DISABILITY

Standard Rules: 10 years after

DECEMBER 2003 will mark the 10th anniversary of the United Nations Standard Rules on the Equalization of Opportunities for People with Disabilities (Standard Rules). Adopted by the General Assembly in resolution 48/96 of 20 December 1993, the Standard Rules recognise "a new concept of disability" that emphasises "the close connection between the limitation experienced by individuals with disabilities, the design and structure of their environments and the attitude of the general population." 

Significantly, paragraph 17 defines "handicap" as "the encounter between the person with a disability and the environment." It further states that, "The purpose is to emphasize the focus on the shortcomings in the environment and in many organized activities in society, for example, information, communication and education, which prevent persons with disabilities from participating on equal terms." 

Adopting what could be referred to as a "social model" of disability, they set out a number of practical measures for achieving substantive equality for persons with disabilities.  The areas for development listed in the Standard Rules include awareness building, education, information and research, and national monitoring and evaluation of disability programmes.

The Standard Rules exemplify the ongoing shift from a charity-based approach to disability to one that is based on human rights. On the international stage, this shift began in 1981, which the United Nations declared the International Year of Disabled Persons. 

This was followed by the adoption of the World Program of Action Concerning Disabled Persons in 1982, which provided an international framework to incorporate disability issues into national planning and explicated a global commitment to developing a society that fully integrates disabled and non-disabled persons.  Rather than placing the burden of change on the individual person with disabilities, it called for legal, institutional, and social adaptation that would allow for the full realisation of the rights of disabled persons.

The following year, the International Decade of Disabled Persons was designated (1983-1992) to promote "equality" and "full participation" of disabled persons in social life and development. 

The UN Commission for Social Development also appointed a Special Rapporteur on monitoring the implementation of the Standard Rules. The final report of the Special Rapporteur (E/CN.5/2000/3), whose mandate ended in August 2000, highlighted the importance of integrating the Standard Rules with the UN human rights mechanisms.

General Comment No. 5 on Persons with Disabilities of the Committee on Economic, Social and Cultural Rights (contained in document E/1995/22) highlights the importance of the Standard Rules in determining states obligations under the ICESCR. In drawing on specific provisions of the ICESCR with references to the Standard Rules, the Committee concludes:

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…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.

Yet despite the positive contribution of the Committee on Economic, Social and Cultural Rights in General Comment No. 5, as well as General Recommendation 18 on women with disabilities produced by CEDAW, it is clear that the treaty bodies are, in general, under-utilised as means of protecting the rights of persons with disabilities. A study on the use of UN human rights instruments in the context of disability, conducted by the Research Centre on Human Rights and Disability of the University of Galway and submitted to last year's session of the Commission (E/CN.4/2002/18/Add.1), states: "the process of disability reform that is taking place across the globe could be immeasurably strengthened and accelerated if greater and more target use were made of [the six main UN human rights treaties]".

Three treaties in particular that could benefit from mainstreaming the rights of persons with disabilities are the ICCPR, the Convention Against Torture, and the Convention for the Elimination of All Forms of Discrimination Against Women. As the study explained, many states' reports refer to disability as a welfare issue and not as an issue under the ICCPR. However, "the key ethic of the worldwide disability rights movement is freedom and participation". Again, in surveying states' reports the authors of the study found that "States parties tend not to draw the link between ICESCR rights and the achievement of the goals of independence, autonomy and participation". It observed a similar lack in the periodic reports to CAT and CEDAW.

Notably, in some ways these areas of weakness in using the human rights treaty bodies mirror deficiencies that have already been pointed out with respect to the Standard Rules. For example, the final report of the Special Rapporteur of the Commission for Social Development notes that neither the gender dimension nor the needs of children with disabilities are treated sufficiently.

The report also points out that the Standard Rules do not deal at all with the area of housing. (This observation also highlights the importance of this year's draft resolution on the right to adequate housing, see the 14-20 April 2003 issue of Human Rights Features.)

Taking this and other gaps in existing international instruments into account, many have argued convincingly that binding international convention for persons with disabilities is needed, and in December 2001 the General Assembly resolution 56/186 established an Ad Hoc Committee "to consider proposals for a comprehensive and integral international convention to promote and protect the rights and dignities of persons with disabilities, based on the holistic approach in the work done in the fields of social development, human rights and non-discrimination."

As explained in the UN report Human Rights and Disability: The current use and future potential of United Nations human rights instruments in the context of disability, it would increase the visibility of people with disabilities leading to a broader and deeper human rights expertise on disability, clarify states parties' obligations with respect to persons with disabilities, give disability NGOs a clear target to focus their complaints on, and mainstream the issue of disability rights so that they would be better protected by the six major human rights instruments.  Such a convention would complement, rather than replace, the role of the six core human rights instruments in protecting and promoting the rights of disabled persons.

The formation of the Ad Hoc Committee is a welcome - some would say vital - step in the promotion and protection of the rights of persons with disabilities. Although it is regrettable that NHRIs were not invited to its first meeting, the Ad Hoc Committee will hold its second meeting in June 2003 to discuss reports from member states, UN bodies, NHRIs and NGOs.

At the same time, the fanfare surrounding the development of the Committee must not be substituted for the continual re-evaluation and implementation of the Standard Rules. The Economic and Social Council for the Asia Pacific (ESCAP), in anticipation of the meeting, was to have organised a regional meeting on an International Convention to Protect and Promote the Rights and Dignity of Persons with Disabilities in Beijing from 8 to 11 April 2003.  This, however, has been postponed due to the SARS epidemic. Its purpose was "to create regional unified support for the elaboration of an international convention on the right of persons with disabilities among countries of the Asian and Pacific region, to raise awareness and interest among Governments and civil society organizations in the region toward the international convention and to promote their active participation in the process of the elaboration of the international convention."  Recommendations resulting from this meeting were presented at the second session of the Ad Hoc Committee.

Although this meeting came after two consecutive Asia Pacific Decades of Disability, it is interesting to note that only one ESCAP country, Japan, contributed to the voluntary fund for the activities of the Special Rapporteur of the Commission for Social Development.

Discussion of a new instrument for persons with disabilities should be concurrent with discussion of the Standard Rules - an instrument, which, though non-binding, is already in existence. To begin with, the Commission must continue to integrate the disability aspect into the special procedures and mechanisms.

As General Comment No. 5 illustrates, the Standard Rules can provide guidance in determining states' obligations under international human rights treaties. Where the Standard Rules do not provide guidance, such as in the area of housing, the Commission has an opportunity to create an impact on the way the rights of disabled persons are promoted.

The Commission can also consider appointing a Special Rapporteur on the rights of persons with disabilities. This is particularly important now that the mandate for the Special Rapporteur of the Commission for Social Development has ended. If the drafting process of other new human rights instruments is any indication, the creation of the Draft Convention may be a lengthy process, and a Special Rapporteur would act as a much-needed focal point for disability in the human rights system.

Finally, the Commission should facilitate and encourage the participation of persons with disabilities in its proceedings. It is important to remember throughout that over 600 million people, approximately ten percent of the world's population, live with a disability of some kind.  Recent estimates suggest that nearly one third of persons with disabilities live below the poverty line, and less than ten percent of youth with disabilities attend school.

According to a United Nations report Human Rights and Disability, "The link between disability and poverty and social exclusion is direct and strong throughout the world." Often disability intersects with other kinds of disadvantage including race, gender, class, and age-accentuating the problems already faced by these individuals. Hopefully the Commission will be among the first to exemplify a change in this appalling status quo.