Interregional Seminar and Symposium on
International Norms and Standards relating to Disability,
REPORT
Part: 1 2 3 4 5 6 7 8

V. Summary of proceedings of Cluster One: international norms and standards

A. Introduction

Participants in Cluster One were informed that the impetus for the “Interregional Seminar and Symposium on International Norms and Standards relating to Disability” was the December 1998 meeting of international experts in law and policy analysis that had taken place at the University of California at Berkeley, Boalt Hall School of Law. That meeting had identified priority areas for further research and action to advance equalization of opportunities by, for and with persons with disabilities.[37]

The “Berkeley Meeting” had 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 in that meeting adopted recommendations on ways of understanding international norms and standards on disability in relation to domestic law and policies. Their recommendations for action had 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 “Berkeley Report” made recommendations for developing strategies to promote broad-based human rights of persons with disabilities and had set the stage for a continuing dialogue on the promise of fundamental rights and freedoms for all persons living with disabilities.

Participants in Cluster One considered a wide range of issues in relation to international norms, standards and procedures, strategies for implementation at the national level, rights of persons with mental disabilities, women with disabilities, and development and disability issues. In addition to meeting in plenary, participants in the Cluster met in thematic sub-groups focusing on each of these issues. The following sections summarise those discussions.

As a general observation, participants expressed agreement with the general approach and most recommendations contained in the “Berkeley Report”.[38] They noted that a great deal needed to be done to implement most of those recommendations and considered that the present seminar should endeavour to ensure that concrete steps were taken to implement those recommendations together with further recommendations adopted at the present Seminar.

B. Overview of international norms and standards relating to persons with disabilities

Disability activists had successfully countered the myths 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 institutionalisation. The work of advocates had 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 carried with it the potential of law to transform an “almost universally pejorative”[39] cultural resistance to the equalization of opportunities for persons with disabilities. The challenges that remained and the opportunities presented for furthering the human rights of persons with disabilities were 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 was the emerging regime of international disability rights law.

1. Norms and standards focusing on disability

Following the decision of the international community to designate 1981 as the International Year of Disabled Persons[40], the United Nations General Assembly adopted the World Programme of Action concerning Disabled Persons (1982).[41] The World Programme identified as its goal the “full participation of persons with disabilities” in social life and development on the basis of equality. In 1993, the General Assembly adopted the Standard Rules on the Equalization of Opportunities for Persons with Disabilities.[42] The Standard Rules were 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[43] include: the 1971 Declaration on the Rights of Mentally Retarded Persons,[44]the 1975 Declaration of the Rights of Disabled Persons,[45] the 1991 Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care,[46] 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,[47] and the Tallinn Guidelines for Action on Human Resources Development in the Field of Disability.[48] These and numerous other “softer” instruments were significant both in terms of their support for persons 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, or trade provisions on the import of assistive devices, were also relevant in terms of providing a foundation for norm creation. All of these instruments were vital tools in crafting strategies to advance the disability agenda locally, nationally, and internationally.

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.[49] Participants in Cluster One took note of the adoption of the America’s regional convention on disability rights and expressed the view this represented a success for the disability movement in the America’s region. Some expressed concern that declarations of incompetence were excluded from the definition of discrimination in this instrument. Advocates emphasized that in many cases persons with mental disabilities are declared incompetent without due process protections guaranteed under international human rights law. Participants expressed a consensus view on the importance of ratifying the Inter-American Convention with the proviso that ratifying States enter a reservation with respect to the provision related to declarations of incompetence.

2. Protection under general human rights guarantees

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. For example, the United Nations Charter,[50] the Universal Declaration of Human Rights,[51] the International Covenant on Civil and Political Rights[52] and the International Covenant on Economic, Social and Cultural Rights[53] all contained 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 [54] (rights of mentally and physically disabled children), and Article 18(4) of the African Charter of Human and Peoples’ Rights[55] (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 included the Convention Relating to the Status of Refugees,[56] the International Labour Organization Convention 169 Concerning Indigenous and Tribal Peoples, 1989[57] and the Standard Minimum Rules for the Treatment of Prisoners.[58]

3. Impact of standard-setting in other areas: potential of adverse impact on the disability agenda and the need to monitor developments to ensure that disability issues are adequately addressed

Participants expressed concerns that while international instruments concerning the rights of disabled persons had the potential to advance the disability agenda, certain other instruments, particularly in the field of bioethics, might have an adverse impact. For example, the new Convention on Human Rights and Biomedicine[59] adopted in 1997 by the Council of Europe allowed non-therapeutic medical experiments to be performed on persons unable to give their informed consent. This result was considered to be incompatible with Article 7 of the International Covenant on Civil and Political Rights and Nuremberg Code of 1947.[60]

Participants expressed the view that the disability agenda should be covered in all new international instruments impacting the rights of disabled persons. It was noted that the new Statute for the International Criminal Court[61] fails to address the rights and concerns of this minority. The suggestion was made that the statute of the International Criminal Court (ICC) should be supplemented with an additional protocol on disability. This protocol should be drafted in consultation with disability rights experts, including persons with disabilities. The protocol should ensure access and inclusion of persons with disabilities in the ICC and all bodies associated with it.

