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Back to: Third Session of the Ad Hoc Committee
NGO Comments at the third session
Comments by NGOs at the Third Session
REHABILITATION INTERNATIONAL
Draft article 19
Accessibility
Rehabilitation International is joined in this intervention by Disabled
People International (DPI), the World Union for Progressive Judaism,
European Disability Forum, Inclusion International. Landmine Survivors
Network, World Federation of the Deaf, World Blind Union.
Our operating philosophy – Accessibility gives freedom reality
We attach the greatest of importance to the right of access. Human
rights is concerned with more than protecting people against power –
it is also about restoring power to people over their own lives. It
is often said that human rights are indivisible and interdependent.
We believe that this interdependence is demonstrated most graphically
in the context of disability. Protecting the right to liberty against
unwarranted State intrusion is one thing. Making liberty and choice
a reality for persons with disabilities is another. Form and substance
are inseparably linked and we view this draft Article as bringing both
together.
We view the right of access as something that opens up gateways into
the lifeworld – whether the built environment or the communications
or transport environments. It makes the right to liberty real. The built
environment defines common public space – a space where people interact
and lead their daily lives. The communications environment enables people
to interact effectively with each other and with public and private
entities. The transport environment links the built environment.
The harsh reality is that the built, communications and transport environments
were constructed without factoring in the difference of disability –
without respecting and accommodating the difference of disability. Inaccessible
schools has a particularly cruel impact on children whose personal identify
is spoilt by early exclusion and who may never get a chance to overcome
educational deficiencies in later life. The waste to all is palpable.
Our challenge now is twofold. It is to tackle the barriers left to
us by this historical legacy by ensuring that as many of them as possible
are removed. It is also to guarantee that in any future buildings or
communications and transport environments the rights and needs of persons
with disabilities are effectively factored in from the outset. This
is not merely the right thing to do – it is also cost efficient.
It is in this light that we view draft Article 19
Need for Legally Enforceable and Flexible Accessibility Standards
We welcome the draft Article 7.2 (c) with respect to the development
and promulgation of national standards and guidelines. We would prefer
to insert the word’ enact’ instead of ‘promulgate’ to make it plain
that these standards should have the force of law. We would
also like to see the addition of the word ‘enforce’ to make it plain
that public authorities should have an obligation that goes beyond the
mere monitoring of the effectiveness of these standards. We welcome
the sentiment of ‘international cooperation’ in the development of standards.
We can all learn from each other’s mistakes and achievements.
With respect to accessibility standards we are not wedded to any particular
formula of words. We are more concerned to embed an operating philosophy
in the text that leaves as much flexibility as possible for new design
solutions to emerge. Flexibility is needed to enable the standards to
be ratcheted upwards and not remain static. The thinking we prefer is
that the process of ensuring accessibility operates at both a macro
and a micro level. At the macro level, efforts should aim at the greatest
possible accessibility for the greatest possible number. This may not
in fact cover all persons. That is why at the micro level there should
be a requirement of sufficient flexibility to adapt designs to suit
particular categories of persons with disabilities. Both levels are
needed. It is this forward looking dialectic between the macro – the
general - and the micro – the personal - that needs to be captured in
the text.
It might be best to avoid a term of art such as ‘universal
design’ in draft Article 19 (2) (f) which can, despite the best will
in the world, become redundant as technology evolves and to settle instead
on a flexible formula of words such as ‘personal accessibility to all
persons with disabilities’. Having said that we do not oppose
the term ‘universal design’ – we are only concerned that it would be
interpreted flexibly to allow for scientific innovation.
Requirement of Accessibility Must Apply to all New Environments
form the Outset
It is our view that buildings in the public sector and all new communications
and transport environments should automatically be designed in accordance
with the principles of accessibility. We see no reason for exclusions
from this since it has been proven to be cost effective to do so from
the very outset. We welcome the strengthening of the obligations
contained in draft Article 19 (1) (a) to this effect.
