International Norms and Standards for people with disability. Comparative analyses

International Norms And Standards For Persons With Disabilities

LLM. Zaneta Stojkova

INTERNATIONAL NORMS AND STANDARDS

FOR PERSONS WITH DISABILITIES

Comparative Analysis

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Limited edition

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Title: “International Norms and Standards for Persons with Disabilities - Comparative Analyses” Author: LLM. Zaneta Stojkova Published by: Polio Plus - Skopje For the publisher: Zvonko Shavreski Translated in English by: Translating Agency ESP Computer graphic design: OZ - Dizajn, Skopje Cover page designed by: Keti Zarevska - Gurmishevska Circulation: Limited Edition 50 copies Printed by: Jugoreklam - Skopje


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Traveller, there are no roads. Roads are made by walking.

Spanish proverb

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POLIO PLUS -Movement Against Disability

LLM Zaneta Stojkova

INTERNATIONAL NORMS AND STANDARDS

FOR PERSONS WITH DISABILITIES Comparative Analysis

Edition “Justiciana”

Skopje, 2004

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This publication is supported by the British Government through the British Embassy in the Republic of Macedonia

This book was translated with support by


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ACKNOWLEDGMENTS This work might have never been published without the unselfish commitment of a number of people and organisations (which of course are comprised of people, right).

Polio Plus wishes to express its heartfelt thanks:

To the British Government, which through the British Embassy in Skopje, for years in roll, sincerely supports the combat of persons with disabilities in executing their rights. They are also the biggest donors to the Inter Party Parliamentary Lobby Group (IPPLG) activities and by that, of this publication, as well.

To the Macedonia Centre for International Co-operation, Handicap International and European Disability Forum, for their efforts in the empowerment of disabled people organisations, exchange of resources and information contributed towards the animation of the movement of people with disabilities and articulation of their unified voice.

Special thanks to the experts who directly contributed to the preparation of this analysis: Dijana Tafchievska, Slavko Koteski, Toni Dabeski, Marjan Gavrilovski and of course, to M.Sc. Zaneta Stojkova, who “confronted” the provided materials with supporting cases from practice and demonstrated to the diligent team of Polio Plus how to work under pressure.

Last, but not least, many thanks to the core of this activity – to the deputy members of the IPPLG for their selfless determination to dedicate their time, knowledge and position to the promotion and improvement of the situation of persons with disabilities in our country.

POLIO PLUS - Movement Against Disability -

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INTRODUCTION Warning!!! Professor Stephen W. Hawking in his masterpiece “A Brief History of Time”, where, in a very comprehensible way, he presented to the public the biggest dilemma of theoretical physics, stated “Even if it means that I will lose half of my readers I must say that E = m x c 2 “. Paraphrasing his statement, we will say this: even if we discourage half of the true promoters of disability rights, we have to call attention to the fact that disability is an issue of rights and obligations, which in practice are regulated by legal norms – or if you prefer, formulas.

Models and Groups – A Chain Connection Disability, as a phenomenon, has followed human civilization from its earliest beginnings until today. There is no doubt that this phenomenon, in expectation of futuristic replications /cloning, will be topical for long. Every civilization, community, culture, state, even individual has approached and treated this phenomenon differently, providing some strange solutions, all of which by default proved to be – ineffective.

Basically, all approaches towards disability through the history of human kind can be divided into three large groups:

1. For the traditional approach, disability is a burden, imposed on the community because of some of its members. The reasons are different and mostly not understandable, and the solutions are generally found in the rejection or isolation of the member who is the cause of the problem This approach is so dispersed that it cannot be regarded as a model because its understanding of disability floats from primitive Darwinism to religion and demonology, then to ideology and finally to families as the first cell that faces and later on absorbs disability as a phenomenon.

2. The medical model imposes a definition according to which disability means a deviant health condition. Such a condition naturally, and above all, needs medical treatment. For the followers and promoters of this approach (most often people from the medical profession or parents who cannot comprehend the fact or understand the situation they are in) disability is some kind of disease, and just like any other disease, it can be treated. The beginnings of this approach started in the golden age of the Arab Caliphates when, for the first time, people with disability, instead of being treated according to the traditional approach, were subjected to treatment and cure.

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Introduction Notes

Western civilization was behind them by almost a whole millennium, but even so, stray wanderings off the point were evident (placements in isolated monasteries, hospitals in shipwrecked ships on the rivers Thames and Seine, islands for lepers and mentally retarded people, and so on). 3. The social model is sill in its primary phase and is difficult to be defined and distinguished. New civil movements from the beginning of the ’60s strongly influenced the development of this approach, and since the mid ’70s it has achieved its form and dedicated followers. The autochthonic nature of these attempts deserves to be marked as the last civil movement where disability is plainly a social issue and location of the problem is not within the individual (the person with disability), but within the society.

The followers and promoters of this model most often belong to one of these three groups. The first is the group of members of the families of the disabled people or their independent supporters whose leading motivation is charity. In the second group are the human rights protagonists who put the accent of their activities on providing a legislative frame for dignified life and equal opportunities for people with disability, hoping that insisting on a legislative framework will provide a suitable environment for rapid change in the mentality of the whole community. In most of the cases the third group encompasses people with disability (seldom their nearest and dearest), who due to their education and financial independence (outcome and benefit from the previous groups) become self-reliant and fully aware of their abilities and disabilities. Their request is that they should be given the same equal opportunities as everyone, (hypothetically speaking the “healthy” population), and that for everything else they should be left to make it on their own. The biggest problem is that their demands are very often rather extensive and what is even more important (and more difficult) - they want that here and now!

To date, there is no generally accepted definition of disability. Therefore, the biggest “disability” of this comparative analysis from its very beginning is in its “inability” to define the scope of its interest. Disability in its essence (regardless of all its definitions) is a physiological phenomenon (physical or mental), which results in the inability to carry out certain activities (in general or in a normal, everyday fashion). That inability on the other hand produces rejection (by the environment), frustration (personal or from those closest), or development of some other ability, so called capability (in a vulgarised economical term – compensation). Disability is, crudely put, very much like pornography. It is hard to define, but very easy to recognize, especially if you experience it with your own


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skin. Anyway, as it is, disability, realistically speaking, is a real challenge not only for the disabled person, but also for his/her nearest and dearest and for the community as a whole. About the idea for this analysis In Republic of Macedonia, until it became independent, the socialist state was responsible to take care of people with disabilities (in fact, for everything else). This care was strongly based on the medical model and resulted in excessive institutionalisation and instruction. After becoming an independent state, the situation in Macedonia became even worse. The caretakers were impoverished and persons with disabilities were faced with increasing erosion of their previously acquired rights. New legislation on rights and benefits was not even taken into account.

At the beginning of the new Millennium, under the influence and pressure of the organisation of persons with disabilities, there has been a slight improvement of the status of persons with disabilities and the community has shown sensibility and awareness of their situation. This resulted in a kind of offensive of the disabled people organisations and their supporters to initiate the creation of a new and modern legal frame, which in a systemic way will regulate the legal status of persons with disabilities.

Within this context, one of the most important moments was the establishing of the Inter-Party Parliamentary Lobby Group (IPPLG) in May 2003 – the European Year of Persons with Disabilities. The initiative for establishing the IPPLG was undertaken by the association Polio Plus, but later on, it was joined by all organisations of persons with disabilities. They are included in the IPPLG work through its Technical and Advisory Committees. The IPPLG programme of action received financial support from the British Government and the Macedonian Centre for International Co-operation (MCIC), and provoked huge interest and media support from all Macedonian informative mediums. This opened lobby group is comprised of (19) members - deputies coming from every political party in the Parliament of the Republic of Macedonia who, by their own free will, demonstrated commitment to fight, before all, for legal systemic regulation of legislation pertaining to persons with disabilities. At this point it is important to note that apart from the European Parliament Disability Inter-group, up to date there is no such organised body in any of the European countries. The Lobby group in its Long-term Action Plan, put as its final goal enactment of a Systemic Law (lex generalis), which will be the basis for making special laws (lex specijalis) and will incorporate elements for protection and implementation of the enacted norms. In adopting a strategy that will lead

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Introduction Notes

us to such a systemic solution, the necessity for serious comparative analysis on the international norms and standards, that is, on the global situation and the achievements in this field imposed in itself. Therefore, this analysis (which does not tend to be comprehensive, but only expedient) is the first phase on the road to the so-called Systemic Law. It will be followed by another analysis (compendium) on the domestic legislation pertaining to issues relevant and important for persons with disabilities in Macedonia. Next year a Draft Systemic Law (with comments) will be made and given for public debate, after which it will be presented to the Government. We expect this Draft Law to be in front of the Parliament at the beginning of 2006.

About the Analysis During 2004, extensive research was made for this comparative analysis. This analysis comprises the previous experience and resources of Polio Plus as a member of the European Disability Forum (EDF) and Disabled People International (DPI). It also incorporates the position of a number of experts from Macedonia and the Region. In the end, M.Sc. Zaneta Stojkova shaped all these materials into a comparative analysis with supporting cases from practice.

This analysis is divided into four closely related integral parts:

1. The first part, named “Basic characteristics of the rights of persons with disabilities”, refers to legislative processes as mechanisms for social control, legal remedies, due process of law and legal assistance, and provides special overview on the obligations and responsibilities of the states. The process of conveying a vision into a concrete policy and programme of action is individual and differs from one country to the next, regardless of their status of being developed or developing countries. In that respect, the principle of equal protection before the law, the legal remedies and the additional measures that states can undertake represent a basic starting point for improvement of the situation of persons with disabilities.

2. The second part provides an overview at a universal level on the international norms and standards adopted under auspice of the UN, as well as other regional systems, like in Europe (with comprehensive overview on the Council of Europe and EU legislation), but also those in America, Africa, Asia and the Pacific, including the Middle East. This part also gives practical information, which would approximate the efforts of the international, national and local communities towards the goals of the international


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standards for human rights that address persons with disabilities, and provides identification of barriers in the implementation of these rights.

3. Part three is dedicated to “individual rights and freedom” and gives special emphasise to the individual civil and political rights, as rights that are exercised per se, (by the individual’s very existence). Strong accent is given to economic, social and cultural rights, which, unlike the former, represent readiness and possibility of the state to ensure exercise of these rights also for persons with disabilities.

4. The fourth part sheds more light on those special groups, which, besides their disabilities, are subject to multiple discriminations, such as women, children or refugees with disabilities.

Finally, for those who wish to have deeper insight into this matter, there is a comprehensive bibliography, which for this occasion was at our disposal, and one small but useful glossary of terms and legal institutes that will facilitate all interested readers to use this book, regardless of their previous legal knowledge.

Momentum A careful reader will notice that the documents which are referred to in this analysis, and are of an earlier date, operate with terms like “or any other status”, while those produced later explicitly address persons with disabilities or disability as a basis. This means that disability as a basis and issue of legal operation is an entirely new moment both in international and national legislations. This analysis is also a new moment for Macedonia and for the Region as well. We hope that the material offered in this book will initially serve its main purpose, but will also be the basis for further development of this process. And finally, there is another important moment. In the UN, the process of enactment of a Universal Declaration on the Rights and Dignity of Persons with Disabilities is currently ongoing. In January 2005 the Ad Hoc Committee will hold its fifth session, and it is very likely that by the end of the following year (2005), the General Assembly will adopt this Convention (it will be the seventh Convention in the history of the UN). I sincerely believe that this comparative analysis will urge the process of its ratification and incorporation into the Macedonian legislation.

Skopje, Zvonko Shavreski 25.11.2004

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When I go to a country, I do not ask whether there are good laws, but are they

enforced, as good laws are everywhere.

- Montesquieu

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PART ONE

BASIC CHARACTERISTICS OF THE RIGHTS OF

PERSONS WITH DISABILITIES

Introduction Although human rights are regulated on an international level, the states are the key protectors and promoters of those rights. The process of conveying a vision into a concrete policy and programme of action is individual and differs from one country to another regardless of their status of being developed or developing countries. In that respect, the principle of equal protection before the law, the legal remedies and the additional measures that states can undertake represent a basic starting point for improvement of the situation of persons with disabilities.

For that reason, the subject of Part One of this comparative analysis is the particular responsibilities of the states. This part is divided into three chapters. Chapter I is related to the legislative processes as mechanisms for social control. This chapter treats in detail the principle of equal protection before the law, and within that frame the prohibition of discrimination and affirmative action. In addition, it gives a comparative overview on laws against discrimination of persons with disabilities on a global level, emphasising the wide diversity of different legal approaches. Chapter II is dedicated to legal remedies for protection against rights violation, that is, to due process of law, locus standi, legal assistance before the national courts and finally to positioning of the regular national courts. Chapter III refers to obligations and responsibilities of the states. It highlights a number of measures that the states undertake with the view to improve the status of persons with disabilities. These measures include collection of statistical data, society awareness raising, policy-making and planning, and personnel training at all levels. Finally, there is a short overview about the role of the Ombudsman, National Coordinating Commissions, Non-Governmental Organisations, Special Rapporteurs and National Councils or Agencies.

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Basic characteristic of the rights of persons with disability

Chapter I

The Legislative Process One of the dominant features of jurisprudence in the 20th century, which continues in the 21st century, has been the recognition of law as a tool for change. An important feature of an effective legal system is its capacity to reflect the changing needs and demands of a society in which it operates. Although legislation is not the only means of social control, it definitely is one of the most powerful vehicles of change and development. Continuous law making becomes a natural response of a developing legal system to new challenges and needs. Today, almost every area of national legislative concern is affected in one way or another by international legislation on human rights. However, although the international framework of rules and standards is important, the importance of national legislation, as fundamental link in the fulfilment of the international law should not be disregarded.

1. Principles of Equal Protection Before the Law

The principle of equality before and under law is a fundamental human right, which is to be treated equally in accordance to our human nature. This right 1 is based on one fundamental characteristic of human nature, that is, human beings as individuals have equal inner values, in themselves, not outside in some other values, and are aims for themselves. Further on, civil and political equality does not exclude eo ipso the category of different treatment, however, it has to be based on determination of its necessity in certain situations with respect to reasonability, procedure, justice and right. By that, this right is defined as relative or basic equality, which for its own realisation needs additional different treatment for different reality. Prohibition of discrimination and affirmative actions are two polarities of the range of rights, that is, of the action of implementing the law on human 1 There are three theories for equality: the first theory is about strictly equal treatment; the second one implies equal treatment with exception to biological differences; the third theory can be called: treatment in accordance with all essential differences. The problem with this last theory is that it is difficult to maintain the necessary balance between legal equality and different group rights. For details see: R. Graycar and J. Morgan, The Hidden Gender of Law, Federation, 1990; Elizabeth A. Sheeny, Personal Autonomy and Criminal Law, CAC, Toronto, 1987; M. Gaudron, Equal Rights and Anti-Discrimination Law, The Sir. Richard Blackborn Memorial Lectures, 1992, Academy of Science, Canberra, Australia.


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rights. Prohibition of discrimination is the bottom line of the principle for equal protection before the law – equal effect of the laws for all. Without its existence, we cannot talk about legal equality or about liberal equality and democratic political systems in general. It is conditio sine qua non for the rule of law and human rights. On the other hand, the institute affirmative action of the state 2 is the other polar range of the principle for equal protection before the law in de facto the unequal world of modern civil society. In that respect, it is a paradox that affirmative principles serve the principle of equal protection before the law by introducing temporal, singular and case - restricted inequality of rights. Therefore, affirmative actions should be looked upon as instruments for achieving the principle of real or more effective equal protection under the law and lessening the gap between the “normative and actual”.

1.1. Prohibition of Discrimination

The legal definition of discrimination implies differentiation in treatment of an individual, which in itself includes unreasonable qualifications and exclusions within a given legal context3. Discrimination can be direct or indirect. Direct discrimination appears when clear legal or practical differences and different standards for groups or persons are set, differences that do not correspond with the principle of justice and reasonability. Indirect discrimination is a much more complex problem, and is related to practice when differences in result or outcome are produced by implementation of such equality rules, which cannot be assigned as personal abilities to persons concerned4.

Although the term prohibition of discrimination is created for protection and as a guarantee for equality of all before the law, it does not provide for absolute equality, but is more related to relative equality. The term relative equality implies that it is just to treat the equal equally, the different

2 Affirmative actions of the state are known as positive or reverse discrimination, special measures, benign discrimination, and transitional or preferential measures. For details, see Lj.D. Frchkoski, International law on Human Rights, Magor, Skopje, 2001, page 56-68. 3 For details, see Minority Rights Group International, 1993/95, Manchester Free Press, UK 12, 13, Asbjorn Eide; article 14 and Protocol No. 12 from European Convention for protection of Human Rights and Fundamental Freedoms, http://www.coe.int . 4 Indirect discrimination is mentioned for the first time in the verdict passed by the USA Supreme Court in Griggs v. Duke Power Co, 1971, which states that the educational standards prevent coloured people from employment in certain public sectors.

http://www.coe.int/

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differently. This means that it is connected with inequalities and differences when they are just and committed to provide reasonable treatment of an individual.

1.2. Affirmative actions The institute affirmative action in legal terms acts for singular, temporary restricted action of the state aiming to provide supportive possibilities for realisation of certain rights of individuals or groups which they themselves are not able to exercise because of different social, physical or political disabilities. The ultimate goal of this institute is to decrease the difference between the formal and the actual equality, and not to create new rights for some as privileged rights bearers.

The most important critical point in implementation of this legal instrument is the question of what criteria are to be used in measuring the equality of possibilities and the goals that are to be achieved.

2. Disability Discrimination Laws: A Global Comparative Approach

On a national, domestic level, disability laws in many countries underwent significant changes during the last few decades. At present day, 44 out of 189 UN Member States have adopted some kind of anti-discrimination laws for persons with disabilities. The laws in these forty- four countries differ to a great extent with respect to scope, concept of discrimination and equality, protected groups, enforcement, and other aspects. Some laws define disability-based discrimination and clearly prohibit these acts of discrimination; others leave the question of what constitutes discrimination to the courts or other monitoring bodies. Some laws uphold the principle of equality but entail no clear picture of what needs to be changed in the society in order to reach this goal.

While these questions are often dealt with in separate regulations amending the act, the language and the structure of the statute may reveal its legislative intent. Some laws give the impression that although they contain some anti-discrimination language, they are rather a social welfare law fostering programs that are not necessarily aimed at complete social equality and integration of persons with disabilities.


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However, it is important to notice that disability discrimination law is truly a new development in disability policy around the world. These laws legally manifest the shift in paradigm from the medical model to the social model of disability. To legally treat disability as a discrimination category implies the recognition that persons with disabilities are persons with rights, not problems. Some of these anti-discrimination laws are strong; others appear to be 'toothless tigers.'

Often domestic disability organisations fought very hard for equality laws and were not satisfied with the act that was finally passed by their legislators. The history of US discrimination law tells us that the legislative battle for equality is long, and more than one statute needs to be passed by the legislator to reach the goal of comprehensive protection against discrimination. From the first attempts to include disability in the Civil Rights Acts of 1964 until the passage of the ADA in 1990, several decades went by and at least five federal disability discrimination acts5 were passed by the Congress.

2.1. A Wide Diversity of Different Legal Approaches Discrimination laws are not the only route to equality for persons with disabilities. This is just one rights-based approach taken by many states around the world today. Those States, which have passed some kind of disability discrimination law, today have chosen different legal approaches. Four different legal approaches can be distinguished. Anti-discrimination provisions for protection of persons with disabilities are regulated in (a) criminal law, (b) in constitutional law, (c) in civil law, and (d) in social welfare laws.

2.1.1. Criminal Law

France,6, Finland7, Spain8 and Luxembourg9 prohibit discrimination against persons with disabilities in their criminal laws. The Spanish law prohibits 5 See: The Architectural Barrier Act of 1968, 42 U.S.C.A. §§ 4151-4157; The Rehabilitation Act of 1973, 29 U.S.C.A. §§ 791,793,794; The Individuals With Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400-1485 (enacted under another name “Education For All Handicapped Children Act” in 1.975); The Voter Accessibility Act as of 198442 U.S.C.A. §§ 1973ee, 1973ee-1 to 1973ee-6, the Fair Housing Act as amended in 198842 U.S.C.A. §§ 3610-3614, 3614a 6 See Loi 90-602 de 12 Juliet 1990 7 See Penal Code as of 1995, Chapter 11(9) and Chapter 47 (3) 8 See Art. 314 Criminal Code (Organic Law 10/1995, 23rd November)

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disability- based discrimination regarding recruitment or in the course of employment if the worker with disability is capable to do the job. Luxembourg and France outlaw disability-based discrimination in employment, business activities and in provision of goods and services to the public. The punishment is imprisonment of maximum two to three years or a fine. The Finnish Penal Code punishes employment-related discrimination and discrimination with respect to goods and services for the public.

Other states, which have adopted not criminal but civil or social law statutes regarding disability discrimination, also provide for criminal or administrative penalties within these civil or social laws. For instance, the Australian Discrimination Statute sanctions incitement of unlawful discrimination or harassment as an offence punishable with six months imprisonment or a fine. Victimization of a person who exercises his or her rights under the act is also declared an offence10. Similar provisions are in the Hong Kong Discrimination Ordinance. A person who incites hatred towards, serious contempt for or severe ridicule of persons with disabilities commits a serious offence of vilification and is liable to a fine or two years imprisonment.

The law of Mauritius sanctions certain violations of the anti-discrimination rules with a criminal or administrative fine11. The same is true for the respective acts of Israel12, the Philippines13, Zambia14and Zimbabwe 15

2.1.2. Constitutional Law Several countries have constitutional anti-discrimination provisions that explicitly cover disability. These are Austria16, Brazil17, Canada18, Finland18*, Fiji19, Gambia20, Ghana21, Germany22, Malawi23, New Zealand24, South 9 See Sec. 454- 457 Criminal Code as modified in 1997 10 See Disability Discrimination Act 1992, Sec.42 and 43 11 See The Training and Employment of Disabled Persons Act, 1996, Sec. 18). 12 See Equal Rights for Persons with Disabilities Law, Sec.15 and 19( d). 13 See Magna Carta for Disabled Persons, 1992 Title IV Sec.46. 20 The Persons with Disabilities Act, 1996, Sec. 32 14 See Draft of a Constitution for the Second Republic of Gambia of 1996 (Sec.31). It is not certain that the Constitution has been adopted yet. The draft was released for publication in 1997. 28 Constitution as of 1992 (Art.29)). 15 See Persons with Disabilities Act, 1992, Sec. IO(c) 16 See Federal Constitutional Law as amended in 1997 (Art.7) 17 See Constitution of the Federative Republic of Brazil, as of 1993 (Art.7). 18 See Charter of Human Rights of Freedoms, Constitution Act 1982. 18* Constitution as amended in 1995 and in 2000 (Sec.6). 19 See Constitution as of 1997


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Africa25, Switzerland26 and Uganda27. These clauses generally prohibit (negative) discrimination of persons with disabilities without defining what exactly constitutes discrimination. Some equality clauses mention direct and indirect forms of discrimination28. Exceptionally broad is the equality clause of Fiji's constitution, which covers unfair direct and indirect discrimination and in addition states: 'Every person has the right of access, without discrimination on a prohibited ground [such as disability] to shops, hotels, lodging-houses, public restaurants, places of public entertainment, public transport services, taxis and public places.'

The constitutions of Austria, Brazil, Canada, Germany, Ghana, Malawi, South Africa, Switzerland and Uganda also enable or entrust the legislature to take affirmative action to combat disability discrimination. Affirmative action means preferential treatment in the form of quotas or other means of positive discrimination. Affirmative action thus targets structural discrimination, which is one of the major obstacles to the equalization of opportunities for persons with disabilities.

In the employment area, many states have introduced quotas for advancement of persons with disabilities. Employers have the duty to hire a certain percentage of disabled workers in many countries. Initially, these employment quotas, when introduced into disability policy after World War II, were classical welfare measures. They were founded on the idea that people with disabilities cannot compete in the real world.

With the rise of civil rights movements in the context of race and gender, quota policies became a new equality related meaning. This in turn has influenced quota schemes in the disability field. In this respect, it is interesting to note that some of the constitutions referred to above (Constitution of Brazil, Art.37 with respect to public employment) provide for quota schemes in the field of employment, whereas others provide for quotas in the area of political representation. For example, the constitution of Malawi provides that the Senate, which is a legislative body, shall include

20 See Draft of a Constitution for the Second Republic of Gambia (1996) 21 See Constitution as of 1992 22 See Basic Law of the Federal Republic of Germany as amended in 1994 23 See Republic of Malawi (Constitution) Act 1994 24 See Human Rights Act 1993 25 See Constitution as of 1996 26 See Constitution as of 1999 27 See Constitution as of 1995 28 See Fiji: Sec. 38(2), South Africa: Sec. 9( 3,4), Gambia: Sec. 33, New Zealand: Sec. 65

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representatives of various interest groups, among them disability groups (Sec. 68 (2)) Similarly, the constitution of Uganda requires that the parliament shall consist of a certain number of representatives of persons with disabilities (Art.78 (1) (v)). Meanwhile, the Ugandan Parliament has five seats reserved for representatives from the disabled community, and the first Minister for disability (and women and the elderly), Mrs. Florence Nayiga Sekabiro is a person with disability.