Participants were also of the view that all new legal instruments adopted by the United Nations should be reviewed to ensure the inclusion of persons with disabilities and mental disability right experts in the drafting process. These instruments must be brought into conformity with existing norms and standards on disabilities and should ensure the full protection of the rights of people with mental disabilities. United Nations organizations, programmes and specialized agencies, including the World Health Organization, UNDP, and UNESCO, as well as the World Bank, should similarly review new standards to ensure the inclusion of persons with disabilities and the recognition of disability rights.

4. Setting new standards: desirability and possible drawbacks of a new, binding instrument

Participants in Cluster One devoted a considerable amount of time to a discussion of the desirability of a new international treaty on the rights of persons with disabilities. The pitfalls of creating a new legal regime were analysed. Institutional and structural considerations in the design of a new treaty on disability rights, including proposals for supervisory mechanisms, provision of technical assistance to developing countries and international financial support for the implementation of a treaty on disability rights were discussed. There was also a discussion of the political factors determining the effectiveness of a new treaty, including, for example, critical questions of participation and likely ratification of a new treaty, and the likelihood that a new treaty would strengthen or dilute the force of existing rights guarantees.

Participants considered arguments for and against the elaboration and negotiation of a new treaty on the human rights of persons with disabilities. The view was expressed that existing human rights treaty obligations had created a “treaty fatigue” in that States parties were already burdened by and unable to fulfil their existing reporting obligations. There was, therefore, a strong reluctance among States to consider the possibility of adopting any additional treaties. The United Nations General Assembly had also indicated that the creation of additional treaty monitoring bodies generally was viewed with disfavour given resource limitations. Furthermore, concern was expressed that disability non-governmental organizations were not currently strong enough to win adoption of a new treaty, let alone one that would advance the rights of persons with disabilities and would not dilute existing “soft” laws, norms and standards on disability.

Other arguments were advanced stressing the desirability of adopting regional treaties and the difficulty of drafting satisfactory language for an international treaty given the complexities of the subject matter.

Six principal arguments were adduced in favour of elaborating a new treaty on disability rights.

First, a new treaty would represent a significant advance in creating binding law. By contrast, the current international standards represented a regime that was little more than a “toothless tiger.”
Secondly, a new treaty would result in claims for additional resources and attention within the United Nations, on Governments and on other international organizations.
Thirdly, a treaty on disability rights would provide an opportunity to add specific content to the human rights of persons with disabilities and address hitherto unexplored areas, such as the right to be different.
Fourthly, a new treaty would also provide disability rights organizations with the opportunity to promote human rights for persons with disabilities in domestic contexts.
Fifthly, a new treaty would be a catalyst for empowering and mobilizing the global disability rights movement.
Finally, adoption of a disability treaty would place the disability agenda squarely within the United Nations human rights programme. Thus, this step would underscore the fact that disability was primarily a human rights rather than a social welfare issue.

5. Options for implementation of international norms and standards on disability

(a) Using existing international standards and procedures

Participants considered that the jurisprudence of international courts and tribunals constituted an important repository of international norms and standards applicable to persons with disabilities as well as authoritative interpretations of existing human rights norms. The decision of the European Court on Human Rights in the case of X and Y v. The Netherlands[62] was highlighted as a significant example of emerging jurisprudence on the human rights of disabled people. It was agreed that regional human rights tribunals, the use of communications procedures under the United Nations human rights treaties and other international complaints, the further development and use of general comments and recommendations by the United Nations human rights treaty, and international administrative law tribunals of the United Nations, the World Bank and other intergovernmental organizations provided opportunities 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.

Cluster One participants reviewed a number of mechanisms by which existing international norms and procedures might be utilized to further the rights of disabled persons. A variety of practical advocacy strategies were discussed; two topics were the subject of detailed discussion.

(i) Role of periodic reports

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' reliance upon international norms and standards as authoritative guides to the interpretation of constitutional provisions, treaties or domestic law statutes.

(ii) New approaches to advocacy

Participants considered non-legal strategies for furthering the equalization of opportunity for persons with disability. The discussion underscored the prevailing view that new disability advocacy implied 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 challenged the notion of hierarchy whereby persons without disabilities are placed above those with disabilities. Legal approaches to challenging ill conceived hierarchical conceptions must include an examination of the processes through which decision-making regarding the rights and concerns of persons with disabilities takes place. Advocacy in this regard recognized that the development of a society for all depends upon the utilization of all human resources, and that persons with disabilities were vital actors in fulfilling the different needs of society.

