UN Human Rights Treaties

UNITED NATIONS
E
Economic and Social
Council
E/C.12/1994/13
14 December 1994
Original: ENGLISH
COMMITTEE ON ECONOMIC, SOCIAL
AND CULTURAL RIGHTS
Eleventh session
21 November-9 December 1994
IMPLEMENTATION OF THE INTERNATIONAL COVENANT ON
ECONOMIC, SOCIAL AND CULTURAL RIGHTS
General Comment No. 5 (Eleventh session, 1994)*
Persons with disabilities
1. The central importance of the International Covenant on Economic, Social
and Cultural Rights in relation to the human rights of persons with
disabilities has frequently been underlined by the international
community. 1/ Thus a 1992 review by the Secretary-General of the
implementation of the World Programme of Action concerning Disabled Persons
and the United Nations Decade of Disabled Persons concluded that "disability
is closely linked to economic and social factors" and that "conditions of
living in large parts of the world are so desperate that the provision of
basic needs for all - food, water, shelter, health protection and education -
must form the cornerstone of national programmes". 2/ Even in countries
which have a relatively high standard of living, persons with disabilities are
very often denied the opportunity to enjoy the full range of economic, social
and cultural rights recognized in the Covenant.
2. The Committee on Economic, Social and Cultural Rights, and the working
group which preceded it, have been explicitly called upon by both the
General Assembly 3/ and the Commission on Human Rights 4/ to monitor the
compliance of States parties to the Covenant with their obligation to ensure
* Adopted at the 38th meeting, on 25 November 1994.
GE.94-70436 (E)
E/C.12/1994/13
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the full enjoyment of the relevant rights by persons with disabilities. The
Committee’s experience to date, however, indicates that States parties have
devoted very little attention to this issue in their reports. This appears to
be consistent with the Secretary-General’s conclusion that "most Governments
still lack decisive concerted measures that would effectively improve the
situation" of persons with disabilities. 5/ It is therefore appropriate to
review, and emphasize, some of the ways in which issues concerning persons
with disabilities arise in connection with the obligations contained in the
Covenant.
3. There is still no internationally accepted definition of the term
"disability". For present purposes, however, it is sufficient to rely on the
approach adopted in the Standard Rules of 1993, which state:
"The term ’disability’ summarizes a great number of different
functional limitations occurring in any population ... 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." 6/
4. In accordance with the approach adopted in the Standard Rules, this
General Comment uses the term "persons with disabilities" rather than the
older term "disabled persons". It has been suggested that the latter term
might be misinterpreted to imply that the ability of the individual to
function as a person has been disabled.
5. The Covenant does not refer explicitly to persons with disabilities.
Nevertheless, the Universal Declaration of Human Rights recognizes that all
human beings are born free and equal in dignity and rights and, since the
Covenant’s provisions apply fully to all members of society, persons with
disabilities are clearly entitled to the full range of rights recognized in
the Covenant. In addition, in so far as special treatment is necessary,
States parties are required to take appropriate measures, to the maximum
extent of their available resources, to enable such persons to seek to
overcome any disadvantages, in terms of the enjoyment of the rights specified
in the Covenant, flowing from their disability. Moreover, the requirement
contained in article 2 (2) of the Covenant that the rights "enunciated ...
will be exercised without discrimination of any kind" based on certain
specified grounds "or other status" clearly applies to discrimination on the
grounds of disability.
6. The absence of an explicit, disability-related provision in the Covenant
can be attributed to the lack of awareness of the importance of addressing
this issue explicitly, rather than only by implication, at the time of the
drafting of the Covenant over a quarter of a century ago. More recent
international human rights instruments have, however, addressed the issue
specifically. They include the Convention on the Rights of the Child
(art. 23); the African Charter on Human and Peoples’ Rights (art. 18 (4)); and
the Additional Protocol to the American Convention on Human Rights in the Area
of Economic, Social and Cultural Rights (art. 18). Thus it is now very widely
accepted that the human rights of persons with disabilities must be protected
and promoted through general, as well as specially designed, laws, policies
and programmes.
