Treating the disabled: Rights, not charity [Human Rights Features, Volume 5 (October

Treating the disabled: Rights, not charity

Background paper on the proposed International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities

One of the most recent international developments regarding disability rights is the formation of an Ad Hoc Working Committee on the proposed United Nations Convention on the Rights of People With Disabilities. This proposed Convention was the context for the examination of disability at the seventh annual meeting of the Asia Pacific Forum of National Human Rights Institutions (APF). For the meeting, the New Zealand Human Rights Commission requested that the subject be included on the current agenda so that the APF may contribute to the possible formation of this new international human rights treaty.

The stated purpose of the background paper is: (1) "to explore arguments for the development of a new UN Convention on the Rights of People with Disabilities" and (2) "to explore the role of national human rights institutions [] and the role of the APF in that process."

A UN Convention on the rights of persons with disabilities will be a welcome addition to international human rights instruments, and the Asia Pacific Human Rights Network (APHRN) expressed the hope that APF members would play an active and dynamic role in its formation.

However, APHRN pointed out that the international focus on disability is a relatively new one, and that many nations in the Asia Pacific region have yet to implement legislation to fully guarantee the rights of disabled persons. National human rights institutions (NHRIs) in the Asia Pacific, located at the nexus of human rights and governmental reform, are therefore uniquely placed to facilitate the integration of the rights of disabled persons into the national human rights cultures of their respective states.

Background to Current Initiatives

According to the United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP), approximately two-thirds of the world's 600 million disabled persons live in South or Southeast Asia. Nearly one third of disabled persons live below the poverty line, and less than ten percent of youth with disabilities attend school. The persistence of such discrimination is linked to entrenched attitudes towards disabled people despite radical changes in the human rights framework over the past 20 years.

Until the early 1970s, most legal and institutional measures focusing on disabled individuals took the form of institutional care, medical rehabilitation or allowances. Although well-intended, it has since been noted that these charity-based programmes operated on the premise that disabled persons were incapable of full and active participation in civil society, thus further exacerbating the difficult position of disabled persons.

By erroneously focusing on the needs, rather than the rights, of disabled persons, they contributed to the process of effectively segregating disabled persons from the rest of society.

The United Nations declared 1981 as the International Year of Disabled Persons, and the adoption of the World Program of Action Concerning Disabled Persons (1982) and the declaration of the Decade of Disabled Persons (1983-1992) followed soon thereafter. These events provided the catalyst for major revisions in the way disabled persons were regarded by governmental and non-governmental institutions. The World Program of Action spells out a global commitment to developing a society in which both disabled and non-disabled persons are fully integrated. Rather than place the burden of change on the disabled individual, it calls for legal, institutional, and social adaptation that will allow for the full realisation of the rights of disabled persons.

The World Program of Action calls upon Member States to, inter alia, "create, through legislation, the necessary legal bases and authority for measures to achieve the objectives; assume responsibility for ensuring that disabled persons are granted equal opportunities with other citizens; undertake the necessary measures to eliminate any discriminatory practices with respect to disability; give particular attention to conditions which may adversely affect the ability of disabled persons to exercise the rights and freedoms guaranteed to their fellow citizens; give attention to specific rights, such as the rights to education, work, social security and protection from inhuman or degrading treatment, and examine these rights from the perspective of disabled persons".

Significantly, 'handicap' was understood not as a burden to be borne by a disabled individual, but rather as the "function of the relationship between persons with disabilities and their environment".

The United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities (UNSR), adopted by the General Assembly in 1993, further articulate the transition that the Economic and Social Council for the Asia Pacific (ESCAP) has referred to as the shift from "charity, to enablement, to entitlement."

In turn, the declaration of the Asian Pacific Decade of Disability (1993-2002) has increased awareness of changing conceptions of disability and the way Asian governments can best incorporate them into a national human rights framework. The Asian Pacific Decade of Disability was concluded with a high level intergovernmental meeting in Otsu, Japan, on 25-28 October 2002.

Members of at the meeting acknowledged that the Economic and Social Commission for Asia and the Pacific (ESCAP) had proclaimed the extension of the Decade by resolution 58/4 of 22 May 2002. They also composed the Draft Biwako Millennium Framework. This document "outlines issues, action plans and strategies towards an inclusive, barrier-free and rights-based society for persons with disabilities," as per the mandate of the second Asian Pacific Decade of Disabled Persons.

International Legal Framework

As noted above, there are a number of international treaties that protect the rights of disabled persons.

These include: the International Covenant on Civil and Political Rights (ICCPR), International Convention on Economic, Social, and Cultural Rights (ICESCR), the International Labour Organisation's (ILO) Convention concerning Discrimination in Respect of Employment and Occupation, the ILO Convention concerning Vocational Rehabilitation and Employment, and the Convention Against Discrimination in Education.

