The information contained in this chapter will enable participants to work towards the following objectives:
The issue of accessibility is a natural starting point for any discussion about the human rights of persons with disabilities. No one can enjoy a human right to which they do not have access, and the barriers that currently prevent persons with disabilities from accessing their human rights are abundant. Indeed, it is these barriers that are part of the concept of “disability” itself. As noted in the Preamble of the CRPD:
There are various types of barriers to accessibility for persons with disabilities, including:
· Physical: Physical barriers prevent access for persons with disabilities to the physical environment, such as buildings, roads, transportation, and other indoor and outdoor facilities, such as schools, housing, medical facilities, sporting venues, and workplaces. They are some of the first barriers that people think of when considering access for persons with disabilities as they are often the most obvious. For example, many people are now aware of the importance of ramps for wheelchair access to buildings or the need for curb-cuts in side-walks to facilitate street-level access. Other physical barriers may be less obvious, however. For example, people may not be aware of the need for tactile or high colour-contrast surfaces to assist persons with visual impairments as they navigate streets and buildings.
· Informational: Both the form and content of information can constitute barriers to access for persons with disabilities. For example, television programmes that do not include captioning, subtitles, or in-set sign language interpretation are inaccessible to persons who are deaf. Similarly, television programming may also be inaccessible to persons who are blind unless audio-description is available. Information that is not provided in audio format, Braille, or other appropriate tactile forms may be inaccessible to persons who are blind. In addition to form, the content of information is also of critical importance. For example, information that is not provided in plain language may not be accessible to persons with intellectual disabilities.
Although technology has the potential to enhance access for persons with disabilities, technological advances that occur without incorporating accessibility features for persons with disabilities can create new barriers. For instance, at a time when people increasingly rely upon mobile phones and the internet as sources of information and means of communication, many of the devices and software programmes available are not accessible “out of the box” to persons who are deaf, blind, or deafblind. In some cases, persons with disabilities can buy programmes for their phones or computers that facilitate access, but this is an additional expense and requires an understanding of how to use those programmes.
· Institutional: Institutional barriers include legislation, practices, or processes that actively prohibit or fail to facilitate access for persons with disabilities. For example, in some countries persons with psychosocial or intellectual disabilities are expressly prohibited by law from voting. In other countries, persons with disabilities may not be able to vote because of the absence of legislation or practice that ensures that they can both gain physical access to polling venues or voting booths and have access to the ballot and other voting information once they are there. In the educational context, children with certain disabilities may be expressly prohibited by law from attending “general” schools and instead may be required to attend “special” schools for children with that type of disability.
· Attitudinal: Perhaps the most pervasive barriers that persons with disabilities encounter are the negative attitudes and lack of understanding about disability issues of people in society. In some countries persons with disabilities are the most stigmatized and marginalized group in society, while in other countries the rights of persons with disabilities are not considered a high priority. Such attitudes are problematic because if members of society do not think that disability access is an important issue, then buildings, programmes, and educational and employment opportunities, among many other things, will not be fully accessible to persons with disabilities. In many cases, barriers are created or maintained simply because people are unaware of their existence and the detrimental effect they have on the lives of persons with disabilities. For example, a restaurant owner may mistakenly believe that their restaurant is accessible to wheelchair users because there are “only a couple of steps” at the entrance and fail to appreciate the need for people to be able to enter and exit safely and independently.
The World Report on Disability: Barriers
The World Report highlights the following as “disabling barriers” that persons with disabilities face:
· Inadequate Policies and Standards
· Negative Attitudes
· Lack of Provision of Services
· Problems with Service Delivery
· Inadequate Funding
· Lack of Accessibility
· Lack of Consultation and Involvement
· Lack of data and evidence
Source: World Health Organization & World Bank, “World Report on Disability” (2011): http://whqlibdoc.who.int/publications/2011/9789240685215_eng.pdf
The Interrelationship of Rights
Ensuring accessibility is of critical importance because it directly affects the enjoyment of the full range of human rights by persons with disabilities. In other words, lack of access can prevent persons with disabilities from fully enjoying all of their human rights. For example, persons with disabilities have the right to education, but if a school or the school’s transportation system is not physically accessible, a student who uses a wheelchair may not be able to enjoy the right to education. If the school does not provide an accessible bus, then the student must find alternative transportation to get to school. Further, if the school has steps at the front entrance and there is no ramp or other way for the student to access the building, then the student may not even be able to enter the building. Even if the student can enter the building, he or she may still encounter inaccessible bathrooms or classrooms.