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7. In accordance with this approach, the international community has
affirmed its commitment to ensuring the full range of human rights for persons
with disabilities in the following instruments: (a) the World Programme of
Action concerning Disabled Persons, which provides a policy framework aimed at
promoting "effective measures for prevention of disability, rehabilitation and
the realization of the goals of ’full participation’ of [persons with
disabilities] in social life and development, and of ’equality’"; 7/ (b) the
Guidelines for the Establishment and Development of National Coordinating
Committees on Disability or Similar Bodies, adopted in 1990; 8/ (c) the
Principles for the Protection of Persons with Mental Illness and for the
Improvement of Mental Health Care, adopted in 1991; 9/ (d) the Standard
Rules on the Equalization of Opportunities for Persons with Disabilities
(hereinafter referred to as the "Standard Rules"), adopted in 1993, the
purpose of which is to ensure that all persons with disabilities "may exercise
the same rights and obligations as others". 10/ The Standard Rules are of
major importance and constitute a particularly valuable reference guide in
identifying more precisely the relevant obligations of States parties under
the Covenant.
I. GENERAL OBLIGATIONS OF STATES PARTIES
8. The United Nations has estimated that there are more than 500 million
persons with disabilities in the world today. Of that number, 80 per cent
live in rural areas in developing countries. Seventy per cent of the total
are estimated to have either limited or no access to the services they need.
The challenge of improving the situation of persons with disabilities is thus
of direct relevance to every State party to the Covenant. While the means
chosen to promote the full realization of the economic, social and cultural
rights of this group will inevitably differ significantly from one country to
another, there is no country in which a major policy and programme effort is
not required. 11/
9. The obligation of States parties to the Covenant to promote progressive
realization of the relevant rights to the maximum of their available resources
clearly requires Governments to do much more than merely 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 to reduce structural disadvantages and to give appropriate
preferential treatment to people with disabilities in order to achieve the
objectives of full participation and equality within society for all persons
with disabilities. This almost invariably means that additional resources
will need to be made available for this purpose and that a wide range of
specially tailored measures will be required.
10. According to a report by the Secretary-General, developments over the
past decade in both developed and developing countries have been especially
unfavourable from the perspective of persons with disabilities:
"... current economic and social deterioration, marked by
low-growth rates, high unemployment, reduced public expenditure, current
structural adjustment programmes and privatization, have negatively
affected programmes and services ... If the present negative trends
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continue, there is the risk that [persons with disabilities] may
increasingly be relegated to the margins of society, dependent on ad hoc
support." 12/
As the Committee has previously observed (General Comment No. 3
(Fifth session, 1990), para. 12), the duty of States parties to protect the
vulnerable members of their societies assumes greater rather than less
importance in times of severe resource constraints.
11. Given the increasing commitment of Governments around the world to
market-based policies, it is appropriate in that context to emphasize certain
aspects of States parties’ obligations. One is the need to ensure that not
only the public sphere, but also the private sphere, are, within appropriate
limits, subject to regulation to ensure the equitable treatment of persons
with disabilities. 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. This is not to imply that legislative measures will
always be the most effective means of seeking to eliminate discrimination
within the private sphere. Thus, for example, the Standard Rules place
particular emphasis on the need for States to "take action to raise awareness
in society about persons with disabilities, their rights, their needs, their
potential and their contribution". 13/
12. In the absence of government intervention there will always be instances
in which the operation of the free market will produce unsatisfactory results
for persons with disabilities, either individually or as a group, and in such
circumstances it is incumbent on Governments to step in and take appropriate
measures to temper, complement, compensate for, or override the results
produced by market forces. Similarly, while it is appropriate for Governments
to rely on private, voluntary groups to assist persons with disabilities in
various ways, such arrangements can never absolve Governments from their duty
to ensure full compliance with their obligations under the Covenant. As the
World Programme of Action concerning Disabled Persons states, "the ultimate
responsibility for remedying the conditions that lead to impairment and for
dealing with the consequences of disability rests with Governments". 14/
II. MEANS OF IMPLEMENTATION
13. The methods to be used by States parties in seeking to implement their
obligations under the Covenant towards persons with disabilities are
essentially the same as those available in relation to other obligations (see
General Comment No. 1 (Third session, 1989)). They include the need to
ascertain, through regular monitoring, the nature and scope of the problems
existing within the State; the need to adopt appropriately tailored policies
and programmes to respond to the requirements thus identified; the need to
legislate where necessary and to eliminate any existing discriminatory
legislation; and the need to make appropriate budgetary provisions or, where
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necessary, seek international cooperation and assistance. In the latter
respect, international cooperation in accordance with articles 22 and 23 of
the Covenant is likely to be a particularly important element in enabling some
developing countries to fulfil their obligations under the Covenant.