With respect to the historical legacy of inaccessible public
buildings we would like to see a provision in the draft text (perhaps
Article 19 (1) (a)) requiring States Parties to formulate and implement
retro-fitting or renovation plans. We should not have to wait
for renovations to occur. They should be required to occur in order
to roll forward a rational plan of accessibility. Progressive achievement
may mean progressive – but it also means achievement. We therefore suggest
new sub-paragraph to paragraph 1 to read
States Parties shall formulate and implement plans to progressively
reduce and eliminate barriers to accessibility for people with disabilities
with respect to existing public buildings.
Accessibility Must be Guaranteed where Public Services are
Delivered through Private Sector
We would like to see a strengthening of the provisions on
the private sector contained in draft Article 19.2 (d). Our
world is one in which public services are being steadily privatized.
If the convention is not alive to this trend and if it does not adequately
reach such public activities that increasingly take place in a private
context it will not be able to achieve its underlying aims. It is in
this regard that we remind delegates that general Comment 5 of the Committee
on Economic, Social and Cultural Rights explicitly states:
In a context in which arrangements for the provision of public services
are increasingly being privatized and in which the free market is being
relied on to an ever greater extent, it is essential that private employers,
private suppliers of goods and services, and other non-public entities
be subject to both non-discrimination and equality norms in relation
to persons with disabilities. In circumstances where such protection
does not extend beyond the public domain, the ability of persons with
disabilities to participate in the mainstream of community activities
and to realize their full potential as active members of society will
be severely and often arbitrarily constrained.
Therefore, we propose that the word ‘encourage’ as used in
draft Article 19 (2) (d) should be replaced by the word ’require’.
Furthermore, all new buildings in the private sector that house public
amenities or accommodations (such as restaurants) must, in our view,
conform to the principles of accessibility from the outset. We reiterate
the cost-effectiveness of such an approach.
All ‘Key Services’ must be Accessible
We are of the view that ‘key services’ provided to the public whether
through the public or the private sectors. These services correspond
to basic living needs as well as equal citizenship rights. These include
but are not limited to physicians’ offices, community services, cultural
sites, etc. They should be accessible to persons with disabilities without
exception. Without proper access basic citizenship rights such as access
to Government services including access to courthouses will be undermined.
We therefore propose the following be added after 19.1.(a):
All buildings that house key services for persons with disabilities
must be made fully accessible.
Particular Proposals regarding Sign Language
We believe that Article 2(b) might be further subdivided along
the following lines to address firstly, personal assistants, and secondly,
sign language interpreting:
2(b)1 provide other forms of live assistance including guides,
readers and captioning to facilitate accessibility to public buildings,
facilities and information,
2(b)2 provide sign language interpreters as intermediaries
to interpret information from spoken language into sign language and
from sign language into spoken language for access to public services,
education and to facilitate participation.
The Need to Insert an Obligation of Reasonable Accommodation
We believe that there is some space in draft Article 19 for the concept
of ‘reasonable accommodation’. Inaccessible plant should never be used
as an excuse not to deliver services to persons with disabilities.
We therefore suggest that that Article 19(2)(b) be amended to include
a reference to ‘other forms of reasonable accommodation’ after the words
‘live assistance’.
Need to Insert Language on Incentives as well as Effective
Sanctions
We would also prefer to see some language added to the draft text to
the effect that States Parties should develop both incentives as well
as effective sanctions for failure to comply with domestic standards
of accessibility. Incentive measures can include tax credits, tax holidays,
direct subsidies, low interest loans and technical assistance and advice.
Need to More Explicitly Cover the eEnvironment
We believe that new information and communications technologies (ICTs)
pose both a threat as well as an unparalleled opportunity for persons
with disabilities. We therefore suggest that a separate sub paragraph
be crafted to deal specifically with ICTs. This is particularly important
given the worldwide trend in the migration of public services online.
The Information Society risks exacerbating the isolation of persons
with disabilities as both consumers and citizens. The convention provides
an ideal opportunity to ensure that this does not happen.