To further consider the interrelationship between accessibility and other human rights, lack of accessibility may prevent persons with disabilities from enjoying their right to participation in political and public life. For instance, persons who are blind may not be able to access voter information materials if they are not provided in alternative formats such as Braille or audio. If persons who are blind do not have access to voter information, they may not know when or where to register to vote, and even if they do show up, in many cases voter registration procedures may not be accessible. Additionally, many polling stations may not provide accessibility provisions, such as Tactile Ballot Guides or audio format, for persons who are blind to vote in secret.
The BBC: Taking a Holistic Approach to Accessibility
The BBC is perhaps best known internationally for its television and radio news and entertainment programmes. However, when the BBC undertook a review of its commitment to accessibility for persons with disabilities, it looked beyond subtitles and audio description in its programming. Recognizing the diversity of services that it provides, as well as its role as an employer, the BBC committed itself to a comprehensive review of accessibility for persons with disabilities of all of its activities. Through surveys and focus groups, the BBC gathered information on the accessibility of its current activities, where people felt there were problems, and ways in which it could improve its performance in the future. For example, most people surveyed indicated that they did not face barriers in purchasing their television licenses, but they did face problems accessing customer service departments and felt that the organization did not always understand the issues facing persons with disabilities.
Source: British Broadcasting Corporation, “The BBC’s Disability Equality Scheme” (30 April 2007): http://www.bbc.co.uk/info/policies/diversity.shtml#DES1
WHAT DOES HUMAN RIGHTS LAW SAY ABOUT ACCESSIBILITY?
General references to “access” and related concepts can be found in instruments adopted prior to the CRPD. For example, Article 21 of the Universal Declaration of Human Rights (UDHR) refers to the right of everyone to “equal access to public service in his country.” Article 26 of the UDHR also refers to the need for tertiary, professional, and higher education to be “equally accessible to all on the basis of merit.”
The International Covenant on Civil and Political Rights (ICCPR) contains one express reference to “access” in Article 25, which addresses the right of people to “have access, on general terms of equality, to public service in his country.” The International Covenant on Economic, Social and Cultural Rights (ICESCR) references accessibility in the context of equal access to education in Article 13. Notably, General Comment No. 5, Persons with Disabilities, of the Committee on Economic, Social and Cultural Rights, the treaty body that monitors implementation of the ICESCR, specifically highlights the need for States Parties to the ICESCR to ensure that persons with disabilities enjoy full access to transportation, health care services, places of work, housing, health care, education, cultural and recreational venues, as well as other programmes, services, and places relevant to the enjoyment of economic, social, and cultural rights.
The Convention on the Rights of the Child (CRC) contains various references to the concept of “access.” Article17 provides for children to have access to information:
States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.
In relation to the right to health, Article 24 provides:
States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.
Article 28 discusses the right to education and mentions accessibility in the following sections:
(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;
(c) Make higher education accessible to all on the basis of capacity by every appropriate means;
(d) Make educational and vocational information and guidance available and accessible to all children;
Article 37 provides children prompt “access” to legal assistance:
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
In addition, Article 23 specifically addresses the rights of children with disabilities, and notes the need for States Parties to ensure “effective access” for children with disabilities to receive:
…education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child’s achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development. (Art. 23 (3)).
Further, Article 23 (4) refers to access of information in the context of international cooperation:
States Parties shall promote, in the spirit of international cooperation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services, with the aim of enabling States Parties to improve their capabilities and skills and to widen their experience in these areas. In this regard, particular account shall be taken of the needs of developing countries.
The CRPD is the first legally binding international instrument to provide in-depth articulation of the concept of accessibility for persons with disabilities. Although the concept of access is reflected in previous human rights treaties, it was never clearly applied to persons with disabilities. Prior to the adoption of the CRPD, a person with a disability had the right to “equal access” under other international human rights treaties. The significance of the CRPD is that it applies accessibility specifically to the achievement of all civil, political, economic, social and cultural rights for persons with disabilities.