Based on the affirmative action clause of the Constitution, Uganda's legislators passed several acts to increase the representation of people with disabilities in the public sector. An example is the Local Government Act of 1997, according to which a certain number of seats in elected political bodies at all levels are allocated to people with disabilities. As a result, more than 2,000 elected officials have disabilities 29 of any kind, from the parish to the district level.

Another interesting feature of those constitutions that have been amended to include disability in the prohibition of discrimination is that they recognize the right to use sign language. Finland (Sec.17), South Africa (Sec.6) and Canada (Sec.14 entails the right to an interpreter to any deaf party or witness in legal proceedings) have such provisions in their constitutions.

Constitutional anti-discrimination clauses seem to have more effect than criminal anti-discrimination clauses in transforming society. Since in most countries the constitution is the highest law of the state, constitutional amendments receive more public attention and may render lower law unconstitutional and void. Constitutional amendments also have to be followed by the judiciary and thus may lead to reform in disability case law.

Yet, there are several reasons why Constitutional disability discrimination laws have limited effects. First, depending on the legal system, some constitutions give no substantive rights to citizens, which means that a person with disability may not invoke the anti-discrimination clause in court. Second, constitutional rights are applicable only in public or so-called vertical law. Constitutional provisions protect persons with disabilities against discrimination by state entities, not by private employers or private providers of goods and services. Finally, constitutional provisions tend to be broad and vague. Neither disability nor discrimination is defined in any of the constitutional provisions except for the constitutional law of New

29 These numbers were given by Nayiga Sekabiro at the international human rights seminar for young disabled women in New York, 1-7 June 2000


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Zealand. This leaves vast discretion to the courts. Court rulings are very much determined by the legal culture.

For example, in Germany, where there is no history of civil rights legislation and litigation, the constitutional anti-discrimination clause has been rendered a toothless tiger by a decision of the Federal Constitutional Court in 1996. In a case filed by a girl, a wheelchair user, who was denied access to a regular school, the Court decided that the constitutional anti-discrimination clause was not violated by the school authorities. The reasoning of the German Federal Constitutional Court is reminiscent of a case that was decided more than 150 years ago by the US Supreme Court and upheld racial segregation in schools.

Like in the court case Plessy v Ferguson30 from 1896, the German Court reasoned that educational segregation of children with disabilities is not discriminatory because it is separate but equal. The separate but equal clause of Plessy was struck down in the US in 1954 with the groundbreaking decision of Brown v. Board of Education of Topeka 31 in which the Supreme Court finally acknowledged that separate educational facilities in the context of race are inherently unequal.

The German Federal Constitutional Court, however, was very reluctant to consider the exclusion from education in the context of discrimination. While it acknowledged that it would be discriminatory if a student with disability who did not need any accommodations or special services was denied admission, the Court was unwilling to include students with disabilities who need ramps, lifts, sign language interpreters, alternative reading formats or any kind of special education services. Thus, the medical model of disability was reinforced by this first decision on the new German anti-discrimination clause for persons with disabilities.

While these shortcomings of constitutional anti-discrimination provisions might lead to a conclusion that constitutional amendments are useless, the example of Ireland proves the opposite. Because the equality clause in the Irish Constitution of 1937 is exceptionally weak, the Irish Supreme Court struck down two pieces of discrimination legislation in 1997, which, among others, also covered disability. The court found that the statutory requirement to engage in reasonable accommodations violated the property

30 See: 163 U.S. 537 (1896). 31 See: Brown v. Board of Education of Topeka, 349 U.S. 294 (1955).

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rights of employers32. The laws had to be redrafted and modified with respect to disability. Thus, constitutional amendments might serve as an important foundation for statutory anti-discrimination laws.

Finally, a positive example of how to interpret rather vague constitutional equality clauses was given by a 1997 decision of the Supreme Court of Canada. In Eldridge v. British Columbia33, the plaintiffs brought their case before the British Columbian Supreme Court because the province (the local community) did not provide medical interpretation services to deaf patients. Robin Eldridge had been unable to communicate with her physician, and John and Linda Warren had undergone the ordeal of giving birth to their twins without being able to fully comprehend what their doctors and nurses were telling them. The plaintiffs framed their action under the equality clause (Sec. 15) of the Charter, claiming that provincial hospitals legislation discriminated against the deaf by failing to provide for sign language interpretive services when effective communication is an inherent and necessary component of the delivery of medical services. While the lower courts rejected their claim, the Supreme Court of Canada found the equality clause violated. By interpreting the equality clause in a way which recognizes that certain groups may need some accommodation in order to enjoy equality, Eldridge at least opens the possibility provided in Sec. 15 of the Canadian Charter which requires governments to take positive and substantive steps to ensure that persons with disabilities and other groups who experience discrimination receive the 'equal protection and equal benefit' of the law. However, despite encouraging comments in obiter dicta, the Supreme Court of Canada has continued to leave open the issue of positive obligations under the equality clause34.

32 In the matter Article 26"of the Constitution of Ireland and in the Matter of the Employment Equality Bill, Judgement of the Supreme Court May 1997; Re Article 26 and the Equal Status Bill, judgement of the Supreme Court, May 1997. See G Quinn, From Charity to Rights -The Evolution of the Rights-Based Approach to Disability: International and Irish Perspectives, CPI Handbook of Services (Dublin, 2000), available at: http://www.enableireland.ie/accesswest/intros/essayindex.html33 See: Eldridge v. British Columbia (Attorney General) (1997) 151 D.L.R. (41&) 577 (S.C.C.). 34 Vriend v. Alberta [1998] 1 S.C.R.493. For more comprehensive analysis see: B Porter, Substantive Equality and Positive Obligations After Eldridge and Vriend, (1998) 9/3 Forum Constitutional 71-82; DM Lepofsky, The Charter's Guarantee of Equality to People with Disabilities- How well is it working?, (1998) 16 Windsor Yearbook of Access to Justice 155-214; M Jackman, Giving real effect to equality: Eldridge v. British Columbia (Attorney General) and Vriend v. Alberta, (1998) 4/2 Rev of Constitutional Studies 352-71.

http://www.enableireland.ie/accesswest/intros/essayindex.html


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2.1.3. Civil Rights Laws A third approach is to enact civil anti-discrimination laws for persons with disabilities. A number of countries have adopted such laws and more countries, among which Austria, Germany, Netherlands, Portugal and Switzerland are about to follow this path. Countries with civil rights oriented disability discrimination laws are Australia (Disability Discrimination Act,1992) , Belgium35, Canada36, Chile37, Costa Rica38, Ethiopia39, Finland40, Ghana41, Guatemala42, Hong Kong (Disability Discrimination Ordinace,1990), Hungary43, India44, Ireland45, Israel (Equal Rights for People with Disabilities Law,5758-1998), Korea46, Madagascar47, Mauritius48, Namibia49, Netherlands50, Nigeria51, the Philippines ( Magna Carta for Disabled Persons, 1993), South Africa52, Spain53, Sri Lanka54, Sweden55, the UK56, the USA (Americans with Disabilities Act, 1990 which needs to be read together with other disability discrimination laws enacted earlier), Zambia (The Persons with

35 See Act to Combat Discrimination and to Amend the Act of 15 February 1993 to Establish a Centre for Equal Opportunity and to Combat Racism 36 See Canadian Human Rights Act, R.S.C. 1985, c. H-6 37 See Act No 19.284 of 1994). 38 See Law 7600 for Equalization of Opportunities for Persons with Disabilities,1996 39 See The Rights of Disabled Persons to Employment, Proclamation No 101/1994 40 See Chapter. 2 Sect.1 Employment Contracts Act (55/2001) 41 See The Persons with Disabilities Act of 1993 42 See Act for the Protection of Persons with Disabilities, Decree No.135-96, 1996 43 See Act. No. XXVI of 1998 on Provision of the Rights of Persons Living with Disability and their Equality of Opportunity (hereinafter cited as Act No. XXVI) 44 See The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 45 See Employment Equality Act of 1998, Equal Status Act of 2000 and National Disability Authority Act (2000) 46 See Act Relating to the Employment Promotion, etc of the Handicapped, Law No,4219 (1990) and The Special Education Promotion Law,1994 47 See Labour Code as of2 9 September 1994 48 See The Training and Employment of Disabled Persons Act (Act No.9 of 1996)). 49 See Labour Act as amended in 1992 50 See Act of 3 April 2003 to establish the Act on the Equal Treatment on grounds of Disability or Chronic Illness 51 See Nigerians with Disability Decree, 1993 52 See Employment Equity Bill 1998 and Skills Development Bill of 1998 53 See Statute of Workers' Rights (Royal Legislative Decree 1/1995 24th March) 54 See Protection of the Rights of Persons with Disabilities Act, No.28 of 1996 55 See Prohibition of Discrimination Against Persons With Disabilities in Employment Act, SFS No: 1999- 132, 1999 56 See Disability Discrimination Act 1995 and Disability Rights Commission Act 1999

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disabilities Act,1996 Act.No.33 of 1996) and Zimbabwe (Disabled Persons Act,1992).

With exception of the law of Chile, all of these statutes cover employment related discrimination of persons with disabilities. Some laws are labour laws and thus only cover employment discrimination (Canada, Ethiopia, Ireland, Korea, Madagascar, Mauritius, Namibia, Spain, South Africa and Sweden). With respect to other areas, the laws differ to a great extent.

The most comprehensive disability discrimination laws are from Australia, Canada, Hong Kong, the Philippines, the UK and the USA. Unlike countries with an Anglo-Saxon legal system, countries with a continental legal system have no applicative experience in this area. In that context, the efforts of disability rights organisations to lobby for enactment of a Systemic Law (lex generalis) for the rights of people with disabilities in the Republic of Macedonia is a significant initial impulse for improving the situation on a global level. The Australian Disability Discrimination Act of 1992 prohibits discrimination in the areas of work, housing, education, access to premises,

clubs and sports and other facilities, land possession and the provision of goods and services (Sec. 3, 15, 22-30). The Canadian Human Rights Act of 1985 covers discrimination in the provision of goods, services, facilities or accommodations that are available to the general public (including transportation). Furthermore, it prohibits discrimination in employment, the provision of commercial premises or housing (Sec. 5-11).

The 1995 Disability Discrimination Ordinance of Hong Kong covers the areas of employment, education, premises, goods and services, facilities for the public, barrister chambers, clubs and sports, and government activities (Sec. 11-20, 24, 25-29, 33-37). The 1992 Magna Carta for Persons with disabilities of the Philippines prohibits disability-based discrimination in the fields of employment, transportation, public accommodation and goods and services (Title III, chapter I-III). The British Disability Discrimination Act of 1995 covers discrimination in employment, in the provision of goods, facilities and services and to some degree also covers the area of education and public transportation (Sec. 4, 19, 22, 29, 30, 32-39, 40-47).

Finally, the American with Disabilities Act of 1990 prohibits discrimination in the areas of employment, state and local government activities (including education, transportation, social services, etc) public accommodations (goods and services) and telecommunication (Title I-IV).


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The civil laws of the other countries are also broad in scope in that the legislation covers a wide range of every day life areas, but not all of these areas are covered by the anti-discrimination provisions of the law. For instance, the 1996 Act on Equal Opportunities for Persons with Disabilities of Costa Rica covers access to education, employment, public transportation, public services, information and communication, and cultural, sports and leisure activities. However, discrimination is explicitly prohibited only with respect to employment, public health services and participation in culture, sports and leisure activities (Art. 24, 31 and 55).

The Indian Persons With Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1995 differs from the other civil rights laws in that it has rather weak non-discrimination provisions but provides for quotas in various areas instead. Non-discrimination provisions cover transportation, roads, built environment and government employment, excluding the hiring process (Chapter VIII, Sec. 44, 45, 46 and 47). Duties to enable access for persons with disabilities apply only 'within the limits of...economic capacity and development and thus are rather easy to evade.

A three percent quota scheme relates to government employment, government aided educational institutions and poverty alleviation schemes (Chapter VI, Sec. 33-40). The government quota system for employment reserves one percent to persons with certain types of impairments, notably visual, hearing and physical impairment (Chapter VI, Sec. 33 (1)-(3)). Of interest is that any vacancy under the three percent quota scheme in government employment is to be carried forward to the following year (Chapter VI, Sec. 36). Theoretically, this might lead to a situation where a government agency can only hire or promote employees who have disabilities.

Many other foreign laws have quota provisions, particularly in the public employment field. As the short excursion into comparative European disability law showed, employment quota schemes have a long tradition and do not necessarily pertain to the anti- discrimination principle.

Compared to criminal and constitutional anti-discrimination laws, civil disability discrimination legislation is more detailed regarding the scope of the law. Most of the laws also provide a definition of what constitutes discriminatory practice or equality. In addition, all civil disability discrimination laws have provisions on enforcement mechanisms.

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2.1.4. Social Welfare Laws and Disability Finally, some states choose to approach the issue of disability discrimination in traditional social welfare laws for persons with disabilities. These states are: Bolivia57, China58, Costa Rica59, Germany60, Korea61, Nicaragua62, Panama63 and Spain64. The Republic of Macedonia, albeit partially, has adopted the traditional approach model. All stated above leads to the conclusion that countries with continental legal systems very often are inclined to this approach regarding regulation of issues related to disability.

In these laws, anti-discrimination provisions are found next to the more traditional provisions on prevention of disability and rehabilitation. Except for the Finnish 1992 Act on the Status and Rights of Patients, which provides that every resident in Finland is entitled to health and medical care without

discrimination, the focus of these laws is social services and integration principles rather than rights based anti-discrimination provisions.

Non-discrimination provisions in social welfare legislation tend to be vague and are limited to one area, such as public employment or public education. For instance, the Spanish Act on the Social Integration of the Disabled (1982) deals with prevention of disability, diagnosis and assessment, the system of benefits in cash and kind, medical and vocational rehabilitation, and community services and integration at work. The only anti-discrimination provision in the act states that any disability-based discriminatory provision in labour regulations, collective agreements, individual contracts or unilateral decisions shall be annulled and voided. (Title VII, Sec. 38(2)).

The Chinese Law of the People's Republic of China of 1990 contains a general prohibition clause (Chapter I, Art. 3) but does not specify what that means for the organization of the society. A textual analysis of the law gives 57 See Act No.1678 on the Person with Disability, 1985 58 See Law of the People's Republic of China on the Protection of Disabled Persons, 1990). 59 See Decree No. 119101-S-MEP- TSS- PLAN of 1989 60 See Social Law Code (SGB) Ninth Book (IX) -Rehabilitation and Participation of People with Disabilities). 61 See The Welfare Law for Persons with Disabilities, Law No.4179 (1989) and The Special Education Promotion Law as of 1994 62 See Act No.202 Regulations and Politics Regarding Disabled in Nicaragua/Act for the Prevention, Rehabilitation and Equalization of Opportunities for Persons with Disabilities in Nicaragua, 1995). 63 See Family Law Code, Act No. 3 as amended in 1994 64 See Law on the Social Integration of the Disabled, 1982).


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an impression that the traditional medical model of disability - institutionalization and segregation - is the framework of the Act. For instance, Article 29 stipulates as one guiding principle the rule of concentrated employment for persons with disabilities. This means that employment opportunities are provided in special welfare enterprises and institutions. Within these special institutions, discrimination against persons with disabilities regarding recruitment, employment, promotion, determining professional or technical titles, payment, welfare and other aspects is prohibited (Art. 34).

Given that this is the only detailed anti-discrimination provision in the whole Act, it seems that the law conveys a rather peculiar concept of equality. The medical model approach of the law is also displayed by some provisions concerning obligations of persons with disabilities. According to Article 10, Chinese persons with disabilities 'should display an optimistic and enterprising spirit,' which implies the notion that disability results in negative attitudes and depression.

Some countries, such as the Philippines, have laws that could be characterized as both social welfare and civil rights laws. The Magna Carta of the Philippines, however, entails a clear statement that manifests the legislature's intent to move from the medical model to the human rights model of disability. Title I Chapter I Section 2(b) states that “… the rights of persons with disabilities must never be perceived as welfare services by the Government.”

The history of the US disability discrimination law shows that often states start with anti-discrimination provisions for persons with disabilities in social welfare legislation. This is the legal area in which disability law tends to be developed. The US first prohibited certain forms of discrimination against persons with disabilities in the 1973 Rehabilitation Act. The famous Section 504 provides that every entity which receives federal financial assistance or is conducted by any federal agency must not discriminate against an 'otherwise qualified' person with a disability. The 1988 amendment on the Fair Housing Act, which prohibits discrimination in housing matters, was the first step towards including disability in general civil rights legislation in the US. The final step was taken with the adoption of the Americans with Disabilities Act (ADA).

Similarly, Costa Rica and Spain have disability discrimination provisions within social welfare legislation as well as in civil laws.

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In conclusion, discrimination provisions in social welfare legislation tend to be less comprehensive and reform-oriented. The paradigm shift from the medical model of disability to the human rights model of disability seems to be less obvious in this kind of legislation. Chapter II

Legal Remedies for Protection Against Rights Violations Every state has the primary responsibility within its territory to ensure respect of human rights to all its citizens. By signing and ratifying the international legal instruments, States commit to avoid, both nationally and regionally, any actions that may lead to violation of human rights. Furthermore, most of the obligations envisaged in the international legal instruments provide that countries will take relevant steps to adopt affirmative actions for protection of human rights. They may also state the need for adoption of relevant legislation and undertaking of other measures (legal, judicial, administrative) to ensure respect of human rights.

Most States create their systems of protection of human rights, which may entail Committees that would review any findings dealing with alleged violation of human rights, as well as separate judicial bodies that would render judgement in individual cases. Regular courts in civil or criminal proceedings, or an ad hoc may also review these appeals or a permanent Committee may be established to monitor and report on relevant issues.

There are various mechanisms at a national, regional or international level used to ensure respect of human rights. On an international level, control mechanisms entail: regular submission of reports, individual petitions and petitions “state vs. state”65. In some instances, these mechanisms draw its legitimacy from the constitutional and national laws of a country, avail themselves of concrete and enforceable legal remedies that take precedence over the use of international legal remedies.

1. Due Process of Law

The concept of due process of law refers to a procedure in which all rights are implemented by the State. Formal protection of due process of law is largely associated with equality before the court.

65 See bellow for more details: Section II.


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Article 14 of the International Covenant on Civil and Political Rights provides that “... all persons are entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law ... every person charged with a criminal offence shall have in full equality the right ... f) to have free assistance of an interpreter if he/she cannot understand or speak the language used in court”. This provision, as far as disability is concerned, is important for the three following reasons: first in the context of civil obligations; second in the context of criminal proceedings against persons with disability; and, third, because of the possibility for the court to secure protection of other rights during the proceedings.

International law provides for minimum standards of due process of law for persons in judicial proceedings. Article 10 of the Universal Declaration of Human Rights provides that “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”.

2. Locus Standi Most of the proceedings brought before international institutions provide for prima facie personal involvement of the petitioner in the case. The claim that, the individual is a victim of violation of a right is a condition stipulated by most of the international human rights instruments. However, the Human Rights Committee, established under the International Covenant on Civil and Political Rights, believes that in addition to the individual alleging that his/her rights have been violated, locus standi is also enjoyed by the person authorized to represent the petitioner or some other person, if it is obvious that the victim is unable to file the petition him/herself, or grant the power of attorney to the person representing the victim.

Under article 34 of the European Convention for Protection of Human Rights and Fundamental Freedoms: “The Court may receive applications from any person, non-governmental organisation66 or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto.”Concerning the condition victim, we should point out that in principle, the individual may not submit actio popularis and complain

66 Non-governmental organisations have to be private organizations. Municipalities, for example, are not considered as such. See: Austrian municipalities vs. Austria, Yearbook 17 (1974), p. 338 (352).

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against the right of some High Contracting Party in abstracto. However, jurisprudence has shown that under given circumstances and in consideration of the principle of effectiveness

(l’effet utile) of the system, the individual may claim that he/she is a victim, on the grounds of existence of legislation in one of the High Contracting Parties to the European Convention for Protection of Human Rights and Fundamental Freedoms67. With reference to potential victim, see: Malone case (Report of 17 December 1982, Application 82 (1984), p.52) and Marckx case (Judgment of 13 June 1979, Application 31 (1979), p.12-14).

In cases where an alleged future judgement may be predicted, as in the Kirkwood68 case, the Committee believes that the individual petitioner may be considered a victim, but when this alleged future judgement may not be predicted at all, then the Committee pronounces the petition inadmissible.

As to the institute indirect victim, the Committee has introduced a principle which makes it possible for the victim to file a petition in special cases for violation of an article of the European Convention for Protection of Human Rights and Fundamental Freedoms against a third party, though he/she has not directly suffered any violation of human rights and freedoms. In this case, the applicant has to have a close contact with the direct victim which suffered violations under an article from the European Convention for Protection of Human Rights and Fundamental Freedoms, in order to be considered a victim her/himself, i.e., that he/she has suffered a personal violation69.

When the victim is unable to take any action (person in detention, mental institution patient or a very young person), then a close relative, a guardian, a custodian or a third party may act on his/her behalf and in his/her interest70.

The Inter American Convention on Human Rights explicitly accepts actio popularis in article 44, which states “any person or group of persons, or any

67 See: Klass vs. Federal Rebublic of Germany case, Series A, No.28, Application 5029/71, Yearbook 17 (1974), p.178 (208); Open Door and Dublin Well Woman case, Series A, No.246; Yasa case, Judgment of 2 September 1998; Norris case, Series A, No.142; De Jong, Baljet and van den Brink case, Series A, No.77. 68 See: Kirkwood vs. United Kingdom case, Application 10479/83, D&R 37 (1984), p. 158 (182). 69 See: Becker vs. Denmark case, Application 7011/75, Yearbook 19 (1976), p. 416 (450), where a German journalist challenge the decision of the Danish Government to repatriate 199 Vietnamese children, on the grounds of being contrary to article 3 of ECHR. 70 See: X vs. Federal Republic of Germany case, Application 155/56, Yearbook 1 (1955-1957), p. 163.


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nongovernmental entity legally recognized in one or more member states of the Organization, may lodge petitions with the Commission containing denunciations or complaints of violation of this Convention by a State Party”.

This means that the individuals whose rights have been violated are victims and therefore, they are entitled to a protection of their rights before the court and other relevant judicial institutions. However, some persons with disability are unable to protect their rights effectively. The rule of locus standi may be extensively interpreted in such way as to allow access to the courts to those individuals who are unable to appear in court on account of poverty, social or physical disability. This may be made possible if conditions are created where individuals or non-governmental organisations dealing with the subject area of disability can take actions on behalf and in the interest of persons with disability whose rights have been violated.


3. Legal Assistance before National Courts There are instances where persons with disability cannot afford legal counsel in court proceedings. The Declaration on Rights of Persons with Disabilities, article 11, provides that persons with disabilities have the right to “avail themselves of qualified legal assistance when such assistance proves indispensable for the protection of their persons and property”. The state is obligated to secure free legal assistance to persons with disabilities, as well as to other vulnerable groups in society. One of the solutions is the assembling of legal services and obligations on the part of legal counsellors to take cases of social nature, receiving a symbolic fee for their services.

The same right is articulated in article 14 paragraph 3 (d) which provides that everyone charged with a criminal offence has the full right “...to attend the hearing and defend him/herself in person, or to have legal assistance of their own choosing; if he/she does not have legal assistance, he/she should be informed of the rights to have one, and in all cases, when in the interest of justice, an attorney should be appointed by the court if the defendant cannot afford one”.

Article 6 paragraph 3 (c) of the European Convention for Protection of Human Rights and Fundamental Freedoms stipulates that everyone is entitled “... to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”.

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Many non-governmental organizations, including several outside European countries, refer to the cases of violation of human rights tried by the Human Rights Court, such as for example the case Airey vs. Ireland71. In the judgement delivered in this case, the Court found that the obligation of the states to make the justice system accessible and efficient includes the right to free legal assistance in civil procedures when the procedure is complex and legal assistance is indispensable for securing access to the court. This precedent and the ensuing solutions brought about an extensive reform of national legal systems aimed at protecting access to courts of poor people in civil proceedings.

Controversial disability matters, such as sterilization of mentally disabled children should fall within the jurisdiction of special family courts. Such courts should solve family law cases in an informal and quick manner, with participation of family courts’ advisory personnel.

