Abstract
Chapter 3 approaches disability as a reality that may impede the universality of human rights given that the rights of the group in question are “systematically violated”. To achieve an inclusive society in which everyone’s rights are implement, it is necessary to start with an adequate definition of the problem, referring to these individuals as “people with different capacities”, recognizing the place this difference has in society, and the role the State plays in the integration of this difference. To do this, their social visibility needs to be promoted as well as their accessibility to all spheres of social life, guaranteeing their participation in the labour and political fields, overcoming physical and cultural barriers, and putting an end to the existing confusion between mere social protection and the recognition of rights.
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- 1.
If legislation permits the voluntary interruption of a pregnancy by a woman due to the fact that she learns that the unborn baby is a female, or a specific ethnicity or sexual orientation, many voices are raised to say the law is discriminatory or threatens the principle of equality. Nevertheless, the majority of laws regulating voluntary interruption of pregnancy include as a reason for abortion the act of discovering (or even suspecting) that the unborn child suffers from a physical, psychological or sensory deficiency. Although we recognise that the example is, as well as provocative, questionable, would the reader have the same doubts if the reason were that the unborn child was of a specific sex or ethnic group?
- 2.
The first specific instrument of the United Nations in the sphere of disability was the Resolution on “Social Rehabilitation of the Physically Disabled” approved by the Economic and Social Council in 1950. This originated from a study by the Social Commission, a subsidiary body of the Economic and Social Council during its sixth session, with two reports relating to physical disabilities (“The social rehabilitation of the handicapped” and “The social rehabilitation of the blind”) as well as another produced by the International Program for the Wellbeing of the Blind.
- 3.
Neither the Universal Declaration of Human Rights, nor the International Covenant on Civil and Political Rights, nor the International Covenant on Economic, Social and Cultural Rights, nor the first treaties on specific groups include any willingness to make direct reference to people with disabilities and their especially disadvantaged position.
- 4.
This is the case of the Declaration on the Rights of the Child from 1959 where one principle (of the ten set out) is devoted to children with disabilities (AG/RES/1386 (XIV) of 20 November 1959): or the Declaration on Social Progress and Development of 1969 (AG/RES/2542 (XXIV) of 11 December 1969).
- 5.
First in 1971 was the passing of the Declaration on the Rights of Mentally Retarded Persons (AG/RES/2856 (XXVI) of 20 December 1971) which became the first United Nations text to recognise specific rights for disabled people. Secondly in 1975 was the Declaration on the Rights of Disabled Persons (AG/RES/3447 (XXX) of 09 December 1975). – Thirdly in December 1976 the General Assembly declared 1981 International Year of Disabled Persons with the aim of promoting wider integration and participation of these people in society. Fourthly, in December of 1982, the General Assembly adopted the World Programme of Action Concerning Disabled Persons (AG/RES/37/52 of 03 December 1982). This Programme is a declaration of principles and directives for national and international action in favour of people with disabilities. In the same resolution that approved the World Programme of Action for Disabled Persons, the General Assembly declared 1983–1992 as Decade of Disabled Persons with the aim of establishing a timeframe to allow the development and execution of activities included in the World Programme of Action and celebrate an International Convention directed at the specific protection of people with disabilities. The end of the 1980s saw the approval of the Tallin Guidelines for Action on the Developments of Human Resources in the Field of Disability and their incorporation by the General Assembly into an annex of resolution 44/70 of 08 December 1989. Before the end of the Decade of Disabled Persons, in 1991 the General Assembly adopted the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Healthcare (AG/RES/46/119 of 17 December 1991).
- 6.
AG/RES/48/96 of 20 December 1993.
- 7.
World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban (South Africa), 31 August to 07 September 2001 (A/CONF.189/5).
- 8.
Ibid., Cap. I.
- 9.
As agreed in 1976 by the 29th World Health Assembly, in resolution 29.35. ICIDH or ICIDH-1 is the acronym for the first classification produced by the World Health Organization. Usually written as ICIDH in English.
- 10.
In the classification the definition of impairment is described as “any loss or abnormality of psychological, physiological or anatomical structure or function” and the definition of handicap States that a handicap is a “disadvantage for a given individual, resulting from an impairment or a disability, that limits or prevents the fulfilment of a role that is normal (depending on age, sex, and social and cultural factors) for that individual”.
- 11.
Approved by the World Health Assembly in resolution 54.21 of 22 May 2001.