CRPD Article 9, Accessibility, addresses the responsibility of States to ensure accessibility for persons with disabilities so they can “live independently and participate fully in all aspects of life.” Article 9 specifically requires States to ensure that persons with disabilities are able to access a comprehensive range of venues, facilities, and services “on an equal basis with others.” In providing examples, Article 9 references a variety of places and services that must be accessible to persons with disabilities, such as “buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces,” as well as “information and communications” and emergency services, all of which have the potential to impact a wide variety of human rights. Furthermore, Article 9 includes “other facilities and services open or provided to the public, both in urban and in rural areas,” ensuring that accessibility is not only addressed in cities, but also for persons with disabilities living in rural communities.
In order to achieve accessibility, Article 9 requires States to identify and eliminate obstacles and barriers to accessibility. The provisions that elaborate the specific measures to be undertaken are quite detailed and attempt to capture the wide range of access needs of different persons with disabilities in different contexts. They include:
· Developing and monitoring implementation of minimum accessibility standards and guidelines.
· Providing training on accessibility for stakeholders.
· Promoting design, development, production, and distribution of information and communications technologies that address accessibility early in their development and that are provided at minimum cost.
· Promoting access to new information and communications technologies and systems, “including the internet”.
· Providing signage for the public in Braille and other easy to read and understand forms.
· Providing live assistance (such as guides, readers, and sign language interpreters).
· Promoting other “appropriate forms of assistance and support” to ensure access to information.
The scope of Article 9 is not limited to State actors, such as local and national governments or government agencies. Article 9 also implicates private actors, requiring States to “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.” In other words, although the Convention is not directly legally binding upon private actors (as only States can be bound by international treaties), it obligates States to require that private entities that are open to the general public comply with Article 9. These private entities include restaurants, taxi companies, supermarkets, private universities, professional associations, sports stadiums, and other private entities offering facilities and services to the public. For example, States are required to ensure that restaurants, such as Fast Food chains, are accessible to persons with disabilities. In this example, States must ensure that Fast Food providers have an accessible entrance and also must ensure that the menu is accessible to persons with disabilities (for example, persons who are blind who cannot read the menu). There are many other accessibility issues that can be drawn from restaurants from every country in the world.
It should be noted that Article 9 is placed in the articles of general application in the CRPD. As with Articles 1-8, Article 9 is intended to inform and assist in the interpretation and implementation of all the human rights elaborated in the CRPD. For example, if someone were seeking to implement Article 13, Access to justice, an important starting place would be Article 9 when considering how to improve the accessibility of, for example, courthouses or the criminal justice system. This approach also explains why accessibility concepts are often not addressed in great detail or sometimes not at all in specific articles of the CRPD: the drafters of the CRPD intended Article 9 to be the common reference point for all issues of accessibility.
UNDERSTANDING UNIVERSAL DESIGN
As indicated in CRPD Article 2, Definitions, the use of universal design is intended to ensure access “by all people, to the greatest extent possible, without the need for adaptation or specialized design.” According to the United States Agency for International Development (USAID), “[u]niversal design means products and buildings that are accessible and usable by everyone, including people with disabilities.” The goal of universal design is to create an environment that is accessible to everyone from the design stage forward. The World Report on Disability describes the benefits of an accessible environment and states:
An accessible environment, while particularly relevant for people with disabilities, has benefits for a broader range of people. For example, curb cuts (ramps) assist parents pushing baby strollers. Information in plain language helps those with less education or speakers of a second language. Announcements of each stop on public transit may aid travellers unfamiliar with the route as well as those with visual impairments.
UNIVERSAL DESIGN PRINCIPLES
When creating a new product, service, or programme or when constructing a building, sports arena, or park, the following universal design principles can ensure access by as many potential users as possible:
· Equitable use: The design is useful and marketable to people with diverse abilities.
· Flexibility in use: The design accommodates a wide range of individual preferences and abilities.