4. Regular National Courts

Human rights should primarily be exercised before regular domestic courts. There are two reasons for that: first, while most of the international human rights instruments provide for regular submission of reports and individual petitions, very few States, the exception being Council of Europe member countries, have adopted the optional clause and protocols that pertain to the right of individuals to file petitions with designated bodies; and second, though some member states have recognized the jurisdiction of these bodies, still, the role of national courts remains crucial, as under the generally accepted principles of international law, these bodies may review cases only after all domestic legal remedies have been exhausted.

Under article 35 of the European Convention for Protection of Human Rights and Fundamental Freedoms, the first criterion of admissibility provides that “... the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken”. When we speak about legal remedies, we do not mean by that only judicial legal remedy, but also all domestic proceedings available to the applicant.

71 See in more details: Airey vs. Ireland, judgement date September 11, 1979, Series A no. 32.


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Failure to exhaust domestic legal remedies is the core of the case Spencer vs. Great Britain72. In this case, the Committee referred to the opinion expressed in the Viner case, which stated that failure to initiate a procedure on violation of trust does not constitute failure to exhaust all domestic legal remedies in the country. Under such circumstances, the Committee found that the complaint filed by the applicant in pursuance of article 8 of the Convention is inadmissible under the old article 27 paragraph 3 of the Convention on account of failure on the part of the applicants to exhaust all legal remedies before the domestic instances in accordance with the old article 36 of the Convention (new article 35).

Where there are domestic legal remedies which are theoretically available, though there is unreasonable delay by the national authorities, then the applicant should not receive punishment on the grounds that his complaint has been stricken out as inadmissible due to failure to exhaust domestic legal remedies made available by the authorities. One generally accepted case, where the applicant is under no obligation to bring any action before domestic courts is when customary law does not lead one to conclude that the case has no chances of success whatsoever. Problems arise when domestic law fails to provide a conclusive answer to this question. So, in the Campbell and Fell case73, the applicant was successful in proving that the legal remedy made available was not sufficiently express.

However, in other cases where the law is ambiguous, such as the Retimag case74, the applicant is expected to bring an action to clarify his position. The question raised is: who carries the burden of proof of this condition of admissibility of the application before the Commission? Whilst in the past this condition was proved only by the applicant, nowadays the burden of proof is shared. Firstly, the plaintiff state has to prove that there are efficient and adequate legal remedies available in its system, whilst on the other hand, the applicant has to prove that the said legal remedies have been exhausted or are inadequate and insufficient.

Most countries have some kind of law dealing with protection of legal remedies. The states which are signatory to regional and international instruments pertaining to human rights are bound by the provisions of those

72 See: Spenser vs. United Kingdom case, Application 28851/95 and 28852/95, Decision of the Committee dated January 16, 1998, 92-A Decision and Reports of the European Committee on human rights 56-75 (March 1998). 73 See: Campbell and Fell case, Series A, No. 80, para.61. 74 See: Retimag case, Application 712/60, Yearbook 4 (1961), p. 384.

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instruments. Sometimes national laws expressly refer to the legal guarantees provided in these international human rights instruments. Most States create their own systems of protection of human rights, which may comprise of Commissions responsible for reviewing the findings of alleged violation of human rights, as well as separate judicial bodies that render judgement in individual cases.

The type of mechanisms and procedures vary form one state to another. For example, in some countries there are Commissions, in others this issue is resolved by the Constitutional Courts, and there are countries with administrative bodies that monitor human rights violation and file complaints with regional and international instances.

As to the issue of disability, domestic courts may act as promoters and protectors of the rights of disabled persons. Each person, just like any other, may lodge a complaint for alleged violation of his/her rights and seek just satisfaction. The courts may within the extent of their jurisdiction stimulate various interest groups to take actions on certain issues.

National human rights systems are important for two reasons: they are more easily accessible to large number of persons with disabilities, and interest groups in different countries; and, when a higher instance court (for example, Appellate court or Supreme court) has the jurisdiction to review a complaint on violation of rights of disabled persons and the decision is in favour of the disabled person, it creates a rule which may be invoked by other persons with disability whose rights have been violated in the same manner.

International and regional instruments of human rights can be used in relevant national mechanisms in several ways, including:

- Basing the claim on provisions of international and regional human rights instruments incorporated in the national legal system;

- Using the international human rights law in interpretation of domestic law provisions, as judges in many countries have been guided by the international law in their interpretation of specific legal provisions;

- Reminding the State that by ratifying the international treaties, the national bodies are bound to interpret domestic law in such way as to ensure that any collisions with the obligations assumed by the State under a give international treaty are avoided; and

- Using international human rights law as a minimum standard of protection, which the national law should attain. Those in favour of


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legal reforms may advocate alignment of the national law with the international standards pertaining to protection of rights of disabled persons.

State laws and mechanisms can be used to improve the protection of disability rights by examining:

- Which provisions of the Constitution and the Law protect disability rights and which provisions and legislation are important for persons with disability;

- Whether there are separate constitutional and legal provisions covering the right to prohibition of discrimination and/or the right to equality;

- Which international human rights instruments have been ratified by the State and when they have come into force in the respective country;

- Whether international human rights instruments automatically become part of the national legal system, or whether additional ratification is required;

- Which direct mechanisms of protection of human rights are alive: Constitutional Courts, Civil Rights Offices, Human Rights Commissions, Ombudsman, and whether some of these bodies is focussed on disability rights; and,

- Whether cases of violation of international human rights law have been brought before the national courts?

In some countries, like Chile, a number of court precedents show that Chilean courts have a tendency to base their decisions on international law. There are also important cases where automatic incorporation of customary international law has been recognised and applied by the courts.

In Germany, the international law the sources of which are not international treaties has been introduced in the national legal system via article 25 of the Constitution of the Federal Republic of Germany, which contains the following clause: “general rules of international law are an integral part of the federal legal system. They enjoy priority over national laws and create express rights and obligations for the citizens on the territory of Federal Republic of Germany.” This means that no additional ratification procedure is required.

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On the other hand, in Japan, ratification of international legal instruments is needed, though Japanese legislation does state that international treaties enjoy priority over national laws. Though Japan has ratified only a small number of international instruments pertaining to human rights, it is nevertheless necessary to mention that over the past 15 year, the Japanese Parliament has ratified the most important international instruments and harmonized the legislation with the provisions set forth in those instruments.

However, national systems for protection of human rights have several constraints, such as:

- Dependency on the political environment, as no efficient national mechanism of protection of human rights can exist in a country in which the state apparatus violates the rights of its citizens;

- In a state where national laws are discriminatory, national mechanisms fail to offer a method of protection of human rights against violation; and,

- In a state where courts and other state bodies do not function properly, are corrupted, civil servants are disinterested in human rights, the situation of violation of human rights on a national level cannot be improved.

Chapter III Obligations and Responsibilities of States

1. Responsibilities of States

The International Court of Justice, in the Barcelona Traction Case highlighted the idea that the fundamental human rights create erga omnes obligations. After the judgement in this case was delivered, there has been notably growing acceptance in the international comparative law of the principle of legitimate interest and the rights of states to protest against deterioration of human rights, regardless of where such deteriorations occur. One can say that violation of human rights, condemned by the UN Security Council, represents an international criminal act. Some international criminal treaties expressly state what actions constitute violation of human rights, including genocide, torture, hostage taking, apartheid, disappearance of individuals, slavery and servitude and certain forms of terrorism.


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Often, there is a human dimension in international criminal acts. The European Court of Human Rights in the case A and B v. the Netherlands75 held the Netherlands responsible for the lack of legal instruments for effective protection of Ms. B, which is to say that the two provisions of the Criminal Code relevant for this case –article 248 and 239 (2) did not provide practical and effective protection due to the legal void they created.

Apart from creating a forum to address the issue of human rights violation, states should play an active role in preventing such rights violations, as well as enforcing protective measures on behalf of persons with disabilities.

The implementation of laws depends to a large extent on the political will of States to comply with international standards. The effective implementation of international norms and standards is to a great extent reliant on the network of governmental, non-governmental and international support.

There are several measures that can help improve the status of persons with disabilities, such as:

- Collection of Statistics;

- Raising Awareness in the Society;

- Policy-making and planning;

- Personnel training at all levels.

Of significant assistance to improvement of the status of persons with disabilities is the work of the Ombudsman, the National Coordinative Committees, Non-governmental organizations and Special Rapporteurs.

1.1. Collection of Statistics

Collection of information and data on persons with disabilities is vital to understand the situation of disabled persons in each country. Analysis of these data will allow policy makers and legislature to obtain a realistic picture of the status of disabled persons that will help them formulate an effective policy to address this issue.

In Rule 13 of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities it is stated that States bear the ultimate responsibility to collect and disseminate information on the living conditions 75 See below for more details: Part III (Chapter VI- Right to respect of private and family life).

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of persons with disabilities. This information should be collected at regular intervals as part of the official statistical system of states. The data collected may be included in the materials pertinent to the national census, giving possibilities for its correlation with data on income, level of education and other relevant criteria76. This information may also be collected through household surveys undertaken in cooperation with universities, research institutions and organizations of persons with disabilities.

The Statistics Division of the United Nations Secretariat works towards the development of a realistic and practical system of data collection in states and the preparation of technical manuals and documents for collection of such statistics. The UN Statistical Commission decided to include disability as a basis in the Principles and Recommendations for Population and Housing Censuses. However, the Secretary-General, in his 2000 report under the title “World Population and Housing Census Programme”, states that conducting a specialized survey of persons with disabilities is more appropriate.

Furthermore, of great benefit for states could be the establishment of a database on disability which would include information on associated services and programmes, as well as statistics on different groups of persons with disabilities. The UN disability statistics database is a framework that states can use in preparation of their own national statistical databases. The UN disability statistics database is the primary source of information when it comes to monitoring the progress made on international level concerning the status of persons with disabilities.

1.2. Raising Awareness in Society

In Rule 1 of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities it is stated that “States should take action to raise awareness in society about persons with disabilities, their rights, their needs, their potential and their contribution”. States should also distribute information on avalable services and programmes, which would be of benefit to persons with disabilities and the general public. This information should be available in forms understandable for persons with communication limitations. 76 It is interesting to mention that on January 8 2001, when the Law on Census of population and households in the Republic of Macedonia was enacted, Polio Plus-Organization of persons with disability proposed item 16 to be included in the survey questionnaire to cover data on individual’s health status.


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States should also initiate information campaigns and public education programmes concerning disability issues, putting accent on the message that persons with disabilities have the same rights and obligations as others. An important component in raising awareness in society is focusing on campaigns about education of children as a way to build a positive attitude of the future generations towards persons with disabilities.

Furthermore, under rule 1, states are responsible for raising the awareness of persons with disabilities concerning their rights and potential, which would assist them to take advantage of the opportunities available to them.

The World Programme of Action Concerning Disabled Persons, paragraph 154, stipulates that persons with disabilities and their organizations should be given equal access, resources and adequate training with regard to public information so they may freely present their views to the general public through the media.

1.3. Policy-making and Planning

When policymakers and the legislature have all relevant information of the status of persons with disability they create in a much easier fashion national policies concerning disabled persons. Rule 14 of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities provides for inclusion of disabled persons in all relevant policy planning and making. Though states plan policies for persons with disability at a national level, actions should nevertheless be supported at a regional and local level. The needs of persons with disabilities should also be incorporated into a general development plan, and not be treated separately.

National long-term programmes on achieving the objectives of the World Programme of Action concerning Persons with Disability should be an integral part of the State’s general policy for socio-economic development. In addition, encouragement of local communities to create programmes and measures for disabled persons should be stimulated by the state.

Organizations of persons with disabilities should be involved in all decision- making relating to plans and programmes concerning persons with disabilities or affecting their economic and social status. According to rule 18 in The Standard Rules on the Equalization of Opportunities for Persons with Disabilities, States should “...recognize the right of the organizations of persons with disabilities to represent persons with disabilities at national, regional and local levels. Member states should recognize the advisory role

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of organizations of persons with disabilities and establish direct contacts with them. This way the organizations can influence Government policies and solutions in areas that concern them.

At the Consultative Expert Meeting on Law and Disability Policies, held in Berkley (USA), 8-12 December, 1998, were elaborated goals which may assist interested states better to plan, design and implement actions concerning persons with disability in at least three key areas, which are:

- Improvement of the formulation of the legislative framework that would promote application of relevant international norms and standards concerning the rights of persons with disability;

- Increased awareness and understanding of the situation of persons with disability that could affect the solutions made by policy makers and programme planners to incorporate international norms and standards concerning disabled persons in legislative texts and state practice; and,

- Strengthening of civil society so that it can participate effectively in discourses on law and policy matters concerning persons with disabilities.

1.4. Personnel Training Ensuring of adequate training of personnel, at all levels, involved in planning and creation of programmes and services concerning disabled persons is stipulated in rule 19 of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities. States should see to it that all authorities providing services in the area of disability have adequately trained personnel. Furthermore, when designing training programmes, states should have regular consultations with organizations of persons with disability and if attainable, to have disabled persons participate as trainers or consultants.

Training of volunteers who work for the benefit of the community (community workers) includes development of appropriate values and competencies. The state should ensure that these individuals, in addition to specialized knowledge and skills, also receive comprehensive information on the social, nutritional, educational and vocational needs of persons with disabilities. Community workers can take care to meet the needs of persons with disability if adequately trained, which can be positive in overcoming the personnel shortages in all agencies that provide services for persons with disability. States should expand the knowledge and responsibility of


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individuals working in related spheres who provide other services, such as teachers, social care workers, administrators and community leaders.

2. Bodies that help on improvement of the status of

persons with disability Law enforcement is commonly the task carried out by public administration bodies and the courts. Generally, legislation that aims to transform a certain sphere of society, such as human rights or anti-discrimination laws, establishes some kind of special enforcement bodies. That can be the Ombudsman, National Committees, Non-governmental Organizations, Special Rapporteurs and National Councils or Agencies. Among the laws on disability reviewed above, only civil and social laws contain some provisions on enforcement or monitoring of implementation of laws.

2.1. Ombudsman The Swedish idea of a high official vested with jurisdiction to inquire into claims of alleged administrative violations and human rights infringement has been adopted in many parts of the world. Through informal enquiry, the ombudsman can inquire and ascertain the facts of a complaint much more expeditiously then a court. The reports of the Ombudsman, which are published, are of great importance for the state and the governments feel obliged to act upon them. The Ombudsman can carry out various types of administrative enquiries which courts are reluctant to undertake. Therefore, the role of the ombudsman77 is crucial in the investigation of claims made by persons with disabilities.

2.2. National Co-ordinating Committees

Disability is a multi dimensional issue that concerns many different actors in society; therefore there is a need for coordination and cooperation among all of them. The World Programme of Action concerning Persons with Disabilities and rule 17 of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, put emphasis on the need and

77 For details on the EU Ombudsman, see: http://www.euro-ombudsman.eu.int

http://www.euro-ombudsman.eu.int/

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responsibility of states to establish and strengthen their national coordinating committees or similar bodies with view to become the focal point for discussion on issues concerning persons with disabilities.

At the International Meeting on the Roles and Functions of National Coordinating Committees on Disability in Developing Countries, held in Beijing on November 5-11 1990, the Guidelines for the Establishment and Development of National Coordinating Committees on Disability or Similar Bodies was adopted. It elaborates in detail the role and the function of national coordinating committees. The objectives of these Guidelines are related to the development of national policies and legislation on disability matters and stimulation of effective measure for prevention of disability, rehabilitation and active and full participation of persons with disability in social life and development. These committees have an important role in the monitoring of the aforementioned national policies, legislations and measures.

National coordinating committees and similar bodies should function on a permanent basis and be legally established and supported by relevant administrative regulations. The functions of such committees are to review, co-ordinate and advise all agencies and non-governmental organizations that work for the well being of persons with disability with respect to activities planned. On issues affecting the well being of disabled persons, these committees act in the capacity of professional advisors to governments and policy makers. Therefore, national coordinating committees should be autonomous and have resources to fulfil their responsibilities and tasks.

Further, these committees should be composed of representatives from different spheres of society, that is, government representatives responsible for the matters of social and health welfare, employment, housing, transport, education and culture, representatives from non-governmental organizations and in particular representatives from organizations of persons with disability, who should have considerable influence on these committees in order to ensure that issues of their concern are adequately addressed78.

The Australian Law Against Discrimination of Persons with Disabilities provides for the establishment of national committees (section 67 and 113). The Canadian Law on Human Rights is enforced through the National Commission and the National Tribunal (section 26 and 48). In Israel, the

78 In Republic of Macedonia, in 2000, governmental (national) coordinating body was set up responsible for the implementation of the UN Standard rules. It is chaired by a visually impaired person.


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Law on Equal Rights of Persons with Disabilities is enforced by various ministries and the National Commission (section 20-25). In Great Britain, the Disability Rights Commission79 is the watchdog against discrimination of persons with disability.

2.3. Non-governmental Organizations One of the most important roles of Non-Governmental Organizations is the monitoring of human rights protection both in their own and in other countries, as well as advocacy and support for protection of these rights within national and international institutes. The role of non-governmental organizations is essential for an effective protection of human rights at both national and international levels, as it is them who raise public awareness on human rights, and confront the states for violation of these rights.

Advocacy and support generally includes the following:

- Identification of an issue or problem that citizen action has played a role in its resolving;

- Investigation of the nature of the problem, definition of the position and the desired outcome (that is, articulation of desired rights and policy and law proposals);

- Strategy planning (goals and measures to be undertaken);

- Building alliances for achieving the goals; and,

- Education of the public and lobbying for achieving the changes needed.

At the Global Meeting of Experts held in Stockholm in 1987, the participants agreed on the importance of encouraging non-governmental organizations, as they often act as initial points of development and at the same time can effectively influence certain decisions made by governments in different spheres of society. Non-governmental organizations are not limited only to protection of human rights; on the contrary, they undertake other activities, such as promotion of equal opportunities through professional training. 79 The Disability Rights Commission was set up under the 1999 Disability Rights Commission Act. This new body replaced the National Disability Council established under the Disability Discrimination Act (DDA), though it proved to be much weaker. S. Minti, Introducing UK Disability Rights Commission, see: www.disabilityworld.org/June-July2000/Governance/UKDisabilityRights.htm

http://www.disabilityworld.org/June-July200/Governance/UKDisabilityRights.htm

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The United States Agency for International Development- (USAID)’s Europe and Eurasia bureau in June 2004 published The 2003 NGO Sustainability Index80, with two highlights on the Polio Plus campaigns (non-governmental organization for the rights of persons with disability in the Republic of Macedonia) aimed at increasing the awareness within society, though this organization has never worked on the USAID project.

Monitoring of actions undertaken by states and adoption of obligations arising from ratified international instruments, as well as the implementation of international standards on human rights carried out by non-governmental organizations is one of the most important mechanisms in the protection of human rights. This is performed in the following manner:

a) Channelling of independent information to members of international organizations as states’ reports cannot be examined without referring to other sources of information;

b) Promoting knowledge and understanding of the reporting process. Non-governmental organizations play the most important role in encouraging individuals and groups in submission of information on violation of their rights by states and in channelling them to body members of international organizations; and,

v) Non-governmental organizations are also crucial to the effectiveness of the reporting process, as without their lobbying and public information campaigns, there is a danger that recommendations of the bodies of international organisations are either not implemented or implemented in an inadequate manner.

Non-governmental organizations may take part in different stages of the reporting process: before submission of a report, during examination of submitted reports by bodies of international organizations; and in the process of implementation of recommendations.

A large number of states entrust the monitoring of laws to organizations of persons with disability. For example, the Law of the People’s Republic of China on protection of disabled persons provides for the establishment of a 80 For details, see : United States Agency for International Development, Bureau for Europe and Eurasia, Office of Democracy, Governance and Social Transition, The 2003 NGO Sustainability Index for Central and Eastern Europe and Eurasia, Seventh Edition, June 2004, available on internet: http://www.usaid.gov/

http://www.usaid.gov/


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Federation of persons with disability from China, which has the responsibility to represent and protect the rights and interests of persons with disability in China (article 8).

2.4. Special Rapporteurs

The office of the Special Rapporteur on Disability (World Programme of Action Concerning Disabled Persons) of the UN Commission for Social Development was set up in 1994 in accordance with the Standard Rules on the Equalization of Opportunities for Persons with Disabilities.

The last, fourth chapter of the Standard Rules describes the mechanism of control designed to facilitate the effective implementation of the rules. Paragraph 2 provides that the monitoring of the rules will be performed under the Social Development Commission.

The work of the Special Rapporteur consists of monitoring the implementation of the Standard Rules through direct communication with states and non-governmental organizations and generally improvement of the status of persons with disability. The Special Rapporteur works with a panel of experts on disability issues. The Special Rapporteur, with assistance of the Secretariat, produces reports to be submitted to the Social Development Commission (paragraph 8) and provides counselling services on enforcement and control of the Rules (paragraph 6).

The first Special Rapporteur, Bengt Lindqvist (Sweden), was appointed in 1994. His mandate was renewed twice, in 1997 and 2000, by resolutions of the Economic and Social Council. For the period 2003-2005, the UN Secretary-General appointed Ms. Hessa Al-Thani (Qatar) as the Special Rapporteur on Disability.

2.5. National Councils or Agencies The Hungarian Law Against Discrimination provides for the establishment of a National Council on Disability issues where organizations of persons with disabilities should be represented (section 24). The Indian law provides for the establishment of a mechanism of multi-sector planning and monitoring. There is a Central Co-ordinating Committee with a main officer for disabled persons. They are responsible for disability issues at a national

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level81. The law requires that a given number of positions in each of those committees are filled by persons with disabilities (section 3, 9, and13).

The Nigerian Law Against Discrimination provides for the establishment of a National Commission for Disabled Persons. The president of the Commission should be a disabled person, and all major groups of persons with disability should be represented (section 14). Similarly, the Ghana’s Law on Disabled Persons provides for the establishment of a National Council of Disabled Persons. Six seats are reserved for representatives of organizations of disabled persons.

The Law of Zimbabwe provides for the establishment of a Disability Board in which half of the seats are reserved for representatives from organizations of persons with disability (section 4, 5 and 7). The same applies to the Agency of Persons with Disability from Zambia, a body responsible for the enforcement of the Zambian Law Against Discrimination (section 6 and 25).

The functions of such monitoring bodies are various and range from advisory and data collection for governments, through raising awareness, to investigation and filing of complaints. The Zimbabwean Disability Board and the Zambian Disability Agency have authority to issue “a regulatory order” and request concrete action from owners whose facilities or services are inaccessible for disabled persons. 81 The movement against disability in India is highly disappointed with the slow implementation of the said provisions. A.Mohit, Governance & Legislation: Initiatives of the Government of India to Advance Asia & Pacific Decade of Disabled Persons, available on their web page on the Internet: www.disabilityworld.org/May2000/Governance/India.htm

http://www.disabilityworld.org/May2000/Governance/India.htm


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The most silent words bring about a storm. The thoughts coming at a soundless

step rule the world.

- Nietzsche

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PART TWO

SYSTEMS OF PROTECTION

Introduction This part provides an extensive analysis at a universal level on the international norms and standards concerning persons with disabilities, adopted under the auspice of the United Nations system, and the other regional systems, like in Europe and America, Africa, Asia and the Pacific, as well as the Middle East. This part also gives certain practical information that would approximate the efforts of the international, national and local communities towards the goals of the international standards for human rights that address persons with disabilities, and provides identification of barriers in the implementation of these rights and in the development of an agenda for “strengthening” the position of persons with disabilities.

Part Two is divided in two Chapters. Chapter IV refers to the universal system of protection of human rights within the UN with emphasis on the specific international norms on disability rights. Chapter V is dedicated to the regional systems of human rights protection. First, the European regional system is elaborated, within both the Council of Europe and the European Union. This part is of significant interest to us because the Republic of Macedonia is a member of the Council of Europe, and ad momentum, the process of application for full membership to the European Union has started. In addition, the human rights protection systems in America, Africa, Asia and the Pacific, as well as in the Middle East are elaborated in order to obtain a comparative picture of human rights protective mechanisms across the world.

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Systems of Protection

Chapter IV

Universal System of Human Rights Protection - UN The United Nations, from its very inception, has been concerned with the status and rights of persons with disabilities, and has always accepted that discrimination against persons with disabilities directly affects the economic and social development of the entire community. The UN based the promotion of disability rights on its very founding principles, which address the fundamental freedoms and equality of all human beings. In addition to the general international norms, specific norms on disabled people’s rights have been enacted, of which the enactment of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities is the most important. The Rules offer some kind of an instrument in the hands of persons with disabilities and their organizations to draft legislation and undertake activities, and provide a basis for technical cooperation between countries, the UN and other international and non-governmental organizations. However, an enactment of a Convention on the Rights of Persons with Disabilities within the UN system would finally resolve all the dilemmas related to disability issues.

1. General International Norms on the Rights of Persons with Disabilities

The Charter of the United Nations obliges the member States to respect human rights without any discrimination based on race, sex, language or religion, thereby forming the nucleus of disabled persons’ rights protection.