14. In addition, it has been consistently acknowledged by the international
community that policy-making and programme implementation in this area should
be undertaken on the basis of close consultation with, and involvement of,
representative groups of the persons concerned. For this reason, the Standard
Rules recommend that everything possible be done to facilitate the
establishment of national coordinating committees, or similar bodies, to serve
as a national focal point on disability matters. In doing so, Governments
should take account of the 1990 Guidelines for the Establishment and
Development of National Coordinating Committees on Disability or Similar
Bodies. 15/
III. THE OBLIGATION TO ELIMINATE DISCRIMINATION
ON THE GROUNDS OF DISABILITY
15. Both de jure and de facto discrimination against persons with
disabilities have a long history and take various forms. They range from
invidious discrimination, such as the denial of educational opportunities, to
more "subtle" forms of discrimination such as segregation and isolation
achieved through the imposition of physical and social barriers. For the
purposes of the Covenant, "disability-based discrimination" may be defined as
including any distinction, exclusion, restriction 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 or cultural rights. Through neglect, ignorance, prejudice and false
assumptions, as well as through exclusion, distinction or separation, persons
with disabilities have very often been prevented from exercising their
economic, social or cultural rights on an equal basis with persons without
disabilities. The effects of disability-based discrimination have been
particularly severe in the fields of education, employment, housing,
transport, cultural life, and access to public places and services.
16. Despite some progress in terms of legislation over the past
decade, 16/ the legal situation of persons with disabilities remains
precarious. In order to remedy past and present discrimination, and to deter
future discrimination, comprehensive anti-discrimination legislation in
relation to disability would seem to be indispensable in virtually all States
parties. Such legislation should not only provide persons with disabilities
with judicial remedies as far as possible and appropriate, but also provide
for social-policy programmes which enable persons with disabilities to live an
integrated, self-determined and independent life.
17. Anti-discrimination measures should be based on the principle of
equal rights for persons with disabilities and the non-disabled, which, in the
words of the World Programme of Action concerning Disabled Persons, "implies
that the needs of each and every individual are of equal importance, that
these needs must be made the basis for the planning of societies, and that all
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resources must be employed in such a way as to ensure, for every individual,
equal opportunity for participation. Disability policies should ensure the
access of [persons with disabilities] to all community services". 17/
18. Because appropriate measures need to be taken to undo existing
discrimination and to establish equitable opportunities for persons with
disabilities, such actions should not be considered discriminatory in the
sense of article 2 (2) of the International Covenant on Economic, Social and
Cultural Rights as long as they are based on the principle of equality and are
employed only to the extent necessary to achieve that objective.
IV. SPECIFIC PROVISIONS OF THE COVENANT
A. Article 3 - Equal rights for men and women
19. Persons with disabilities are sometimes treated as genderless human
beings. As a result, the double discrimination suffered by women with
disabilities is often neglected. 18/ Despite frequent calls by the
international community for particular emphasis to be placed upon their
situation, very few efforts have been undertaken during the Decade. The
neglect of women with disabilities is mentioned several times in the report of
the Secretary-General on the implementation of the World Programme of
Action. 19/ The Committee therefore urges States parties to address the
situation of women with disabilities, with high priority being given in future
to the implementation of economic, social and cultural rights-related
programmes.
B. Articles 6-8 - Rights relating to work
20. The field of employment is one in which disability-based discrimination
has been prominent and persistent. In most countries the unemployment rate
among persons with disabilities is two to three times higher than the
unemployment rate for persons without disabilities. Where persons with
disabilities are employed, they are mostly engaged in low-paid jobs with
little social and legal security and are often segregated from the mainstream
of the labour market. The integration of persons with disabilities into the
regular labour market should be actively supported by States.
