77] World Programme of Action Concerning Disabled Persons, General Assembly Resolution 37/52 of 3 December 1982, para. 1.
[78] UN Standard Rules no. 1(2)(4), 2(1), 3(1), 4(6), 5(1), 9(0), 10(0), 11(1)(3), 12(0)(4), 13(3)(5), 15(1), 16(3), 18(3) and 19(2).
[79] World Programme of Action, para. 21.
[80] Universal Declaration Art. 21, International Covenant on Civil and Political Rights Art.25. European Council, First Protocol to the European Convention of Human Rights of 20 March 1952, E.T.S. no. 9, Article 3. See also Henry J. Steiner: Political Participation as a Human Right”. Harvard Human Rights Yearbook, Volume one, Spring 1988. Published at Harvard Law School, Massachusetts.
[81] UN Standard Rules, Introduction, para.4.
[82] UN Standard Rules no. 6(0)(1)(7)(8), 7(2) and 10(0).
[83] ILO Convention no. 159, Preamble.
[84] Ellis Cashmore: Dictionary of Race and Ethnic Relations. 1996. Routledge and Kegan Paul. Printed in Great Britain. p. 172.
[85] Chapter IV, Articles 27 to 38 on worker’s right to information and consultation, right to collective bargaining, right of access to placement services, protection in event of unjustified dismissal, fair and just working conditions, prohibition of child labour, family and professional life, social security and social assistance, health care, access to services of general economic interest, environmental protection and consumer protection.
[86] See EU Charter Article 51(1) and Lord Goldsmith Q.C.: A Charter of Fundamental Rights, Freedoms and Principles. Common Market Law Review, volume 38, pp.1201-1216. 2001. Printed in the Netherlands. p.1213.
[87] Quinn & Degener Study. Chapter 1, p.7.
[88] UN Standard Rules, UN Convention on the Rights of the Child Art. 23, African Charter Art.18(4), San Salvador Protocol Art. 18, Revised European Social Charter Art. 15, EU Charter Art. 26.
[89] Carl Wellman: Solidarity, the Individual and Human Rights. Human Rights Quaterly, volume 22, pp. 639-657. 2000. pp. 643-646.
[90] UN Standard Rules, Preamble.
[91] According to the preamble of the Convention on the Elimination of All Discrimination Against Women, the new international economic order based on equity and justice will contribute to equity between men and women.
[92] UN Charter, Preamble.
[93] Nigel D. White: “The United Nations System Toward International Justice”. 2002. Lynne Reiner Publishers. Printed in USA. p.56.