Industrial Attachment
Introduction
Rights at Stake International and Regional Instruments of Protection and Promotion National Protection and Service Agencies Advocacy, Educational and Training Materials Other ResourcesIntroductionDisability and persons with disabilities Persons with disabilities are entitled to exercise their civil, political, social, economic and cultural rights on an equal basis with others.
Disability "summarizes a great number of different functional limitations occurring in any population in any country of the world. People may be disabled by physical, intellectual or sensory impairment, medical conditions or mental illness. Such impairments, conditions or illnesses may be permanent or transitory in nature. " (Standard Rules on the Equalization of Opportunities for Persons with Disabilities). Different expressions are used when referring to persons with disabilities. For example, the term "differently-abled persons" indicates that disability is not perceived as a deviation from the norm.
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The term "disabled persons" might be misinterpreted to imply that the ability of the individual to function as a person has been disabled. This guide uses the term "persons with disabilities", which is consistent with the language used by the United Nations (UN). The UN estimates that there are 500 million persons with disabilities in the world today. This number is increasing every year due to factors such as war and destruction, unhealthy living conditions, or the absence of knowledge about disability, its causes, prevention and treatment.
The majority of persons with disabilities live in less developed countries where people lack access to essential services such as health care. Moreover, there exists a clear relationship between poverty and disability. The risk of impairment is greater for a family that lives in poverty, while and at the same time, a disabled family member places higher demands on the family's resources. Among persons with disabilities, the following form particularly vulnerable groups that face discrimination based on two grounds: women, children, elders, victims of torture, refugees and displaced persons, and migrant workers.
For instance, women with a disability are discriminated against because of their gender and also because of their disability. Development of disability policy The work of the UN constitutes the most important actions taken by an international organization in the area of disability. Based on the International Bill of Rights, the UN formulated the first specific document regarding disabilities in 1971 in the Declaration on the Rights of Mentally Retarded Persons. Important other documents followed but none of them are legally binding.
The 1980s mark the main phase of activity regarding establishing international norms pertaining to persons with disabilities. In 1981, the General Assembly declared the first International Year of Disabled Persons. It was followed by the World Programme of Action Concerning Disabled Persons in 1982 and the Decade of Disabled Persons 1983-1992. Throughout the 1990s all UN conferences dealt with disability rights and addressed the need for protective instruments (World Conference on Human Rights 1993, Fourth World Conference on Women 1995, Habitat II 1996).
At present, the Ad Hoc Committee on Disabilities is involved in a process to create a convention that protects disabled persons on an international level. A high level of awareness is also demonstrated by the European Union, the year 2003 was declared as the European Year of People with Disabilities. Other important regional observances include the Asian and Pacific Decade of Disabled Persons (1993-2002), the African Decade of Disabled People (2000-2009), and the Arab Decade of Disabled Persons (2003-2012). Back to Top] Rights at StakePersons with disabilities suffer from discrimination based on society's prejudice and ignorance. In addition, they often do not enjoy the same opportunities as other people because of the lack of access to essential services. International human rights law determines that every person has:1. The right of equality before law 2. The right to non discrimination 3. The right to equal opportunity 4. The right to independent living 5. The right to full integration 6.
The right to securityPolicy regarding disabilities is often dominated by the notion of "equalization of opportunities", which means that society must employ its resources in such a way that every individual, including persons with disabilities, has an equal opportunity to participate in society. [Back to Top] International and Regional Instruments for Protection and PromotionInternational legal instruments take the form of a treaty (also called agreement, convention, or protocol) that binds the contracting states to the negotiated terms.
When negotiations are completed, the text of a treaty is established as authentic and definitive and is "signed" by the representatives of states. A state can agree to be bound to a treaty in various ways. The most common are ratification or accession. A new treaty is ratified by those states that have negotiated the instrument. A state that has not participated in the negotiations may, at a later stage, accede to the treaty. The treaty enters into force, or becomes valid, when a pre-determined number of states have ratified or acceded to the treaty.
When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles of the treaty, unless reservations are prohibited by the treaty. Reservations may normally be withdrawn at any time. In some countries, international treaties take precedence over national law; in others a specific law may be required to give a ratified international treaty the force of a national law. Practically all states that have ratified or acceded to an international treaty must issue decrees, change existing laws, or introduce new legislation in order for the treaty to be fully effective on the national territory.