Creating a culture within which the rights of persons with disabilities are respected and where they were not passive recipients but critical participants in the process of building a disability rights culture was a core component of the new advocacy. Examples of strategies for advocacy included mainstreaming disability rights within human rights (non-governmental) organizations. These NGOs bear a special responsibility for creating conditions appropriate to moving the disability agenda from the periphery to the centre. The disability perspective must be incorporated into all human rights training. Development projects at national and international levels should include disability impact assessments in project planning and implementation. Finally, disability rights organizations and disabled persons must be accorded rights of participation in all international conferences where the interests of persons with disabilities are affected.

(b) National models of implementation

A sub-group of Cluster One examined the theme of “National Models” and focused in particular on recommendations submitted at the Berkeley expert meeting on promoting the rights of persons with disabilities. The working group sought to identify steps taken to implement those recommendations, results achieved and additional measures that need to be taken.

The working group noted that the main thrust of recommendations formulated at the Berkeley meeting had been the development of strategies for implementation at the international level. However, the group noted that participants at the Berkeley meeting had also sought to identify strategies for enhancing the full enjoyment of human rights by disabled persons by the use of international standards at national level.

Strategies of implementation identified at the Berkeley meeting include:

Inclusion of rights guarantees in national constitutions;
Development of statute law or model legislation, including:
laws guaranteeing full participation in the political, civic and other processes and bodies;
anti-discrimination laws;
other disability-specific legislation;
“civil liberties” laws;
laws regulating activities of locally-based actors abroad;
Development of strategies for promoting rights in other areas;
Invoking international standards in domestic law (including the role of domestic courts);
Reviewing the role of national legislatures and other bodies and institutions in promoting rights.

There was a general assumption within the group that disabled people had rights and that there would be broad agreement in principle as to what those rights might be (the working group did not, however, attempt to identify the scope of that broad agreement). The working group considered that national constitutional documents were the optimal place for disability-specific norms and standards, and that strong constitutional guarantees would affect national laws and practices. The view was expressed that there were problems in interpreting such constitutional provisions, not least in determining whether a constitutional rule actually guaranteed individual rights or merely expressed an aspirational rule (directed to national or public authorities) dependent upon the exercise of a discretionary power.

However, the group recognised that statute law or legislation (including delegated legislation and extra-legal or quasi-legal sources) was likely to be an easier vehicle through which to promote disability rights (because of the constraints of constitutional change). The group expressed the view that suitable national laws in one country might create a template or example for another country considering the introduction or reform of disability rights, although it was equally important for States to develop their own legal instruments, reflecting local needs and environments.

The point was also made that international norms and standards might not always be viewed as appropriate or relevant to local circumstances). The working group recognised that courts and judges played a pivotal role in the development of the law (and norms or standards), although it was conceded that the scope for judicial activism or creativity would vary from legal system to legal system.

The group also noted that not all laws that affect the rights of disabled persons were disability-specific.

While participants in the working group submitted a number of recommendations to be incorporated in the recommendations identified by participants in Cluster One as a whole, they identified a number of issues that in their view deserved further discussion:

right of persons with disabilities to inclusive education;
disability issues as an integral part of national development programmes;
non-governmental organizations representing or consisting of persons with disabilities should be subject to relevant national laws, which establish the legal status and recognition of such bodies and regulate their accountability;
enforcement of building access standards;
role of levy and taxation systems as means of promoting employment opportunities of disabled people;
role of health, safety and environmental laws and policies (and their interaction with rehabilitation/development and the prevention of the causes of disability);
effective support measures for securing the health and health care of disabled people;
affirmative action to further participation of disabled people in employment and public life;
taxation treatment of technologies that are assistive of disabled people;
discrimination within organisations of disabled people (and rights of disabled persons in such organisations – governmental as well as non-governmental);
criminal justice systems: fairness and justice for victims and offenders with disabilities.

C. Participation and inclusion of persons with disabilities in policy- and decision-making

Participants devoted a session to consider the topic of inclusion and participation by persons with disabilities in various national settings. Participants from Cambodia, China, Colombia, Costa Rica, Hong Kong (SAR), Japan, Pakistan, the Philippines, Poland, Tanzania, Uganda, and the United States of America made presentations on national experience.

Many participants reported on the marginalisation and exclusion of persons with disabilities and their organisations in local and national decision-making processes. In some countries women with disabilities were especially marginalised. Although equality is frequently formally guaranteed to all under the law, the reality is mediated by customs that support patriarchy and silence the voice of persons viewed as disabled. Participants expressed the view that no country had brought persons with disabilities into the social, economic, and cultural mainstreams.