Certain Articles of the Charter provide for the foundation on which disability rights are starting to be built. These Articles are as follows:

Article 1(3) provides that the objectives of the UN are “…To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”


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Article 13 (1) (b) states that the General Assembly encourages studies and makes recommendations for the purpose of “…promoting international cooperation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”

In Article 55 are defined the areas of special interest to achieving the UN objectives. In that sense, the UN shall promote (a) “higher standards of living, full employment, and conditions of economic and social progress and development”. Furthermore, the UN shall promote (c) “universal respect for, and observance of, human rights and fundamental freedoms for all without discrimination as to race, sex, language, or religion.”

In the political atmosphere that preceded the Cold War, which at that period took a more rigid form, the General Assembly at the session in 1948, after an enduring discussion and amending process82, on 10th December 1948 adopted the Universal Declaration of Human Rights with 48 votes in favour, none against and 8 abstaining83. The Universal Declaration of Human Rights is the first extensive international document on human rights, a fundamental basis of the international law on human rights and an articulation of the philosophy for their international protection. The following Articles of the Declaration have established the fundamental normative basis of the standards and objectives for future action on which international norms and standards concerning persons with disabilities have started to evolve.

Articles 1 and 2 identify the basic principles on which the Declaration of Human Rights is founded. Article 1 proclaims the philosophy of the Declaration, providing that “all human beings are born free and equal in dignity and rights ...” The principles of freedom and equality are the basic assumptions of human rights realization. This means that the right to freedom and equality is an innate and unalienable right of every human 82 The Third Committee of the General Assembly (responsible for social and humanitarian issues) dedicated 81 meetings to reviewing the 168 amendments submitted and delivered the appropriately revised text for adoption. 58 member Sates voted 1400 times for each word or clause in the text of the Declaration. Numerous debates reflected the traditional division between the countries in relation to human rights. Islamic countries, for example, were against the rights related to gender equality (equal right to marriage for both men and women) and the right to change religion. Western countries were against including economic and social rights (for more detail see: A.H. Robertson, Human Rights in the World, 1996, pg. 28; Human Rights Today, a United Nations Priority, 1998). 83 The Soviet Union along with four Eastern-European countries and the Soviet Republics with the right to vote, South Africa and Saudi Arabia were abstaining (for more detail see: H.J. Steiner, P. Alston, International Human Rights in Context, 1996, pg.120.

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being. The principle of freedom should be interpreted in an individualistic sense, in accordance with western liberal thought84. The incorporation of the principles of freedom and of equality in the Declaration in a universal context represents a historical event without precedent in the development of civilization.

The principle of equality is additionally elaborated in Article 2, in which it is stipulated that, “…everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion … or other status”. This is the first anti-discrimination clause in the international law on human rights85.

Articles from 3 to 6 proclaim that “everyone has the right to life, liberty, security...” without any limitations. The rights pertaining to individual’s integrity (right to life, freedom and security, as well as the rights derived from them freedom from torture, freedom from slavery, freedom from arbitrary arrest or detention) are, by definition, absolute rights and cannot be derogated unlike other rights, which can be limited in accordance to moral values, public order and general welfare in a democratic society.

The principle of equality and exercise of human rights and basic freedoms (prohibition of discrimination) should be interpreted together with Article 7, which proclaims that, “...all are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”

This Article proclaims the principles of equality before the law, equal protection of the law and equality in law implementation (the latter is particularly significant, and expresses the essence of the prohibition of discrimination or elimination of discrimination, with the aim the principle of equality from a formal one to become a factual one). Such interpretation of the principle of equality implies an active role of the states, measures of

84 “In this context at least three of the various meanings of the term freedom can be identified: to have a wide range of significant options and opportunities; to be independent of the others in deciding upon the option or the opportunity; to be free in setting one’s own values and priorities and to live in accordance with them.” A. Eide, The Historical Significance of the Universal Declaration, International Social Science Journal, 158, 1998. 85 “The universal basis of human rights expressed through these principles implies that: human beings are equal because they share the common essence of human dignity, and the human rights are universal not because of the states or international organizations’ will, but because of the fact that they belong to humanity.” Human Rights Today, a United Nations Priority, 1998.


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affirmative action, which is clearly proclaimed later on in the international agreements that follow.

Further, Article 25 (1) of the Declaration stipulates that everyone “… is entitled to the right to security in the event of unemployment, sickness, disability … or other lack of livelihood in circumstances beyond his control.”

The significance of the Universal Declaration could be articulated by using professor Sohn’s statement, who defines the legal nature of the Declaration as “… authentic interpretation of the UN Charter, which in details communicates the meaning of the phrase human rights and fundamental freedoms that states, by the Charter, have agreed to respect and promote. The UDHR has joined the Charter, as part of the constitutional structure of the world community. The Declaration, as an authentic list of human rights, has become a fundamental component of the international common law, which binds all states, not just the UN members”86.

Apart from the Universal Declaration of Human Rights, there are six other Conventions on human rights enacted in the UN system, on which, though being general, people with disabilities can invoke. The International Covenant on Civil and Political Rights- ICCPR and The International Covenant on Economic, Social and Cultural Rights- ICESCR adopted in 1966 along with the Facultative Protocol for the International Covenant on Civil and Political Rights are the two basic international treaties on human rights, which together with the Universal Declaration constitute the fundamental corps of international documents on human rights or the International Bill of Rights. The other four basic Conventions of the UN, which along with the two Covenants constitute the core of 6 fundamental international UN treaties in this area are: The Convention on the Elimination of All Forms of Racial Discrimination- CERD, 1965; The Convention on the Elimination of All Forms of Discrimination Against Women- CEDAW, 1979; The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment- CAT, 1984; and The Convention on the Rights of the Child- CRC, 1989.

The International Covenant on Civil and Political Rights is a legally binding instrument, adopted in 1966, which entered into force in 1976 after

86 See: Sohn, The New International Law: Protection of the Rights of Individuals rather then States, AUL Rev. 1982.

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depositing the 35-th instrument of its ratification.87 Several articles of it are especially significant for persons with disabilities.

Article 2 (1) states that “…States Parties to this Covenant undertake to respect and to ensure to all individuals within their territory and subject to their jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, … or other status.” This article, in addition to states’ obligations, proclaims the principle of equality. The proclaimed matter is far from the anti-discrimination clause in which the principle of equality shall be established into a right not to be discriminated against. It is stipulated within the context of obligations of the state party to the agreement, by which it is limited to only the state’s obligations. The second conclusion, which logically results from such limited elaboration, is that the principle of equality refers to the equal (non-discrimination) respect and ensuring of solely the rights provided by the Covenant, but not of the rights provided by other legal acts.88

In addition, important for persons with disabilities is the third part of the International Covenant on Civil and Political Rights. Of special relevance are Article 6 (the right to life), Article 7 (freedom from torture and other cruel, inhuman and degrading treatment and punishment), Articles 14 and 15 (equality to access to courts and tribunals, including free assistance of an interpreter, if the person does not understand or speak the language in which the dispute is conducted).

The text of the UN Universal Declaration is used in Article 7 of the UN International Covenant on Civil and Political Rights, which reads: “…No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” However, as we can see, Article 7 of the International Covenant on Civil and Political Rights contains a second sentence (which is missing in Article 3 of the UDHR –see below),

87 The Republic of Macedonia, though being a State Party to this Covenant, has not yet provided a declaration regarding Article 41. The only country in the region that has made a declaration with regard to Article 41 of the Covenant is Bulgaria. 88 The principle of non-discrimination, after a lengthy drafting, has been articulated into a right not to be discriminated against in November 2000 by having adopted the Protocol 12 of the European Convention on Human Rights, which has not entered into force yet. For more detail see: Z. Stojkova, A Prohibition of Maltreatment and Torture in a System based on the UDHR, MA paper, St Cyril and Methodius University, Faculty of Law, Skopje, 2003, pg.13


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that refers to the criterion of free consent of the individual in case of medical or scientific experimentation89.

One of the most important articles of the International Covenant on Civil and Political Rights concerning the rights of persons with disabilities is Article 25. It states that “… every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions (a) to take part in the conduct of public affairs… (b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot… and (c) to have access, on general terms of equality, to public service in his country.”

A crucial step forward of the Universal Declaration of Human Rights is the inclusion of economic, social and cultural rights, by which the idea of universality, integrity and interdependence of human rights has been formalized. Still, such formal consensus has not reconciled the deep disagreements in relation to the real status of these rights.90 The dilemmas and disagreements with reference to the nature of economic, social and cultural rights as rights have determined the drafting process and have contributed to making the final decision instead of one, to prepare two international covenants on both categories of rights (civil and political, and economic, social and cultural). The essence of the decision on two separate international agreements resulted from the interpretation of the level of direct applicability of both different categories of rights.91 This is legally

89 In this report, the Expert Committee while drafting the European Convention on Human Rights and Fundamental Freedoms, using travaux préparatoires, concluded that the meaning of this article does not have the purpose to forbid the experiments for general medical needs or tests such as chlorination of drinking water. 90 “One extreme viewpoint is that these rights are superior to civil and political rights, both in sense of appropriate value hierarchy and in terms of chronological order. The other extreme viewpoint is that the economic and social rights do not represent rights (rightly understood) at all, and their treatment as rights will unavoidably threaten the enjoyment of individual freedom, justifying a high level of state interventionism and providing an excuse to decrease the importance of civil and political rights.” For more detail see: H.J. Steiner, P. Alston, International Human Rights in Context, 1996, pg.255. 91 “Those who stood for drafting of two separate covenants claimed that civil and political rights may be exercised or are justified, or are of “absolute” character, while economic, social and cultural rights are not, or could not be exercised; that the former are directly implemental, while the latter should be gradually implemented; and generally speaking, the former are individual rights against the state, i.e. against illegal and unjust action of the state, while the latter are rights about which the state would like to take positive action and promote them.” For more detail see: Lj. D. Frchkoski, International Law on Human Rights, Magor, Skopje, 2001, pg. 105

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articulated in the International Covenant on Economic, Social and Cultural Rights provision on states’ obligations.

Article 2 (1) clearly provides for the programme related character of the obligations of the States Parties to this Covenant. Unlike the rights provided under the International Covenant on Civil and Political Rights, which are openly formulated as individual’s entitled rights, the normative provisions of the International Covenant on Economic, Social and Cultural Rights are clearly directed towards States Parties to the Covenant, and not to individuals as bearers of these rights. Such approach confirms the treatment of civil and political rights as “legalistic” rights (for implementation of which their presence in the law is sufficient), and the economic, social and cultural rights as “programme related” rights (for implementation of which in addition to being provided by law, continuous promotional action by the state is necessary, as well as adequate resources).92 Of significant relevance for persons with disabilities is Article 2 (2), where similarly to Article 2 (1) of the International Covenant on Civil and Political Rights is articulated the principle of equality. Article 2 (2) reads that “...the States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion ... or other status.” The difference is in the scope of its applicability, whereby in Article 2 (2) the precise formulation “...to all individuals within its territory and subject to its jurisdiction ...” has obviously been left out, and its application has been additionally limited by the possibility of a lower extent of guaranteed economic rights to non-nationals (Article 2 (3)).

According to General Comment No 3 of the Committee on Economic, Social and Cultural Rights, states must take steps that are concrete and targeted, and they must be taken within a reasonable period after the Covenant enters into force in the particular State Party. In the General Comment No 3, it is also emphasised that “...even in times of severe resource constraints … the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes”.

General Comment No 5 is a detailed analysis of the States Parties obligations, in accordance to the International Covenant on Economic, Social and Cultural Rights that relate to the disability. It recognizes that: “...Through neglect, ignorance, prejudice and false assumptions, as well as through exclusion, distinction or separation, persons with disabilities have

92 For more detail see: Buergenthal T., International Human Rights, 1988, pg.45


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very often been prevented from exercising their economic, social or cultural rights on an equal basis with persons without disabilities. The effects of disability-based discrimination have been particularly severe in the fields of education, employment, housing, transport, cultural life, and access to public places and services.” (Paragraph 15). In addition, obligations of the states are regulated in the following way “...in the absence of Government intervention there will always be instances in which the operation of the free market will produce unsatisfactory results for persons with disabilities, either individually or as a group, and in such circumstances it is incumbent on Governments to step in and take appropriate measures to compensate for, or override the results produced by market forces.” (Paragraph 12).

States Parties to this Covenant are encouraged to take affirmative action in order to “... reduce structural disadvantages and to give appropriate preferential treatment to people with disabilities in order to achieve the objectives of full participation and equality within society” (Paragraph 9). Additionally, states “... are required to take appropriate measures, to enable such persons to seek to overcome any disadvantages, in terms of the enjoyment of the rights specified in the Covenant, flowing from their disability.” (Paragraph 5). General Comment No 5 stipulates “...it is also necessary to ensure that support services, including assistive devices are available for persons with disabilities, to assist them to increase their level of independence in their daily living and to exercise their rights” (Paragraph 33). Systems of Protection

The Convention against Torture or any Other Cruel, Inhuman or Degrading Treatment or Punishment of 198493 is an international treaty, in which the subject matter of protection is one of the fundamental rights that relate to individual integrity (the right not to be subjected to torture, or freedom from torture). It is a legal follow up to the previously adopted Declaration on Protection of All Persons from being subjected to Torture, Other Cruel, Inhuman or Degrading Treatment or Punishment of 1975. This Convention is of special importance for the persons with disabilities in the area of preventing disability because of torture or another cruel, inhuman or degrading treatment or punishment. Thus, Article 2 is of particular relevance. Article 2 (1) determines the obligations of the states “... to take

93 By the status of 1999, 144 countries have ratified this Convention, and 42 countries have given a declaration with regard to Articles 21 and 22 (accepting the competency of the Committee against Torture to receive and consider petitions “State versus state” and individual petitions). The Republic of Macedonia, as a state party to the Convention, has given a declaration regarding its Articles 21 and 22.

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effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” The measures implied by this general provision are specified in other provisions of the Convention. In Articles 2 (2) and (3) are stipulated the two essential principles94 that emphasize the basic nature of the right not to be subjected to torture. These articles read as follows: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” and “An order from a superior officer or a public authority may not be invoked as a justification of torture”. These principles do not permit derogation of the obligations undertaken by the states to prevent torture during emergencies or justification of an act of torture executed under order. Herewith the absoluteness of the right not to be subjected to torture is clearly emphasized.

The 197995 Convention on Elimination of All Forms of Discrimination Against Women represents international lex specialis, which in a wide-ranging manner elaborates the key issues on eliminating discrimination against women. Its significance is additionally emphasized by the controlling mechanisms provided for implementation of the undertaken obligations (regular reporting). Since the Facultative Protocol on the Convention entered into force in 2000, by which the jurisdiction of the Committee on Elimination of Discrimination Against Women has been expanded to accepting and examining individual petitions, the controlling mechanism of the Convention has been significantly strengthened. This Convention protects all women, without distinction as to being disabled or not. Women with disabilities face discrimination at several levels, partly because of their gender, partly due to their disability. Moreover, certain cultures and traditional practices in the world cause further inconvenience to women with disabilities.96

The 1989 Convention on the Rights of the Child is a lex specialis based on the fact that certain human rights have specific application with regard to

94 For more detail see: Buergenthal T., International Human Rights, 1988, pg.59. 95 By the status of 1999, 163 countries have ratified this Convention. The Republic of Macedonia is a State Party to it, too. This Convention is an international agreement in the area of human rights with most reservations expressed by the States Parties, i.e. 66 states have put their reservations in respect to some of the provisions in the Convention, and 10 states have officially reacted to the incompatibility of certain reservations with the goals of the Convention. 96 For more detail see: Z. Stojkova, Prohibition of Maltreatment and Torture in a System based on the UDHR, MA paper, St. Cyril and Methodius University, Faculty of Law, Skopje, 2003, pg.43-47


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children. Such application must reflect the children’s need for special protection and attention, their vulnerability, as well as the distinction between the world of children and the world of adults. This Convention is an evolving follow up to the Declaration of Children’s Rights from 1959 and expresses international readiness to reaffirm, strengthen and implement children’s rights. The Convention on the Rights of the Child97 is the most universally accepted international instrument in the area of international legal protection of human rights.

Unlike other Conventions on human rights, the Convention on the Rights of the Child in Article 23 focuses directly on children with disabilities. Even though no direct obligations have been placed on States Parties to undertake measures to ensure that children with disabilities enjoy a life of dignity in dignified conditions, to encourage their self-reliance and active participation in the community, in Article 23 (1-4) is recognised the importance of participation in education, training, health care, rehabilitation, employment preparation and recreation opportunities98 for children with disabilities. The Committee on the Rights of the Child clarifies that, though Article 23 is dedicated to children with disabilities, still rights of children with disabilities are not confined only to this article.

The International Convention on the Elimination of All Forms of Racial Discrimination from1965 is the first international treaty within international law on human rights, which provides a special and wide-ranging implementation mechanism (Committee against Racial Discrimination). The experience gained from its operation has determined the creation and functioning of similar controlling mechanisms (treaty bodies), provided in the five fundamental UN conventions introduced above. This Convention does not provide for ensuring of certain rights, it only requires adherence and enjoyment of the rights protected against racial discrimination99. Like the Convention on the Elimination of All Forms of Discrimination Against Women, the aim of this Convention is protection against double discrimination. Persons with disabilities of particular minority groups suffer

97 By the status of 1999, 191 countries have ratified this Convention. The Republic of Macedonia is a State Party to it. USA is one of the several countries that have not ratified this Convention. 98 For more detail see: Human Rights-Fundamental Documents: 50-th Anniversary of the Universal Declaraton of Human Rights: 1948-1998, Ministry of Justice, Skopje, 1998, pg.132. 99 See: Vasak K., The International Dimensions of Human Rights, T.C. van Boven, Survey of International Law of Human Rights, pg.95.

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from multiple discriminations, because they are subject to discrimination in terms of both their disability and their minority status. As noted by the General Recommendation XXV of the Committee on the Elimination of All Forms of Racial Discrimination, this Convention encompasses gender related racial discrimination, and by analogy, an inference can be drawn that it covers persons with disabilities of different ethnic groups.

2. Specific International Norms Pertaining to Rights of Persons with Disabilities

In the past few decades, the UN has given considerable attention to the rights of the persons with disabilities. Increased crisis situations such as hunger, wars and ecological disasters that afflicted many countries around the world, have increased the numbers of persons with disabilities. Apart from the Conventions referring to general human rights, the UN has created an extensive policy on issues of disability. In 1971, the UN General Assembly signed the Declaration on the Rights of Mentally Retarded Persons. Article 1 of this Declaration proclaims that mentally retarded persons have the same rights as all other human beings. In addition, Article 2 determines that “...the mentally retarded persons have the right to proper medical care and physical therapy and to such education, training, rehabilitation and guidance as will enable him to develop his ability and maximum potential”. Furthermore, they are entitled to economic security and a decent standard of living (Article 3), as well as to protection from exploitation, abuse and degrading treatment (Article 6). In addition, the General Assembly when passing the Declaration declared that there should be legal mechanisms to protect mentally retarded people from abuse.

Article 1 of the Declaration on the Rights of Disabled Persons, adopted in 1975, defines a person with disabilities as “... any person unable to ensure by himself or herself, wholly or partly, the necessities of a normal individual and/or social life, as a result of deficiency, either congenital or not, in his or her physical or mental capabilities.” In the Preamble of the Declaration, the General Assembly called for “... national and international action to ensure that it will be used as a common basis and frame of reference for the protection of the rights contained in the Declaration”. Article 4 ensures broad social and economic rights to persons with disabilities and decisively specifies that persons with disabilities have the same civil and political rights as other human beings. Article 5 provides that “Disabled persons are entitled


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to the measures designed to enable them to become as self-reliant as possible.”

Further on, Article 6 determines that disabled persons “...have the right to health care and medical treatment, …, to medical and social rehabilitation, education, vocational training, aid, counselling, … which will enable them to develop their capabilities and skills to the maximum and will hasten the processes of their social integration or reintegration.” In continuation it is specified that persons with disabilities have the right to economic and social security and a decent standard of living (Article 7), as well as the right to have their special needs taken into consideration at all stages of economic and social planning (Article 8). Also, Article 9 specifies that disabled persons have the right “… to live with their families or with foster parents and to participate in all social, creative or recreational activities”.

The Declaration forbids discrimination. For example, Article 10 provides that “disabled persons shall be protected against all exploitation, all regulations and all treatment of a discriminatory, abusive or degrading nature”. The Declaration further requires that disabled persons “… shall be able to avail themselves of qualified legal aid when such aid proves indispensable for the protection of their persons and property” (Article 11). Finally, we would conclude with Article 13 of the Declaration, which provides that disabled persons and their families have the right to receive information on the rights contained in this Declaration.

The UN activity in the field of disability rights that began in 1970 continued through the next decade at an accelerated pace. The General Assembly Resolution 31/123 of 16 December 1976 declared the year 1981 an International Year of Disabled Persons. In connection with the International Year of Disabled Persons, the UN established a Fund for disabled persons by the General Assembly Resolution 32/133. Later on, the same Fund was renamed the Voluntary Fund for the United Nations Decade of Disabled Persons (1983-1992). The theme of the activities undertaken during this decade was Full Participation and Equality, defined as the right of persons with disabilities to participate actively in society, to enjoy equal conditions of living and to have an equal share in improving conditions. The Resolution proclaimed that 1981 would be devoted to the full integration of persons with disabilities in society; the encouragement of academic research projects to facilitate participation of persons with disabilities in daily life; the education of the public in regard to rights of persons with disabilities; understanding and accepting of persons with disabilities; and encouragement

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of persons with disabilities to form organizations through which they would articulate their views.

The greatest outcome of the International Year of Disabled Persons, 1981, was the World Programme of Action Concerning Disabled Persons, adopted by the General Assembly Resolution 37/52, on 3rd December 1982. In so doing, persons with disabilities were recognized the right to equal opportunities as other human beings, the right to equal participation in improving living conditions, and for the first time disability was defined as a function of interaction between disabled persons and their environment. The World Programme represents the first international long-term policy with regard to people with disabilities. The Programme proposes three types of actions:

1. Prevention of mental, physical and sensory impairment;

2. Rehabilitation that would assist persons with disabilities to achieve their optimum mental, physical and social abilities; and

3. Equalisation of opportunities for persons with disabilities in areas of housing, transportation, education, social and health care and recreation.

The aim of the World Programme is promotion of efficient measures on disability prevention, rehabilitation and realization of the goal for “full participation” of disabled persons in social life and development of “equal opportunities” to achieve that. The human right dimension has also been added to the Programme through articulation of “equalization of opportunities” as an important goal in accomplishing full participation of persons with disabilities in all areas of livelihood. Paragraph 12 of the World Programme defines “equalization of opportunities” as “… a process through which the general system of society, such as the physical and cultural environment, housing and transportation, social and health services, educational and work opportunities, cultural and social life, including sports and recreational facilities, are made accessible to all.” The year following the adoption of the World Programme, the General Assembly passed a Resolution on Implementation of the World Programme of Action Concerning Disabled Persons.

In 1987 in Stockholm, the Implementation of the World Programme of Action Concerning Disabled Persons was reviewed again, with a recommendation to draft a convention on human rights of persons with disabilities. However, this opportunity to reach a consensus on passing a Convention of this type was missed out. Most of the states’ representatives


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reasoned that existing documents on human rights guaranteed the same rights to persons with disabilities as to all other human beings. Then, in 1989, the General Assembly adopted the Tallinn Guidelines for Action on Human Resources Development in the Field of Disability. The Guidelines provide a framework for the education and employment of disabled persons within government ministries on all levels. The aim of the Tallinn Guidelines is to promote human resources development in the field of disability. Guideline 6 specifies that human resources development “... is a process centred on the human person that seeks to realize the full potential and capabilities of human beings ...” Guideline 9 provides that “… the abilities of disabled persons and their families should be strengthened through community-based supplementary services provided by governments and non-governmental organizations.” The Guidelines provide a series of strategies to promote human resource development in the field of disability, including education, training and employment of disabled persons, as well as raising public awareness. More precisely, Guideline 23 provides that “ … education at the primary, secondary and higher levels should be available to disabled persons within the regular educational system and in regular school settings, as well as in vocational training programmes.” In addition, Guideline 33 provides that “…disabled persons have the right to be trained for and to work on equal terms in the regular labour force”. Then, “...in addition to being offered formal skills training and education, disabled persons should be offered training … to prepare them for independent living” (Guideline 28). The spirit of the Tallinn Guidelines is expressed in Guideline 8, which provides that “persons with disabilities are agents of their own destiny rather than objects of care…”.

In 1991, the UN General Assembly adopted the Principles for the Protection of Persons with Mental Illness for the Improvement of Mental Health Care. The Principles define the basic rights and fundamental freedoms of persons with disabilities and are considered a new development in the field of mental health treatment. Further, these principles represent the minimum UN standard for protecting the basic rights and freedoms of persons with mental illnesses. They are intended to be used by governments, special agencies, national and regional organizations, international organizations and non-governmental organizations as a guide.