21. The "right of everyone to the opportunity to gain his living by work
which he freely chooses or accepts" (art. 6 (1)) is not realized where the
only real opportunity open to disabled workers is to work in so-called
"sheltered" facilities under substandard conditions. Arrangements whereby
persons with a certain category of disability are effectively confined to
certain occupations or to the production of certain goods may violate this
right. Similarly, in the light of principle 13 (3) of the Principles for the
Protection of Persons with Mental Illness and for the Improvement of Mental
Health Care, 20/ "therapeutical treatment" in institutions which amounts to
forced labour is also incompatible with the Covenant. In this regard, the
prohibition on forced labour contained in the International Covenant on Civil
and Political Rights is also of potential relevance.
22. According to the Standard Rules, persons with disabilities, whether in
rural or urban areas, must have equal opportunities for productive and gainful
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employment in the labour market. 21/ For this to happen it is particularly
important that artificial barriers to integration in general, and to
employment in particular, be removed. As the International Labour
Organisation has noted, it is very often the physical barriers that society
has erected in areas such as transport, housing and the workplace which are
then cited as the reason why persons with disabilities cannot be
employed. 22/ For example, as long as workplaces are designed and built in
ways that make them inaccessible to wheelchairs, employers will be able to
"justify" their failure to employ wheelchair users. Governments should also
develop policies which promote and regulate flexible and alternative work
arrangements that reasonably accommodate the needs of disabled workers.
23. Similarly, the failure of Governments to ensure that modes of
transportation are accessible to persons with disabilities greatly reduces the
chances of such persons finding suitable, integrated jobs, taking advantage of
educational and vocational training, or commuting to facilities of all types.
Indeed, the provision of access to appropriate and, where necessary, specially
tailored forms of transportation is crucial to the realization by persons with
disabilities of virtually all the rights recognized in the Covenant.
24. The "technical and vocational guidance and training programmes" required
under article 6 (2) of the Covenant should reflect the needs of all persons
with disabilities, take place in integrated settings, and be planned and
implemented with the full involvement of representatives of persons with
disabilities.
25. The right to "the enjoyment of just and favourable conditions of work"
(art. 7) applies to all disabled workers, whether they work in sheltered
facilities or in the open labour market. Disabled workers may not be
discriminated against with respect to wages or other conditions if their work
is equal to that of non-disabled workers. States parties have a
responsibility to ensure that disability is not used as an excuse for creating
low standards of labour protection or for paying below minimum wages.
26. Trade union-related rights (art. 8) apply equally to workers with
disabilities and regardless of whether they work in special work facilities or
in the open labour market. In addition, article 8, read in conjunction with
other rights such as the right to freedom of association, serves to emphasize
the importance of the right of persons with disabilities to form their own
organizations. If these organizations are to be effective in "the promotion
and protection of [the] economic and social interests" (art. 8 (1) (a)) of
such persons, they should be consulted regularly by government bodies and
others in relation to all matters affecting them; it may also be necessary
that they be supported financially and otherwise so as to ensure their
viability.
27. The International Labour Organisation has developed valuable and
comprehensive instruments with respect to the work-related rights of persons
with disabilities, including in particular Convention No. 159 (1983)
concerning vocational rehabilitation and employment of persons with
disabilities. 23/ The Committee encourages States parties to the Covenant
to consider ratifying that Convention.
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C. Article 9 - Social security
28. Social security and income-maintenance schemes are of particular
importance for persons with disabilities. As stated in the Standard Rules,
"States should ensure the provision of adequate income support to persons with
disabilities who, owing to disability or disability-related factors, have
temporarily lost or received a reduction in their income or have been denied
employment opportunities". 24/ Such support should reflect the special
needs for assistance and other expenses often associated with disability. In
addition, as far as possible, the support provided should also cover
individuals (who are overwhelmingly female) who undertake the care of a person
with disabilities. Such persons, including members of the families of persons
with disabilities, are often in urgent need of financial support because of
their assistance role. 25/
29. Institutionalization of persons with disabilities, unless rendered
necessary for other reasons, cannot be regarded as an adequate substitute for
the social security and income-support rights of such persons.