Participants also noted that around the world positive programmes had been undertaken and progress was being made. Several countries had set (and fulfilled) employment quotas for people with disabilities, for instance India had set a quota of 3 percent in governmental service and Pakistan had a goal of 2 percent. In Poland an enterprise that achieved the goal of 6 percent employment rate of persons with disabilities was exempted from paying into a disability fund. In the Philippines, a law had been proposed which would require a 20 percent discount on purchases of goods and services by persons with disabilities. In Costa Rica, judges as well as persons who are illiterate were given education on disability rights issues. Poland had a Human Rights Ombudsman who had begun to take up disability rights cases. In Tanzania, where the Disabled Care and Maintenance Act 1992 views disability as a personal and family responsibility and not as a social responsibility, there was nevertheless recognition that it is in the family that the individual first starts to participate in social life, whether in ceremonies, public dancing or even cooking; there was also a quota for the employment of persons with disabilities in governmental service.

Countries had employed a variety of means to encourage the incorporation of disability perspectives in the formulation of policy. In China, five national associations link grassroots associations to the China Disabled Persons' Federation, while in Hong Kong (SAR) the Government had established an advisory committee. The United States had established several federal commissions in the disability field, including the National Council on Disability, which helps to bring disability perspectives to bear on the formulation of national law and policy. Poland has established the appointive Disabled Peoples Council, which plays an advisory role.

Uganda had adopted a dramatic mode of boosting participation by persons with a disability: constitutional provisions allocate one in eight seats at all governmental levels to persons with disabilities. This was in part the result of a long civil rights struggle, which also rewarded women because of their contribution to the armed struggle. Cambodia had the Cambodian Disabled Peoples' Organisation, a membership NGO, which lobbied for change.

Many countries faced formidable challenges in overcoming centuries of neglect of disability and historic factors that aggravate and increase disabilities. Cambodia, for instance, had an estimated 10 million land mines, a potent threat to the lives of its 11 million citizens.

Colombia, while struggling with a civil war and the invisible place of disabled people in society, looked to a brighter future for all. In a statement that could apply to many other parts of the world, the participant from Colombia called for efforts "to transform society through law and to bring forth a new country with a civil society". The participant from Uganda closed his presentation on national experience by asking for respect for "differently-abled" persons and expressed the view that they assume responsibilities in a country that still believes in the maxim "from each according to his or her own ability".

D. Education: access to education and training for persons with disabilities

In 1983, the United Nations General Assembly adopted the goal of equalization of opportunity in the World Programme of Action concerning Disabled Persons. The World Programme states that “equalization of opportunity” is the process of enhancing accessibility to society.[63] The World Programme directs special emphasis to the rights of people with disabilities and their inclusion in all sectors of society. Education and employment are two of the major issues highlighted in the discussion of the development setting for the World Programme and of its implementation measures. At the time of the adoption of the World Programme, the general view was that educational opportunities may not equal but the goal of equalization of opportunities was deemed feasible. Rights in this area would be achieved primarily through political and social actions.[64]

The World Programme recommends that education and training opportunities take place in the general educational system for both children and adults wherever possible, with enhanced flexibility, with the involvement of parents and with the following characteristics:

(1) be tailored to individual needs,

(2) be locally accessible,

(3) be comprehensive, and

(4) offer a range of choices.[65]

As developing countries created new and improved educational structures and developed countries restructured their educational systems, new approaches to educational development were being proposed to meet the needs of larger numbers of diverse student populations. New institutions for education can be flexible while also being cost effective. In recent years, disability advocates had urged that increased emphasis be placed on universal design - the creation and re-creation of environments flexible enough to meet the needs of an entire population.[66] If universal designs were incorporated into educational development plans, developing countries could avoid the costs inherent in modifying structures that did not meet the needs of all. For example, if schools were designed to meet the needs of children with disabilities, developing countries could save on costs inherent in institutionalising people throughout their lives as well as gain potential revenue from members of the labour force who might not have otherwise been employed. Savings could also result from not having to modify unsuitable school facilities at a later date. Structures based on universal designs benefit non-disabled students and those who might not be considered disabled.

Universal design in education requires an accurate focus on the role of the environment in producing facilitators or barriers to achieving the full participation and equality goals of the World Programme. The focus requires not only an understanding of the educational environment but of those points where a student's interaction with the environment could produce differences in opportunities in all spheres of life, such as in orientation, independence, mobility, use of time, social integration, economic self-sufficiency and in the transitions one experiences throughout life.

1. From handicap to opportunities for education for all

Examination of all life spheres represents an evolution in the construct of Handicap from that proposed in the International Classification of Impairments, Disabilities and Handicaps (ICIDH), proposed by the World Health Organization in 1980. [67] As shown in Figure 1, the original categories elaborated in the WHO's Handicap Classification are used but there are three points of distinction. First, the definitions change from an ability- to an opportunity-based focus. Second, the unit of analysis can be a person, the family, community or even an environmental structure. Finally, preparation for life course changes or transitions are considered, allowing for a view of opportunity as a life course process, not merely a static event at one point in time. A brief review of these distinctions may clarify the evolution of the construct.