The Universal Declaration of Human Rights and the Convention on the Rights of the Child have provisions pertaining directly to disabled persons. There are also a number of non-binding instruments that protect the rights of disabled persons.

In addition to the UNSR and the World Program of Action, there is the Beijing Declaration on the Rights of People with Disabilities, the Declaration on the Rights of Mentally Retarded Persons, the Declaration on the Rights of Disabled Persons, and the Principles for the Protection of Persons with Mental Illness. However, none of the international instruments that deal with disability in a comprehensive manner are legally binding.

This point was noted by those advocating the formation of the Ad Hoc Committee under consideration at the seventh APF meeting. Established by a resolution of the General Assembly in December 2001, the Ad Hoc Committee is charged with examining the possibility of applying the holistic approach to rights, as outlined in documents such as the ICESCR, to a comprehensive international treaty pertaining to disabled persons. (The other proposed option is to enhance the existing legislation.) Governments and non-governmental organisations (NGOs) are invited to contribute relevant materials to the Committee, which had its first official meeting in July 2002.

The Committee considered position papers submitted by Mexico, China, and the European Union, and heard statements by Australia, India, Indonesia, Japan, the Philippines, and the Republic of Korea. The Committee also heard statements by a number of NGOs and committed itself to allowing NGO participation at subsequent meetings.

The Rights of Persons with Disabilities in Context of Asia Pacific Nations

Many Asia Pacific states have enacted legislation that aims to protect the rights and ensure the social equality of disabled persons. States with disability legislation that are members of APF include Indonesia, Japan, Pakistan, Philippines, New Zealand, Australia, India, Sri Lanka and Thailand. However, the approach used and the extent to which these laws are implemented varies widely.

Australia, for example, has an extremely comprehensive system for protecting the rights of disabled persons. The 1992 Federal Disability Discrimination Act understands 'disability' to refer to a wide range of physical and mental impairments that currently exist, may have previously existed, may exist in the future, or may be "imputed to a person."

The Act provides for the education, vocational training and employment of disabled persons, and prohibits discrimination of disabled persons in all forms of public life. It underpins the Commonwealth Disability strategy and is implemented through a series of Disability Standards. Failure to comply is punishable by law.

Information about the Act and methods for complaints are easily obtained on the internet, and there is a chapter devoted to disability rights in the annual reports of the Australian Human Rights and Equal Opportunity Commission. The 2001-2002 report indicates that the Commission is currently engaged in projects aimed at raising the awareness of disability, responding to complaints pertaining to disability rights, and also targets key areas for additional reform.

In contrast, India's Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, suffers acutely from vague terminology and the absence of a supporting framework. The Act includes provisions for access to education, government employment, and state-funded public infrastructure such as transportation and hospital facilities. However, it does not contain adequate provisions for an effective monitoring system and undermines state directives with the qualification that they shall be undertaken "within the limits of [the state's] economic capacity."

Although the Act states that three percent of the available government positions shall be reserved for disabled persons, the technicalities of the reservation system ensure that not more than one percent of the lower level jobs are available. It is difficult to find information about the Act on the internet, and there is little evidence of efforts to generate awareness of the Act or the rights of disabled persons in general. As the 1997-98 Annual Report of the National Human Rights Commission noted, "a will to undertake its effective implementation [is] not visibly manifest."

The effectiveness of the Philippines' Magna Carta for Disabled Persons is similarly undermined by a lack of awareness. Although enacted in 1991, nearly ten years passed before the first cases were filed, and as of April 2002 those cases had not been heard by a court of law.

Despite recent disability legislation, some Thai laws still exclude people with disabilities from occupations including police officers, masseuses, judges, prosecutors, public utilities employees and teachers. In October 2002, a Constitutional Court upheld the decision of a government agency to bar a disabled individual from taking an exam to become a prosecutor, effectively concurring with the agency's assessment that his "personality and body were in an inappropriate state." (Thailand, interestingly, was the recipient of the 2001 International Disability Award.)

It is clear that there is ample space for the involvement of national human rights institutions in the growing movement for the protection of the rights of disabled persons.

Although it is important to contribute to the developments of the Ad Hoc Committee, the first task of many Asia Pacific NHRIs should be to familiarise themselves with existing international and national legislation.

If national legislations prescribe a detailed role for NHRIs, then they should take care to perform that role to the best of their abilities and suggest areas for improvement where required. If the task of the NHRI is not clearly laid out, then it must carefully fill in gaps regarding monitoring, evaluation, advocacy, and education.

In cases where no national legislation exists, NHRIs can encourage and facilitate the development of such legislation while following through with the recommendations of the World Program of Action, the UNSR, and the results of other UN studies.