· Simple and intuitive: The use of the design is easy to understand, regardless of the user’s experience, knowledge, language skills, or current concentration level.
· Perceptible information: The design communicates necessary information effectively to the user, regardless of ambient conditions or the user’s sensory abilities.
· Tolerance for error: The design minimizes hazards and the adverse consequences of accidental or unintended actions.
· Low physical effort: The design can be used efficiently and comfortably with a minimum of fatigue.
· Size and space for approach and use: The appropriate size and space is provided for approach, reach, manipulation, and use regardless of user’s body size, posture, or mobility.
Source: The Center for Universal Design, “Principles of Universal Design,” (2007): http://www.ncsu.edu/ncsu/design/cud/about_ud/udprinciplestext.htm
UNDERSTANDING REASONABLE ACCOMMODATION AND ACCESSIBILITY
In addition to universal design, Article 2 of the CRPD also defines the concept of reasonable accommodation, a process through which necessary and appropriate modifications, adjustments, or provisions are made, in order to accommodate the accessibility needs in a particular case. In other words it is often a specific response to the unique accessibility needs of an individual. It should be noted, however, that reasonable accommodations are also utilized to modify existing structures or programmes that were not originally developed in an accessible manner. For example, an old building that did not have a ramp requires the addition of a ramp as a reasonable accommodation if it is now open to the public as a doctor’s office. In this example, the reasonable accommodation is not tailored for one individual, but rather is an accessibility provision that will help ensure access for many persons. The definition of reasonable accommodation in the CRPD therefore captures individualised accommodation but also anticipatory accommodations – those that are needed in order to achieve accessibility.
In many instances, reasonable accommodations are based on the individual accessibility needs of persons with disabilities in specific settings, such as employment or education. To this end, reasonable accommodation requires discussions between the provider and the person with a disability in order to ensure that the accommodation meets the access needs of the person with a disability and can be implemented by the provider. There is no “one size fits all” formula to reasonable accommodation, and it is important to note that different individuals with the same disability may request very different accommodations. For example, some persons with low vision may use screen-reading technology and therefore request that all information is provided to them in electronic format, while other persons with the same disability may prefer materials in large print.
Reasonable accommodations are often provided in educational and employment settings, where long-term accessibility solutions for specific individuals may be necessary to facilitate their enjoyment of the rights to education or work. For example, in an educational setting, a person who is deaf may have a sign language interpreter in class as a reasonable accommodation to facilitate accessible communication. A student with a learning disability might be accommodated through the provision of a dedicated note-taker or perhaps the allowance of extra time on exams. In an employment setting, a reasonable accommodation might include ensuring that the workspace is navigable for a wheelchair user or providing specialised software or other assistive technologies to facilitate computer use by persons who are blind or deaf. Reasonable accommodations must also be provided on an individual basis to facilitate access to justice, the right to health, the right to participation in political and public life, and the right to live independently, among other rights outlined in the CRPD.
The provision of reasonable accommodation is not required where doing so would impose a “disproportionate or undue burden” on the person or organization providing the accommodation. What is considered “reasonable” varies upon the size and resources of the person or organization providing the accommodation. For example, it is “reasonable” for a corporate law firm that brings in millions of dollars in revenue per year to provide a sign language interpreter for a client who is deaf. It may be less “reasonable” for a small legal aid organization that receives little funding to retrofit its entire building as an accommodation for a client with a disability. That may be seen as an “undue burden,” and other accommodation options may be considered, such as meeting clients with disabilities in alternative, accessible spaces. These are two extreme examples that are intended to demonstrate the complexity of this issue and to help clarify the importance of considering “disproportionate or undue burden” on a case-by-case basis.
The Duty to Respect, Protect, and Fulfil Obligations Relating to Accessibility
Taken as a whole, States’ obligations with regard to accessibility include:
1. Obligation to respect: States must refrain from engaging in any act, custom, or practice that creates barriers to accessibility;
Example: The State adopts legislation requiring that new buildings are accessible for persons with disabilities.
2. Obligation to protect: States must ensure that non-State or “private” actors (such as businesses that offer services and facilities to the public) do not create or fail to remove barriers to access for persons with disabilities.
