Secretariat

B-6/6, Safdarjung Enclave Extension, New Delhi - 110029, India

Phone: + 91-11-26192717, 26192706, 26191120

Fax: + 91-11-26191120

Email: secretariat@aphrn.org

Website: http://www.aphrn.org

                                                          ACTIVITIES

Seventh Annual Meeting On The Role of the Asia Pacific Forum In the Protection and Promotion of Human Rights

New Delhi, India, 11 – 13 November 2002

Proposed international Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities

Background Paper

One of the most recent international developments regarding disability rights is the formation of an Ad Hoc Working Committee on the formation of a United Nations Convention on the Rights of People with Disabilities.  This Proposed Convention is the context for the current examination of disability at the 7^th Annual Meeting of the Asia Pacific Forum of National Human Rights Institutions (APF).    As stated in the Forum background paper, the New Zealand Human Rights Commission has 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, which will presumably apply to the upcoming APF discussions, 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.”[1]  The Proposed UN Convention is a welcome addition to international human rights instruments, and the Asia Pacific Human Rights Network (APHRN) hopes that APF Members will play an active and dynamic role in its formation.  However, APHRN would like to stress that the international focus on disability is a relatively new one, and as such many nations in the Asia Pacific region have yet to implement legislation to guarantee the full equality of disabled persons.  Thus Asia Pacific national human rights institutions (NHRI), located at the nexus of human rights and governmental reform, should also take advantage of their unique position 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, approximately two thirds of the world’s 600 million disabled persons live in South or Southeast Asia.[2]  Nearly one third of disabled persons live below the poverty line, and less than ten percent of youth with disabilities attend school.[3]  The persistence of such discrimination is linked to the fact that the way disabled persons have been viewed in the human rights framework has undergone a radical change within the space of the past twenty years.  Until the early 1970’s, most legal and institutional measures focusing on disabled individuals took the form of institutional care, medical rehabilitation or allowances.[4]  Although well-intended, it has since been noted that these charity-based programs 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 only 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 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 explicates a global commitment to developing a society that contains full integration of both disabled and non-disabled persons.  Rather than placing the burden of change on the individual disabled person, it calls for legal, institutional, and social adaptation that will allow for the full realization of the rights of disabled persons.  The World Programme 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”.[5]  Significantly, “handicap” was understood not as a burden to be undertaken by a disabled individual, but rather as the “function of the relationship between persons with disabilities and their environment”.[6] 

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.”[7] “Disability” refers to the functional limitations experienced by an individual due to a physical “impairment.”[8]  (It should be noted that this is a clear and conscious departure from the definitions adopted by the World Health Organization (WHO) International Classification of Impairments, Disabilities, and Handicaps, which was written in 1980 and has since come under much criticism from advocates on behalf of disability rights.[9]) “Handicap” is the “limitation of opportunities to take part in the life of the community on an equal level with others” that results from the disability.[10] Adopting what could be referred to as a “social model” of disability,[11] it sets out a number of practical measures for achieving the substantive equality for persons with disabilities.  Several of the areas for development listed in the UNSR, such as awareness building, education, information and research, and national monitoring and evaluation of disability programmes, could easily fall under the auspices of a national human rights institution.

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 Millenium Framework.  This document “outlines issues, action plans and strategies towards an inclusive, barrier-free and rights-based society for persons with disabilities,”[12] 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, International Convention on Economic, Social, and Cultural Rights, International Labour Organisation (ILO) Convention concerning Discrimination in Respect of Employment and Occupation, ILO Convention concerning Vocational Rehabilitation and Employment, and the Convention Against Discrimination in Education.[13]  The Universal Declaration of Human Rights and the Convention on the Rights of the Child have provisions pertaining directly to disabled persons.[14]  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, 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.[15]  None of the international instruments that deal with disability in a comprehensive matter are legally binding, however.

This was noted by those advocating the formation of the Ad Hoc Committee under consideration at the 7^th APF meeting.  Established by 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 International Convention on Economic, Social, and Cultural Rights, to a comprehensive international treaty pertaining to disabled persons.  (The other proposed option is to enhance already 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 of this year.  The Committee considered position papers submitted by Mexico, China, and the European Union, and heard statements from the following Asia Pacific nations: Australia, India, Indonesia, Japan, the Phillipines, and the Republic of Korea.  The Committee also heard statements from 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 the Asia Pacific Forum of National Human Rights Institutions (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 presently exist, may have previously existed, may exist in the future, or may be “imputed to a person.”[16]  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.[17]  It underpins the Commonwealth Disability strategy and is implemented through a series of Disability Standards, for which failure to comply is punishable by law.[18]  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 vagueness in terminology and a lack of supporting framework.  The Act includes provisions for access to education, government employment, and state funded public infrastructure such as transportation and hospital facilities.[19]  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.”[20]  Although the Act states that three percent of available government positions shall be reserved for disabled persons, due to the technicalities of the reservation system this results in only one percent of the available lower level jobs.[21]  It is difficult to find information about the Act on the internet, and there is little evidence that effort has been made 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.”[22] 

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 yet to be heard by a court of law.[23]

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.[24]  In October of this year, 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.”[25]  (Thailand, interestingly, was the recipient of the 2001 International Disability Award.)

Even from these brief examples 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 national human rights institutions must be to familiarize themselves with existing international and national legislation.  If national legislations describe a detailed role for NHRI, then they should take care to perform that role to the best of their abilities and suggest areas for improvement where needed.  If the task of the NHRI is not so clearly laid out, then they must carefully fill in gaps regarding monitoring, evaluation, advocacy, and education.  In cases where no national legislation exists, NHRI can encourage and facilitate the development of this legislation while carrying out the recommendations of the World Program of Action, the UNSR, and the results of other United Nations studies to the best of their abilities.  

Copyright (c) 2002 Asia Pacific Human Rights Network. All rights reserved.