| Interregional Seminar
and Symposium on International Norms and Standards relating to Disability, Hong
Kong, SAR, 13-17 December 1999 Cluster
One:
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to Overview
Organization
The 1998 Berkeley Expert Meeting
In December 1998,
international experts in law and policy analysis participated in a consultative Expert
Group Meeting at the University of California at Berkeley, Boalt School of Law, to
identify priority areas for further research and action to advance equalization of
opportunities by, for and with persons with disabilities. The Berkeley Report presents the
findings of the Berkeley Meeting on International Norms and Standards relating to
Disability convened by the United Nations in cooperation with Boalt Hall School of Law and
the World Institute on Disability (Oakland, California, USA).
The Berkeley Meeting set out to review and discuss issues
and trends relating to the practical application of international norms and standards to
promote the human rights of persons with disabilities. Participants made recommendations
on ways of understanding international norms and standards on disability in relation to
domestic law and policies. Their findings also focused on the promotion and application of
disability norms in domestic contexts and through appropriate legislative frameworks,
including the formulation of model national legislation. In sum, the Report makes
recommendations for strategies to promote broad-based human rights of persons with
disabilities and sets the stage for a continued dialogue concerning the promise of
fundamental rights and freedoms for all persons living with disabilities.
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Cluster One
Intenational Norms and Standards relating to Disability:
Issues in policy design and evaluation, legislation, and monitoring implementation
Seminar participants who join Cluster One would:
- review and assess existing international norms and standards for person with
disabilities;
- examine progress and remaining obstacles in strengthening, promoting and implementing
existing international norms and standards on disability;
- contribute a paper on a discrete topic of their choice falling within the broad
framework set out in the draft agenda for Cluster One.
Overview of International Norms and Standards relating
to Persons with Disabilities
Disability activists have successfully countered the myths so
long associated with having a disability, prompting a paradigmatic shift away both from
the view that disability is a condition that requires a cure and resulting policies of
exclusion and institutionalization. The work of advocates has led to the shaping of new
understandings whereby living with a disability is something for society to accept and
accommodate. The emergence of international norms and standards relating to disability
carries with it the potential of law to transform an "almost universally
pejorative"1 cultural resistance to the equalization
of opportunities for persons with disabilities. The challenges that remain and the
opportunities presented for furthering the human rights of persons with disabilities are
considerable. The point of departure for articulating workable strategies for respecting
and protecting the human rights and fundamental freedoms for persons with mental and
physical disabilities both within and among States is the emerging regime of international
disability rights law.
Following the decision of the international community to designate 1981 as the
International Year of Disabled Persons, the U.N. General Assembly adopted the World Programme of Action concerning
Disabled Persons (1982)2. The World Programme
identifies as its goal the "full participation of persons with disabilities" in
social life and development on the basis of equality. In 1993, the U.N. General Assembly
adopted the Standard Rules on the
Equalization of Opportunities for Persons with Disabilities.3
The Standard Rules are important insofar as they supplement and provide greater
specificity on the rights of disabled persons than conventional human rights instruments.
Other international instruments articulating guidelines and standards on a range of
disability-related issues include the 1971 Declaration on the Rights of Mentally
Retarded Persons,4 the 1975 Declaration of
the Rights of Disabled Persons,5 the 1991 Principles
for the Protection of Persons with Mental Illness and the Improvement of Mental Health
Care,6 the 1993 Proclamation of the Economic and
Social Commission for Asia and the Pacific on the Full Participation and Equality
of People with Disabilities in the Asian and Pacific Region,7
and the Tallinn Guidelines for Action on Human Resources Development in the Field of
Disability.8 These and numerous other
"softer" instruments are significant both in terms of their support for people
with disabilities, their value as authoritative interpretations of broad treaty
obligations of relevance for persons with disabilities and for their potential
contribution to the corpus of customary international law in the field of disability
rights. Many other articulations of standards and guidelines, such as those addressing
accessibility in environmental or informational contexts information or trade provisions
on the import of assistive devices, are also relevant in terms of providing a foundation
for norm creation. All of these instruments are vital tools in crafting strategies to
advance the disability agenda locally, nationally, and internationally.
In addition to specific international instruments which set forth detailed standards
for protecting the rights of persons with disabilities, all international human rights
instruments provide safeguards extending to persons with disabilities through provisions
setting forth principles of equality and non-discrimination. Thus, for example, the United
Nations Charter, the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights and the International Covenant
on Economic, Social and Cultural Rights each contain guarantees of equality and
non-discrimination. In some instances general human rights instruments provide for the
rights of persons with disabilities in explicit terms including, for example, Article 25
of the Universal Declaration of Human Rights (right to an adequate standard of
living), Article 23 of the Convention on the Rights of the Child (rights of
mentally and physically disabled children), and Article 18(4) of the African Charter of
Human and Peoples' Rights (right of the aged and disabled to special measures of
protection). In addition, basic international human rights and international humanitarian
law instruments addressing the protection of members of vulnerable population groups are
also applicable to disabled persons. Examples in this category include the Convention
Relating to the Status of Refugees, the International Labour Organization Convention
Concerning Indigenous and Tribal Peoples in Independent Countries and the Standard
Minimum Rules for the Treatment of Prisoners. The most recent development in the
formulation of international rules on disability occurred at the regional level with the
adoption of the Inter-American Convention on the Elimination of All Forms of
Discrimination against Persons with Disabilities.
Jurisprudence of International Courts and Tribunals and their relevance for
Disability Norms and Standards
The jurisprudence of international courts and tribunals constitutes an additional
repository of international norms and standards applicable to persons with disabilities as
well as authoritative interpretations of existing human rights norms. Regional human
rights tribunals, communications and general comments mechanisms of human rights
treaty-monitoring bodies, and international administrative law tribunals of the United
Nations, the World Bank and other intergovernmental organizations have the potential to
advance the disability agenda through the interpretation and application of general
principles of human rights law applicable to persons with disabilities as well as
disability-specific standards.