Principle 1 (2) specifies that “...all persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person”. The other Principles refer to adherence of rights, such as juvenile protection, determination of mental

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illness, medical examinations, confidentiality of information, consent to treatment and rights and conditions in mental health facilities. Principle 23 points out that states shall undertake to implement these principles through appropriate legislation, administrative, educational and other measures. According to Principle 24, these principles apply to all persons who are admitted to a mental health facility.

The major outcomes of the UN Decade of the Persons with disabilities (1983-1992) are the designation of 3rd December as the International Day of Disabled Persons by the General Assembly Resolution 48/98 of 20 December 1993 and the adoption of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities. In 1990, the General Assembly established an ad hoc working group to elaborate the Standard Rules on the Equalization of opportunities for Persons with Disabilities. After a few consequent debates, at the 32nd session of the Commission on Social Development, the initiative to develop the Standard Rules received support from a number of representatives and the discussions led to accepting the Resolution 32/2 by the General Assembly on 20th February 1991. The Standard Rules have been developed based on experiences gained in the course of the UN Decade of Disabled Persons (1983-1992), the International Charter on Human Rights and the World Programme of Action Concerning Disabled Persons, which are the political basis of the rights. The Standard Rules consist of four major sections:

1) Preconditions for Equal Participation;

2) Target Areas for Equal Participation;

3) Implementation Measures; and

4) Monitoring Mechanism.

The Standard Rules summarize the message of the World Programme of Action Concerning Disabled Persons and are designed to represent policy guidelines that will help the states to incorporate them in their national legislation. The Long-term Strategy drafts a framework for collaborative actions at the national, regional and international levels to achieve the goals expressed by the General Assembly in the Resolution 48/99 of a “society for all” by the year 2010. Although the Standard Rules are not legally binding, they have been adopted by a large number of States and eo ipso imply moral and political commitment on behalf of states to take measures with regard to the goals articulated in them. In fact, they represent the first universal instrument to refer specifically to persons with disabilities, an instrument that extensively comprehends the rights to equal opportunities.


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Chapter I of the Standard Rules, Preconditions for Equal Participation, consists of four preconditions: awareness raising (Rule 1), medical care (Rule 2), rehabilitation (Rule 3) and support services (Rule 4).

Rule 1 states that “...States should take action to raise awareness in society about persons with disabilities, their rights, their needs, their potential and their contribution.” An important component of awareness raising is the focus on the education campaign on children as a means of shaping a positive attitude towards persons with disabilities among future generations (Rule 1 (9). Rule 2 reads “States should ensure the provision of effective medical care to persons with disabilities”. Rule 3 provides that in order to assist disabled persons, “...to reach and sustain their optimum level of independence and functioning” the state should provide rehabilitation services for disabled people. In addition, “States should ensure the development and supply of support services, including assistive devices for persons with disabilities, to assist them to increase their level of independence in their daily living and to exercise their rights” (Rule 4). The aim of the two latter articles is to enable persons with disabilities to reach their level of functioning that would allow them to participate in society.

Chapter II of the Standard Rules covers Target Areas for Equal Participation (Rules 5-12). The selected target areas encompass: accessibility, education, employment, income maintenance and social security, family life and personal integrity, culture, recreation and sports, and religion.

Accessibility means creating physical environment that is appropriate for persons with disabilities. Article 5 specifies that,”... states should: (a) introduce programmes of action to make the physical environment accessible; and (b) undertake measures to provide access to information and communication.” Article 6 of the Standard Rules stipulates that 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 the education of persons with disabilities is an integral part of the educational system”. Article 6 (8) provides that in countries where the regular school system “...does not yet adequately meet the needs of all persons with disabilities, special education may be considered.”

In order to preserve their independence, it is inevitably necessary for persons with disabilities to have adequate employment. Therefore, Rule 7 proclaims that “... states should ensure that disabled persons exercise their rights,

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particularly in the field of employment”. One of the key aspects in social policy reforms in the recent years has been the acceptance of the fact that disabled persons have been excluded from employment in the public and private sector for reasons unrelated to their ability to perform the work tasks. Rule 7 (1) provides that the Employment Law “...must not discriminate against persons with disabilities and must not raise obstacles to their employment.” The Standard Rules also encourage the state to provide public support to disabled persons’ employment (7 (2)); to design and adapt workplaces and premises to make them accessible to disabled persons (7 (3) (a)); to support the use of new technologies and production of assistive devices, tools and equipment (7 (3) (b)); and to provide appropriate training…and ongoing support such as personal assistance and interpreter services (7 (3) (c)).

Rule 8 refers to income and social security. The Preamble to this Rule provides that states are responsible to provide social security and income to persons with disabilities. Rule 8 (3) encourages states also to provide social security and assistance in income maintenance to persons that look after disabled people. However, according to Rule 8 (4) and (5), the social security system should include incentives for restoring the independent earning-capacity of persons with disabilities, and incentives that would help such persons to find employment. Considering those, social protection programmes should be structured to encourage persons to seek employment, rather than be just a substitute for unemployment.

Rule 9 specifies that states should promote full participation of disabled persons in family life. More precisely, “...States should promote their right to personal integrity and ensure that laws do not discriminate against persons with disabilities with respect to sexual relationships, marriage and parenthood”. Rules 10-12 provide that states should ensure equal opportunities to persons with disabilities to participate in cultural activities, sports, recreation and religious life.

Chapter III of the Standard Rules identifies the Implementation Measures that should be followed by the states. States are responsible for:

- Collecting and disseminating information on the living conditions of the persons with disabilities (Rule 13);

- Ensuring inclusion of disabled persons in planning and policy-making (Rule 14);

- Creating the legal bases for measures to achieve the objectives of full participation and equality for persons with disabilities (Rule 15);


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- Financing national programmes and measures to create equal opportunities (Rule 16);

- Establishing and strengthening national co-ordinating committees or similar bodies that would serve as focal points to discuss disability issues (Rule 17);

- Recognizing the right of the organizations of persons with disabilities to represent persons with disabilities at national, regional and local levels (Rule 18);

- Ensuring adequate training of personnel involved in planning and programme and service designing concerning persons with disabilities (Rule 19);

- Continually monitoring and evaluating the implementation of national programmes and services with respect to the equalization of opportunities for persons with disabilities (Rule 20);

- Co-operate in and take measures for the improvement of the living conditions of persons with disabilities in the developing countries (Rule 21); and

- Participate actively in international cooperation concerning equalization of opportunities for disabled persons (Rule 22).

The last Chapter IV of the Standard Rules describes the monitoring mechanism designed to support the effective implementation of the Rules. Paragraph 2 provides that the monitoring of the Rules should be performed within the Commission for Social Development. In addition, a Special Rapporteur shall be appointed to monitor the implementation of the Rules. The Special Rapporteur, assisted by the Secretariat shall prepare reports for submission to the Commission for Social Development (Para. 8) and shall provide advisory services on the implementation and monitoring of the Rules (Para. 6).

We would conclude that articulated in this manner, the Rules offer a kind of an instrument in the hands of persons with disabilities and their organizations to draft legislation and undertake activities. They set forth the basis for technical cooperation among the states, the UN and other international organizations and non-governmental organizations.

Apart from the UN Resolutions on disabilities rights, two major studies have had great influence on these rights in the last two decades. The first one was the report entitled Principles, Guidelines and Guarantees for the Protection

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of Persons Detained on Grounds of Mental Ill- Health or Suffering from Mental Disorder of 1986, prepared by Erica- Irene A. Daes, who was appointed Special Rapporteur by the Subcommittee for Prevention from Discrimination and Protection of Minorities. In 1993, Leonardo Despouy, Special Rapporteur appointed by the Subcommittee, developed the second major study, entitled Human Rights and Disabled Persons. This Report examines human rights abuses in the area of disability and certain abuses of human rights as a cause of disability.

Within the UN Secretariat, a number of divisions also participate in the co-ordination of national and international initiatives in the field of disability. Some of them are the following: The Division of Human Rights- DHR), The Department of International Economic and Social Affairs- DESA), Department of Public Information-DPI, The Davison of Narcotic Drugs-DND, and The United Nations Conference on Trade and Development –UNCTD.

Within the UN, there are organizations and programmes that have adopted approaches related to development and are of great significance to the World Programme of Action Concerning Disabled Persons, inter alia:

- The United Nations Children’s Fund- UNICEF, and its efforts to strengthen community resources in order to assist children with disabilities in their environment;

- The Office of the United Nations High Commissioner for Refugees- UNHCR, and its work for disabled refugees;

- The Office of the United Nations Disaster Relief Co-ordinator- UNDRC has developed specific measures for disasters preparedness and protection of persons with disabilities, as well as protection from permanent disability as a result of injuries or treatment received at the time of disaster;

- The United Nations Centre for Human Settlements- HABITAT works on removing physical barriers and on general accessibility in the physical environment.

Specialized UN agencies involved in promotion, support and fieldwork play an important advisory role. The operation of these specialized agencies covers presentation, nutrition, hygiene, education of children and adults, vocational training and seeking employment opportunities.100. United

100 For more detail see: http://www.un.org

http://www.un.org/


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Nations Economic Commission for Europe101 is involved in the monitoring of disabled persons’ rights implementation. This Commission has published the “European Handbook for Persons with Disabilities” and it is involved in rehabilitation and housing projects for persons with disabilities.

Chapter V

Regional Systems of Human Rights Protection

1. Europe The European law on human rights ensures not only the most important content of precedent law about the essence of the international law on human rights, but also represents one of the most encouraging and most interesting examples of an emerging efficient international legal system. Certainly, the emerging system of the European law on human rights is not a “supreme authority” in Europe, nor its institutions are part of a kind of a supranational system of supreme authority that fits in the narrow Austin’s positivist definition of “law”102. This fact makes the European law on human rights a good model.

1.1. Council of Europe

The Council of Europe, established in 1949 by signing the Statute of the European Council on initiative of the ten founding states, nowadays comprises 46 member states103. It is one of the main creators of the modern European system for human rights protection. The basic motive for its establishment, as identified by its Statute is “… to achieve a greater unity of its member states in order to provide and realize the ideals and principles that are their shared heritage and in order to facilitate their economic and

101 For more detail see: http://www.unece.org102 In the 19-th century, the leading English legal positivist John Austin, who was especially interested in the relation between the rules and their implementation, claimed that real “law” entails existence of supreme authority that will implement that law, and that, therefore, without an international supreme authority, the international law by definition, is not “law”, but a form of morality. 103 For more detail see: http://www.coe.int

http://www.unece.org/

http://www.coe.int/

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social progress”. This objective is realized through its bodies104, with discussions concerning issues of mutual interest, as well as through agreements of the member states on shared action in the area of economic, social, cultural, scientific, legal and administrative issues, and in the maintenance and further realization of human rights and fundamental freedoms. Its Statutory principles are “pluralist democracy, observance of human rights and the rule of law”, and according to Article 3 of its Statute, “…every member state must accept the rule of law principles and enjoyment of individual human rights and fundamental freedoms under its jurisdiction”.

Ever since the second half of the 20-th century, the Council of Europe has established a unique international judicial system to monitor observance of human rights and fundamental freedoms. This system is based on its 1950 European Convention on Protection of Human Rights and Fundamental Freedoms. The 1961 European Social Charter and the other 155 Conventions are considered the largest network that connects the European states and societies into one same legal, cultural, social and political unity. So far, the Council of Europe has not adopted a specific instrument concerning the rights of persons with disabilities.

1.1.1. The Council of Europe Instruments for Human Rights

Protection A) European Convention on Human Rights and Fundamental

Freedoms (ECHR) On 4 November 1950, member states of the Council of Europe signed the European Convention on Human Rights and Fundamental Freedoms, which entered into force on 3 September 1953, when the 8 necessary ratifications were deposited105.

104 The internal structure of the Council of Europe is constituted by: The Committee of Ministers, a decision-making and executive body of the organization; The Parliamentary Assembly, a consultative body of the organization with no legislative authorities, in whose work parliamentary delegations of member states participate; The Congress og Local and Regional Authorities of Europe, a half-parliamentary body where delegations of local and regional authorities of Europe participate; The Secretariat of the Organization and the Secretary General. 105 The first country that ratified ECHR was Great Britain in March, 1951. In 1952, ECHR was ratified by Norway, Sweden and the Federal Republic of Germany, followed by Denmark, Iceland, Ireland and Luxembourg. Sweden was the first country to have accepted the right to individual petitions in February 1952, followed by Ireland and Denmark and the


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Drafted and accepted by the governments of the European countries with “common heritage of political traditions, ideals, freedoms and the rule of law”, as stated in the Preamble, ECHR has evolved under the challenges of the new time, incorporating new rights and freedoms in its additional Protocols.

The ECHR consists of the Preamble and two Parts. Part I titled “Rights and Freedoms”, encompasses Articles 2-18 and referrers to the rights and freedoms undertaken and guaranteed by the state. Part II, titled “European Court of Human Rights” contains Articles 19-59 and explains the structure of the new European Court on Human Rights. 13 Additional Protocols accompany the ECHR. Part I covers the following rights and freedoms:

• Right to life (Article 2);

• Prohibition of torture or inhuman or degrading treatment or punishment (Article 3);

• Prohibition of slavery or forced or compulsory labour (Article 4);

• Right to liberty and security of person (Article 5);

• Right to a fair trial (Article 6);

• No criminal offence, no punishment without law (Nullum crimen, nulla poena sine lege)-(Article 7);

• Right to respect for one’s private and family life, home and correspondence (Article 8);

• Freedom of religion (Article 9);

• Freedom of expression (Article 10);

• Freedom of assembly and association (Article 11);

• Right to marry and found a family (Article 12);

• Right to effective national protection of rights and freedoms (Article 13);

following 1953, by Iceland as well. Germany and Belgium followed in 1955. The acceptance of judicial jurisdiction of the European Court was initiated by Ireland and Denmark in 1953, followed by the Netherlands in 1954. By September, 1958 the eight ratifications were deposited, necessary for the inauguration of the European Court of Human Rights in January, 1959.

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• Prohibition of discrimination against the protected rights (Article 14);

In the context of civil and political rights, the International Covenant on Civil and Political Rights protects the rights that are not protected by ECHR.

13 Additional Protocols are joined to ECHR, which represent separate international agreements open for signing, i.e. accession of the states to ECHR.

Two Articles of ECHR are of particular interest for persons with disabilities. The first one is Article 5 according to which “...Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (e) the lawful detention of ... persons of unsound mind ...”. That means the right to liberty and security may be constrained because of mental disability! The second one refers to the prohibition of discrimination articulated in Article 14: “...The enjoyment of rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion,... or other status”. Persons with disabilities are not explicitly mentioned, but they can be contained in the formulation “other status” at the end of Article 14.

B) European Social Charter

The European Social Charter106 is a complementary instrument to the ECHR, as it guarantees the social and economic human rights and represents a “natural corresponding part” to the civil and political rights guaranteed by ECHR. The Charter stipulates the following rights and freedoms: the right to work (Article 1); the right to just conditions of work (Article 2); the right to protection at work (Article 3); the right to a fair remuneration (Article 4); the right to organize (Article 5); the right to bargain collectively (Article 6); the right of children and young persons to protection (Article 7); the right of employed women to protection (Article 8); the right to vocational guidance (Article 9); the right to vocational training (Article 10); the right to protection of health (Article 11); the right to social security (Article 12); the right to social and medical assistance (Article 13); the right to benefit from

106 The Social Charter was enacted in 1961, and later on it was complemented by three Protocols, enacted in 1988, 1991 and 1995. In 1996, the Charter was revised by adapting its basic provisions in accordance with the basic social changes. The Revised Social Charter came into force on 1 July, 1999.


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social welfare services (Article 14); the right of physically or mentally disabled persons to vocational training, rehabilitation and social resettlement (Article 15); the right of the family to social, legal and economic protection (Article 16); the right of mothers and children to social and economic protection (Article 17); the right to engage in a gainful occupation in the territory of other Contracting Parties (Article 18); and the right of migrant workers and their families to protection and assistance (Article 19)107.

Article 20 stipulates the two fundamental obligations that every state must undertake as it becomes a Contracting Party to the Charter. First, it must undertake that it shall consider the first part of the Charter a Declaration of Goals, which it shall follow by all appropriate means. In other words, the referred goals relate to ‘realization of conditions’ in which the 19 specified rights can be efficiently realized. Unlike this obligation, the second one is of a strictly legal character, which consists of accepting at least 10 of the 19 Articles of the second part of the Charter. From this point on, the parallel between the Charter and the ECHR breaks off: namely, while the observance of the obligations undertaken under the ECHR was within the power of all member states, the fulfilment of a large corpus of economic and social rights requires a “positive government intervention”, which depends on the economic resources available.

Regarding the issues of disability rights, three Articles of the Charter are of significant importance for persons with disabilities: Article 11 (the right to protection of health), Article 13 (the right to social and medical assistance) and Article 15 (the right of physically or mentally disabled persons to vocational training, rehabilitation and social resettlement). Articles 11 and 13 are applicable to all human beings and are of particular concern to persons with disabilities. Article 11 provides that “...with a view to ensuring 107 The 1988 Protocol introduced the following social and economic rights: right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex (Article 1); right to information and consultation of workers (Article 2); right to take part in the determination and improvement of the working conditions and working environment (Article 3); and right of elderly persons to social protection (Article 4). In addition to the amendments of the that time existing rights, by the Revised Social Charter the following new rights were introduced: the right to protection in cases of termination of employment (Article 24); the right of workers to the protection of their claims in the event of the insolvency of their employer (Article 25); the right to dignity at work (Article 26); the right to information and consultation in collective redundancy procedures (Article 29); the right to protection against poverty and social exclusion (Article 30); and the right to housing (Article 31). For more detail see: Human Rights- Fundamental Documents: 50-th Anniversary of the Universal Declaration of Human Rights: 1948-1998. Ministry of Justice, Skopje, 1998, pg. 233-275

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the effective exercise of the right to protection of health, the Contracting Parties undertake, either directly or in co-operation with public or private organisations, to take appropriate measures designed inter alia: 1. to remove as far as possible the causes of ill-health; 2. to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health; 3. to prevent as far as possible epidemic, endemic and other diseases.”

Further on, Article 13 states that “...with a view to ensuring the effective exercise of the right to social and medical assistance, the Contracting Parties undertake: 1.to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition; 2. to ensure that persons receiving such assistance shall not, for that reason, suffer from a diminution of their political or social rights; 3. to provide that everyone may receive by appropriate public or private services such advice and personal help as may be required to prevent, to remove, or to alleviate personal or family want; 4. to apply the provisions referred to in paragraphs 1, 2 and 3 of this article on an equal footing with their nationals to nationals of other Contracting Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance, signed at Paris on 11 December 1953.”

Pursuant to Article 15, the Contracting Parties with a view to ensuring the effective exercise of the right to benefit from social welfare services undertake “1. ... to take adequate measures for the provision of training facilities, including, where necessary, specialised institutions, public or private; 2. … for the placing of disabled persons in employment, such as specialised placing services, facilities for sheltered employment and measures to encourage employers to admit disabled persons to employment.”

As can be seen from the above-mentioned Articles of the Charter, the concept of human rights and disability is based on the traditional institutional approach to disability. In order to update and adapt to the fundamental social changes, which have occurred since the adoption of the Charter, parts of the Charter were revised. The new Article 15 of the Revised European Social Charter adopted by the Council of Europe on 3 May 1996 reads: “With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to


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independence, social integration and participation in the life of the community, the Parties undertake, in particular:

1. to take the necessary measures to provide persons with disabilities with guidance, education and vocational training in the framework of general schemes wherever possible or, where this is not possible, through specialised bodies, public or private;

2. to promote their access to employment through all measures tending to encourage employers to hire and keep in employment persons with disabilities in the ordinary working environment and to adjust the working conditions to the needs of the disabled or, where this is not possible by reason of the disability, by arranging for or creating sheltered employment according to the level of disability. In certain cases, such measures may require recourse to specialised placement and support services;

3. to promote their full social integration and participation in the life of the community in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.”

This version of Article 15 is more comprehensive than the previous one and is based more on a human rights approach. It shall enter into force after “…three member States of the Council of Europe have expressed their consent to be bound by this Charter.” (Article K)

C) Other Legal Acts of the Council of Europe

Besides the above-mentioned legal acts, there are several other instruments of the Council of Europe that concern persons with disabilities more specifically, including the following:

• Recommendation on the Situation of the Mentally Ill- EC Recommendation No.818;

• Recommendation on Rehabilitation Policies for the Disabled- EC Recommendation No.1185;

• Recommendation on a Coherent Policy for the Rehabilitation of People with Disabilities- EC Recommendation No. (92) 6;

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• Recommendation Towards full social inclusion of people with disabilities- Recommendation 1592 (2003);

• Recommendation Towards concerted efforts for treating and curing spinal cord injury- Parliamentary Assembly Recommendation 1560 (2002);

• Towards full citizenship of persons with disabilities through inclusive new technologies Resolution, ResAP (2001) 3;

• Resolution on a Charter on the Vocational Assessment of People with Disabilities- AP (95) 3.

The Recommendation on 1992 Coherent Policy for Rehabilitation of People with Disabilities adheres to the principle of independent living and full integration into society. This Recommendation is progressive in the idea it promotes, which is it recognises the right of persons with disabilities to “be different”. It is the first international / regional instrument which applies the right to “be different” to persons with disabilities, with respect to the rehabilitation process.

1.1.2. Mechanisms for Protection of Human Rights in the Council of Europe

A) A System based on the European Convention on Protection

of Human Rights and Fundamental Freedoms with headquarters in Strasbourg

The international legal system established by the ECHR, in which the formal legal structures, i.e. the European Court of Human Rights and, until its merging with the Court in 1999, the European Commission of Human Rights exercises genuine judicial power. Their proved efficiency is incomparable at an international level, except maybe with other European legal institutions such as the Court of Justice of the European Union and the Court of First Instance in Luxembourg.

But, why is that so?? Generally speaking, because the High Contracting Parties agreed to co-operate with the bodies established under the ECHRS on one hand, and were willing to ensure effective human rights protection in their territories, on the other.

Up until 1999, the Court existed in parallel to the European Commission of Human Rights, wherein both institutions were set up under Article 19 of the


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Convention with the aim “...to ensure the observance of the engagements undertaken by the High Contracting Parties in the present Convention”. The third element within the system, in addition to the Commission and the Court, constitutes the Committee of Ministers of the Council of Europe.

Since November 1998, the Court has been significantly reorganized according to the terms of Protocol No. 11, by which the European Commission on Human Rights has merged with the Court, and the Convention enforcement mechanisms have been transformed. Thereby, in Article 5 of the Protocol a series of transitional solutions have been set forth, which will assist in the transition process.

I. Organizational Setup of the System a) European Commission of Human Rights

Ever since its beginning, the European Commission of Human Rights has been at the same time blessed and punished by its “mediatory position” in the system of the European Law on Human Rights. On one hand, the Commission was supposed to protect the Court from possible overburdening with individual complaints, a function that also protected the traditional sovereignty of the High Contracting Parties. On the other hand, the Commission had to serve as an international institution to which individuals could have access, which presented a radical deviation from the traditional legal process turned towards the states. Created to act in a compromising manner, the Commission acted as a mediator not just between individuals and governments, but also between individuals and the Strasbourg Court108.

The European Commission of Human Rights has four functions: first, to determine admissibility of a complaint; second, to identify facts of a specific case; third, to assist parties to reach a friendly settlement; and fourth, to formulate its conclusions. Since 1999, the three main functions of the Commission have been fully taken over by the reformed European Court of Human Rights. 108 Sir Humphrey Waldock in 1960, who appeared before the Court on behalf of the Commission, in his first case Lolles stated: “...The Commission participates in the proceedings and takes a mediatory position between the government and the individual. Its function is not to initiate procedures- it is an administrative one. Our function is not to defend before the Court either the individual’s case as such, or our own opinion, simply as such. Our function, according to our belief, is to put forth before you all the elements of the case that are relevant to its resolution by the Court.”

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b) European Court of Human Rights

In order for the European Court of Human Rights to be set up 109, eight states needed to ratify it and in 1950, “there was grounded suspicion that it would happen at all”. However, by 1958, eight countries accepted the jurisdiction of the Court110, which, on 3 September the same year, became officially competent to hear cases.

Article 20 of the ECHR imposes the number of judges in the European Court of Human Rights to be equal to the number of High Contracting Parties to the Convention. The Court has a Registry and legal advisors (i.e. court officials) available.

The Court as a whole is called “Plenary Court”, which elects its President, two Vice-Presidents, Secretary and one or more Secretary’s assistants.