Article 20. Personal Mobility
Rehabilitation International is joined in this intervention by European
Disability Forum, Inclusion International, Disabled People International,
World Federation of the Deaf, World Union for Progressive Judaism, Landmine
Survivors Network, World Blind Union.
We reiterate our position under draft Article 19 with respect to the
term ‘universal design’.
Our Operating Philosophy – Personal Mobility Enhances Choice
and Independence
We view the right of personal mobility as crucial in enabling persons
with disabilities to assume power over their own lives. There isn’t
much point in rendering buildings, transport and other publicly available
services accessible unless they can be reached by persons with disabilities
in the first place. That is why we strongly support the inclusion of
draft Article 20.
Propose Using the Term ‘Appropriate Assistive Technology’
We would prefer the use of the term ‘appropriate assistive
technology’ in place of ‘aids, devices and assistive technologies’ as
used in paragraph (a) and throughout. We believe that the word
‘appropriate’ denotes greater cultural sensitivity and also acknowledges
that the relevant assistive technology will vary by country as well
as within age groups.
Need to Highlight Creative Ways of Making Technology Affordable
We appreciate the sentiment contained in paragraph (e) concerning
‘affordable cost. We believe that a range of interventions are required
to render such technology more affordable. This would include supply-side
intervention in the form of supporting companies in their research and
development and in reducing barriers in bringing their products to a
broader market. The emergence of a mass market will, in time reduce
the overall cost of the relevant products to everyone’s advantage. It
therefore makes sense to require States to take steps to nurture this
market. It would also include demand-side interventions in subsidizing
persons with disabilities in order to bring appropriate assistive technology
within their financial reach. We believe that both supply-side and demand
side interventions should be required. We therefore propose the following
language:
(x) States Parties shall support the emergence and development
of assistive technology production through incentives and other measures
to support innovation and to reduce barriers between product design
and the placing of such products on the market. States Parties shall
also take steps to ensure the affordability of such assistive technology
for persons with disabilities.
Article 21. Right to Health and Rehabilitation
Rehabilitation International is joined in this intervention by Disabled
People International (DPI), Landmine Survivors Network, World Union
for Progressive Judaism, European Disability Forum, Inclusion International,
World Federation of the Deaf, World Blind Union.
Our Core Proposal – Separate the Right to Rehabilitation from
the Right to Health
Like others we strongly advocate the separation of the right to health
from the right to rehabilitation. We believe that rehabilitation and
health are wrongly - and indeed dangerously - conflated into one draft
Article in the existing Working Group text.
We therefore propose a separate Article on the Right to Habilitation
and Rehabilitation. We would therefore propose deleting all references
to the term ‘rehabilitation’ in Article 21 and moving them to a new
and differently constituted Article 22.
This intervention focuses first on the proposed ‘right to rehabilitation’
and secondly on the ‘right to health.
Our Operating Philosophy of Rehabilitation – Optimizing Personal
Capacity for a Life of Participation and Choice.
Rehabilitation is eloquently described in the Standard Rules as:
A process aimed at enabling persons with disabilities to reach and
maintain their optimal physical, sensory, intellectual, psychiatric
and/or social functions, thus providing them with the tools to change
their lives towards a higher level of independence.
We would propose that the same or equivalent formula of words
should be used to describe and introduce the right to rehabilitation
in the draft text.
Such a broad approach as the one adopted under the Standard Rules is
echoed in many regional standards adopted throughout the world and should
be the one that animates our understanding of rehabilitation in the
convention.
Rehabilitation Includes Habilitation
We consider important that the term ‘rehabilitation’ should be clearly
understood as including both habilitation and rehabilitation. Habilitation
applies to those born with a disability. Rehabilitation applies to those
who acquire a disability.
Habilitating or rehabilitating persons with disabilities to the optimum
of their capacities should never detract from the overarching obligation
to re-order society to create more equal access. Rather, the core aim
of the convention should be to ‘redesign society to allow for the integration
of persons with disabilities rather than to predicate their integration
on their realignment with society’ (Prof Stein).