Figure 1. Evolution of “Handicap” from ability focus to access to life situation outcome focus

“Handicap” category	“Ability of Individual” definitions	Access to Life Situation
Orientation	Receive and respond to surrounding signals	Exchange of information
Physical independence	Sustain existence without aids or assistance	Choice
Mobility	Move about effectively in surroundings	Travel
Occupation	Occupy time in a customary manner	Actual use of time
Social integration	Participate in customary social relationships	Actual relationships
Economic self-sufficiency	Sustain socio-economic activity	Economic resource control
Transition*		Preparation for life changes

*N.B. “Transition” is not an original ICIDH Handicap category.

Source for “Handicap” categories, and “Ability of Individual” definitions: World Health Organization, International Classification of Impairments, Disabilities, and Handicaps: A Manual of Classification relating to the Consequences of Disease (Geneva, World Health Organization, 1980) pp. 181-207.

The shift in analytical focus from individual ability to life situation opportunity focus means that attention shifts from a particular activity to the day-to-day results for an individual operating in his or her educational environment.[68] The original physical independence construct focused on an individual sustaining a physical existence without aids or assistance. In this view, aids or assistance may be viewed negatively. In the new, opportunity-based construct, an individual can be viewed as independent even with aids or assistance. The key issue becomes access by the individual to choice in decisions made about aids or assistance. The more choices the individual has, the more positive the result is viewed. In a similar manner, economic self-sufficiency is not viewed in terms of an individual's ability to earn income but in terms of the capacities of the individual to have actual control over economic resources.

Opportunity variables need not be applied solely to individuals. The effect of disability policies and programmes relating to a family's access to choice, travel, use of time, social relationships and control of economic resources can also be examined with the goal of influencing these outcomes in a positive direction. For example, if a woman in a rural area has to spend a great deal of time obtaining educational services for her child, even though services are available for the child, her control over her time may be severely curtailed. In such a new construct, the family is also viewed as a consumer of services.

As the World Programme originally considered equalization of opportunity as a process occurring during the course of development, so will delivery of disability services often occur throughout the course of a person's or family's life. As an individual passes from childhood to adulthood, environmental expectations of work may decrease since expectations in adulthood may be different from those in a school setting. By examining readiness or preparation for such changes, the delivery of effective transition services can be enhanced, whether they relate to school, work, marital or retirement changes.

Systematic analyses of areas of opportunity for involvement and of environmental variables foster an understanding of differences between persons with disabilities and non-disabled persons in educational results. Areas for change which foster full integration and mainstreaming of disability can be identified, strengthened or modified as appropriate.[69] Application of the human rights approach to all target areas for equalization of opportunities for persons with disabilities[70] by assessing appropriate involvement in those areas reflects the recognition that social, economic and cultural rights complement civil and political rights and vice versa.

As issues of accessibility in education are being rethought, international efforts to equalize education opportunities have progressed. In 1993, the General Assembly adopted the Standard Rules for the Equalization of Opportunities for Persons with Disabilities.[71] In 1994, the Salamanca Statement and Framework for Action on special needs education was adopted by the “World Conference on Special Needs Education: access and quality (Salamanca, Spain, 7-10 June 1994)”.[72]

Rule 6 of the Standard Rules stresses the importance of education and persons with disabilities:

“States should recognize the principle of equal primary, secondary and tertiary educational opportunities for children, youth and adults with disabilities in integrated settings. They should ensure that education of persons with disabilities is an integral part of the educational system.” [73]

While not adopted by the General Assembly, the “Salamanca Statement and Framework for Action” represents a major policy instrument on inclusive education and “schools for all. The “Salamanca Statement on Principles, Policy and Practice in Special Needs Education” directs special attention to the needs of children although adult education is also discussed. The purpose of the “Salamanca Framework for Action on Special Needs Education” is to implement the “Salamanca Statement” in which delegates to the Conference, representing Governments and intergovernmental organizations reaffirm the commitment to “Education for All”. The “Statement” proclaims that every child is unique and has a fundamental right to education. Education systems must take into account diversity and those with special needs must have access to regular schools with an inclusive orientation. Governments are urged to make the improvement of education a high priority and to adopt as a matter of law or policy the principle of inclusive education. Governments are further urged to develop demonstration projects, to invest in early intervention and vocational education and to establish decentralized and participatory mechanisms for planning, monitoring and evaluation. Governments are also urged to facilitate participation by parents, communities and organizations of persons with disabilities in the planning and decision making process, and to ensure that teacher education programmes, both pre-service and in-service training, address the provision of special needs education in inclusive schools. [74]

The “Salamanca Framework” defines "special educational needs" as needs arising from disabilities or learning difficulties.[75] The guiding principle of the “Framework” is that schools should accommodate all children through a child-centred pedagogy. National level guidelines are presented concerning policy and organization, school factors, educational personnel recruitment and training, external support services, priority areas, community perspectives and resource requirements. Guidelines for action at the regional and international level are also provided.[76]

