PART 2:
THE CONVENTION ON THE RIGHTS
OF PERSONS WITH DISABILITIES
Chapter 17:
The Human Rights of Other Populations of Persons with Disabilities
Convention on the Rights of Persons with DisabilitiesPreamble (excerpts)
The States Parties to the present Convention,…(i) Recognizing further the diversity of persons with disabilities,
(k) Recognizing the need to promote and protect the human rights of all persons with disabilities, including those who require more intensive support,
(p) Concerned about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status,
(t) Highlighting the fact that the majority of persons with disabilities live in conditions of poverty, and in this regard recognizing the critical need to address the negative impact of poverty on persons with disabilities[.]
OBJECTIVES
The information contained in this chapter will enable participants to work towards the following objectives:
• Understand the multiple forms of discrimination that sub-groups within the general population of persons with disabilities may face and to identify discrimination against them as a human rights issue;
• Identify ways in which the human rights of these sub-groups have been promoted or denied;
• Explain the importance of affording all persons with disabilities a voice in decision-making processes that concern their interests, including the participation of persons with disabilities in development decision-making;
• Understand and apply the provisions on the human rights of persons with disabilities who may be subject to multiple forms of discrimination in the Convention on the Rights of Persons with Disabilities (CRPD); and
• Highlight possible strategies to advance the rights of all persons with disabilities.
GETTING STARTED: THINKING ABOUT THE HUMAN RIGHTS OF PERSONS WITH DISABILITIES WHO EXPERIENCE MULTIPLE DISCRIMINATION
In general, persons with disabilities are marginalized and face discrimination on account of their disability. Some groups of persons with disabilities face multiple or aggravated discrimination on account of their status or membership in a minority group. They experience discrimination due to their disability as well as other characteristic, situation or circumstance, such as age, social situation or health status. There are many attributes which may result in multiple or aggravated discrimination. These include, but are by no means limited to: race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age, sexual minority status, poverty or other status. A person with a disability who requires intensive support may also experience such aggravated or multidimensional discrimination.
Human rights law is increasingly sensitive to understanding that individuals are diverse and multidimensional and therefore cannot be summed up in a single identity. Persons with disabilities, like other human beings, belong to more than one group at a time. The interrelationship of such multiple group membership can create additional vulnerabilities to discrimination. For example, a woman with a disability who lives in poverty who is a member of an indigenous community may experience discrimination based upon her status as a woman, a person with a disability, and a member of a minority community. Like that of many persons, her identity is complex, and her experience of discrimination is likewise complex, layered, and comprised of several dimensions.
Thus, persons with disabilities may face discrimination in a variety of life circumstances and situations. Persons with disabilities who are living in a humanitarian crisis, such as natural disaster or armed conflict, may experience discrimination on account of their disability and on the basis of their refugee or displaced status. Health status may also result in discrimination, for example, in the situation of a person with a disability who is living with HIV/AIDS or other communicable disease.
These differences and a variety of other characteristics and circumstances should be taken into account when considering how best to ensure the human rights and fundamental freedoms of all persons with disabilities.
Identifying the Many Bases of DiscriminationIn 2000 the Charter of Fundamental Rights of the European Union was adopted, which, among other human rights provisions, includes one of the most far-reaching non-discrimination provisions in modern human rights law.
Article 21(1) provides that: “Any discrimination based on any ground, such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.”
The non-discrimination provision in the Charter makes clear that discrimination on any ground, including those specifically mentioned in the provision, as well as other grounds not mentioned in the provision, are prohibited.
Source: European Union, Charter of Fundamental Rights of the European Union, 7 December 2000: http://www.suroparl.europa.eu/charterdefault_en.htm
WHAT DOES HUMAN RIGHTS LAW SAY ABOUT THE RIGHTS OF PERSONS WITH DISABILITIES WHO EXPERIENCE MULTIPLE FORMS OF DISCRIMINATION?
The principle of non-discrimination is one of the most fundamental norms in human rights law. The rights of persons who face discrimination on account of their particular status are well recognized in human rights treaties. Indeed, the cornerstone of human rights protection as set forth in the UN Charter is its non-discrimination provision, which provides that the UN shall promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” All major international human rights conventions contain non-discrimination provisions and build upon the principle of non-discrimination found in the UN Charter.
The Universal Declaration of Human Rights (UDHR) provides that:
Everyone is entitled to all the rights and freedoms set forth in [the UDHR] without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
The International Covenant on Civil and Political Rights (ICCPR) contains a non-discrimination clause mirroring that found in the UDHR, an equal rights provision between men and women, and a provision guaranteeing to persons belonging to ethnic, religious, or linguistic minorities the rights, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, and to use their own language.