Three Reasons Why Rehabilitation be Separated from Health
There are at least four sets of reasons why such a separation should
occur.
First of all, it is clear that both habilitation and rehabilitation
aim at a broader goal than that of health – namely equipping people
with the wherewithal to function to the maximum of their own personal
capacity.
Secondly, rightly or wrongly, to depict rehabilitation against the
backdrop of health will only serve to heighten the fear of persons with
disabilities that those who exercise authority will impose rehabilitation
and might now be able to claim the imprimatur of international law.
This fear is wholly understandable given the experiences of many persons
with disabilities to date throughout the world. The so-called medical
model of disability may well be a parody of the true medical mission
which is of course to honour and serve human beings. But we cannot ignore
the legacy of the past. It would therefore be wiser to separate out
habilitation and rehabilitation in order to underscore the primacy of
the person as against the power of the expert over the process. This,
after all, is what the shift to the rights-based perspective on disability
is supposed to be about.
Thirdly, no matter how broadly defined (and we do support a broad definition
of health), the right to health does not and can never adequately capture
the full range of rehabilitation and habilitation services required
by persons with disabilities. These services range far beyond the traditional
health field to include functional rehabilitation, educational rehabilitation,
vocational rehabilitation, employment rehabilitation, etc.
Fourthly, there is an added danger in telescoping the right to health
with the right to rehabilitation. It could inhibit the capacity of any
future monitoring body from making an accurate assessment of the full
spread of rehabilitation services.
Two Reasons why Rehabilitation can be Properly described as
a Human Right
Can rehabilitation be properly denominated as a right under this convention?
We are convinced that it can and should for at least two sets of reasons.
First of all, at the level of ideas and values, it is obvious that
the philosophy of rehabilitation contained in the Standard Rules both
fits with, and indeed can be shown to flow from, the fundamental value
of personal autonomy or individual self-determination. We remind delegates
that the United Nations Commission on Human Rights has broadly equated
violations of the Standard Rules with violations of human rights (Resolution
1998/31).
This concept of autonomy undergirds all existing human rights conventions.
It is one of the golden threads that makes human rights doctrine come
to life. Indeed, it is one of the core principles put forward by the
European Union as a foundation stone of this convention. In sum, the
recognition of rehabilitation as a right is, in effect, merely a logical
development of the concept of autonomy - one that seeks to make that
concept real in the specific context of disability.
Secondly, the right to rehabilitation already finds some expression
under existing international and regional law. At a regional level and
since 1961, Article 15 of the European Social Charter – which is a binding
pan-European convention in the field of economic, social and cultural
rights - specifically contains a Right to Rehabilitation. More recently
(1999), rehabilitation is also specifically mentioned as one of the
priority areas in Article III 2 (b) of the Inter-American Convention
on the Elimination of all Forms of Discrimination against Persons with
Disabilities. Significantly, neither Article 1`5 of the European Social
Charter nor Article III 2 (b) of the Inter-American Convention speaks
of rehabilitation alongside a right to health. The latter contains useful
language to the effect that rehabilitation, inter alia, ensures the
‘optimal level of independence’ for persons with disabilities. Likewise,
at the global level, Article 23 of the Rights of the Child Convention
contains elements of a right to rehabilitation. In sum therefore, it
makes sense to universalize the right to rehabilitation beyond its various
regional expressions and beyond the field of childrens’ rights in favour
of all persons with disabilities. To do so would merely build on existing
international law.
The ‘Right to Rehabilitation’ should be Contained in one Article
rather than Scattered in the Text
An argument might well be made that there is no need for a separate
article on rehabilitation if the relevant ingredients of it were scattered
among the relevant substantive rights dealing, for example, with work
and education. We disagree.
Why scatter and disperse the elements of such a foundational right
when it can be given the normative prominence it truly deserves in a
composite article?
Besides which, it would be more textually elegant to gather together
all the specific instances of the right into one composite article in
order to ensure that its various elements are read properly in light
of the underlying philosophy of freedom and choice.
