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Human rights and fundamental freedoms are the birthright of all[2].This is the essence of the Universal Declaration of Human
Rights[3]and finds specific application in the
International Covenant on Civil and Political Rights, the International Covenant on
Economic, Social and Cultural Rights and other international instruments[4].States have affirmed this principle again and again,
including in the Copenhagen Declaration[5],
acknowledging that the promotion and protection of those rights and freedoms is primarily
the responsibility of governments. Acceptance of that responsibility should have led to
ready ratification and implementation of international instruments and adherence to
internationally recognized declarations concerning the elimination of discrimination and
the promotion and protection of human rights. That this did not happen to the extent it
should is evident from regular exhortations, including from Heads of States and Government
in Copenhagen, for greater compliance and the avoidance, as far as possible, of the resort
to reservations.
All human rights are universal, indivisible, interdependent and interrelated. It is the
duty of States, regardless of their political, economic, social and cultural systems, to
promote and protect all human rights and fundamental freedoms.
The right to development is an inalienable human right by virtue of which every human
person and all peoples are entitled to participate in, contribute to and enjoy economic,
social, cultural and political development, in which all human rights and fundamental
freedoms can be fully realized[6]. Because all
human rights are inviolable and none is superior to another, the improvement of any one
right cannot be set off against the deterioration of another[7]. While development facilitates the enjoyment of all human
rights, the lack of development may not be invoked to justify the abridgement of
internationally recognized human rights.[8] In
other words, the promotion and protection of human rights should be progressed without
conditions attached.
Poverty denies the enjoyment of practically all human rights. The importance of
international cooperation in the eradication of poverty and promotion of development is
apparent. The principle of international cooperation has been recognized in the
International Covenants.
One of the earliest international acknowledgements of the right of people with
disabilities to work opportunities was made by the ILO in 1944. In a comprehensive and
far-seeing Recommendation, the ILO stated unequivocally that disabled workers,
‘whatever the origin of their disability, should be provided with full opportunities
for rehabilitation, specialized vocational guidance, training and retraining, and
employment on useful work.’[9] The ILO
said that persons with disabilities should, wherever possible, be trained with other
workers, under the same conditions and the same pay, and called for equality of employment
opportunity for disabled workers and for affirmative action to promote the employment of
workers with serious disabilities.
Four years later, the right to work of everyone, including persons with disabilities,
was copperfastened by the United Nations. Article 23 of the Universal Declaration of Human
Rights could hardly be more explicit: ‘Everyone has the right to work, to free choice
of employment, to just and favourable conditions of work and to protection against
unemployment. Everyone, without discrimination, has the right to equal pay for equal work.
Everyone who works has the right to just and favourable remuneration ensuring for himself
and his family an existence worthy of human dignity, and supplemented, if necessary, by
other means of social protection. Everyone has the right to form and to join trade unions
for the protection of his interests’[10].
What proved to be one of the most important international instruments in relation to
the right to work of persons with disabilities was adopted by the ILO in 1955[11]. Until the adoption of ILO Convention No.
159 and Recommendation No. 168 almost thirty years later, Recommendation No. 99 served as
the basis for national legislation and practice in relation to vocational guidance,
vocational training, and placement of disabled persons. Recommendation No. 99 built on the
core provisions of earlier instruments in relation, for example, to vocational training,
equality of opportunity and equal pay for equal work.
The 1966 International Covenant on Economic, Social and Cultural Rights was drafted in
close consultation with the ILO, and reiterates those earlier provisions in binding treaty
form[12]. States Parties to the Covenant
recognize the right of everyone to work, which includes the right to the opportunity to
gain one’s living by work freely chosen or accepted, and undertake to safeguard that
right. Steps to be taken to achieve the full realization of that right include vocational
guidance, training and productive employment. States Parties also commit themselves to
equal pay for work of equal value without distinction of any kind, safe and healthy
working conditions, and equal opportunity for everyone to be promoted in employment to an
appropriate higher level, subject to no considerations other than those of seniority and
competence. The International Covenant on Civil and Political Rights, also adopted in 1966[13], does not deal specifically with
employment, but it does contain an important provision prohibiting discrimination on any
ground, including disability.
In 1971, the United Nations General Assembly proclaimed a Declaration on the Rights of
Mentally Retarded Persons, which affirmed, inter alia, their right to perform productive
work or to engage in any other meaningful occupation to the fullest extent of their
capabilities[14].