Implementation of International Norms and Standards on Disability
There are a number of mechanisms by which the international norms and standards
outlined above may be utilized to further the rights of disabled persons. A variety of
practical advocacy applications may be facilitated by the use of international disability
principles in a variety of contexts including international and national human rights
monitoring, supervision of national disability law reform and national and international
implementation.
At the international level, norms and standards on disability may be invoked as a basis
for the critical analysis of periodic State reporting before treaty-monitoring bodies, as
guidelines for fact-finding by inter-governmental and non-governmental bodies, as a frame
of reference for international and regional human rights commissioners and special
rapporteurs, and as persuasive authority or as a guide to the interpretation of human
rights obligations of a general character in international legal procedures. In a domestic
context, international norms and standards may be used to further the cause of the
disability agenda through a variety of strategies. Disability norms and standards may be
directly incorporated into a domestic legal system through treaty mechanisms, customary
international law, domestic legislation, and through domestic courts in reliance upon
international norms and standards as authoritative guides to the interpretation of
constitutional provisions, treaties or domestic law statutes.
New Approaches to Advocacy
New approaches to advocacy in the disability field disclose an appreciation for the
view that realizing human rights and fundamental freedoms for all frequently depends less
upon the crafting of new laws and more on the development of a culture in which diversity
is accepted and accommodated. Thus, equalization of opportunity for persons with
disability implies not only drafting new laws and introducing new models of disability
policy but also exploring ways to ensure that the social construction of disability leaves
room for difference. Such a perspective challenges the notion of hierarchy whereby persons
without disabilities are placed above those with disabilities. Advocacy in this regard
recognizes that the development of a society for all depends upon the utilization of all
human resources, and that persons with disabilities are vital actors in fulfilling the
different needs of society.
Creating a culture within which the rights of persons with disabilities are respected
and where persons with disabilities are not passive recipients but critical participants
in the process of building a disability rights culture is a core component of the new
advocacy. Examples of strategies for advocacy include mainstreaming disability rights
within human rights organizations, incorporating the disability perspective into all human
rights trainings, constructing analytical tools to assess the impact of policy proposals
at the national level (e.g., disability impact assessments), and ensuring the
participation by disability rights organizations and persons with disabilities in all
international conferences where the interests of persons with disabilities are affected.
The Work of Professional Communities in Furthering the Rights of Persons with
Disabilities
Researchers and experts have played a significant role in identifying and defining
human rights policy issues and in formulating proposals to address them. Research forms an
important source of information and creates an impetus for policy development.
Unfortunately, there is a long history of disabled persons being excluded from
participation in the decision-making processes that directly affect them. Working to
ensure the rights of persons with disabilities through service in international,
organizations, national, governments, advocacy groups and non-governmental organizations
and academic institutions not only invites but requires the full participation of persons
with disabilities at the local, national, regional and international level.
The expertise of professional communities can inform the content of a disability rights
strategy. Professionals such as lawyers, scholars, aid workers, and others have a
reservoir of respect within many communities. The goal for the disability rights agenda is
to draw from the expertise of professionals such as lawyers, scholars, government workers,
aid workers, activists and others to shape and contribute to its further development.
Disabled persons themselves are key players in this process, both as experts and as
advocates. The Interregional Seminar and Symposium is committed to ensure the
participation of persons with disabilities in its processes. Furthermore, in recognition
of the fact that the problem of participation and inclusion of persons with disabilities
in decisions that affect them persists at all levels, Cluster One devotes a session to the
consideration of this issue in the hope of continued progress in this area.
Draft Agenda for Cluster One Sessions on International Norms and
Standards relating to Disability
The following draft agenda anticipates approximately seven sessions of approximately 2
hours each for the topics to be considered in Cluster One. The agenda is grouped under
three main headings:
I. Standard Setting and strengthening the Normative Force of Disability Rights
Session One:
A. The Existing International Standards on Disability
B. Setting New Standards: The use and desirability of a new treaty on the rights of
persons with disabilities
Session Two:
Setting Standards at the National Level: Models of national implementation
II. Promoting International Norms and Standards on Disability: Thematic Studies
Session Three:
A. Access to Education for Persons with Disability
B. Health Care Facilities and Support
Workshop: Promoting the Right to Community Integration for Children with Disabilities
in Russia Workshop Leader: Eric Rosenthal, Mental Disability Rights International,
Washington, DC
Session Four
A. Promoting International Norms and Standards relating to Women and Girls with
Disabilities:
B. The Development Dimension of Disability
III. Questions of Implementation and Accountability
Session Five:
Strategies for Monitoring Implementation
Session Six:
Building State Accountability: problems of inclusion and participation in decision
making processes concerning disability
IV. Identifying Priorities for Action
Session Seven:
Adoption of Cluster One Final Report and Recommendations for Action on International
Norms and Standards relating to Disability
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Notes:
1 James I. Charlton, Nothing About Us Without Us 25 (1998).
2 U.N. G.A. Res. 37/52.
3 U.N. G.A. Res. 48/96.
4 U.N. G.A. Res.
5 U.N. G.A. Res.
6 U.N. G.A. Res. 46/119; U.N. Doc. A/46/49 ("the "Mental Health
Principles").
7 E.S.C.A.P. Res. 49/6. See United Nations, Asian and Pacific
Decade of Disabled Persons, 1993-2002: Mandates for Action,ST/ESCAP/1433
(1994), p. 6.
8 U.N. G.A. Res. 44/70. |