Specialized human rights conventions have been drafted in order to address in more detail the rights of populations who may face additional barriers to the enjoyment of their rights on account of their membership in a minority or particularly disadvantaged group. These include, for example, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Rights of the Child (CRC), and the Convention on the Rights of Migrant Workers. The rights of indigenous people are addressed in the Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), as well as the Declaration on Rights of Indigenous Peoples adopted by the UN General Assembly in September 2007. Other population groups are similarly pressing for greater recognition of their human rights through the adoption of specialized conventions or non-binding instruments, including, for example, older persons.
The CRPD recognizes that persons with disabilities may belong to sub-groups who face additional discrimination beyond disability-based discrimination. Such persons may therefore be doubly disadvantaged and face additional barriers to their full enjoyment of human rights. The CRPD, in its Preamble, recognizes:
- The diversity of persons with disabilities;
- The reality that some persons with disabilities require intensive supports and may therefore face additional barriers to their full enjoyment of human rights;
- That certain sub-groups of persons with disabilities may be subjected to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age, or other status; and
- That persons with disabilities often live in poverty and that this status creates additional barriers for the full enjoyment of human rights.
All of the human rights set forth in the CRPD apply to all persons with disabilities, whatsoever their minority group membership, social situation, or life circumstance of any kind. All of the general principles in the CRPD support a framework of human rights protection that was clearly intended by the drafters to cover all groups of persons with disabilities, whether or not they are expressly mentioned in the CRPD. Article 3, General principles, is accordingly an important tool for persons with disabilities who may experience multiple forms of discrimination to use in their advocacy efforts. Several of the principles in Article 3 are of particular note:
· The principle of non-discrimination: recognizes that both disability discrimination and discrimination on other grounds are prohibited;
· The principle of full and effective participation and inclusion in society: recognizes that all persons with disabilities, whatever their minority or other status or circumstance are entitled to participate fully in their community and in decision-making where their interests are affected;
· The principle of respect for difference and acceptance of persons with disabilities as part of human diversity and humanity: recognizes that diversity in humankind, whether based on disability or any other attribute, is to be respected and valued;
· The principle of equality of opportunity: recognizes that all persons with disabilities are entitled to equality of opportunity, whatever their minority or other status or circumstance;
· The principle of equality between men and women: recognizes that persons with disabilities, whether men or women, are entitled to equality and providing an explicit basis on which to challenge double discrimination based on disability and sex; and
· The principle of respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities: recognizes the rights of the child and the issue of discrimination based on disability and age.
In sum, the CRPD captures the idea that the human experience and identity of persons with disabilities is complex, multi-layered, and multidimensional. Laws and policies that seek only to achieve formal equality will not identify and break down the many barriers that persons with disabilities experience in society. This is because formal equality stresses equal treatment: those in like positions will be treated alike. Formal equality misses the reality of multiple group identity and the complexity of structural barriers that reinforce and perpetuate discrimination. The CRPD, in response, sets out a framework that guarantees equality and non-discrimination and creates obligations that reach beyond formal equality, including obligations to provide reasonable accommodation and positive obligations to identify and remove barriers to accessibility.
The CRPD Committee on Multidimensional DiscriminationIn its Reporting Guidelines, the CRPD Committee states the following regarding Article 5, Equality and non-discrimination:
This article recognizes that all persons are equal before the law with entitlement to equal protection and benefit of the law on equal grounds without any discrimination.
States Parties should report on:
1. Whether persons with disabilities are able to use the law to protect or pursue their interests on an equal basis to others;
2. Effective measures taken to guarantee persons with disabilities equal and effective legal protection against all types of discrimination, including the provision of reasonable accommodation; and
3. Policies and programmes, including affirmative action measures, to achieve the de facto equality of persons with disabilities, taking into account their diversity.
Source: Committee on the Rights of Persons with Disabilities, “Reporting Guidelines”: http://www.ohchr.org/Documents/HRBodies/CRPD/CRPD-C-2-3.pdf
The Duty to Respect, Protect, and Fulfil Obligations in Respect of All Persons with Disabilities
Taken as a whole, States’ obligations with regard to ensuring equality and non-discrimination for persons with disabilities who experience discrimination on account of disability and some other status (such as gender, ethnicity, and poverty), include:
1. Obligation to respect: States must refrain from engaging in any act, custom, or practice that is inconsistent with the principles of equality and non-discrimination.
Example: The State may not adopt or maintain laws that discriminate against persons with disabilities on account of their gender, such as allowing sterilization of women with disabilities without informed consent.
2. Obligation to protect: States must take all appropriate measures to eliminate discrimination and violations of equality by any non-State actors (such as persons, organizations, or private enterprises) in respect of persons with disabilities who are at risk of multiple forms of discrimination.