The binding treaties can be used to force governments to respect the treaty provisions that are relevant for the human rights of persons with disabilities. The non-binding instruments, such as declarations and resolutions, can be used in relevant situations to embarrass governments by negative public exposure; governments who care about their international image may consequently adapt their policies. The following international instruments protect the rights of persons with disabilities.
They mainly focus on protecting disabled persons from discrimination and creating equal opportunities for them to participate in society:UNITED NATIONSUniversal Declaration of Human Rights (1948) (article 3, 21, 23, 25) The Universal Declaration of Human Rights (UDHR) was adopted by the General Assembly of the United Nations in 1948 and provides human rights standards accepted by all member states. The UDHR represents the normative basis that led to formulating the standards concerning persons with disabilities that exist today.
In Article 25 (1) the UDHR specifically mentions the socio-economic rights of people with disabilities: the right to an adequate standard of living, including food, clothing, housing and medical care and social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age. Article 7 guarantees equality before the law and equal protection by the law for all people, including against discrimination. International Covenant on Civil and Political Rights (1966) (article 26) This treaty lists several rights that are relevant to disability.
Article 26 states that all people are equal before the law and have the right to equal protection of the law. International Covenant on Economic, Social and Cultural Rights (1966) (article 2) The Covenant does not explicit refer to disability. However, disability can be included under "other status" in article 2 (2), which calls for non-discrimination on any grounds such as race and color, and "other status". To more fully elaborate on the strategies for implementation of the rights set forth in the International Covenant on
Economic Social and Cultural Rights
the Committee on Economic Social and Cultural Rights -- the monitoring body of the Covenant -- issued:General Comment 5 (1994) This General Comment by the Committee on Economic, Social and Cultural Rights formulates obligations of states to eliminate discrimination of persons with disabilities in the areas of equal rights for men and women ("double discrimination") (article 3 of the ICESCR), work (ICESCR articles 6-8), social security (article 9), protection of the family (article 10), adequate standard of living (article 11), right to physical and mental health (article 12), right to education (articles 13 and 14) and the right to take part in cultural life and enjoy the benefits of scientific progress (article 15). Declaration on the Rights of Mentally Retarded Persons (1971) This declaration was proclaimed by the UN General Assembly and states that: "The mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings. "Declaration on the Rights of Disabled Persons (1975) This declaration adopted by the UN General Assembly is the first international document that tried to define the term "disability. " The Declaration includes a number of social and economic rights as well as civil and political rights.
Declaration on the Rights of Deaf-Blind Persons (1979) Article 1 of the Declaration states that "…every deaf-blind person is entitled to enjoy the universal rights that are guaranteed to all people by the Universal Declaration of Human Rights and the rights provided for all disabled persons by the Declaration of the Rights of Disabled Persons. "Convention on the Elimination of Discrimination Against Women (1979) (article 3) The Convention on the Elimination of Discrimination Against Women, usually abbreviated as CEDAW, does not include any specific article on disability rights, but aims to protect the rights of all women, whether disabled or not. Disabled women face double discrimination based on their gender and secondly, on their disability.
Recommendation
In General Recommendation 18 the Committee on the Elimination of Discrimination Against Women, the monitoring body of the CEDAW convention, stresses that disabled women suffer from double discrimination and are a particularly vulnerable group. It recommends that governments provide information on disabled women in their period reports and on special measures that governments have taken to ensure that women with disabilities "have equal access to education and employment, health services and social security, and to ensure that they can participate in all areas of social and cultural life. "A major outcome of the International Year of Disabled Persons (1981) was the formulation of the World Programme of Action Concerning Disabled Persons (WPA) (1982).
The WPA is a global strategy to enhance disability prevention, rehabilitation and equalization of opportunities, which pertains to full participation of persons with disabilities in social life and national development. The WPA also emphasizes the need to approach disability from a human rights perspective. Convention (No. 159) concerning Vocational Rehabilitation and Employment (Disabled Persons) (1983) This treaty of the International Labour Organization (ILO), a UN specialized agency, obligates states to "formulate, implement and periodically review a national policy on vocational rehabilitation and employment of disabled persons" (article 2).