Example: The State enforces laws and policies requiring public accommodations, such as restaurants, community centres and libraries, to be accessible to persons with disabilities and fines facilities that are non-compliant.
Example: The State provides a hotline or website for private employers to seek advice and assistance on job accommodations for persons with disabilities.
3. Obligation to fulfil: States must take proactive action (such as measures indicated in the provisions outlined in Article 9) to ensure accessibility for persons with disabilities.
Example: The State creates a Task Force on Court Accessibility, undertakes access audits, and implements modifications designed to improve the accessibility of court services and facilities.
Example: The State provides sign language interpretation and videophones for travellers who are deaf in airports.
In sum, international human rights law strongly supports accessibility for persons with disabilities, so that persons with disabilities may live independently and fully participate in all aspects of life.
The Malaysian Persons with Disabilities Act of 2008
In 2008, Malaysia enacted a national disability law that provides detailed provisions on accessibility.
· The Preamble of the Act recognizes “the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, in enabling persons with disabilities to fully and effectively participate in society”
· The Act includes a Chapter on accessibility that states in Article 26 that “Persons with disabilities shall have the right to access to and use of, public facilities, amenities, services and buildings open or provided to the public on equal basis with persons without disabilities, but subject to the existence or emergence of such situations that may endanger the safety of persons with disabilities.”
· The Act specifies obligations in relation to access in the following realms:
o Access to public transport facilities
o Access to education
o Access to employment
o Access to information, communication and technology
o Access to cultural life
o Access to recreation, leisure and sport
o The Act covers access to health for persons with disabilities
o The Act covers access to assistance in situations of risk and humanitarian emergencies
Source: The Malaysian Persons with Disabilities Act of 2008, Law 685.
USEFUL RESOURCES ON ACCESSIBILITY
· American Council of the Blind: http://www.acb.org/
o Helpful resources for blind and visually impaired persons.
· Canadian Human Rights Commission, International Best Practices in Universal Design: A Global Review:
o Worldwide report on best practices in universal design.
· The Center for Universal Design: http://www.design.ncsu.edu/cud/about_ud/udprinciples.htm
o An initiative of the College of Design at North Carolina State University providing information, technical assistance, and research on accessible and universal design in housing, commercial and public facilities, outdoor environments, and products.
· Committee on Economic, Social and Cultural Rights, General Comment No. 5: Persons with Disabilities (1994): http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/4b0c449a9ab4ff72c12563ed0054f17d?Opendocument
o General Comment of the ICESCR Committee on persons with disabilities.
· Manila Declaration on Accessible Information and Communication Technologies (ICT), adopted by the Interregional Seminar and Regional Demonstration Workshop on Accessible ICT and Persons with Disabilities, Manila, Philippines (March 3-7, 2003): http://www.un.org/esa/socdev/enable/maniladecl.htm
o Declaration on accessible ICT.
· National Assembly of State Arts Agencies, Design for Accessibility: A Cultural Administrator’s Handbook (2003): http://www.nea.gov/resources/Accessibility/pubs/DesignAccessibility.html
o Helpful overview of accessibility issues in the context of cultural administration.
· Tom Rickert, “Accessible Transportation Around the World,” Access Exchange International: http://www.independentliving.org/mobility/mobility.pdf
o Tips and guidelines on achieving accessibility in all countries)
· UN Global Audit of Web Accessibility: http://www.un.org/esa/socdev/enable/gawanomensa.htm
o Report on the investigation of the accessibility of 100 leading websites from 20 countries from around the world.
· US Department of Justice, Americans with Disabilities Act Standards for Accessible Design (2010): http://www.ada.gov/2010ADAstandards_index.htm
o Standards of accessibility pertaining to the Americans with Disabilities Act.
· W3C Web Accessibility Initiative: http://www.w3.org/WAI/Policy/
o Policies addressing web accessibility.
 USAID/West Bank/Gaza, RFA 294-2010-116, “Enhancing Palestine Independent Media,” Issuance Date: May 7, 2010.
 World Health Organization & World Bank, “World Report on Disability” (2011): http://whqlibdoc.who.int/publications/2011/9789240685215_eng.pdf