Example: The State must ensure that microfinance programmes do not exclude persons with disabilities living in poverty from participation in microfinance schemes.
3. Obligation to fulfil: States must be proactive in their adoption and implementation of measures to give effect to the principles of equality and non-discrimination in respect of persons with disabilities who are at risk of multiple forms of discrimination.
Example: The State introduces an “affirmative action” programme to encourage greater participation of women with disabilities in public service.
In sum, human rights law strongly supports the right to equality and non-discrimination for persons with disabilities who experience discrimination on account of disability and some other status (such as gender, ethnicity, and poverty).
PERSONS WITH DISABILITIES LIVING IN POVERTY
Poverty is a status that leads to multiple forms of disadvantage. The United Nations estimates that one in twenty persons have a disability and that more than 75% of persons with disabilities live in developing countries.[1] Persons with disabilities tend to be among the poorest of the poor in society. According to World Bank estimates, one out of every five of the world’s poorest persons is disabled.[2] Unfortunately the multitude of barriers that limit the access of persons with disabilities to education, employment, housing, health care and rehabilitation, transportation, and recreation also serve to limit their participation in development planning decisions that could improve their lives. Ensuring the full participation of persons with disabilities in the planning, design, implementation, and evaluation of development programmes is essential in order to ensure the success of poverty reduction strategies. Disabled People’s Organizations (DPOs) and their allies are working to ensure that international development becomes more inclusive of the voices and needs of persons with disabilities.
Including persons with disabilities in development decision-making is critical to achieving the promise of poverty reduction and responsible development. The CRPD recognizes that development processes need to take into account disability issues. Article 33, National implementation and monitoring, stresses the important role of international cooperation for realizing the rights of persons with disabilities and calls on States to take measures “[e]nsuring that international cooperation, including international development programmes, is inclusive of and accessible to persons with disabilities.”
International development organizations tend to emphasize that the people most directly affected by a development project must have the opportunity to participate in its planning from its earliest stage. All too often, persons with disabilities are left out of these efforts. The World Bank and other development actors are currently addressing this exclusion and are trying to ensure that persons with disabilities participate in the various forms of development programming, starting at the project design stage. It will take the active efforts of DPOs to ensure that inclusive development is a reality.
Poverty Reduction Strategy Papers and Inclusive DevelopmentThe term Poverty Reduction Strategy Paper (PRSP) refers to an important development document devised by the World Bank and the International Monetary Fund in 1999 in order to help low-income, highly indebted countries to formulate a national plan on how to reduce poverty in their country and improve living conditions. Once a country has adopted a national PRSP, it may apply for debt relief from the World Bank, the IMF, and donor countries, and may gain access to new credits, loans and grants for development projects. The PRSP provides an important roadmap for development and sets priorities for target actions to reduce poverty. This tool and others like it are used by many international development partners.
The process by which PRSPs are developed are intended to be highly participatory and include a wide range of country stakeholders. A key principle of the process is the active involvement of civil society in the formulation, implementation, and evaluation of a country’s national poverty reduction strategy. Unfortunately, persons with disabilities have too often been left out of this important process. The World Bank is working with disability organizations to improve the participation of persons with disabilities in development decision-making.
Source: Handicap International & Cristoffel Blindenmission, “Making PRSPs Inclusive” (World Bank, undated): http://siteresources.worldbank.org/DISABILITY/Resouces/280658-1172608-11726081384/MakingPRSPInclusive/pdf
REFUGEES AND INTERNALLY DISPLACED PERSONS
Some three to four million persons with disabilities worldwide are refugees or internally displaced within their own countries. Already highly marginalized from their communities before forced migration, persons with disabilities are exposed to increased hazards during and following flight. Nevertheless, recent humanitarian crises demonstrate that assistance operations neither foresee nor react to the specific needs of persons with disabilities. The adoption of the CRPD highlights disability-inclusion as a human rights issue in situations of risk that often lead to displacement, including natural disasters and armed conflict. The Preamble of the CRPD acknowledges that “the observance of applicable human rights instruments are indispensable for the full protection of persons with disabilities, in particular during armed conflicts and foreign occupation.” Protecting persons with disabilities in humanitarian responses requires concrete and operational guidance that takes general legal standards of the sort typically found in treaties and applies them with particularity and effect to field operations.
Forced migration impacts individuals with disabilities in a myriad of ways. Often the circumstances surrounding involuntary movement are themselves disabling and can generate secondary impairments for persons with existing disabilities, for instance, post-traumatic stress disorder or landmine accidents. Flight is typically marked by chaos. Even when persons with disabilities are not abandoned, they frequently find themselves displaced from support networks of family, friends, and community. Assistive devices, such as prosthetic limbs and hearing aids, as well as necessary medications, may be lost or left behind. The devastating impact of flight on the psychosocial well-being of the fleeing population is also a major risk factor. Health, rehabilitation, and transportation infrastructure can be destroyed during conflict or other emergencies, with serious consequences. Moreover, inadequate general medical care increases the likelihood of disablement in the midst of these crises. To formulate effective disability-inclusion strategies, the specific needs of refugees and internally displaced persons (IDPs) with disabilities must be appreciated. Most importantly, persons with disabilities and their representative organizations must be consulted and take part in the development of inclusive responses.