This treaty also emphasizes the principle of equal opportunity: "positive measures aimed at effective equality of opportunity and treatment between disabled workers and other workers shall not be regarded as discriminating against other workers" (article 4). Convention on the Rights of the Child (1989) (article 2, 6, 12, 23, 28) This treaty lists disability as one of the grounds discrimination is prohibited on (article 2). In addition, article 23 directly addresses the rights of children with disabilities stating that disabled children are entitled to a "full and decent life" of dignity and participation in the community. Principles for the Protection of Persons with Mental Illnesses and the Improvement of Mental Health Care (1991) This document adopted by the UN General Assembly sets detailed standards for the protection of persons with mental disabilities.
It emphasizes that all persons have the right to the best available mental health care and that persons with a mental illness shall be treated with humanity and respect for the inherent dignity of the human person. Individuals with mental disabilities also have the right to protection from economic, sexual and other forms of exploitation, physical or other abuse and degrading treatment. The Principles stipulate that there shall be no discrimination on the grounds of mental illness and that persons with a mental illness shall have the right to exercise all civil, political. In case a person lacks legal capacity due to his or her mental illness any decisions related to the well-being of this person shall be made only after a fair hearing by an independent and impartial tribunal established by domestic law.
Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993) Adopted by the General Assembly in 1993 in the aftermath of the Decade of Disabled Persons, the Standard Rules do not constitute a legally binding document for member states. However the Standard Rules are the most comprehensive set of human rights standards regarding disability police to date and represent "a strong moral and political commitment of Governments to take action to attain equalization of opportunities for persons with disabilities. " The document addresses preconditions for equal participation, target areas of equal participation, implementation measures and monitoring mechanisms.
Implementation of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities are monitored by the UN Special Rapporteur on Disability. The first Special Rapporteur, Bengt Lindqvist (Sweden), was appointed in 1994, and his mandate was renewed twice, in 1997 and 2000. In 2003, Sheikha Hessa Khalifa bin al-Thani (Qatar) was appointed as the Special Rapporteur. Beijing Declaration on the Rights of People with Disabilities (2000) This declaration was adopted at the World NGO Summit on Disability and calls for a higher standard of living, equal participation and the elimination of discriminatory attitudes and practices. Convention on the Rights of Persons with Disabilities (2007) This treaty was recently adopted and enters into force in May 2008. Back to Top] AFRICAN UNION (FORMERLY ORGANIZATION OF AFRICAN UNITY, OAU)African Charter on Human and Peoples' Rights (1981) (article 18) The Charter contains article 18 (4) which states that disabled persons have the right to special measures of protection and article 16 (1) provides that every individual shall have the right to enjoy the best attainable state of physical and mental health. COUNCIL OF EUROPEThe Council of Europe is a regional intergovernmental organization consisting of 45 countries. It aims to defend human rights, parliamentary democracy and the rule of law. All members of the European Union also belong to the Council of Europe.
The Council of Europe has not adopted any specific human rights treaty on persons with disabilities, but created two important treaties that include the protection of disabilities rights:European Convention on the Protection of Human Rights and Fundamental Freedoms (1950) (article 5) Article 5 of the Convention states that the right to liberty and security can be infringed upon on grounds of mental disability: "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: [... ] the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants. European Social Charter (1961) (article 15) The Charter works as the counterpart to the Convention addressing social and economic rights, such as the right to work, or the right to social security. The Charter was the first human rights treaty to explicitly mention disability. In addition the Parliamentary Assembly of the Council of Europe has adopted several recommendations about policies regarding persons with disabilities:Recommendation (818) on the Situation of the Mentally Ill (1977) This document outlines recommendations regarding the protection of mentally ill persons in court, and the legislation rules on the confinement of mentally ill persons.
Recommendation (1185) on Rehabilitation Policies for the Disabled (1992) This recommendation urges member states to ensure active participation in society and equal opportunities for disabled persons. Recommendation No. R(92)6 on a Coherent Policy for the Rehabilitation of People with Disabilities (1992) This instrument recognizes the rights of disabled persons to be different and focuses on the right to independent living and full integration into society. EUROPEAN UNIONThe European Parliament has adopted several resolutions referring specifically to the protection of disability rights. The Resolution on the human rights of disabled people (1995) urges the European Commission, the executive branch of the European Union, to take steps to ensure equal opportunities for disabled persons.