D. Article 10 - Protection of the family and of mothers and children
30. In the case of persons with disabilities, the Covenant’s requirement that
"protection and assistance" be rendered to the family means that everything
possible should be done to enable such persons, when they so wish, to live
with their families. Article 10 also implies, subject to the general
principles of international human rights law, the right of persons with
disabilities to marry and have their own family. These rights are frequently
ignored or denied, especially in the case of persons with mental disabilities. 26/
In this and other contexts, the term "family" should be interpreted broadly
and in accordance with appropriate local usage. States parties should ensure
that laws and social policies and practices do not impede the realization of
these rights. Persons with disabilities should have access to necessary
counselling services in order to fulfil their rights and duties within the
family. 27/
31. Women with disabilities also have the right to protection and support in
relation to motherhood and pregnancy. As the Standard Rules state, "persons
with disabilities must not be denied the opportunity to experience their
sexuality, have sexual relationships and experience parenthood". 28/ The
needs and desires in question should be recognized and addressed in both the
recreational and the procreational contexts. These rights are commonly denied
to both men and women with disabilities worldwide. 29/ Both the
sterilization of, and the performance of an abortion on, a woman with
disabilities without her prior informed consent are serious violations of
article 10 (2).
32. Children with disabilities are especially vulnerable to exploitation,
abuse and neglect and are, in accordance with article 10 (3) of the Covenant
(reinforced by the corresponding provisions of the Convention on the Rights of
the Child), entitled to special protection.
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E. Article 11 - The right to an adequate standard of living
33. In addition to the need to ensure that persons with disabilities have
access to adequate food, accessible housing and other basic material needs, it
is also necessary to ensure that "support services, including assistive
devices" are available "for persons with disabilities, to assist them to
increase their level of independence in their daily living and to exercise
their rights". 30/ The right to adequate clothing also assumes a special
significance in the context of persons with disabilities who have particular
clothing needs, so as to enable them to function fully and effectively in
society. Wherever possible, appropriate personal assistance should also be
provided in this connection. Such assistance should be undertaken in a manner
and spirit which fully respect the human rights of the person(s) concerned.
Similarly, as already noted by the Committee in paragraph 8 of General Comment
No. 4 (Sixth session, 1991), the right to adequate housing includes the right
to accessible housing for persons with disabilities.
F. Article 12 - The right to physical and mental health
34. According to the Standard Rules, "States should ensure that persons
with disabilities, particularly infants and children, are provided with the
same level of medical care within the same system as other members of
society". 31/ The right to physical and mental health also implies the
right to have access to, and to benefit from, those medical and social
services - including orthopaedic devices - which enable persons with
disabilities to become independent, prevent further disabilities and support
their social integration. 32/ Similarly, such persons should be provided
with rehabilitation services which would enable them "to reach and sustain
their optimum level of independence and functioning". 33/ All such
services should be provided in such a way that the persons concerned are able
to maintain full respect for their rights and dignity.
G. Articles 13 and 14 - The right to education
35. School programmes in many countries today recognize that persons with
disabilities can best be educated within the general education system. 34/
Thus the Standard Rules provide that "States should recognize the principle of
equal primary, secondary and tertiary educational opportunities for children,
youth and adults with disabilities, in integrated settings". 35/ In order
to implement such an approach, States should ensure that teachers are trained
to educate children with disabilities within regular schools and that the
necessary equipment and support are available to bring persons with
disabilities up to the same level of education as their non-disabled peers.
In the case of deaf children, for example, sign language should be recognized
as a separate language to which the children should have access and whose
importance should be acknowledged in their overall social environment.
H. Article 15 - The right to take part in cultural life
and enjoy the benefits of scientific progress
36. The Standard Rules provide that "States should ensure that persons with
disabilities have the opportunity to utilize their creative, artistic and
intellectual potential, not only for their own benefit, but also for the
enrichment of their community, be they in urban or rural areas. ... States
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should promote the accessibility to and availability of places for cultural
performances and services ... ". 36/ The same applies to places for
recreation, sports and tourism.