Advocacy by DPOs is an essential tool in ensuring that humanitarian assistance programmes take into account the specific needs of persons with disabilities in their preparation for and response to humanitarian crises. Persons with disabilities and their representative organizations must participate in all programmes designed to reach affected populations in times of crisis. This inclusion is essential for the simple reason that the affected population—here, persons with disabilities—have better information on how to empower and protect themselves than do others.
CRPD Committee Guidance on the Protection of Persons with Disabilities in
Situations of Risk
The CRPD Committee’s Reporting Guidelines to States in relation to reporting on Article 11
This article obliges States Parties to ensure the protection and safety of persons with disabilities in situations of risk, such as situations resulting from armed conflicts, humanitarian emergencies or natural disasters.
States Parties should report on any measures taken to ensure their protection and safety, including measures taken to include persons with disabilities in national emergency protocols.
States Parties should report on measures taken to ensure that humanitarian aid relief is distributed in an accessible way to people with disabilities caught in a humanitarian emergency, in particular measures taken to ensure that sanitation and latrine facilities in emergency shelters and refugee camps are available and accessible for persons with disabilities.
Source: Committee on the Rights of Persons with Disabilities, “Reporting Guidelines” (2009): http://www.ohchr.org/Documents/HRBodies/CRPD/CRPD-C-2-3.pdf
USEFUL RESOURCES ON THE HUMAN RIGHTS OF OTHER POPULATIONS OF PERSONS WITH DISABILITIES
Ethnic Minorities and Disability:
· UN Enable website on ethnic minorities and disability: http://www.un.org/esa/socdev/enable/comp507.htm
Indigenous People and Disability:
· UN Enable website on indigenous people and disability: http://www.un.org/esa/socdev/enable/comp506.htm
· International Work Group for Indigenous Affairs website: http://www.iwgia.org
Migrant Workers and Disability:
· UN Enable website on migrant workers and disability: http://www.un.org/esa/socdev/enable/comp509.htm
Older Persons and Disability:
· UN Enable website on older persons and disability: http://www.un.org/esa/socdev/enable/comp503.htm
· Global Action on Aging: http://www.globalaging.org
o Leading organization on the rights of older persons
· HelpAge International: http://www.helpage.org/Home
o Leading organization on the rights of older persons.
People Living in Poverty and Disability:
· UN Enable webpage on poverty and disability: http://www.un.org/esa/socdev/enable/comp508.htm
· Department for International Development (DFID), “Disability, Poverty and Development”: http://www.dfid.gov.uk.pubs/files/disability.pdf
o UK international development agency major publication on poverty and disability.
People Living with HIV/AIDS and Disability:
· Nora E. Groce, World Bank, HIV/AIDS and Disability: Capturing Hidden Voices, Report of the World Bank Yale University Global Study on HIV/AIDS and Disability (Washington, DC, 2004): http://cira.med.yale.edu/globalsurvey/
o Major study by leading author on HIV/AIDS and disability.
· Health Canada, “HIV AIDS and Disability” (2009): http://data.unaids.org/pub/Report/2009/20091111_hiv_and_disability_en.pdf
o Report on HIV/AIDS and disability
Refugees and Disability:
· Janet E. Lord & Michael A. Stein, “Human Rights and Humanitarian Assistance for Refugees and Internally Displaced Persons with Disabilities,” in Africa in Aspects of Disability Law in Africa 33 (Pretoria University Law Press, 2011).
o Focusing on the implications of the CRPD and refugee law for the African refugee context.
· UN Enable Webpage on refugees with disabilities: http://www.un.org/esa/socdev/enable/comp505.htm
· Glen W. White & Michael H. Fox, Catherine Rooney, & Jennifer Rowland, Final Report Findings of the Nobody Left Behind: Preparedness for Persons with Mobility Impairments Research Project (2007): www.nobodyleftbehind2.org/~rrtcpbs/findings/Final%20Report%20NLB%20July%202007.pdf
o Addressing strategies for inclusion in disaster preparedness and response.
Notes_________________________
[1] E. Helander, “Prejudice and Dignity: An Introduction to Community-based Rehabilitation,” UNDP (1992).
[2] Ann Elwan, “Poverty and Disability: A Background Paper for the World Development Report,” World Bank (October 1999).