The Court sits as a committee of three judges with the task to determine the admissibility of the complaints lodged by individuals. It also sits as a seven-judge Chamber, the usual Court Jury, and as a Grand Chamber111 of 17 judges and special Court Juries for more important cases. Article 30 provides that the Court Chamber should relinquish jurisdiction in favour of the Grand Chamber “...where a case raises a serious question of interpretation of the Convention or its Protocols, or where the solution to some question before

109 The Court was set up in 1958 and only one complaint was determined admissible by the Commission on 2 June, 1956 (submitted by Greece versus Great Britain and in relation to Cyprus). In the 1950-es, 5 complaints were determined admissible. The Court did not hear either case. In the 1960-es, the number of complaints admitted by the Commission reached 54, and the Court reached its first 10 judgements. In the 1970-es, of 168 complaints that the Commission declared admissible, the Court reached 26 judgements. In the 1980-es of 455 admitted complaints, 169 judgements were reached by the Court. In the 1990-es there was a total of 3,491 complaints, and the Court pronounced 818 rulings.

110 According to the old Article 46 “...Any of the High Contracting Parties may at any time declare that it recognizes as compulsory ipso facto and without special agreement the jurisdiction of the Court in all matters concerning the interpretation and application of the present Convention.”

111 The Grand Chamber consists of 17 judges and 3 deputy judges (Article 27 (1) and Rule 24 (1)) during a period of three years. It consists of the Court President and his two Vice-Presidents, the Section President along with the judge/judges of the interested states, and the other judges are elected by the principle of rotation every 9 months, divided in two groups (Rule 24 (3)).


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the Chamber may lead to contradiction of the decision that the Court had previously reached.”

Sometimes, cases that have not yet been considered by the Court appear, where the applicant is under serious threat and his urgent protection is necessary. In such cases, interim measures112 need to be taken. Unfortunately, the Convention does not prescribe such competencies for the Court. Nevertheless, this issue is covered by Rule 39 (1), enabling the Chamber to pronounce interim measures. For every interim measure pronounced the Committee of Ministers should be notified (Rule 39 (2)). The Chamber may request information from the parties regarding the implementation of each interim measure (Rule 39 (3)). Although the interim measures pronounced are observed by the states, still they have solely a status of recommendations and because of that are not technically binding113.

c) Committee of Ministers The Committee of Ministers was founded by the Statute of the Council of Europe in May, 1949. By introducing Protocol No 11, i.e. by reforming ECHR, the functions of the Committee of Ministers have been significantly reduced.

As a political body, consisting of the foreign affairs ministers of the High Contracting Parties, represented by permanent delegates in Strasbourg, the Committee of Ministers performs three types of functions: the first, administrative function; the second, judicial or quasi-judicial function (the old Article 32 of ECHR); and the third, supervisory function (the old Article 54 of ECHR).

Characteristic about the issue what criteria the Commission applies when it relinquishes a case in favour of the Court, rather than the Committee of Ministers, is that this issue is neither addressed in the ECHR nor in the Procedural Rules of the Commission. However, taking into account the to- date practice of the Commission, it should be pointed out that the nature of the case is one of the factors that play an important role with regard to the judgement’s inclination, whether towards the Court, or towards the Committee of Ministers. Knowing that the European Court of Human Rights is a judicial “arm” of the ECHR, it should not come as a surprise that the 112 Interim measures are such measures that have the role of protecting the applicant temporarily, until his case is heard before the Court. 113 The consequences of the non-binding character of the recommendations on the pronounced interim measures may be seen in Cruz Varas case, Series A, No.201.

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Court decides on those cases where the issue of interpretation of the articles in the ECHR arises. Another factor is the level of division of opinions that a case causes within the Commission. No matter how much the law is clear, still its application of facts in a specific case may cause a different interpretation, so the Court is the most competent to make a judgement if such situation occurs. And, in the end, the third factor would be the important political implication that a case might have. These cases are relinquished in favour of the Committee of Ministers. An illustration of the above stated would be the fact that only one interstate case 114 was lodged with the Court for decision.

II. Procedure within the System

The right to lodge a complaint, according to the ECHR, is a right to take initiative to start proceedings allowed for by the Convention, on the basis of any alleged breach of the provisions of the ECHR by any of the High Contracting Parties. The Convention makes a distinction between two procedures: the first, a procedure upon individual petitions; and the second, a procedure initiated by any Contracting Party.

a) Individual petitions Pursuant to Article 34 of the ECHR “the Court may receive petitions from individuals, non-governmental organizations115 or a group of individuals claiming to be the victims of a violation by one of the High Contracting Parties of the rights set forth in this Convention or its Protocols. High Contracting Parties undertake not to hinder in any way the effective exercise of this right116”.

Regarding the term victim, it has to be pointed out that in principle the individual may not submit actio popularis and complain about any Contracting Party’s right in abstracto. But court practice has shown that under certain circumstances, taking into account the principle of

114 See: Irish case, Yearbook 19 (1976) 512 and Judgment in 1978, Series A, No. 25, which was submitted to the Court by the Irish Government. 115 Non-governmental organizations must be private organizations. Municipalities, for example, are not considered as such. See: Austrian municipalities v. Austria, Yearbook 17 (1974), p.338 (352) 116 See: European Charter concerning persons who participate in proceedings before the European Court of Human Rights- text in the Council of Europe, Human Rights Information Sheet No.38 (Strasbourg, 1996), p.176.


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effectiveness (l’effeto utile) of the system, the individual may claim being the victim, because of the existence of some legislation in one of the High Parties-Signatories of the ECHR117. As regards the potential victims see: Malone case, Report of 17 December 1982, Application 82 (1984), p.52 and Marckx case, Judgment of 13 June 1979, Application 31 (1979), p.12-14.

In cases when an alleged future judgement may be predicted, as in the Kirkwood case118, then the Commission reckons that the individual petitioner may be considered a victim; however, if this future judgement cannot be predicted at all, then the Commission declares the petition inadmissible.

With reference to the institute indirect victim, the Commission has established a principle that enables the individual, in a special case, to bring a petition about a violation of any article of the ECHR against another individual, although he/she has not directly suffered a violation of his/her rights and freedoms. In that case, the applicant has to have close contact with the direct victim that has suffered a violation of any article of the ECHR, in order to be considered a victim, i.e. to have suffered a personal violation.119.

When the victim alone is not in the condition to take any action (a detained person, a patient in a mental institution or a very young person), then a close relative, a custodian, a curator or a third person may take action on his behalf and in his interest120.

For the admissibility of an individual petition it is not necessary for the applicant to prove that he/she is the victim of the alleged ECHR article/s breach, but only to claim that he is a victim of an alleged ECHR article/s breach (“qui se pretend victime”).

117 See: Klass v. Federal Republic of Germany case, Series A, No.28, Application 5029/71, Yearbook 17 (1974), p.178 (208); Open Door and Dublin Well Woman case, Series A, No.246; Yasa case, Judgment of 2 September 1998; Norris case, Series A, No.142; De Jong, Baljet and van den Brink case, Series A, No.77. 118 See: Kirkwood v. United Kingdom case, Application 10479/83, D&R 37 (1984), p. 158 (182). The applicant states that his extradition from the United Kingdom to California will contribute to inhumane and degrading treatment, because if he is extradited to California, he will be trailed for two murders and one attempted murder and sentenced a death penalty there. The appealing procedure and “death row” in general are usually prolonged for several years, which will affect the applicant and will certainly cause inhumane and degrading treatment in contradiction to Art.3 of the ECHR. 119 See: Becker v. Denmark case, Application 7011/75, Yearbook 19 (1976), p. 416 (450), whereby a German journalist challenged the decision of the Danish Government on repatriation of 199 Vietnamese children, as contradictory to Art. 3 of the ECHR 120 See: X v. Federal Republic of Germany case, Application 155/56, Yearbook 1 (1955-1957), p. 163.

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The selection of the petition is made according to admissibility assessment criteria (Article 35 of ECHR).

As regards individual petitions, Article 28 of the Convention provides a Committee of three court members to be able by a unanimous decision to assess that a certain claim is inadmissible or to take off its list of cases a complaint that has been submitted on the grounds of Art.34, whereby such a decision may be made without further consideration. The decision shall be considered final. If no decision is reached by the Committee, that the private complaint is inadmissible; for example, if the Committee consisting of three judges prefers to accept the individual petition or cannot reach a unanimous agreement on the inadmissibility, then the decision on the admissibility is reached by the Grand Chamber composed of seven judges. This Chamber may also decide upon the grounding of the individual petition, which is usually done by a later decision.

b) Interstate cases121

Pursuant to the new Art. 33 of the ECHR “each Contracting Party may bring before the Court any alleged breach of the Convention provisions or its Protocols by another Contracting Party”.

The State may lodge a complaint for rights violation, not only of its citizens, but also of persons who are not citizens of any of the High Contracting Parties, or are expatriates, and even on behalf of persons who are citizens of the State against which the proceedings have been initiated before the Court. In the event of interstate disputes, the Contracting Party filing the lawsuit may deny the legislation or the administrative practice of another Contracting

Party that violates the law122, without thereby stating the specific examples of such a violation, i.e. applications in abstracto123.The objective character of the interstate cases lies in the fact that the aim is additional and objective human rights protection. Therefore, even when the applicant does not show interest in pursuing the proceedings, this still does not deprive the

121 The Commission, which in 1953 became competent to consider interstate disputes (on the basis of the old Art.24), for the first time heard such cases in 1955. See: Greece v. United Kingdom (over Cyprus), Yearbook 2 (1958-59). 122 Unlike the right of individuals to complain, which is restricted only to violation of rights defined by the ECHR, with interstate cases, the complaint may refer to all the provisions of the ECHR and its Protocols. 123 See: Irish case, Yearbook 19 (1976) 512 and Judgment in 1978, Series A, No. 25.


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Commission of the right to continue with the proceedings for the purpose of public interest.124.

The procedure is based on the system of a collective guarantee of human rights, so it is not by accident that some High Contracting Parties file applications against other Contracting Parties in the name of public interest125. The idea contained in the Preamble, which has been additionally mentioned in the Pfunder case, i.e. the collective rights protection noted in the ECHR by the Contracting Parties, has proved insufficiently efficient for several reasons. The High Contracting Parties have shown no will to file complaints against other Contracting Parties, if their interest has not been involved. On the other hand, if a Contracting Party shows any interest in resolving an interstate case, that may produce a negative effect, i.e. using Pollac’s words, who is a member of the European Commission of Human Rights, ”raising an interstate application acts like a weapon that oftentimes does not contribute to the resolution of the political dispute in question”.

In conclusion, compared to interstate cases, individual petitions have the advantage of not being able to play an important role in the general political connotation.

According to the Commission, for the interstate applications, even prima facie evidence is not necessary in the admissibility assessment stage. The examination of the merit of the interstate applications is fully reserved for the post-admissibility stage. On the admissibility of interstate cases decides the Grand Chamber of seven judges rather than the Committee of three judges.

In the entire history of the European Commission of Human Rights, i.e. up until its merger with the Court into the new European Court of Human Rights (November, 1998), it received only 13 interstate applications.

If the Court concludes that there is violation of the Convention or its Protocols, and if the internal law of the said High Contracting Party allows for the provision of only partial reparation, the Court, if necessary, shall afford just satisfaction to the injured party. Following the judgement on the grounding of the claim, the Court sometimes delays the decision on just satisfaction, allowing the State in question to resolve the compensation

124 See: Gericke v. Federal Republic of Germany, Application 2294/64, Yearbook 8 (1965). 125 See: Denmark, Norway, Sweden v. Greece, Application 4448/70, Yearbook 13 (1970); and Denmark, Norway, Sweden and the Netherlands v. Greece, Application 3321-3323 and 3344/67, Yearbook 11 (1968).

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provision or another type of compensation by reaching a settlement with the private petitioner. The first and maybe the most significant issue, when financial compensation is allocated to the applicant being the victim of the ECHR violation, is the distinction between the monetary and non-monetary loss. With monetary losses126, one should prove that first, the loss has occurred, and second, that it has occurred as a consequence of the ECHR violation. With non-monetary losses or moral damages, as some people call them, an important issue arises. Should the ECHR violation detection be rewarded with compensation, or is the ECHR violation detection a sufficient satisfaction in itself, and can the financial compensation be reserved only for special cases? Practice127 has shown that the second view is most often accepted. Final judgements of the Court are binding for the states parties in the dispute. Final Judgements of the Court are submitted to the Committee of Ministers, which overviews their enforcement. Generally speaking, States voluntarily observe the judgements of the Court. Such observance may involve compensation to the injured party128, as well as amending the national law.129.

126 See: Campbell and Cosans case, Series A, No.60; and Albert and Le Compte case, Series A, No.63. 127 See: Minelli case, Series A, No.62; Pakelli case, Series A, No.64; and Zimmerman and Steiner case, Series A, No.66. 128 For example, between 1959 and 1989, the Court made a ruling of ‘just satisfaction’ in 85 cases. The amounts of monetary compensations moved from 100 Dutch Guldens in the Enghel case (about $40) to 1,150,000 Swedish Crowns in the Sperong and Lonurot v.Sweden case. 129 Examples of states that took action on the Court judgements: Austria has amended the Law on in-mates in mental hospitals treatment and provided urgent funds for social protection of alien residents; Belgium has amended the Law on homeless people and adopted measures by which any discrimination against illegal children has been eliminated; Bulgaria has repealed the right of the prosecutors to order detention of suspects pending court proceedings; Denmark has amended the Law related to detention before trial; Finland has changed the Law on Children’s Custody and Visitation Right; France, Spain and the UK have enacted laws against tapping and intersection of telephone calls; Greece has amended the laws on detaining persons pending trials; Italy has adopted rules by which the defence attorneys are bound to appear before the Cassation Court; the Netherlands has changed the Law on Detaining Patients with Mental Diseases; Portugal has reformed the system of administrative courts and increased the number of judges; Romania has extended the right to complain against the Prosecutor’s decisions with regard to property rights; Sweden has amended the Law on Compulsory Religious Tuition; Switzerland has reviewed the system of criminal courts and criminal procedure; Turkey has reduced the maximum duration of police detention; and the United Kingdom has forbidden corporal punishment at schools.


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The system based on the European Convention on Human Rights and Fundamental Freedoms with its headquarters in Strasbourg (ECHRS) can be described in the following way: there are first instance rules, particularly the basic norms of human rights in the ECHR, and second instance rules, including the Convention rules by which the international system of the Strasbourg Court and the Commission has been established, following the enactment of the Protocol No 11, the new European Court of Human Rights, for the purpose of enforcement, whose task is to apply, interpret and reach court adjudications in accordance with the first instance rules with regard to the High Contracting Parties. We would conclude that what makes ECHRS a more thorough international legal system than the one of the UN is the fact that it shows a much more stable and acceptable system of second instance rules and institutions.

B) Controlling the Implementation of the European Social Charter

The controlling machinery of the implementation of the Charter was subject to thorough revision as part of revitalization of the Charter itself by the Protocol of 1991. In that sense, the Protocol of 1995 is of particular importance, which has introduced the system of collective complaints. Generally, this system of control has no judicial character and does not involve the right to individual petition, as provided by the ECHR.

Namely, the whole system of control is based on national reports130 by the States Contracting Parties to the Charter. These reports are first of all, examined by the Committee of independent experts, established upon Article 21 of the Charter, which then adopts appropriate conclusions. The reports along with the conclusions of the above mentioned Committee, in compliance with Art. 27 (1) of the Charter, are submitted for revision to a separate Sub-Committee of the intergovernmental Social Committee of the Council of Europe. This revision ends up by drafting a separate report, which is submitted to the Committee of Ministers that according to Art. 29

130 Pursuant to Article 21, States Contracting Parties shall submit a report in respect to the application of those provisions in Part II of the Charter that they have accepted (the so called “reports on accepted provisions”), and pursuant to Art. 22, at a request of the Committee of Ministers of the Council of Europe, within appropriate time intervals, States-Contracting Parties shall submit reports with regard to application of other provisions that have not been accepted on their part (the so called “reports on non-accepted provisions”). For detail see: LJ. D. Frckoski, International law on human rights, Magor, Skopje, 2001, p.215

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of the Charter, adopts non-binding recommendations addressed to the specific State-Contracting Party.

The system of collective complaints introduced by the Protocol of 1995 was aimed at increasing the efficiency of the monitoring machinery. Pursuant to Article 1 of the Protocol, a complaint can be submitted by international organizations of employers and trade unions that may participate in the work of the above mentioned Governmental Committee; other international non-governmental organizations which have consultative status with the Council of Europe and have been put on a list established for this purpose by the Governmental Committee; and representative national organisations of employers and trade unions within the State against which they have lodged a complaint.

The collective complaint is considered by the Committee of Independent Experts, which first of all, reaches a decision regarding the admissibility of the complaint131. Following the consideration of the arguments with respect to the grounding of the admitted application, the Committee of Independent Experts has to draw up a report in which it shall present its conclusions with regard to the application of the Charter in that specific case. This report is transmitted to the Committee of Ministers, which based on the report acts within its jurisdiction established by Article 9 of the Protocol. If the report identifies “unsatisfactory application of the Charter”, then it passes a recommendation with which the procedureis completed. Not every recommendation is legally binding, but the Contracting Parties in their next national report related to Art. 21 of the Charter shall “provide information on the measures they have taken to give effect to the Committee of Ministers' recommendation”.

We would conclude that, taking into account the political will necessary for functioning of the reviewed arrangements, the prospects with respect to efficient application of the Social Charter nowadays are significantly broader than at the time period of just a few years prior to initiating the process of its “revitalization”.

The System of the Council of Europe also includes the European Committee on Equality between Men and Women, the Documentation Centre of Human Rights and the Initiative Committee of Human Rights (with three expert committees, which work on further development of human rights norms, improvement of procedures and promotion, education and information). In

131 These criteria are not formally prescribed; they shoud be developed by the Committee itself through its practice.


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the nineties, the System was added the European Commission of Democracy through Laws (Venice Commission), the European Commission against Racism and Intolerance, and the ad hoc Committee on the National Minorities Protection. Also, there are well developed procedures on non-governmental organizations participation.

1.2. European Union

The European Community (EC) is an organization in which by gradual integration of certain areas the transmission of certain state functions to mutual bodies of supranational power comes in place. In that manner, the Community has gradually grown into a real union, which has been confirmed by the Maastricht Agreement (1991), in which it has been renamed into the European Union (EU). Starting with the initial six founding members, today the EU has 25 member states, and by the Lome Convention of 1979, 69 states from Africa, Asia, the Caribbean and the Pacific (mainly, former colonies of the member states) have a special relation to the EU (stronger than the associative one, which has been confirmed by the Maastricht Agreement). The main institutional structure of the EU consists of the European Parliament, the European Council, the Council of Ministers, the Commission, the European Court of Justice, the Court of Auditors, the Economic and Social Committee, and the Committee of Regions.

The human rights protection is one of the underlying principles of the Union and a necessary precondition for its legitimacy. The first Paragraph of Article 6 (former Article F) of the Agreement of the EU reads “... the Union is based on the principles of freedom, democracy, observance of human rights and fundamental freedoms, and the rule of law, which are common to the member states”, and the second Paragraph of that Article states that “... the Union shall observe basic rights guaranteed by the European Convention on Human Rights and Fundamental freedoms of 1950, as well as those rights deriving from the common constitutional traditions of the member states and general law principles of the Community”.

In this respect, the Amsterdam Agreement, which came into force on 1 May, 1999, has established a series of provisions related to several aspects on human rights protection within the legal set up of the Union; the horizontal clause regarding gender equality, the clauses of non-discrimination, fight against racism, personal data protection, cultural diversity, religion and

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confession regime, social rights with a strict reference to the European Social Charter and the EU Luxembourg Court of Justice jurisdiction.

The economic integration within the last years has been followed by efforts to harmonize social policy. This has oftentimes positively influenced the economic and social rights because the policies have mainly been harmonized not according to the smallest common denominator, but on the basis of average practice. The European Union has also included the issues in connection with human rights in its foreign affairs132. Weak provisions on human rights have been included in the Lome Conventions, which since the seventies have been providing foreign assistance to more than fifty countries that had been former colonies of the member states of the Community. In November, 1991, the EC decided to include human rights conditions for all future allocations of assistance.

In that manner, gradually, the issue related to human rights has become conditio sine qua non for every development of the economic and political relations with the Union. In this respect, the process of EU enlargement is appropriate proof of the fact that the issue regarding democratic institutions, human rights and lawful state in the states candidates for the EU remains a fundamental precondition for their accession to the Union, which must be fulfilled in a satisfactory manner.

When it comes to issues related to disability, most of them are resolved within social policy, by putting the emphasis, above all, on employment. The Council Resolution on promoting the employment and social integration of people with disabilities of 15 July 2003133, “... promotes the full integration and participation of people with disabilities in all aspects of society, recognizing that they have equal rights with other citizens”. Further on, it strictly stipulates the inclusion of disability issues when designing the future national plans of member states in relation to social issues and poverty, as well as paying special attention to issues referring to women with disabilities.

One of the most significant legal acts of the Union is the Council Directive 2000/78/EC on establishing a general framework for equal treatment in employment and occupation of 27, November 2000. This Directive calls on the Employment Guidelines for 2000, European Council, Helsinki on 10 and 132 For example, the social agreement between Greece and EEC was suspended from 1967 to 1974, which was costly for Greece, as a protest against military administration. 133 For more detail on the said Resolutions, Recommendations, Communications and Decisions passed within EU see: http://europa.eu.int/eur-lex/en/lif/reg/en_register_1640.html

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11, December 1999, which emphasize the need for creating a labour market that would encourage social integration by formulating a coherent policy on combating discrimination against groups of people such as disabled persons.

Then, the Directive also specifies the Recommendation 86/379/EES on the employment of disabled people in the Community of 24 July 1986 and the Resolution on equal employment opportunities for people with disabilities of 17 June 1999, which promote the importance of paying attention inter alia to training and education of persons with disabilities. Article 1 of the Directive specifies that the Directive’s purpose is “... to lay down a general framework for combating discrimination on the grounds of … disability, …as regards employment and occupation”. Article 5 in particular, refers to the disabled persons and reads: “In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with disability to have access to, participate in, or advance in employment, or to undergo a training, unless such measures would impose a disproportionate burden on the employer ...”. The significance of the Directive is articulated in Article 9, i.e. it specifies that Member States shall ensure that judicial and/or administrative procedures are available to all persons who consider themselves aggrieved by failure to apply the principle of equal treatment to them, even when the situation of discrimination has already ended.

When it comes to employing of persons with disabilities, it is inevitably necessary to mention the Joint Declaration on the employment of people with disability, at a meeting of the Social Dialogue Committee on 19 May 1999134, in which the solutions to the challenges imposed both to the employers and employees regarding professional integration of disabled persons are identified. It specifies that “…discrimination based on reasons irrelevant to work task performance is socially unacceptable and economically inappropriate”.

Further on, it promotes the principle of putting the stress on selection criteria for employment based on abilities, rather than disabilities of persons, and espouses for enabling equal career advancement opportunities to both disabled persons and other employees. Social partners also stand for creating

134 See : http://europa.eu.int/comm/employment_social/soc-dial/social/news/declaration_en.htm

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mechanisms and providing support to employees who have become disabled or offering them the opportunity to keep their job or to be trained for another position that would match their experience and abilities.

The Resolution of the Council and the Representatives of the Governments of the Member States meeting within the Council of 20 December 1996 on equality of opportunities for people with disabilities and the Council Resolution (1999/ C 186/02) of 17 June 1999 on equal employment opportunities for people with disabilities, reaffirm the fundamental right of disabled persons to equal access to social and economic opportunities. Further on, point 7 of this Resolution specifies the areas in which appropriate assistance is provided, like “...workplace accommodation, such as technical equipment including access to new information technologies; access to the place of work; qualifications and skills required at work; and access to vocational guidance and placement services.”

The Community Charter on the fundamental social rights of workers of 9 December 1989, in its point 26 provides that “... all persons with disabilities, regardless of the origin and nature of their disability, shall be entitled to additional specific measures for the purpose of improving their social and professional integration. These measures refer, above all, to vocational training, accessibility, mobility, means of transport and housing”.

The Council Recommendation (86/379/EEC) on the employment of disabled people in the Community of 24 July 1986, calls on the Council Resolution on social action programme of 21 January 1974, Council Resolution of 27 June 1974 by which an action programme of the Community for vocational rehabilitation of people with disabilities has been developed, and the Resolution of the Council and of the Representatives of the Governments of the Member States meeting within the Council of 21 December 1981 on the social integration of handicapped people. This Recommendation covers all the aspects regarding employment of disabled persons: creation of work places; special employment, vocational rehabilitation and training; employment and assessment; and organizations of employees and employers.

The European Council, the Commission and the Council of Ministers have adopted various resolutions on adequate policy for disabled people rehabilitation, whereby member states have been called to take preventative actions for elimination of damages and disability, to implement meaningful and coordinating policy of rehabilitation, and to encourage full participation of persons with disabilities in the process of rehabilitation and social life.