The Need to Ensure that Rehabilitation is Never Imposed Against
the Will of the Person
Since rehabilitation, properly understood, is concerned primarily
with enhancing the person’s capacity for a life of freedom and choice,
it follows, inevitably, that rehabilitation should never be imposed
against the wishes of persons with disabilities. Too many persons with
disabilities have suffered in the past because their own wishes and
desires were studiously ignored by those in authority.
We Propose the Following Text on the Right to Rehabilitation
The relevant regional standards including, for example, Recommendation
R(92) 6 of the Council of Europe as well as Rule 3 of the UN Standard
Rules should also be used as a basis for discussing content. The relevant
part of this Recommendation contains useful language on the rehabilitation
rights of children (IV.2.7).
We propose that specific language should be added on the particular
rehabilitation rights and needs of women and girls with disabilities.
We are of the view that the resource that persons with disabilities
represent to each other in the context of rehabilitation should be emphasized
through the acknowledgment and nurturing of peer support in the text.
We view rehabilitation in the community as an important tool in the
advancement of habilitation and rehabilitation.
With respect to the content or the basic ingredients of the proposed
right to rehabilitation we therefore propose the following as a starting
point in discussion.
“Persons with disabilities have a right to rehabilitation in
order to enable them to reach and sustain their optimum level of functioning
and to live an independent life of their choosing in the community.
Rehabilitation shall be understood as including habilitation as well
as rehabilitation. Toward this end States parties undertake:
1. To maintain and develop a comprehensive and integrated range
of functional rehabilitation services including, occupational, vocational,
and educational, and associated assistive technology and to ensure that
such rehabilitation is in alignment with medical rehabilitation.
2. Take steps to ensure that information with respect to rehabilitation
services is widely available and accessible to all persons with disabilities
including their families.
3. To ensure that access to such services will be open to all
persons with disabilities without discrimination of any kind and particularly
without regard to the severity of the disability.
4. To take steps to ensure that the specific rehabilitation
needs of women, girls, children and the elderly with disabilities are
appropriately addressed in order to ensure respect for their dignity
and particular needs.
5. To base the design of rehabilitation programs on the actual
needs of the person through a process of individualised assessment and,
towards this end, to actively involve the person concerned in the design,
organization and periodic review of their program.
6. To prohibit the imposition of any program of rehabilitation
against the wishes of the person concerned.
7. To take steps to ensure that rehabilitation programs are
available locally in the individual’s own community in order to ensure
that the rehabilitation process creates a meaningful pathway into a
life of full participation and inclusion in accordance with personal
choice.
8. To involve persons with disabilities and their representative
organizations in the rehabilitation process.
9. To ensure that all personnel involved in rehabilitation
are sensitised to the rights and needs of persons with disabilities.
Observations Regarding the Right to Health
We believe the right to health under the exiting Article 21 can also
benefit by breaking the link between it and rehabilitation. Consequent
upon breaking the link, all references to rehabilitation in the existing
Article 21 should be deleted.
With respect to the right to health we are of the view that
separate and clear language should be crafted to cover the highly specific
health care needs of women and girls with disabilities particularly
with respect to ‘sexual and reproductive health services’ as that term
is used in draft Article 21 (a).
We propose amending paragraph (j) in order to ensure that a
refusal to opt for certain health care services can never be used as
a justification to deny other services. We therefore propose that the
words ‘with respect to each service offered’ should be added after the
words ‘informed consent’.
We are greatly concerned by the rationing of health care resources
and services on the basis of disability. Our concern may already be
met by the existing text of Article 21 if the term ‘without discrimination
on the basis of disability’ in the introductory paragraph, when taken
with the reference to the ‘same range and standard of health…as provided
other citizens’ as used in sub-paragraph (a), is understood to mean
a prohibition of discrimination with respect to the rationing of health
care services and resources.
However, and for the sake of clarity, it might be worthwhile
spelling this out with more particularity along the following lines:
(xxx) prohibit the discriminatory allocation of health care
resources and treatment based on disability.
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