UN Human Rights Treaties

UNITED NATIONS
E
Economic and Social
Council
Distr.
GENERAL
E/CN.4/Sub.2/1996/27
2 July 1996
ENGLISH
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Sub-Commission on Prevention
of Discrimination and
Protection of Minorities
Forty-eighth session
Item 16 (b) of the provisional agenda
PROMOTION, PROTECTION AND RESTORATION OF HUMAN RIGHTS AT
NATIONAL, REGIONAL AND INTERNATIONAL LEVELS
HUMAN RIGHTS AND DISABILITY
Report of the Secretary-General prepared pursuant to
Sub-Commission resolution 1995/17
CONTENTS
Paragraphs Page
Introduction . . . . . . . . . . . . . . . . . . . . . . . . 1 - 6 2
I. INFORMATION RECEIVED FROM TREATY BODIES . . . . . . . . 7 - 17 3
A. Committee on the Rights of the Child . . . . . . . 7 - 13 3
B. Committee on Economic, Social and
Cultural Rights . . . . . . . . . . . . . . . . . . 14 - 16 4
C. Committee on the Elimination of Discrimination
against Women . . . . . . . . . . . . . . . . . . . 17 7
II. INFORMATION RECEIVED FROM THE SPECIAL RAPPORTEUR
OF THE COMMISSION FOR SOCIAL DEVELOPMENT
ON DISABILITY . . . . . . . . . . . . . . . . . . . . . 18 - 19 7
III. INFORMATION RECEIVED FROM THE UNITED NATIONS
EDUCATIONAL, SCIENTIFIC AND CULTURAL ORGANIZATION . . . 20 8
GE.96-13064 (E)
E/CN.4/Sub.2/1996/27
page 2
Introduction
1. The Sub-Commission on Prevention of Discrimination and Protection
of Minorities, in its resolution 1995/17 of 18 August 1995, requested the
Secretary-General to report in 1996 to the Sub-Commission regarding
coordination endeavours which affect persons with disabilities, with
emphasis on activities of the other United Nations organizations and bodies
that deal with alleged violations of the legal obligations of States under
the International Bill of Human Rights and United Nations treaties that
protect persons with disabilities.
2. The Sub-Commission further encouraged all the human rights
treaty-monitoring bodies to respond positively to invitations from the
Sub-Commission and the Commission on Human Rights to monitor the compliance
of States with their commitments under the relevant human rights instruments
in order to ensure the full enjoyment of those rights by persons with
disabilities, and to respond in writing.
3. Pursuant to that resolution, the High Commissioner for Human Rights, by
a communication dated 18 December 1995, invited the chairmen of all the human
rights treaty-monitoring bodies, the directors-general of the International
Labour Organization, the United Nations Educational, Scientific and Cultural
Organization and the World Health Organization, the Director for Policy
Coordination and Sustainable Development of the United Nations Secretariat and
the Special Rapporteur of the Commission for Social Development on disability,
to submit relevant information to the Centre for Human Rights by 1 May 1996.
4. By 31 May 1996, replies had been received from the Chairperson of the
Committee on the Rights of the Child. The Chairpersons of the Committee on
the Elimination of Discrimination against Women and the Committee on Economic,
Social and Cultural Rights sent general comments adopted by those bodies
concerning, respectively, disabled women and persons with disability. The
United Nations Educational, Scientific and Cultural Organization also sent
a reply. A reply was also received from the Special Rapporteur of the
Commission for Social Development on disability. These replies are summarized
below.
5. In addition, the Secretary-General would like to refer to paragraph 3
of resolution 1995/17 in which the Sub-Commission requested him, in
continuing response to the concern of the General Assembly expressed in
its resolution 48/99 of 20 December 1993 regarding the need to give higher
priority and viability to disability issues, to help ensure wide
distribution of the report of the Special Rapporteur, Mr. Leandro Despouy,
entitled Human Rights and Disabled Persons (United Nations publication,
Sales No. E.92.XIV.4), in which international mechanisms for the protection of
persons with disabilities, such as a moderator or ombudsman, are proposed.
6. In compliance with that request, the above-mentioned report has been made
available at sessions of the United Nations human rights organs and bodies and
at pertinent international meetings and has been sent to organizations and
individuals at their request.
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I. INFORMATION RECEIVED FROM TREATY BODIES
A. Committee on the Rights of the Child
[6 February 1996]
[Original: English]
7. The Committee adopts a certain number of concluding observations and
recommendations, at the outcome of its consideration of reports submitted to
it by States parties, in order to ensure the implementation of the Convention
on the Rights of the Child.
8. The Committee has examined the situation of disabled children in
the light of article 23 of the Convention, especially focused on the rights
of mentally and physically disabled children, with a view to ensuring
their active participation in the community and respect for their dignity
and the promotion of their self-reliance. The Committee is also taking
into account the general principles of the Convention including article 2
(non-discrimination), article 3 (best interests of the child) and article 4.
9. A first matter of concern is that some societies are not sufficiently
sensitive to the needs and situation of disabled children, in the light of
article 2 of the Convention. The Committee is preoccupied by the widespread
discriminatory attitudes towards those children. Strategies and educational
programmes, along with the adequate dissemination of information, should be
undertaken to avoid certain prejudices which affect disabled children
negatively (see A/49/41, paras. 177 and 183).