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In addition to employment, the Union has enacted legal acts in the area of education. The Resolution of the Council and the Ministers for Education meeting within the Council of 31 May 1990 concerning integration of children and young people with disabilities into ordinary systems of education, points out that member states have agreed to intensify, where necessary, their efforts in relation to integration or promoting integration of children and young people with disabilities, in all appropriate cases in the mainstreaming system of education. Also, it is specified that the operation of special schools and centres for children and young people with disabilities should be complementary to the operation of the mainstreaming system of education.

By this Resolution it is concluded that there is an inevitable necessity for collaboration between the education and other services, such as health care and social work, in the preparation and promotion of continuous integration programme for disabled persons. In addition, the Council Resolution on equal opportunities for pupils and students with disabilities in education and training of 5 May 2003, calling upon the Rule 6 of the UN Standard Rules provides “... taking appropriate measures to increase the access to life-long learning for disabled persons, and in this context, special attention is paid to the use of new multi-media technologies and the Internet … (e-learning)”. By this Resolution, exchange of information and experience on these issues at the European level is encouraged, involving the European Organizations and networks with appropriate experience in this field.

Then, the Union works on improving the accessibility of the infrastructure and activities in the area of culture for persons with disabilities. To that aim, the Council passed the Resolution on 6 May 2003, which calls upon Rule 10 of the UN Standard Rules, encourages the member states and the Commission within their competencies “... to examine ways to integrate people with disabilities into the arts and cultural sectors and to support equality of opportunities in the promotion of their work”, “to improve access to cultural events and exhibitions” and “to provide information via modern information technology”.

The Council Resolution of 6 February 2003 “e-Accessibility”- improving the access of people with disabilities to the knowledge based society was passed recalling the Resolution of the Council and of the Representatives of the Governments of the Member States meeting within the Council of 17 December 1999 on the employment and social dimension of the information society, “e-Europe 2002 Action Plan”- Feira European Council of 19 and 20 June 2000 on knowledge-based participation of all in the economy, the

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Council Resolution on “e-Inclusion”- exploiting the opportunities of the Information Society for social inclusion, and the Council Resolution on the accessibility of public web sites and their content of 20 March 2002. This Resolution provides taking measures in the field of “... 1. standard technical instruments; 2. encouraging instruments and/or legal measures; and 3. education and information instruments”.

The Commission communication “Towards a barrier-free Europe for people with disabilities”, 10 May 2000, articulates the issue of developing an integration strategy for resolving the social and physical barriers that prevent the access of people with disabilities. As regards the same issue, the European Parliament has adopted a similar resolution.

Instigated by the European Conference of Ministers o f Transport Resolution of 22 April 1997, which encourages reciprocal recognition of parking cards of persons with disabilities, and taking into account that disabled persons should be enabled to park their vehicles as close as possible to their destinations, the Council passed a Recommendation (98/376/EC) on a parking card for people with disabilities of 4 June 1998. In the Annex to this Recommendation, one can find the provisions that explain in detail the model of the parking card of the Community of Disabled Persons.

The European Parliament adopted another important resolution in April 1993, incited by the increase in violence against disabled persons (Official Journal of the EC No. C 150/270).

The Union has also achieved quite a lot in the field of prohibiting discrimination against disabled persons. Article 13 of the Amsterdam Treaty specifies that “... in compliance with the other provisions of this agreement and within its powers delegated by the Community, the Council unanimously, acting at a proposal of the Commission and after consulting the European Parliament, may take appropriate measures for combating discrimination on the grounds of sex, race or ethnic origin, language, religion or belief, disability, age or sexual orientation.”

The anti-discrimination clause is articulated in Article 21, Paragraph 1 of the EU Charter on fundamental rights, formally adopted at the Nice EU Summit135, which reads “...any discrimination based on any ground such as

135 The Charter is the strongest expression of indivisibility of rights, because it ceases the to- date distinction that has been made in the European and international documents between the civil and political rights on one hand, and economic, social and cultural rights on the other, listing all the rights around several main principles: human dignity, fundamental freedoms, equality, solidarity, citizenship (i.e. citizens’ rights) and justice.


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sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation, shall be prohibited.” The progressiveness of the Union when it comes to the disabled people’s rights refers to the strict identification of disability as one on the grounds of which the discrimination may be based (see above quoted Article 21 of the Charter and Article 13 of the Amsterdam Treaty). In addition, another step forward has been made by introducing Article 26 of the EU Charter of Fundamental Rights, which provides that “the Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.”

As regards the scope of the guaranteed rights by the Charter, the Charter itself states that the recognized rights that are grounded on the Community agreements or the EU Agreement, shall be exercised in accordance with the conditions and within the limitations defined in those agreements, and in relation to the significance of the scope of those rights of the Charter, which correspond to the guaranteed rights under the ECHR. The Charter strictly stipulates that they shall be completely the same with those determined by the ECHR, but it does not prevent the Union to provide the right that ensures greater protection (Art. 52 of the Charter). At the same time, the Charter shall not be interpreted as restricting for already existing recognized rights in the EU, nor for those that have already been recognized by the international law or international agreements (including the ECHR), whereby the Union, the Community, or all Member States appear as contracting parties, and the same counts for the rights defined by the constitutions of the member states of the Union (Art.53 of the Charter).

In addition to the above stated Articles of the Amsterdam Treaty and the Charter of Fundamental Rights, the European institutions, and the Council of Ministers and the European Parliament in particular, have passed several recommendations, resolutions, and decisions that refer to the prohibition of discrimination against people with disabilities in different areas such as education, employment, and access to information technologies. One of them is the Council Decision 2000/750/EC establishing a Community Action Programme to Combat Discrimination (2001 to 2006) of 27 November 2000, in which it is stated that “… the different forms of discrimination cannot be ranked: all are equally intolerable”. A Committee shall be established (Article 6), which shall be informed by the Commission on the other action programmes of the Community that might help in combating discrimination.

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In the Annex to this Decision, the areas in which the programme is implemented are specified as follows: public administration, media, transport, housing, culture, sports and recreation…

More important resolutions enacted by the European Parliament are the following:

- Resolution on the rights of Disabled People;

- Resolution on the human rights of disabled people.

At a proposal of the Commission and upon the opinion given by the European Parliament, the Economic and Social Committee and the Committee of Regions, the Council passed a Decision (2001/903/EC) of 3 December 2001136 to designate the year 2003 as the European Year of People with Disabilities (Art.1). The objectives of the European Year of People with Disabilities are specified in Art.2, in which it is particularly pointed out “... to raise awareness of the rights of people with disabilities to protection against discrimination and to full and equal enjoyment of their rights (a); ... to raise awareness of the heterogeneity of people with disabilities and of the various kinds of disability (f); ... to raise awareness of the multiple discrimination facing people with disabilities (g)”. Article 5 provides that “... each Member State shall be responsible for coordination and implementation at a national level of the measures provided for in this Decision” (Art.5).

Within the European Union, in accordance with the UN Standard Rules, the Commission developed and adopted the European Union Disability Strategy137, which later on was implemented in the Resolution of the Council of Ministers of 20 December 1996. Reflecting the idea articulated in the UN Standard Rules, this Strategy emphasizes the need for a new approach, which shall focus on identification and removal of various obstacles that prevent the realization of equal opportunities and full participation of disabled persons in all aspects of social life. The strategy is based on the following three tasks: strengthening the collaboration both between the member states themselves and between the Union and its member states; increasing the participation of people with disabilities; and articulating disability in the political and economic mainstreams of the Union.

136 For detail see: Council Decision (2001/903/EC) on the European Year of People with Disability 2003 of 3 December 2001 137 For detail see: http://europa.eu.int/comm/employment_social/soc-prot/disable/strategy_en.htm

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The Commission stands for exchange of “good experiences”, enhancement of collection and utilization of comparative information regarding the issues of disability and identification of effective political solutions in the realization of the first above-mentioned task. To that aim, the Commission has set up the High Level Group of Member States’ Representatives on Disability, which shall consider governmental policies and priorities relating to persons with disabilities, collect information and counsel on the methods of reporting on the general situation of disability in Europe in the future. This Group shall pay special attention to the implementation of the Resolution of the Council and of the Representatives of the Governments of the Member States meeting within the Council of 20 December 1996 on equality of opportunities for people with disabilities in the member states.

All strategic reflections on the social changes should incorporate disabled people’s experience. For those reasons, bearing in mind the second task of the strategy, to increase disabled people’s participation, the EU is taking steps through which the organizations of persons with disabilities are enabled better access to information and bigger space in using the resources of the EU Funds. Also, the Union supports the European Disability Forum, which unifies the organizations of persons with disabilities from all member states, which represent the majority of interests of such persons in the EU.

In the implementation of the third task, the Commission is dedicated to reviewing its socio-economic policies, programmes and projects with the aim to see in what manner disabled persons’ needs and rights are treated, as well as to develop consisting parts of its socio-economic policies, programmes and projects that will address disability. In order to achieve this objective, the Commission has taken steps to strengthen its internal organization and to involve all relevant Directorates into an Inter Service Disability Group. The goal of this Group is to raise awareness of disability issues and to encourage better inter-sector cooperation within the Commission itself regarding the above-stated issues.

2. North and South America By the Charter of the Organisation of American States, the Organisation of American States- OAS has been established, whose Statutory objectives and principles encompass “reinforcing peace and stability, peaceful dispute resolution, taking collective measures in the event of aggression and promoting economic, social and cultural development”. It also proclaims fundamental individual rights without distinction as to race, ethnicity,

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confession or sex. It was within the framework of the Organization of American States that the Inter-American Commission of Human Rights was established and that the 1948 American Declaration of Human Rights and the 1969 American Convention on Human Rights were elaborated.

There is no reference in the Charter of the Organization of American States that relates to the rights of disabled persons; however, some Articles that refer to all human beings’ rights are of particular importance for persons with disabilities as well. Pursuant to Article 2, “The Organization of American States, in order to put into practice the principles on which it is founded and to fulfil its regional obligations under the Charter of the United Nations, proclaims the following essential purposes: ... (f) to promote, by co-operative action, their economic, social, and cultural development”.

Furthermore, Article 31 provides that “... in order to accelerate their economic and social development, the Member States agree to devote their utmost efforts to accomplishing the following basic goals: ... (g) Fair wages, employment opportunities, and acceptable working conditions for all; (h) Rapid eradication of illiteracy and expansion of educational opportunities for all; (i) Protection of man's potential through the extension and application of modern medical science; (k) Adequate housing for all sectors of the population; (l) Urban conditions that offer the opportunity for a healthful, productive, and full life”.

2.1. Instruments for Protection of Human Rights in North and South America

A) American Declaration on the Rights and Duties of Man, 1948 Two articles of the 1948 American Declaration of the Rights and Duties of Man that refer to the rights of all human beings are important for persons with disabilities. Article I reads: “Every human being has the right to life, liberty and the security of his person”. Further on, Article II provides that “All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor”. Two other Articles of the American Declaration on the Rights and Duties of Man are also relevant. Article XI provides that “…every person has the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent permitted by public and community resources”. In addition, Article XVI provides the right of every person to enjoy protection of the state from the consequences of “... unemployment, old age, and any


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disabilities arising from causes beyond his control that make it physically or mentally impossible for him to earn a living”.

B) Inter-American Convention on Human Rights, 1969 The 1969 Inter-American Convention on Human Rights does not explicitly mention the rights of persons with disabilities. However, it includes the general guarantees of human rights, which according to Article 27 (2) “forbids suspension of guarantees of the absolutely protected human rights (non-derogating ones), among which the right to life is included (Article 4 (1)”. Systems of Protection

Article 18 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”) specifically refers to the rights of disabled persons. It states that persons with disabilities are entitled to special attention that shall help them achieve the greatest possible development of their personality. In accordance with Article 18, Member States agree to develop programmes with the aim to provide disabled persons with resources that shall support them to attain their personal development. In addition, Member States agree to provide special training for the families of persons with disabilities.

C) Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities

The Inter-American Convention on the Elimination of all forms of Discrimination against Persons with Disabilities was adopted by the General Assembly of the Organization of American States in 1999 and came into force in 2001. The Convention consists of four parts:

1. The objectives are to prevent and eliminate discrimination against persons with disabilities and to promote their integration into society;

2. The obligations of the Member states;

3. Definitions of discrimination and disability; and

4. Implementation mechanisms.

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2.2. Mechanisms on Human Rights Protection in North and South America

The Inter-American regime on human rights protection consists of two parts: Inter-American Court of Human Rights and Inter-American Commission on Human Rights.

A) Inter-American Commission on Human Rights

The real heart of the regime is the seven-member Inter-American Commission on Human Rights (IACHR). It was established in 1959 as part of the Organization of American States. Its mandate is based on the Charter of the Organization of American States, rather than a separate agreement on human rights (though there is the 1948 American Declaration on Human Rights and the 1969 American Convention on Human Rights). As is the case with the Commission on Human Rights within the UN, all the countries that are members of the organization may, in principle, become subject to consideration. According to Article 41 of the Convention, the powers of the Commission comprise: promoting and developing the awareness of human rights, drafting recommendations to the governments of the member states, designing studies and reports, considering individual petitions and carrying out on the spot investigations across the Western Hemisphere.

In 1965, the Commission was strictly authorised to examine complaints or petitions regarding individual cases of human rights violation. Up until 1997, the Commission received thousands of cases, of which insofar 12,000 cases have been processed, or are currently being processed. Nevertheless, the individual petitions regulated by the American Convention on Human Rights of 1969 (Articles 44-51) are not central in the work of the Commission. Although it receives several hundreds of complaints and notifications on an annual basis, and is authorized to find information about them, its decisions are rarely implemented.

Also, though Article 44 allows for “each person or group of persons, or a non-governmental institution ... to submit a petition to the Commission”, still the Commission “... shall not accept a petition against any member state that has not submitted its declaration (by which it accepts the competency of the Commission to receive and consider individual petitions against the alleged member state)” (Article 45 (2)). Taking into account the fact that most of the states on the American continent were led by dictatorship governments, it does not come as a surprise that the findings of the Commission regarding individual cases are usually ignored.


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Facing systematic violations, the biggest influence of the Inter-American Commission comes through studies and reports138 on the human rights situation in more than twenty countries on the American continent. The Commission’s reports, which usually call upon individual cases and visits on the spot with the aim to document breaches, are oftentimes an important part of the international efforts to publicize the violations139.

B) Inter-American Court of Human Rights

The second part of the Inter-American regime on human rights protection is the Inter-American Court of Human Rights. The Ninth International Conference of American States held in Bogota, in its Resolution XXXI entitled “Inter-American Court of Human Rights”, considered that the protection of these rights “... should be guaranteed by a judicial organ, in as much as no right is genuinely assured unless it is safeguarded by a competent court” and “... where internationally recognized rights are concerned, the effective judicial protection should arise from an international organ”. The General assembly of the Organization of American States in 1979 approved the Statute of the Court by the Resolution 448. Article 1 of the Statute defines the Court as “an autonomous judicial institution whose purpose is application and interpretation of the American Convention on Human Rights”. Chapter VIII of the American Convention (Articles 52-69) regulates the work of the Inter-American Court of Human Rights, which sits in San Jose, Costa Rica. According to Article 61, only the member states and the Commission have the right to submit cases to be considered before the Court, and it can consider the cases and rule just compensation, or, in extreme cases, interim measures with regard to the parties that recognize its jurisdiction. However, since it started its operation in 1980, the Court has resolved only a small number of cases.

138The principle drawn from the Velasquez-Rodriguez case imposes on the governments of the member states a positive legal obligation to investigate, prosecute and punish persons that violate human rights (including persons who are not civil servants) within their national judicial system. 139 For details see about the strengths and weaknesses of this process, which are illustrated by the response of the Inter-American Commission to the military dictatorship in Chile in: Jack Donnelly, International Human Rights, West view Press, 1998, p.71-73.

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3. Africa, Asia and the Near East In addition to the European and American regional system on human rights protection, there is a third one, within the Organization of African Unity- OAU, which was founded by the African [Banjul] Charter on Human and Peoples' Rights, adopted 27 June 1981140 or the Banjul Charter, as it is often called after the place of its adoption (Banjul, Gambia). The Banjul Charter especially emphasizes the collective or peoples’ rights and individual obligations. The international agreements on human rights recognize peoples’ right to self-determination. Nevertheless, the Banjul Charter does not add the rights to development and peace. Peoples’ rights concentrate on the collective dimension of human rights and the relation between collective goods and peace and development of the more traditional individual human rights.

The African Charter suffers from harmful drawbacks, such as the extensive “withdrawing” clauses. For example, Article 6 recognizes the right to freedom and security of person, but further on reads, “No one may be deprived of his freedom except for reasons and conditions previously laid down by law.” Since there are no restrictions to such reasons and conditions, this enables the states to have full freedom only if they make efforts to enact laws that will suspend or repeal these rights141.

Finally, the implementation measures of the Banjul Charter are unusually weak. The eleven-member African Commission on Human and Peoples’ Rights set up within the Organization of African Unity (Art. 30), in addition to reviewing reports, within its competencies may also consider complaints. However, only situations, and not individual cases may be discussed. And, in order to carry out an in-depth study of the situation, an approval of the Assembly of Heads of States and Governments of the Organization of African Unity is necessary. This procedure (Articles 46-59) is much more politicized than all the other multilateral procedures. Nevertheless, it seems that the African Commission takes its work seriously and with energy. It not just allowed, but also encouraged non-governmental participation. Taking into account that African civil societies are usually weak and that there is lack of tradition of independent NGO-s on human rights, this may prove to be a significant contribution.

140 For details see: http://www1.umn.edu/humanrts/instree/z1afchar.htm141 For more detail see: Jack Donnelly, International Human Rights, West view Press, 1998, p.75

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Whatever the final destiny of the African regional regime of human rights may be, it is still much more advanced than those in the Arab world, Asia and the Pacific. Asia and the Pacific make up a large and diverse area, which is not a region either in social or in political sense. Therefore, the lack of a regional regime of human rights is not surprising. However, the relatively low level of Asian ratifications of international agreements on human rights (the lowest percentage of any other geographic region) suggests that not only the size and diversity are the factors that impede the sub-regional regimes of human rights in Asia. The international NGO-s are the driving force of the initiative of human rights in Asia, so even in the extremely repressive countries, Human Rights Watch Asia are diligently working in order that human rights violations are not ignored by the international community.

The Permanent Arab Commission on Human Rights, established by the Arab League in 1968, has been evidently inactive, except for some occasional efforts to publicize human rights violations in the territories occupied by Israel. There are not even any authoritative regional norms. In the Near East, the NGOs’ initiatives are also trying to compensate for the lack of a functional regional regime. For example, the Arab Organization for Human Rights-AOHR142, set up in 1983, issues annual reports on the human rights situation in the countries of the Arab world. In 1989, through a mutual initiative of the Arab Union of Lawyers, AOHR and the Tunisia League of Human Rights supported by the UN Centre of Human Rights, the Arab institute of Human Rights was established based in Tunisia, whose purpose was to provide information on the human rights situation and equal amount of training to both governmental and non-governmental personnel. Also, there have been efforts on the part of individual Muslims and NGOs to formulate Islamic norms on human rights.

142 For detail see: http://www.aohr.org

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In a multicultural society every citizen strives towards “equality”, but not “uniformity”.

- Albert V. Dice

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PART THREE

INDIVIDUAL RIGHTS AND FREEDOMS

Introduction There are numerous theoretical discussions related to the definition of human beings and precisely what stands behind the essence of human rights. The Universalists and Cultural Relativists have different opinions regarding this matter and are conflicted in the domain of human rights. However, it is evident that by itself, the respect for human beings does not entail respect for their culture, because the latter can display disrespect for human beings. When initiating any issue, the basis, in other words the frame which we will refer to, are the standards in the international human rights system, even more than the cultural norms of majority. It is the only way in which we can move towards the right direction; otherwise, we will experience cultural hegemony within the state borders and imperialism outside those borders. However, this objective can be achieved by on the one hand considering the protection of human rights, but also by maintaining a level of sensitivity and respect for the identity and the dignity for all human beings on the other.

Taking into consideration the plan for “Grand Design” devised by professor Max Sørensen and having in mind that the work aimed at improving the situation with human rights globally will never cease, we ought to mention occasionally that in order to know where we are headed, we have to know where we currently stand. Thus, this section, which is divided in two chapters, will be extensively dedicated to the individual human rights and freedoms of human beings. Chapter VI talks about the individual civil and political rights and freedoms, which are of particular interest for disabled persons, and Chapter VII will concentrate on individual economic, social and cultural rights and freedoms, which again are of special interest to disabled persons.

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Individual Rights and Freedom

Chapter VI

Civil and Political Rights and Freedoms

1. Right to Freedom and Security The rights of the individual for his or her physical freedom and security are innate in the centre of every state system that declares respect for rule of law. In Magna Carta Libertatum dated 1215, the famous chapter 39 declares that “not one free man can be captured or imprisoned…only by a legally binding decision made by his master or the law of the state” (Nullus liber homo capiatur, vel imprisonetur … nisi per legale judicium parium suorum vel per legem terrae).

The right to “life, freedom and security” given to every man is entailed in Article 3 of the Universal Declaration of Human Rights, where Article 9 forbids “arbitrary arrest, detention or exile”. These articles are of great importance to disabled persons, who find themselves subject to illegal custody. Moreover, with Articles 9 and 10 from the International Covenant on Civil and Political Rights, the basis for the right to freedom and protection from arbitrary arrest is developed “...with an exception and in accordance with such procedures as are established by law”.

Article 9 from the Convention on the Rights of the Child prohibits the separation of children from their parents, except when the latter is absolutely necessary and it is in the child’s interest1. Furthermore, disabled children should not be separated from their parents and taken to a specialised institution, if the latter is not absolutely necessary. Article 20 stipulates that family environment is the most optimal frame for the freedom and security of all children, including those who need special care, in other words, disabled children.

Article 4 from the Declaration on the Rights of Mentally Handicapped Persons provides for securing a regular family life for mentally disabled persons, in which they can remain in the frame of their family surroundings. Article 9 from the same Declaration provides for the right to living conditions in family surroundings, “…with the exception of cases where disabled persons have special health related needs”.

Regionally, the right to freedom and security is articulated in Article 5 of the European Convention for the Protection of Human Rights and Fundamental


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Freedoms. In accordance with Article 5 (1) (e), “…everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …e) in circumstances of lawful detention of … persons of unsound mind…”. The principles applied in cases such as Van Drugenberg1, Wicks1, Tin, Wilson and Gannel1, are also relevant to the procedures applicable to mentally ill persons which are sensitive to the risk of deprivation of their freedom for a longer period of time.

The principle of “legally arresting psychologically restrained persons” was developed in the case of Winterverp vs. the Netherrlands”1, where Mr. Winterverp was forcefully deprived of his liberty during a longer time period between 1968 and 1978, primarily by request from his wife, based on the Mentally Ill Persons Act in 1884. In its judgement regarding this case, the Strasbourg Court outlined three conditions which have to be fulfilled as a minimum, in order to obtain “legal arrest of mentally ill persons”, in accordance with Article 5 (1) (e): except in cases of emergency, appropriate documentation has to be presented in order to prove that the individual in question is mentally ill, in other words, the detected mental illness has to be proven as such before the authorities, based on objective medical expertise; the extent of the mental illness as such that forced arrest can be justified; moreover, the importance of extended custody depends on the persistence of the illness. In addition, according to the same article, the following cases have also been conducted: X vs. Great Britain1 and Johnson vs. Great Britain1.

Furthermore, the same right is considered as the basis for Article 7 from the American Convention on Human Rights and Article 6 from the African Charter on Human and Peoples’ Rights. As we previously outlined,1 Article 6 from the African Charter recognised the right to a person’s liberty and security, but nonetheless, it outlines: “…not one person can be deprived of his freedom, with the exception of conditions previously outlined in the laws”. Since there aren’t any restrictions to those conditions or exceptions, this enables states complete freedom, to suspend or restrict these rights, by endorsing the relevant laws.

2. Prohibition of Torture The idea that the state can misuse its own power by implementing unjustified torture is well known. The injuries suffered during deliberate punishment and other similar treatments are just some of the reasons for the disability. These actions are part of those types of practices, which are

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identified as serious violation of international law, including human rights. The following practices are in the domain of serious human rights violations: amputation as a form of punishment, institutional abuse, forced sterilisation, castration or female genital circumcision1 and forcefully blinding persons in custody.

None of the determined cultural principles or practices can justify this type of behaviour. The latter is against all fundamental human rights and rights to equal value and dignity for all human beings, as well as the integrity of the body. Therefore, the measures for punishment which are implemented in order to disable the individual are in breach of the international human rights law and humanitarian law as well.

The available instruments for human rights protection, particularly the prohibition of torture, inhuman and degrading treatment or punishment on universal level, aside from the Bill of Rights dated from 16891 and the American Constitution1, Article 5 of the Universal Declaration of Human Rights is also of special interest, in which the following is stated: “…No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.