With regard to school planning and development issues, the “Framework” stresses curriculum flexibility, school management that is flexible and cognizant of community needs, and promotion of information and research.[77] Priority areas identified in the “Framework” for further action include:

(a) early childhood education to promote to promote development and school readiness;

(b) education for girls with access to information, guidance and role models;

(c) preparation for adult life with appropriate training technologies, direct experiences, transition programmes and vocational training; and

(d) adult and continuing education programmes with adults with disabilities being given priority access to such programmes.[78]

From the community perspective the “Framework” recommends that consideration be given to establishing partnerships with parents, to promoting community involvement, including the role of voluntary organizations and to raise public awareness of inclusive education.[79]

Application of international norms and standards on special education in national practice can be seen in the example of the “Individuals with Disabilities Education Act (IDEA)” of the United States of America.[80] The aim of the “Act”, which was originally passed in 1975 and amended in 1997, is to achieve free appropriate public education for students with disabilities. IDEA provides for Individualized Education Plans (IEPs) for all students between 3 and 21 years of age identified as having a disability. Infants and toddlers under three years of age and their families are served under Part C of IDEA 1997. Families are considered to be the target group of this programme and not just an infant or young child with a disability. Through its Government Performance and Results Act of 1993 (GPRA)[81] the United States Government monitors results for students with disabilities of all ages. IDEA provides an example of efforts countries can make to implement equalization of opportunity in education through legislation and active monitoring of results. The experience suggests that by focusing on accessibility issues, the equality goal of the World Programme can be achieved in education.

2. Hong Kong (SAR) draft code on disability discrimination in education

Dr Phillip Hui, Hong Kong Institute of Education, made a presentation on the drafting of a Code of practice on disability discrimination in education. Under Section 65 of the Disability Discrimination Ordinance (DDO)[82] the Equal Opportunities Commission of Hong Kong (SAR) can issue codes of practice under the legislation to provide guidance to the community and those particularly affected by provisions of the Ordinance. The Commission had issued a Code of Practice on Discrimination in Employment under the DDO in 1996, and decided that it was important to address the issue of disability discrimination in education, an important but controversial issue. The draft Code focuses on inclusive education and the promotion of “education for all”. The draft Code aims to provide stakeholders in the educational field – principals, teachers, parents and students – with a better understanding of their rights and obligations under the DDO and to provide practical guidelines on good practices in promoting equal opportunities for education for persons with disabilities and on eliminating disability discrimination and harassment in the educational field. Dr. Hui expressed the view that the final draft of the Code will be made available for public comment and adopted sometime in 2000 after approval by the Legislative Council.

During the discussion that followed a number of participants commended the efforts that the draft Code represented and its contents. One participant stressed the need for persons with disabilities to be trained as teachers and employed in schools; educators with disabilities in mainstream education represent important role models. One participant stressed the important guidance available in the “Salamanca Statement and Framework for Action (1994)”; another expressed the need to recognise formally the right to education. Several participants shared the experience of their own countries concerning separate or integrated educational systems for children with disabilities.

E. Human rights, disability and development

Participants noted the importance of approaching development issues from a disability perspective and making persons with disabilities and their rights an integral part of the development process. Participants recalled that there are several international instruments to ensure that development programmes and related social and economic activities did not have an adverse impact on persons with disabilities: for instance Article 28 of the Universal Declaration on Human Rights (UDHR);[83] Article 11 of the International Covenant on Economic, Social and Cultural Rights;[84] Article 25 of the UDHR;[85] the Declaration on the Right to Development;[86] and Copenhagen Declaration and Programme for Action the World Summit for Social Development.[87] The full inclusion of persons with disabilities in the process of development is a necessary prerequisite for the achievement of economic and social development for a society as a whole.

Participants were of the view that States and intergovernmental organizations should promote people-centred development programmes with special attention directed to improving real living standards of persons with disabilities living in rural areas. States and intergovernmental organizations are urged to promote a culture of inclusion of disability issues in the agendas of international social and development strategies, policies and programmes, including programmes for poverty alleviation and for provision of micro-credits to promote income-generating activities of persons with disabilities

Participants considered the elaboration of a resolution on disability and development and its adoption by the United Nations General Assembly to be highly desirable. The purpose of such a resolution would be to ensure that international development strategies, policies and programmes conform to international human rights norms and standards relating to persons with disabilities. The proposed resolution should prohibit discrimination against persons with disabilities in development and should ensure the full inclusion of persons with disabilities as agents and beneficiaries of all such programmes. All programmes initiated or funded by international development agencies as well as projects and all new facilities funded by development agencies should be accessible to persons with disabilities.