- 12.
stein, m., “Disability Human Rights,” California Law Review 95, no. 1 (2007).
- 13.
Inter-American Court of Human Rights: advisory opinion OC-18/03 of 17 September 2003 requested by the United Mexican States on Juridical Condition and Rights of Undocumented Migrants.
- 14.
Ibid., par. 101. In the same paragraph the Court continues: “This principle (equality and non-discrimination) forms part of general international law. At the existing stage of the development of international law, the fundamental principle of equality and non-discrimination has entered the realm of jus cogens”.
- 15.
Ibidem, par. 103. In the same paragraph the Court continues: “This translates, for example, into the prohibition to enact laws, in the broadest sense, formulate civil, administrative or any other measures, or encourage acts or practices of their officials, in implementation or interpretation of the law that discriminates against a specific group of persons because of their race, gender, colour or other reasons”.
- 16.
Ibidem, par. 104.
- 17.
Article 2 par. 5 of the Convention.
- 18.
Ibidem.
- 19.
The general principles of the Convention are stated in article 3 and are:
-
(a)
Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
-
(b)
Non-discrimination
-
(c)
Full and effective participation and inclusion in society
-
(d)
Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity
-
(e)
Equality of opportunity
-
(f)
Accessibility;
-
(g)
Equality between men and women
-
(h)
Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities
-
(a)
- 20.
Article 3 section (c). Emphasis added.
- 21.
Ibidem, section (d).
- 22.
Ibidem, section (f).
- 23.
Ibidem, section (h).
- 24.
In accordance with the text of article 9: “These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:
-
1.
Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces;
-
2.
Information, communications and other services, including electronic services and emergency services.
Also, in accordance with section 2 of article 9: States Parties shall also take appropriate measures to:
-
1.
Develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public;
-
2.
Ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities;
-
3.
Provide training for stakeholders on accessibility issues facing persons with disabilities;
-
4.
Provide in buildings and other facilities open to the public signage in Braille and in easy to read and understand forms:
-
5.
Provide forms of live assistance and intermediaries, including guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public;
-
6.
Promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information;
-
7.
Promote access for persons with disabilities to new information and communications technologies and systems, including the Internet;
-
8.
Promote the design, development, production and distribution of accessible information and communications technologies and systems at an early stage, so that these technologies and systems become accessible at minimum cost”.
-
1.
- 25.
First paragraph of the preamble to the 2006 Convention.
- 26.
cardona llorens, j. y sanjosé gil, a., 2005. La promoción y protección de los Derechos Humanos de las personas con discapacidad: en el camino de su reconocimiento universal, in courtis c., hauser d. y rodríguez huerta g. (comp.), Protección Internacional de Derechos Humanos. Nuevos Desafíos, (México: Instituto Tecnológico Autónomo de México, 2005), pp. 147–175.
- 27.
quinn, g., The UN Human Rights of Persons with Disabilities Treaty: A Blueprint for Disability Law & Policy Research and Reform, 2006.
- 28.
See UNHCR, Disabled Persons, Victims of Armed Conflicts and Civil Unrest, Eighth inter-agency meeting on the United Nations Decade of Disabled Persons, 1983–1992, Geneva, 1990.
- 29.
quinn, g. y degener, t., Derechos humanos y discapacidad, cit., pp. 11 y ss.
- 30.
Ibidem, p. 15.
- 31.
The undertakings are:
-
(a)
adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention;
-
(b)
take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;
-
(c)
take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes;
-
(d)
refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention;
-
(e)
take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise;
-
(f)
undertake or promote research and development of:
-
i.
universally designed goods, services, equipment and facilities, as defined in article 2 of the present Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines;
-
ii.
new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost;
-
i.
-
(g)
provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities;
-
(h)
promote the training of professionals and staff working with persons with disabilities in the rights recognized in this Convention so as to better provide the assistance and services guaranteed by those rights.
-
(a)
- 32.
See comment on article 15, in A/60/266, par. 21.
- 33.
First paragraph of the preamble to the 2006 Convention.
- 34.
Vide supra.
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Llorens, J.C. (2012). Human Rights and the Inclusive Society. In: Ballesteros, J., Fernández Ruiz-Gálvez, E., Talavera, P. (eds) Globalization and Human Rights. Ius Gentium: Comparative Perspectives on Law and Justice, vol 13. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4020-4_3
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