To encourage, assist and enable persons with disabilities to exercise their right to
work on an equal basis and without discrimination, the ILO Convention concerning Human
Resources Development (No 142), adopted in 1975, called on member States to develop and
implement open, flexible and complementary systems of general, technical and vocational
education, educational and vocational guidance and vocational training, including
continuing employment information.[15] An
accompanying Recommendation[16] spells out in
detail how the provisions of this Convention should be effected, reinforcing the principle
of mainstreaming in vocational guidance and training, highlighting the importance of
educating the general public, employers and workers in relation to the employment of
persons with disabilities, and calling for adjustments in the workplace, where necessary,
to accommodate disabled workers. In an important reference, the Recommendation notes that
the ILO and UNESCO had collaborated closely with a view to ensuring that the instruments
of the two organizations pursue harmonized objectives and that they would continue to do
so with a view to the effective implementation of those instruments. In a further measure,[17] again reflecting its perception of the
importance of multi-sectoral collaboration among international bodies in pursuit of the
exercise of the right to work of persons with disabilities, the ILO called for a
comprehensive campaign for vocational rehabilitation[18] and social integration of disabled persons, in cooperation and coordination
with the United Nations, its specialized agencies, and international, regional and
non-governmental organizations, a campaign which was to result in the International Year
of Disabled Persons and the World Programme of Action concerning Disabled Persons, among
other initiatives.
Further affirmation of the right to work and the right to work-related services
including vocational counseling and training came almost immediately from the United
Nations General Assembly[19].
Building on the ‘full participation and equality’ theme of the International
Year and goal of the World Programme of Action, and conscious that developments since its
seminal Recommendation No. 99 in 1955 had made it appropriate to adopt new international
labour standards concerning vocational rehabilitation and employment, the ILO adopted
landmark Convention No. 159 in 1983[20]. The
Convention sets out a number of fundamental principles which should underlie vocational
rehabilitation and employment policies, highlighting those of equal opportunity and
treatment, affirmative measures which should not be regarded as discriminating against
other workers, integration of persons with disabilities into mainstream work-related
programmes and services, services for those in rural areas and remote communities, the
training of qualified staff, and the need to consult employers’ and workers’
organizations as well as representative organizations of and for disabled persons. The
accompanying Recommendation No. 168 details measures which should be taken to promote
equitable employment opportunities, including the making of ‘reasonable adaptations
to workplaces, job design, tools, machinery and work organization’, and outlines
steps which should be taken to ensure that the consultative processes mentioned in the
Convention work effectively[21].
The 1987 Global Meeting of Experts to Review the Implementation of the World Programme
of Action proposed that a guiding philosophy should be developed to indicate priorities
for action in the years ahead, and that the basis of that philosophy should be the
recognition of the rights (including the right to work) of persons with disabilities. The
Meeting recommended that the General Assembly convene a special conference to draft an
international convention on the elimination of all forms of discrimination against
disabled persons. Following a failure by the General Assembly to reach a consensus on this
issue, the Standard Rules on the Equalization of Opportunities for Persons with
Disabilities were adopted on 20 December 1993[22].
The Standard Rules are a set of non-compulsory guidelines, though the UN Economic and
Social Committee hoped they would become ‘international customary rules when they are
applied by a great number of States with the intention of respecting a rule in
international law’[23]. Employment is
covered by Rule 7, which calls on all States to take various measures, most of which are
contained in earlier relevant ILO Conventions and Recommendations, to ensure that persons
with disabilities have equal opportunities for productive and gainful employment in the
labour market.
In a further reaffirmation of the right to work, the World Conference on Human Rights,
meeting in Vienna in 1993, in a direct reference to persons with disabilities, emphasized
that ‘every person is born equal and has the same rights to life and welfare,
education and work, living independently and active participation in all aspects of
society. Any direct discrimination or other negative discriminatory treatment of a
disabled person is therefore a violation of his or her rights.’[24] The World Conference called on governments to adopt or
adjust legislation to assure access to these and other rights for disabled persons.
Towards the end of 1994, the UN Committee on Economic, Social and Cultural Rights
pointed out that the effects of disability-based discrimination had been particularly
severe in the fields of education, employment, housing, transport, cultural life and
access to public places and services.[25] The
Committee considered the field of employment as one in which discrimination had been both
prominent and persistent. In most countries, the unemployment rate among persons with
disabilities was two to three times higher than that for others. Disabled persons were
mostly engaged in low-paid jobs with little social and legal security and often segregated
from the mainstream labour market. As the ILO had frequently noted, physical barriers such
as inaccessible public transport, housing and workplaces were often the main reasons why
persons with disabilities were not employed. The Committee drew attention to the valuable
and comprehensive instruments developed by the ILO, including in particular Convention No.