10. The Committee recognizes the prevalence of certain negative attitudes
which hamper the implementation of the rights of disabled children with
regard to article 23, such as isolation from the rest of society. The
promotion of their rights should be further advanced through, for instance,
support to parents’ organizations and to community-based services and a
sustained programme for moving children from institutions to a good family
environment (see A/49/41, para. 307).
11. The Committee is negatively impressed by the fact that some disabled
children do not have adequate access to health and social care services and
it expresses concern over the low number of disabled children enrolled in
schools, which might reflect an insufficient attention to their specific
needs. More protection should be offered them, including the possibility,
through education, of integrating properly into society and participating
actively in family life. Efforts for the early detection of the incidence of
handicap should be made (see A/49/41, paras. 102 and 108).
12. Budgetary reductions have also affected disabled children who are
particularly disadvantaged in their access to adequate health and educational
facilities. The Committee urges countries to take all the necessary steps to
minimize the negative impact of the structural adjustment policies on the
situation of disabled children. The Committee recognizes, in the light of
article 4, the priority of allocating the maximum extent of the available
resources to protect these children (see A/49/41, para. 163).
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13. International assistance and the exchange of appropriate information will
also be needed to address more effectively the challenge of improving the
situation of disabled children, in conformity with article 23, paragraph 4 of
the Convention.
B. Committee on Economic, Social and Cultural Rights
14. General Comment No. 5 (1994) adopted by the Committee at its 38th meeting
(eleventh session) on 25 November 1994, deals with issues relating to
persons with disabilities. In particular, it points to the importance of the
International Covenant on Economic, Social and Cultural Rights in relation to
the human rights of persons with disabilities. However, the Committee’s
experience 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. 1/ It is therefore considered 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.
15. The General Comment states as follows:
"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.
"...
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I. GENERAL OBLIGATIONS OF STATES PARTIES
"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. 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 should 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’. 2/
"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
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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.
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)) ...
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,
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.
"...
"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 ..."
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16. Chapter IV of the General Comment deals with specific provisions of the
Covenant in order to ensure the full enjoyment of the relevant rights by
persons with disabilities. 3/
C. Committee on the Elimination of Discrimination against Women
17. General Recommendation No. 18 (1991) adopted by the Committee at its
tenth session 4/ deals with issues relating to disabled women. The General
Recommendation states as follows:
"The Committee on the Elimination of Discrimination against Women,
Taking into consideration particularly article 3 of the Convention
on the Elimination of All Forms of Discrimination against Women,
Having considered more than 60 periodic reports of States parties,
and having recognized that they provide scarce information on disabled
women,
Concerned about the situation of disabled women, who suffer from a
double discrimination linked to their special living conditions,
Recalling paragraph 296 of the Nairobi Forward-looking Strategies
for the Advancement of Women, in which disabled women are considered as a
vulnerable group under the heading ’areas of special concern’,
Affirming its support for the World Programme of Action concerning
Disabled Persons (1982),
Recommends that States parties provide information on disabled
women in their periodic reports, and on measures taken to deal with their
particular situation, including special measures to ensure that they 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."
II. INFORMATION RECEIVED FROM THE SPECIAL RAPPORTEUR OF
THE COMMISSION FOR SOCIAL DEVELOPMENT ON DISABILITY
[31 May 1996]
[Original: English]
18. In the view of the Special Rapporteur, the issue of coordinating
disability programmes and initiatives is of fundamental importance for
further progress in this field. He has raised this issue several times with
representatives of the United Nations Secretariat, though so far without any
concrete results. He considers that an efficient mechanism has to be
established whereby policy and plans could be coordinated. He thinks the time
is right for a high-level initiative in this respect. It concerns both the
social development aspect and the human rights perspective in the disability
field. He considers his job to be mainly in the social development area but
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understands the need for initiatives and coordination in the human rights
area, where so little has been done but where the potential for development is
great.
19. The Special Rapporteur and his panel are now dealing with the
interpretation of the results of their comprehensive questionnaire, to
which 70 Governments and 150 Non-Governmental Organizations have replied.
They also have two separate research projects in the essential fields of
employment and education where they cooperate closely with ILO and UNESCO.
On 20 June the Special Rapporteur was to participate in a meeting with
representatives of ILO, UNESCO and WHO to start discussion on how efforts in
the disability field could be more efficiently coordinated. At the same time,
the Commission for Social Development is discussing its own mandate and mode
of work. He hopes that this will lead to a higher level of activity and
better coordination.
III. INFORMATION RECEIVED FROM THE UNITED NATIONS EDUCATIONAL,
SCIENTIFIC AND CULTURAL ORGANIZATION
[16 February 1996]
[Original: English]
20. UNESCO’s work has bearing on the protection of the rights of disabled
persons. Alleged violations of cultural rights are examined by the Committee
on Conventions and Recommendations. These also cover the rights of persons
with disability. UNESCO’s activities for promoting human rights education
also include education of disabled persons.
Notes
1/ A/47/415, para. 6.
2/ General Assembly resolution 48/96 of 20 December 1993, annex, rule 1.
3/ See A/49/40, paras. 19-38.
4/ See A/46/38.
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