Given widespread patterns of discrimination and abuse of persons with disabilities, the proposed resolution of disability and development should call on – or, better, require – international development assistance organizations to include outreach programmes to ensure inclusion of persons with disabilities as well as for creation of specialized programmes related to disability. This should encompass the inclusion of disability in programmes relating to health, education, rule of law, human rights, and governance and democratisation.

Persons with disabilities should be especially included in the design, implementation and evaluation of all development programmes which relate to - or impact on - persons with disabilities.

Participants suggested that public as well as private donors of development assistance and technical cooperation consider setting aside a specific percentage of their resources for programmes to promote empowerment, livelihoods and improved levels of living of persons with disabilities.

Participants identified the following principles as important means to promote the full and effective inclusion of persons with disabilities, on the basis of equality, in development. The principles are designed to ensure that effective development programmes are established to promote community integration and respond to the human rights issues facing children and adults placed in closed institutions, including psychiatric facilities, hospitals, institutions for the mentally retarded, residential schools, orphanages, and other facilities. Participants urge that these principles be considered by United Nations programmes, agencies and international development organizations and should be incorporated by reference into international standards on the rights of persons with disabilities.

Participants are of the view that is it important:

to ensure access for all people with mental and physical disabilities to the benefits of development programmes, including individuals with the most severe disabilities;
to include persons with disabilities as well as family members and other activists from donor and beneficiary countries in programme design and implementation; this may require the creation of specialized outreach programmes to ensure effective, open and democratic participation by stakeholders in development programmes;
to link programmes with support for advocacy by and for persons with disabilities and their families, including human rights advocacy; this shall include funding for the training of grassroots advocacy organizations;
to promote best practices to ensure maximum possible community integration, participation, and right protection of persons with disabilities;
to support and expand local, culturally-appropriate models from beneficiary countries;
to include human rights oversight and enforcement mechanisms in all programmes in institutions in the community; stakeholders should be trained to participate in the design and implementation of such programmes;
to document and disseminate information about projects and programmes; programmes should include funding to document baseline data and outcome analysis to ensure effective monitoring, evaluation, and replication of programmes; stakeholders should be trained to participate in monitoring and evaluation.

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[37] “Report of consultative expert group meeting on international norms and standards relating to disability (Berkeley, 8-12 December 1998)” <http://www.un.org/esa/socdev/enable/disberk0.htm>.

[38] Ibid. see also “Concluding remarks” <http://www.un.org/esa/socdev/enable/disberk7.htm>.

[39] James I. Charlton, Nothing About Us Without Us: disability oppression and empowerment (Berkeley, University of California Press)p. 25.

[40] General Assembly resolution 31/123 of 16 December 1976.

[41] A/37/351/Add.1 and Corr.1, annex, sect. VIII, recommendation 1 (IV), adopted by General Assembly resolution 37/52 of 3 December 1982 <http://www.un.org/esa/socdev/enable/diswpa00.htm>.

[42] General Assembly resolution 48/96, annex of 20 December 1993 <http://www.un.org/esa/socdev/enable/dissre00.htm>.

[43] See “Overview of international frameworks for disability legislation” (August 1998) <http://www.un.org/esa/socdev/enable/disovlf.htm>.

[44] General Assembly resolution 2856 (XXVI) of 20 December 1971 <http://www.unhchr.ch/html/menu3/b/m_mental.htm>.

[45] General Assembly resolution 3447 (XXX) of 9 December 1975 <http://www.unhchr.ch/html/menu3/b/72.htm>.

[46] General Assembly resolution 46/119, annex of 17 December 1991 <http://www.unhchr.ch/html/menu3/b/68.htm>.

[47] Official Records of the Economic and Social Council, 1992, Supplement No.11 (E/1992/31); Economic and Social Commission for Asia and the Pacific, Annual Report (11 April 1991 – 23 April 1992); resolution 48/3 of 23 April 1992 < http://www.unescap.org/decade/backgr.htm>.

[48] General Assembly resolution 44/70, annex, of 8 December 1989.

[49] OEA/Ser.P AG/RES. 1608 (XXIX-O/99) 7 June 1999 < http://www.oas.org/assembly/eng/apr1608.htm>.

[50] Signed at San Francisco on 26 June 1945 < http://www.un.org/aboutun/charter/index.html>.

[51]General Assembly resolution 217 A (III) of 10 December 1948 <http://www.unhchr.ch/udhr/lang/eng.htm>.

[52] General Assembly resolution 2200A (XXI) of 16 December 1966 <http://www.unhchr.ch/html/menu3/b/a_ccpr.htm>.

[53] General Assembly resolution 2200A (XXI) of 16 December 1966. <http://www.unhchr.ch/html/menu3/b/a_cescr.htm>.

[54] General Assembly resolution 44/25 of 20 November 1989 < http://www.unicef.org/crc/crc.htm>.

[55] Adopted by the eighteenth Assembly of Heads of State and Government [of the Organization of African Unity], June 1981 - Nairobi, Kenya < http://www.achpr.org/africancharter.doc>.