159, and urged States Parties to the International Covenant to consider ratifying that
Convention.
Heads of State and Government at the World Summit for Social Development in 1995,
acknowledging the particular employment difficulties faced by persons with disabilities,
committed themselves to putting the creation of employment, the reduction of unemployment,
and the promotion of adequately remunerated employment at the centre of strategies and
policies of governments, in full respect for those workers’ rights.[26]The Programme of Action adopted by the Summit includes
taking effective measures to bring to an end all forms of discrimination against persons
with disabilities.[27]
Echoing the exhortation of the UN Committee on Economic, Social and Cultural Rights a
year earlier, the Programme of Action calls on governments to enhance the quality of work
and employment by, inter alia, ‘strongly considering ratification and full
implementation of ILO conventions relating to the employment rights of…persons with
disabilities.’[28] Acknowledging the
singular role of the ILO at international level in relation to the world of work and the
particular tripartite nature of its structure and operation, the Programme urges
governments to promote the role of the ILO, particularly as regards improving the level of
employment and the quality of work.
The European Social Charter recognizes the right of everyone to ‘have the
opportunity to earn (a) living in an occupation freely entered upon,’ and that all
workers have the right to just conditions of work. The Charter specifically acknowledges
that disabled persons have the right to independence, social integration and participation
in the life of the community.[29]
A European Union Directive, adopted at the end of 2000, outlaws direct and indirect
discrimination in the field of employment on a number of grounds, including disability.[30] The Directive applies, inter alia, to
selection criteria and recruitment conditions, vocational guidance, vocational training,
employment and working conditions, including pay. Importantly, the Directive states that
‘reasonable accommodation’ shall be provided, i.e. that employers are to take
appropriate measures, where needed, to enable a person with a disability to have access
to, participate in, or advance in employment, or to provide training, unless such measures
would impose a ‘disproportionate burden’ on the employer.
The ILO Code of Practice on Managing Disability in the Workplace was drawn up to
provide guidance to employers on practical means of implementing the types of measures
contained in international instruments such as those mentioned earlier.[31] The Code was developed and unanimously agreed at a
tripartite meeting of experts (representing governments, employers’ organizations and
workers’ organizations), convened in October 2001 at the decision of the ILO
Governing Body, taken at its 277th Session in March 2000. While addressed mainly to
employers, the Code should also prove of considerable benefit to governments, which play a
primary role in providing the necessary legislative framework for promoting equal
opportunities and treatment in the workplace, and to workers’ representatives, whose
main concern is to protect workers’ interests. The contents of the Code are based on
the principles underpinning international instruments and initiatives. The Code should,
accordingly, also help to inform the principles and contents of the employment provisions
of the proposed UN Convention on the Rights of Persons with Disabilities.
There is no doubt that general international human rights instruments apply to all
persons, including persons with disabilities. Explicit confirmation was given in 1994 by
the UN Committee on Economic, Social and Cultural Rights.[32] The Committee acknowledged, however, that States Parties
devoted very little attention to persons with disabilities in their reports on compliance
with that Covenant.[33] The need for
explicit, disability-related provisions in international human rights instruments was
recognized in later measures, including the Convention on the Rights of the Child (Article
23), the African Charter on Human and Peoples’ Rights (Article 18 (4)), and the
Additional Protocol to the American Convention on Human Rights in the Area of Economic,
Social and Cultural Rights (Article 18), leading the Committee to conclude that ‘it
is now widely accepted that the human rights of persons with disabilities must be
protected and promoted through general, as well as specially designed, laws, policies and
programmes’[34].