The Resolution on threats to the right to life of disabled persons (1996) seeks to protect the right to life and states that the European Parliament is "opposed to the practice of the active killing by doctors of patients in a persistent vegetative state and disabled new-born children. " Finally, the Resolution on the Commission's communication on equality of opportunity for people with disabilities (1997) recognizes that "there are 37 million disabled people in the European Union who do not enjoy full civil and human rights" and reminds member states of their responsibility to implement disability protection laws on the national level. In December 2000, the Council of Ministers of the European Union adopted a (binding) general Framework Directive on equal treatment in employment prohibiting direct and indirect discrimination on the grounds of religion or belief, age, disability or sexual orientation.
The Framework Directive is binding upon the current member states, while candidate member states are required to have completed national implementation of the Directive before joining the EU. ORGANIZATION OF AMERICAN STATES (OAS)American Convention on Human Rights (1969) (article 24) The Convention does not explicitly address the subject of disability, but contains the classical human rights guarantees. For example, Article 24 states the right to equal protection. Additional Protocol to the American Convention on Human Rights in the area of Economic, Social, and Cultural Rights (Protocol of San Salvador) (1988) (article 18) This treaty specifically that persons with disabilities are entitled to receive special attention in order to achieve the greatest possible development of his or her personality.
It also obliges governments to implement special measures to facilitate the full integration of persons with disabilities. Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons With Disabilities (1999) This Convention aims to prevent and eliminate all forms of discrimination against disabled persons and to promote their full integration into society. [Back to Top] National Protection and Service AgenciesSeveral countries such as the Australia, India, the United Kingdom and the USA have passed and implemented national anti-discrimination laws, guaranteeing full participation in society by persons with disabilities. In Australia, the Disability Discrimination Act was passed in 1992.
The objectives of the Act are "to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of: work, accommodation, education, access to premises, clubs and sport; and the provision of goods, facilities, services and land; and existing laws; and the administration of Commonwealth laws and programs; and to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community. " In India, two national instruments were passed, the Rehabilitation Council of India Bill and the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act. In the United Kingdom, the Disability Discrimination Act of 1995 aims to end the discrimination which many persons with disabilities face.
The Act enumerates rights in the areas of employment, access to goods, facilities and services and buying or renting land or property. In the United States, civil rights law regarding persons with disabilities is based on a number of laws among which the Americans with Disabilities Act (ADA) is the most important one. The ADA prohibits discrimination on the basis of disability in employment, state and local government, public accommodations, commercial facilities, transportation, and telecommunications. Examples of further national legislation are the Civil Rights of Institutionalized Persons Act, the Individuals with Disabilities Education Act and the Rehabilitation Act. Back to Top] Advocacy, Educational and Training MaterialsFor advocatesGuide to Disability Rights (and dealing with the system) This guide provides practical information on employment, free medication, social security benefits, special education, and tax benefits. Training Materials for Lawyers and NGOs on the European Convention on Human Rights and the rights of people with mental health problems and/or developmental disabilities (Mental Disability Advocacy Center, Budapest, 2002). This training manual was written for lawyers and NGOs attending training seminars organised by the Mental Disability Advocacy Center (MDAC) and partner NGOs during 2002.
The materials are intended to provide insight into the European Convention on Human Rights and mental disability in Central and Eastern Europe. The goal of this manual is to provide an initial look into the human and civil rights of people with mental health and/or developmental disabilities in this region. Subsequently definitions of mental health problems and developmental disabilities are given here along with relevant articles of the European Convention on Human Rights and case law of the European Court of Human Rights and the Council of Europe Committee for the Prevention of Torture. For teachersTen messages about children with disabilities (UNICEF) Practical tips for to help children with disabilities learn in a safe and equitable environment.
The Disabled: "Making Our Own Charter" (by Richard Pierre Claude in: Popular Education for Human Rights: 24 Participatory Exercises for Facilitators and Teachers, HREA, 2000) This is a highly participatory and can be adapted to diverse settings and cultures. At the conclusion of this exercise participants should be able to identify some of the special needs of persons with disabilities; justify identifying the needs and rights of the disabled in the form of a brief Preamble to a Charter for the Disabled; identify a series of human rights of the disabled that specifically reflect their needs and are not inconsistent with existing broader international and national rights standards; and adopt a plan of action to ensure that disable people learn about their human rights. [Back to Top] Other ResourcesDisabled Persons and Human Rights European Year of People with Disabilities (2003)
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