[56] General Assembly resolution 429 (V) of 14 December 1950 <http://www.unhchr.ch/html/menu3/b/o_c_ref.htm>; see also “Protocol relating to the status of refugees,” General Assembly resolution 2198 (XXI) of 16 December 1966 <http://www.unhchr.ch/html/menu3/b/o_p_ref.htm>.

[57] <http://www.ilo.org/public/english/employment/skills/recomm/instr/c_169.htm>.

[58] Economic and Social Council resolution Economic and Social Council resolution 663 C I (XXIV) of 31 July 1957 <http://www.uncjin.org/Standards/Rules/r01/r01.html>.

[59] European Treaty Series No. 164 < http://conventions.coe.int/treaty/en/Treaties/Html/164.htm>.

[60] < http://www.cirp.org/library/ethics/nuremburg>.

[61] “Rome Statute of the International Criminal Court” < http://www.un.org/law/icc/>.

[62] Series A, No. 91, Case 16/1983/72/110.

[63] World Programme of Action… para 12.

[64] Ibid. paras 108-111 (legislation); 138-40 (community action).

[65] Ibid. paras 120-127.

[66] Universal design (UD) is based on the concept that all products, environments and communications should be designed to consider the needs of the widest possible array of users. The concept also is known as design for all, inclusive design, lifespan design. Universal design is based on the following premises: (a) varying ability is not a special condition of the few but a common characteristic of being human and we change physically and intellectually throughout our lives; (b) if a design works well for people with disabilities, it works better for everyone; (c) at any point in our lives, personal self-esteem, identity, and well-being are deeply affected by our ability to function in our physical surroundings with a sense of comfort, independence and control.; and (d) usability and aesthetics are mutually compatible <http://www.adaptenv.org/universal/index.php>. See also, Leslie Kanes Weisman, “Creating justice, sustaining life: the role of Universal Design in the 21^st century”; Keynote address to Twentieth anniversary celebration, Adaptive Environments Center (Boston, MA, April 1999), which discusses three tenets of Universal Design: “First, universal design reminds us that there is no separation between mind and body, and between people and their environments. Second, universal design recognizes that there is no separation between human health, environmental health, and social justice. Third, universal design upholds the democratic ideals of social equality and personal empowerment because universal designers strive to create products and spatial environments that are designed to provide the same level of comfort, accessibility and assistance to multiple users and multiple publics.” <www.adaptiveenvironments.org/examples/article2.php?f=4>.

[67] World Health Organization, International Classification of Impairments, Disabilities, and Handicaps: A Manual of Classification Relating to the Consequences of Disease (Geneva, World Health Organization, 1980).

[68] “Declaration on the Rights of Disabled Persons”, General Assembly resolution 3447 (XXX) of 9 December 1975, on ‘environment and living conditions’ of persons with disabilities < http://www.unhchr.ch/html/menu3/b/72.htm>.

[69] A fuller elaboration of issues related to accessibility appears in Appendix II to the Cluster Three summary.

[70] Standard Rules …, Rules 5 to 12 <http://www.un.org/esa/socdev/enable/dissre04.htm>.

[71] General Assembly resolution 48/96, annex of 20 December 1993.

[72] United Nations Educational, Scientific and Cultural Organization (UNESCO) and Ministry of Education and Science, Spain, The Salamanca Statement and Framework for Action: access and quality (UNESCO, 1994) <http://www.unesco.org/education/educprog/sne/salamanc/covere.html>.

[73] Standard Rules …, Rule 6.

[74] Salamanca Statement … < http://www.unesco.org/education/educprog/sne/salamanc/stateme.html>.

[75] Salamanca Framework …, p. 6 <http://www.unesco.org/education/educprog/sne/salamanc/framework.html>.

[76] Ibid. pp 45-47.

[77] Ibid. pp 22-25.

[78] Ibid. pp 33-35.

[79] Ibid. pp 37-40.

[80] < http://www.ed.gov/offices/OSERS/Policy/IDEA/the_law.html >.

[81] < http://www.nsf.gov/od/gpra/law.htm >.

[82] < http://www.eoc.org.hk/CE/ORD/chap487/default.htm >.

[83] General Assembly resolution 217A (III) of 10 December 1945; UDHR, Article 28 “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” <http://www.unhchr.ch/udhr/lang/eng.htm>.

[84] General Assembly resolution 2200A (XXI) of 16 December 1966; ICESCR, Article 11 “1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. 2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed: (a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources; (b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.” < http://www.unhchr.ch/html/menu3/b/a_cescr.htm>.

[85] UDHR, op. cit., Article 25 “1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.”

[86] General Assembly resolution 41/128 of 4 December 1988 < http://www.unhchr.ch/html/menu3/b/74.htm>.

[87] < http://www.un.org/esa/socdev/wssd/agreements/index.html>.

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