37. The right to full participation in cultural and recreational life for
persons with disabilities further requires that communication barriers be
eliminated to the greatest extent possible. Useful measures in this regard
might include "the use of talking books, papers written in simple language and
with clear format and colours for persons with mental disability, [and]
adapted television and theatre for deaf persons". 37/
38. In order to facilitate the equal participation in cultural life of
persons with disabilities, Governments should inform and educate the general
public about disability. In particular, measures must be taken to dispel
prejudices or superstitious beliefs against persons with disabilities, for
example those that view epilepsy as a form of spirit possession or a child
with disabilities as a form of punishment visited upon the family. Similarly,
the general public should be educated to accept that persons with disabilities
have as much right as any other person to make use of restaurants, hotels,
recreation centres and cultural venues.
Notes
1/ For a comprehensive review of the question, see the final report
prepared by Mr Leandro Despouy, Special Rapporteur, on human rights and
disability (E/CN.4/Sub.2/1991/31).
2/ See A/47/415, para. 5.
3/ See para. 165 of the World Programme of Action concerning Disabled
Persons, adopted by the General Assembly by its resolution 37/52 of
3 December 1982 (para. 1).
4/ See Commission on Human Rights resolutions 1992/48, para. 4 and
1993/29, para. 7.
5/ See A/47/415, para. 6.
6/ Standard Rules on the Equalization of Opportunities for Persons with
Disabilities, annexed to General Assembly resolution 48/96 of 20 December 1993
(Introduction, para. 17).
7/ World Programme of Action concerning Disabled Persons (see note 3
above), para. 1.
8/ A/C.3/46/4, annex I. Also contained in the Report on the
International Meeting on the Roles and Functions of National Coordinating
Committees on Disability in Developing Countries, Beijing, 5-11 November 1990
(CSDHA/DDP/NDC/4). See also Economic and Social Council resolution 1991/8 and
General Assembly resolution 46/96 of 16 December 1991.
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9/ General Assembly resolution 46/119 of 17 December 1991, annex.
10/ Standard Rules, (see note 6 above), Introduction, para. 15.
11/ See A/47/415, passim.
12/ Ibid., para. 5.
13/ Standard Rules, (see note 6 above) Rule 1.
14/ World Programme of Action concerning Disabled Persons (see note 3
above), para. 3.
15/ See note 8 above.
16/ See A/47/415, paras. 37-38.
17/ World Programme of Action concerning Disabled Persons (see note 3
above), para. 25.
18/ See E/CN.4/Sub.2/1991/31 (see note 1 above), para. 140.
19/ See A/47/415, paras. 35, 46, 74 and 77.
20/ See note 9 above.
21/ Standard Rules (see note 6 above), Rule 7.
22/ See A/CONF.157/PC/61/Add.10, p. 12.
23/ See also Recommendation No. 99 (1955) concerning vocational
rehabilitation of the disabled, and Recommendation No. 168 (1983) concerning
vocational rehabilitation and employment of persons with disabilities.
24/ Standard Rules (see note 6 above) Rule 8, para. 1.
25/ See A/47/415, para. 78.
26/ See E/CN.4/Sub.2/1991/31 (see note 1 above), paras. 190 and 193.
27/ See the World Programme of Action concerning Disabled Persons (see
note 3 above) para. 74.
28/ Standard Rules (see note 6 above), Rule 9, para. 2.
29/ See E/CN.6/1991/2, paras. 14 and 59-68.
30/ Standard Rules (see note 6 above), Rule 4.
31/ Ibid., Rule 2, para. 3.
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32/ See the Declaration on the Rights of Disabled Persons
(General Assembly resolution 3447 (XXX) of 9 December 1975), para. 6; and the
World Programme of Action concerning Disabled Persons (see note 3 above),
paras. 95-107.
33/ Standard Rules (see note 6 above), Rule 3.
34/ See A/47/415 para. 73.
35/ Standard Rules (see note 6 above), Rule 6.
36/ Ibid., Rule 10, paras. 1-2.
37/ See A/47/415 para. 79.
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