Despite existing national, regional and international laws and other instruments, and
despite the activities of international bodies and the efforts of non-governmental
organizations, persons with disabilities throughout the world continue to be subjected to
widespread violations of their human rights. This is an undeniable fact. In the field of
employment, the available statistics indicate that the unemployment rate among workers
with disabilities tends to be twice or three times that of other workers. Problems of
access to the physical environment, including transportation, housing and workplaces,
coupled with still-held prejudices among many employers, co-workers and the general
public, aggravate an already difficult situation. This is not to suggest that there has
been no improvement. The significant growth in domestic anti-discrimination legislation in
recent years is encouraging, even though adoption of a law does not guarantee its
enforcement. The persistent efforts of international agencies, and in particular the ILO,
in promoting equal opportunity and treatment in employment continue to make important
inroads into the economic and social exclusion of persons with disabilities. If the
provisions contained in the international treaties and other instruments discussed in this
report were fully implemented, full equality and participation for persons with
disabilities in the employment field would be achieved. This, regrettably, is not yet the
case. For people with disabilities and their representative organizations, there is more
to be done.
A number of attempts were made during the past fifteen years to have a specially
designed law, a UN Convention on the Rights of Persons with Disabilities, elaborated. In
December 2001, the UN General Assembly decided to establish an Ad Hoc Committee to
consider proposals for such a convention. The terms of reference of this Committee are:
“to consider proposals for a comprehensive and integral international convention
to promote and protect the rights and dignity of persons with disabilities, based on the
holistic approach in the work done in the fields of social development, human rights and
non-discrimination and taking into account the recommendations of the Commission on Human
Rights and the Commission for Social Development”
The work of this Committee commenced in July 2002.
[1] The terms ‘persons with
disabilities’ and ‘disabled persons’ are used interchangeably, reflecting
accepted usage in different countries around the world.
[2] Vienna Declaration and Programme of
Action, adopted by the World Conference on Human Rights, 25 June 1993
[3] The Universal Declaration begins:
‘Whereas recognition of the inherent dignity and the equal and inalienable rights of
all members of the human family is the foundation of freedom, justice and peace in the
world….’
[4] See Chapter 1
[5] Copenhagen Declaration and Programme of
Action, adopted by the World Summit for Social Development, 1995
[6] UN Declaration on the Right to
Development, 1986
[7] UN Commission on Human Rights Working
Group on the Right to Development, Jan. 2001, E/CN. 4/2001/WG. 18/2, para. 10
[8] Vienna Declaration, op. cit.
[9] Employment (Transition from War to
Peace) Recommendation No. 71, 1944
[10] Universal Declaration of Human
Rights, adopted by the General Assembly on 10 Dec. 1948, Article 23
[11] ILO Vocational Rehabilitation
(Disabled) Recommendation No. 99, 1955
[12] International Covenant on Economic,
Social and Cultural Rights, adopted by G.A. Resolution 2200A (xxi) of 16 Dec. 1966
[13] International Covenant on Civil and
Political Rights, adopted by G.A. Resolution 2200A (xxi) of 16 Dec. 1966
[14] UNGA Resolution 2856 of 20 Dec. 1971
[15] ILO Human Resources Development
Convention (No. 142), 1975
[16] ILO Human Resources Development
Recommendation (No. 150), 1975
[17] ILO Resolution concerning Vocational
Rehabilitation and Social Reintegration of Disabled or Handicapped Persons, adopted 24
June 1975
[18] ‘Vocational rehabilitation’
is a process which enables disabled persons to secure, retain and advance in suitable
employment and thereby furthers their integration or reintegration into society (ILO Code
of Practice on Managing Disability in the Workplace, 2002)
[19] Declaration on the Rights of Disabled
Persons, UNGA Res. 3447 of 9 Dec. 1975
[20] ILO Vocational Rehabilitation and
Employment (Disabled Persons) Convention (No. 159), 1983
[21] ILO Vocational Rehabilitation and
Employment (Disabled Persons) Recommendation (No. 168), 1983
[22] Resolution 48/96
[23] A/C. 3/48/L.3, 1 Oct. 1993, p. 6
[24] Vienna Declaration and Programme of
Action, adopted by the World Conference on Human Rights on 25 June 1993, p. 18
[25] General Comment No. 5 (1994)
[26] Copenhagen Declaration and Programme
of action adopted by the World Summit for Social Development, 1995
[27] idem: para. 15 (i)
[28] idem: para. 54 (c)
[29] Council of Europe, European Social
Charter (revised 1996)
[30] Council directive 2000/78/EC of 27
Nov. 2000 establishing a general framework for equal treatment in employment and
occupation. OJL 303, 2 Dec. 2000, pp. 16-22
[31] ILO Code of Practice on Managing
Disability in the Workplace, 2002
[32] General Comment No. 5
[33] idem: para. 2
[34] idem: para. 6
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