The contents of the Declaration are used in Article 7 of the International Covenant on Civil and Political Rights, which contains the second sentence, applying to the criteria for the individual’s voluntary compliance in case of a medical or scientific experiment. It ought to be mentioned that the International Covenant on Civil and Political Rights goes further than the Universal Declaration because the articles of the Declaration are formulated as prohibitions, while the Covenant imposes positive obligations for the states-signatories, at least in terms of the persons that have been deprived of their liberty. The latter is evident from Article 10 (1), which states: “…all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.

Furthermore, the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, particularly Article 1 is of great interest, because the article defines the term “torture”. Article 1 states that: “…1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at


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the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions; 2. This Article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application”. We need to pay attention particularly to the condition contained in the definition of Article 1 of the UN Convention, namely that the term “torture” is intentionally inflicted.

As previously mentioned, on regional (European) level, when we speak of instruments for the protection of human rights, particularly the prohibition of torture, inhuman or degrading treatment or punishment, it is crucial that we refer to article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and the European Convention on the Prohibition of Torture, Inhuman or Degrading Treatment or Punishment, which represents an important additional structure for the system stipulated in the ECHR1.

Article 3 of the (ECHR) is the central idea behind the European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which was ready to be signed on the 26th of November 1987 and was enforced on the 1st of February 19891. With this Convention, which is considered as the legal basis for introducing the European Committee for the Prevention of Torture, Inhuman and Degrading Treatment and Punishment (CPT), a non-judiciary mechanism is provided for the protection of human rights on European soil. The purpose of the Convention is to create a procedure for supervision for the treatment of persons deprived of their freedom, as well as strengthening, if necessary the protection for those persons from torture and other forms of appalling behaviour. Therefore, the Committee, through its special delegations, visits prisons, police stations and psychiatric hospitals and facilities, with the aim to determine the manner of treatment of persons deprived of their liberty1.

The prohibition of torture, inhuman or degrading treatment or punishment is entailed in Article 5 of the American Convention on Human Rights, Article 5 of the African Charter on Human and Peoples’ Rights, and Articles 16 and 17 of the African Children’s Charter.

Other articles related to the prohibition of torture, inhuman or degrading treatment or punishment include Article 4 of the Universal Declaration for human rights and Article 8 of the International Covenant on Civil and Political Rights, by which the acts of slavery or servitude and every form of

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slave trade are prohibited, as well as enforced or compulsory labour. Additional protocols to the American and European Convention on Human Rights, as well as to the International Covenant on Civil and Political Rights prohibit the death penalty (The Protocol to the American Convention on Human Rights to Abolish the Death Penalty was adopted on the 8th of June 1990 ((OAS Treaty Series No. 73 (1990), Protocol 6 of the ECHR endorsed in 1982 by which the death penalty is abolished during peaceful times, and Protocol 13, by which the death penalty is abolished by all accounts, and the second Facultative Protocol of the International Covenant on Civil and Political Rights, which entered into force on 11th of July 1991). All of these legal texts are closely related to the issues of disability.

3. Right to Freedom of Expression

The freedom of expression of personal opinion is perhaps the most universally acknowledged1 human right. Numerous versions of this particular human right have been revealed in the initial contemporary constitutions, including several constitutions of American states during the 19th century, Article 11 from the French Declaration on Human and Civil Rights, as well as the First Amendment of the US Constitution.

Everyone has the right to freedom of opinion and expression. The latter includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Furthermore, the freedom of expression includes the freedom of thought, conscience and religious background. The freedom of expression entails the freedom of thought, conscience and religion, as well as freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. People with disability enjoy the same right to freedom of expression, equally with other members of society.

Article 19 of the Universal Declaration of Human Rights provides for the right to freedom of opinion and expression, and the freedom to hold opinions without interference.

The right to freedom of expression is articulated in Article 19 of the International Covenant on Civil and Political Rights. Regardless of existing borders, this right entails the freedom to seek, receive and impart information and ideas in any form, either orally, in writing or in print, in the form of art, or through any other media of his choice. Furthermore, the


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exercise of these rights carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: respect of the rights or reputations of others and protection of national security or of public order (ordre public), or of public health or morals.

Moreover, Article 20 provides for a restriction of the freedom of speech, and every member-state prohibits every form of propaganda for war activities and every form of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, by law. The element of disability is not included as basis for instigating national, racial or religious hatred; however, the prohibition of discrimination can be applied to the issue as well.

Rule 1 from the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities is stipulating that: “… States should initiate and support information campaigns concerning persons with disabilities and disability policies”. It stipulates that persons with disabilities are citizens with equal status as all other citizens, with rights and responsibilities. Rule 12 declares that States should encourage measures for equal participation by persons with disabilities in the religious life of their communities. In addition, any form of discrimination based on physical elements, preventing a person from joining the church as a priest, in any religion is prohibited.

Article 14 (1) of the Convention on the Rights of the Child, stipulates the rights of the child’s freedom of thought, conscience and religion. In addition, Article 14 (2) is related to the rights and responsibilities of the parents, and where applicable, the legal guardians to provide direction for the child to exercise his or her rights, in a manner consistent with the development of the child’s capacity.

Article 12 of the American Convention on Human Rights is related to the right of freedom of conscience and religion. It stipulates the same right as it is stated in the Universal Declaration, only on a regional level. Restrictions on this right are not allowed, with the exception of legally endorsed restrictions, which in a democratic society, represent or are necessary for protection of the public safety, order, health, or morals, or the rights or freedoms of others.

A similar provision is included in the ECHR. Article 10 protects expression in a general sense, a term for which perhaps there was an opinion that it has general interpretation to justify the omission by the media, an aspect which is included in the Universal Declaration on Human Rights. The European

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Court on Human Rights has insisted that the opinion related to the freedom of expression “…represents a part of the fundamental roots for a democratic society and one of the basic conditions for its development and for self-fulfilment of every individual”. The nature of “expression” which is protected by this article is not always explicit. Problems can arise particularly when defining expression by activity related to the expression of a particular viewpoint.

The Court rigorously dedicated itself to the issue in terms of when it is appropriate to allow public authorities to intervene in the freedom of expression, in accordance with Article 10. The Article outlines a long list of possible restrictions of freedom of expression, namely: “…the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”. In terms of the boundaries of the restrictions of the right stipulated in Article 10, the following judgements of the European Court on Human Rights can be reviewed as additional material, namely the case of Spykatcher (Observer and Guardian vs. Great Britain) and the case of Sunday Times1.

Article 9 of the African Charter for Human and Peoples’ Rights, outlines the right for every individual to receive information and present his or her opinion, within the framework of the law.

4. Freedom of Peaceful Assembly and Association

The right to freedom of expression is closely related to the right to freedom of peaceful assembly and association, in other words they act as lex gene-ralis and lex specialis.

Every individual has the right to freedom of assembly and association, and no individual can be forced to become a member of an association. Another aspect of this right is the participation in the state apparatus, directly or by elected representatives.

This freedom is articulated in Article 20 of the Universal Declaration of Human Rights, which states: “everyone has the right to freedom of peaceful


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assembly and association; and 2. no one may be compelled to belong to an association”.

Article 21 of the International Covenant on Civil and Political Rights acknowledges the right to peaceful assembly, however it additionally outlines that exercising this right can be the subject of restrictions, in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. Article 22 provides for the right to the freedom of association, including the right to establishing of trade unions and membership in such trade unions. Emphasis is given to the role of trade unions for the protection of the workers’ interest. If we interpret this article extensively, it can also be applied to the protection of all kinds of disability, which can arise from inadequate working conditions.

Article 15 from the Convention on the Rights of the Child obligates the member-states to ensure the child’s rights to freedom of expression of his or her viewpoints. The latter is particularly important for children with mental disability because of their mental maturity. Moreover, this article provides for the obligation by member-states to recognise the right of the child’s freedom of association and the freedom of peaceful assembly, without any imposed restrictions of exercise of these rights, with the exception of those provided for by the law.

On a regional level, Article 11 of the ECHR provides for the right to peaceful assembly and association. However, the article does not explicitly entail the right to equal approach towards state services. The European Court, within its jurisdiction, reviews the freedom of association towards political parties (the case of the United Communist Party vs. Turkey), other types of association (the case of Sidiropulos vs. Greece) and it even extended to the protection of traditional voluntary groups (the case of Sasanue vs. France).

Article 11 only deals with one form of association – trade unions. It was deliberated in several cases for requests, that, in accordance with Article 11, the states were obligated to collaborate with the syndicates and refrain from procedures by which membership in the syndicates or membership in syndicate activities will be the subject to punishment. The European Court did not allow for such broad interpretation of the right to association. In the case of the National Belgian Police Syndicate vs. Belgium, the European Court concluded that, albeit Article 11 in fact entails the right to membership

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and establishing of syndicates, it does not provide for the right for special practice by the state1.

Article 15 of the American Convention of Human Rights provides for the right of freedom of peaceful assembly, restricted only by legal measures. Furthermore, Article 16 is a continuation of the previous article and provides for the freedom of association for ideological, religious, political, economic, labour, social, cultural, sports, or other purposes, again restricted only by legal measures.

The right to assembly is regulated by Article 11 from the African Charter for Human and Peoples’ Rights, and it provides for ethics in the list of restrictions, which is a significant step towards recognising the rights of persons with disability.

5. Right to Respect Private and Family Life

The protection of privacy and family life reflects the devastating experience from the world of fascism in the 1930s and 1940s, in other words the prying practices of the fascist state in the internal family decisions, including the racially restrictive Nazi laws regarding marriage and politics in totalitarian governments of separating children from their families due to political indoctrination.

Article 16 of the Universal Declaration of Human Rights, provides for the right of men and women of full age, without any limitation due to race, nationality or religion, to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. The family is regarded as a “natural and fundamental group unit of society” and is entitled to protection by society and the State. In addition, Article 16 (2) outlines that marriage can be entered into only with the free and full consent of the intending spouses. Article 23 from the International Covenant on Civil and Political Rights reaffirms the latter, adding that “in the case of dissolution of the marriage, provision shall be made for the necessary protection of any children”.

This right is also provided in Article 16 from the Convention on the Rights of the Child. Furthermore, with articles 6, 8, 9, 10, 22, and 37, this Convention elaborates on the rights to family life and family contact for the children.

In Rule 9 of the Standard Rules on the Equalisation of opportunities for persons with disabilities, it is declared that the state shall promote the


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complete participation of persons with disabilities into family life. In Principle 7 from the Principles for the Protection of Persons with Mental Disability and Improving Health Care, the role of the community is underlined, stating that every patient has the right to treatment, if possible within the community of residence.

Article 8 from the ECHR is related to the previously mentioned right. Although the European Court has never accepted a broad definition, it has recognised this right as freedom of personal choice of lifestyle, particularly with regard to sexual orientation. Paragraph 2 of the same Article stipulates that public authorities cannot be involved in the exercise of this right, only in circumstances where their involvement is legally approved or necessary, or by the principles of democratic society. Nonetheless, in some circumstances, the court has evaluated that the respect for a person’s private life might demand a great deal of formal and public procedures. In the case of Geskin vs. Great Britain, the court ruled that Article 8 has been violated by an agency that refused to disclose the contents of classified information related to the childhood of the damaged party, at the time that he was under care of a state institution.

For persons with disability, the case of A and B vs. the Netherlands is also significant, where person B, daughter of Mr. A, is mentally challenged, and since 1970, she had been cared for by a private institution for mentally challenged children. Mr. A forced the child to engage in sexual intercourse, resulting in severe traumatic consequences for the child, and serious mental deprivation. Due to the lack of legal instruments to provide effective protection for Miss B (both provisions from the Criminal Code of the Netherlands which are relevant for this particular case – Articles 248 and 239 (2) did not provide for a practical and effective protection of the victim because of the void in the legal instruments), taking into consideration the nature of the criminal act, the court concluded that the child is a victim of injury, in accordance with Article 8 of the Convention. Article 12 provides for the right to marriage, which is considered as universal and cannot be restricted to persons on account of their disability. In relation to the jurisprudence resulting from this article, the judgements by the European Court for Human Rights for the cases of Irie vs. Ireland and the Johnston case can be additionally reviewed.

In terms of other regional systems for the protection of human rights, Article 17 of the American Convention on Human Rights declares the same right, adding that this right is accepted only if they meet the conditions required by domestic laws, insofar as such conditions do not affect the principle of non-

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.discrimination established in the Convention. Moreover, Article 11 (2) states that: “no one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence or of unlawful attacks on his honour or reputation”.

Article 18 of the African Charter for Human and Peoples’ Rights also provides for the same right, outlining that “... the state will ensure elimination of discrimination against women and children” (Article 18 (3)).

6. Right to Equal Protection before the Law

Article 6 of the Universal Declaration for Human Rights outlines that “everyone has the right to recognition everywhere as a person before the law”. Therefore, the article focuses on the legal subjectivity of the person and underlines that every person enjoys this right, including persons with disability, even if they are not explicitly outlined. Furthermore, Article 7 strengthens the previously mentioned provision, stating that: “… all are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination”.

The International Covenant on Civil and Political Rights, in Article 16, recognises the legal subjectivity of every person everywhere, and Article 26 provides for “… the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as … other status”. Even though disability as a basis for discrimination is not explicitly outlined in the formulation of Article 26, it can nonetheless be included under other status, outlined at the end of this article.

The principle of equality before the law and equal protection without discrimination is articulated in Article 24 of the American Convention on Human Rights.

In the European system for the protection of human rights, Article 14 of the ECHR provides for availability of the rights and freedoms recognised by the Convention, without any form of discrimination.


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7. Access to the Judicial System It is considered that the right to legal assistance is the basis on which other human rights are produced. The right to legal assistance is an integral element of the right to a fair trial. Although treaties in general do not have an explicit provision for human rights in terms of access to the judicial system as a principle of international law for human rights, this concept is included in the statement declaring that: “…all persons are equal before the courts and tribunals”, which can be found in most of the treaties concerning human rights. In Article 14 (3) of the International Covenant on Civil and Political Rights, it is outlined that “…everyone shall be entitled to the following minimum guarantees, in full equality: ... d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it”.

In addition, the UN was particularly active in international treaties for human rights and the work of international criminal tribunes, in terms of enforcing comprehensive standards in the field of criminal activities, primarily through the activities of the United Nations Crime Prevention and Criminal Justice Program.

8. Freedom of Religious Orientation (Religion) The right to freedom of religious orientation is outlined in the Universal Declaration of Human Rights. Article 18 projects that “… everyone has the right to freedom of religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief …”. The right is also included in Article 18 of the International Covenant on Civil and Political Rights. This right includes freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

Article 14 of the Convention on the Rights of the Child provides for the right of children to choose their own religious orientation. As with other conventions, the freedom of religious orientation or conviction can be the

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subject to those restrictions which are regulated by law and which are necessary for public protection and security, public order, health and moral, or for the protection of fundamental rights and freedoms of other persons. Paragraph 48 of the UN Rules for Protection of Juveniles Deprived of Their Liberty, outlines that every juvenile ought to be allowed to satisfy his or her own religious needs.

Rule 12 of the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities declares that states ought to ensure equal opportunities for participation in religious life for all persons with disability, within their community.

Paragraph 136 of the World Program for Activities for Persons with Disability imposes an obligation to the states to ensure equal opportunity for persons with disability, and free and complete participation in religious life within their community.

On a regional level, this right is articulated in Article 12 of the American Convention for Human Rights, as well as Article 8 of the African Charter for Human and Peoples’ Rights, and Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.1

9. Availability of Information The Universal Declaration of Human Rights, with Article 19, projects that every person has the right to freedom of opinion and expression, as well as the freedom to receive and impart information. This right is important for persons with disability, because those persons, in their everyday lives, have a continuous problem with access to information produced by the media. Article 19 of the International Covenant on Civil and Political Rights adds that exercising of these freedoms entails special obligations and responsibilities.

This right is also projected by Article 13 of the Convention on the Rights of the Child, related to the right to freedom of opinion and expression.

Principle 13 of the Principles for the Protection of Persons with Mental Illness and Improvement of Mental Health Care, which prescribes the rights and conditions of mental health institutions, provides for the right of patients to purchase or receive recreational and communication services and objects. The principle includes communication as a basic need for persons with mental illness. Furthermore, principle 11 provides for the freedom of receiving treatment for persons with mental illness. The patient has to be informed of his or her condition and subsequently grant his or her approval


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for further treatment. The approval is given voluntarily, without any pressure, subsequent to an explanation, which the patient is given regarding his or her condition, in a manner comprehensive for the patient. The Vienna Declaration and Programme of Action calls upon all governments, to adopt or harmonise where necessary legislation in order to provide persons with mental illness with their rights. Persons with mental illness ought to have access to all relevant institutions and programs as well as all the relevant information.

Article 13 of the American Convention on Human Rights also provides for this right, and Article 13 (2) prohibits censorship. Moreover, it prohibits “…methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information”. The emphasis is on the prohibition of restricting communication and circulation of ideas and opinions. Thus, this article enables all persons, including persons with disability to have equal access to information.

10. Freedom of Movement

Every person has the right to free movement and is free to choose the residence/domicile within the territory of the person’s country, as well as the right to leave and return to any country, including his own, and the right to request asylum from persecution from any other country. The originators of the International Covenant on Civil and Political Rights have restricted this provision subsequent to numerous complaints from a large number of countries related to this provision. Therefore, Article 12 of the Covenant restricts the right to movement and residence of the person “…lawfully within the territory of a State”, and introduces restrictions on the previously mentioned rights that are “…provided by law and are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others... ”.

The Universal Declaration of Human Rights, in Article 3, includes the right of freedom of movement for every person, in general circumstances.

The Convention on the Rights of the Child, in Article 10, stipulates that the requests submitted by children or their parents to enter into a member country or leave for the purpose of family reunification, the member states will act upon the requests in a positive, humane and expeditious manner. In addition, the emphasis is placed on the right of the child to maintain personal

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and direct contacts with both parents if they reside in different countries, on a continuous basis, with the exception of extraordinary circumstances. The right to leave any country is subject to those restrictions which are legally prescribed and which are necessary to maintain the national security, public order, (ordre public), public health and moral and the rights and freedoms of others.

One of the rights that are of special interest for persons with disability is the right to accessibility, which results from the right to freedom of movement. “The right to freedom of movement”, for persons with physical disability is entirely determined by the conditions set by the state, in other words, by the accessibility of the physical environment. Rule 5 of the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities outlines that “States should (a) introduce programmes of action to make the physical environment accessible; and (b) undertake measures to provide access to information and communication”. Moreover, on a regional level, the European Union is actively working to increase the level of accessibility to infrastructure and activities in the field of culture for persons with disabilities. Therefore, the Council passed a Resolution on 6th of May 2003, encouraging member-states and the Commission, within the framework of their authority to “… introduce ways to integrate persons with disability into the fields of arts and culture and to promote equal possibility for displaying their work”, “increasing the accessibility to cultural events and exhibitions” and “disseminating information via modern information technology”.

11. Prohibition of Discrimination

Prohibition of discrimination is one of the most basic principles of human rights, which emerge from equal value and dignity for all human beings. This principle is articulated in all international and regional instruments related to human rights. Article 1 of the Universal Declaration of Human Rights states: “… all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”. Moreover, Article 2 provides that “…everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction of any kind…”. This is primarily strengthened by Article 7, which declares that “all persons are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination”.


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In addition, Article 16 enables any men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. Article 23 (2) states that: “… everyone, without any discrimination, has the right to equal pay for equal work”. Article 25 is of special interest for persons with disability, particularly women with disability: “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”. In addition, two other articles of the Universal Declaration of human rights separately prescribes that everyone has the right to education (article 26), and everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits (article 27).

Article 14 of the ECHR outlines the following: “...The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.

Article 1 of the American Convention on Human Rights, outlines the following elements, which can act as a basis for prohibited discrimination: race, colour, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. Article 1 (2) explains that the term “person” applies to every human being.

Article 2 of the African Charter on Human and Peoples’ Rights prohibits any form of distinction based on race, ethnic origin, skin colour, gender, language, religion, political or any other opinion, material status, birth origin or any other status. Furthermore, in accordance with Article 28, “…every person has the obligation to respect others without discrimination and maintain mutual relations with the aim to promote, safeguard and initiate mutual trust and tolerance”.

Another provision similar to the previously mentioned regional instruments for the protection of human rights is articulated in Article 2 of the International Covenant for Economic, Social and Cultural Rights. Even though the condition of disability is not mentioned in any of the provisions explicitly, it nonetheless can be included under “any other status”.

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The Convention on the Rights of the Child is the only international instrument for human rights where discrimination based on disability is explicitly outlined in Article 2 (1), which states: “member-states of this Convention will respect and secure the rights of this Convention for every child, without discrimination and regardless of race, skin colour, gender, language, religion, political or any other conviction, nationality, ethnic or social background, disability, origin of birth or any other status of the child or his parent or legal guardian”.

There are numerous other international instruments related to the prohibition of discrimination, particularly if the discrimination is based on disability, for example in the work place. The Convention concerning Vocational Rehabilitation and Employment of Disabled Persons implies that persons with disability cannot be the subject of discrimination in employment. Article 4 of the Convention outlines that “... vocational rehabilitation and employment policy ought to be based on the principle of equal opportunity between workers with disability and workers in general … special positive measures which are implemented in order to attain effective equal opportunity between workers with disability and workers in general, will not be considered as discrimination against other workers”.

The International Labour Organisation-ILO, has also adopted a Convention for Protection against Discrimination in terms of Employment and Vocation, related to discrimination against persons with disability in employment. Article 1 (1) of this Convention contains the definition of discrimination. Article 1 (5) also contains an anti-discriminatory clause related to Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources. Other obligatory legal act endorsed in the frame of the ILO is the Recommendation related to Vocational Rehabilitation and Employment of Persons with Disability. Paragraph 7 of this instrument outlines that “persons with disability can enjoy equal opportunity in the access and progress at the workplace which, wherever possible, corresponds with their choice, and takes account of individual capabilities for such employment”. Furthermore, Paragraph 4 declares that “… measures for vocational rehabilitation ought to be available for persons with disability of all categories”. Paragraph 2 of the Declaration on the Rights of Disabled Persons, outlines that disabled persons can enjoy the right projected by this Declaration related to employment “... without exception or discrimination … will be exercised by the disabled person or his family”. Paragraph 10, outlines the positive obligation of member states to accept the necessary measures for the protection of disabled persons against “exploitation, degradation or discrimination”.


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Furthermore, the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities represent an important guide for prohibiting discrimination of disabled persons in the field of employment. Rule 7 (1) states that the Law on employment “… should not be discriminatory or create any obstacles in the employment of disabled persons.”

Paragraph 63 of the Vienna Declaration and Programme of Action confirms that all human rights and basic freedoms are universal and “... 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. The World Conference on Human Rights calls on Governments, where necessary, to adopt or adjust legislation to assure access to these and other rights for disabled persons”. Additionally, the Declaration refers to the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities and outlines that “… persons with disabilities should be guaranteed equal opportunity through the elimination of all socially determined barriers, be they physical, financial, social or psychological, which exclude or restrict full participation in society.”

12. Participation in Political Life

Article 21 of the Universal Declaration on Human Rights states that “... 1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives; 2. Everyone has the right of equal access to public service in his country; and, 3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures”. In addition, polling stations should be entirely accessible to disabled persons. Article 25 of the International Covenant on Civil and Political Rights outlines that every citizen has the right and opportunity, without any form of discrimination and unjustified restrictions, to take part in the conduct of public affairs, directly or through freely chosen representatives; to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free

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expression of the will of the electors; and, to have access, on general terms of equality, to public service in his country.

Article 16 of the ECHR provides for the protection of foreigners from imposed restrictions on their political activities.

Article 23 of the American Convention for Human Rights predicts the right to participation in the political life by every citizen. In addition, paragraph 2 projects the legal regulation of the conditions for exercising this right related to age, nationality, language, education, civil and mental capacity. In terms of persons with disability, in accordance with this Convention, their participation in political life may not be subject to any restrictions.

However, general practice shows inconsistencies regarding this issue, and eo ipso on one hand, it imposes the question of the participation by disabled persons in political life, and the depraving of their civil capacity based on mental disability, on the other hand. The dilemma is the point where the line can be drawn and thereby avoiding violation of the rights enjoyed by a particular group of people? Thus far, the practical experience has yet to provide an answer.Article 13 of the African Charter for Human and Peoples’ Rights, provides for the right to free participation in political life for every citizen in their country.

13. Right to Possession The right to possession, which is related to all persons equally, including persons with disability, is projected in all regional instruments regarding human rights.

On a European level, the latter is achieved by Protocol 1 to the European Convention for Protection of Human Rights and Fundamental Freedoms, where Article 1 (1) outlines that: “... every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

Article 21 of the American Convention on Human Rights stipulates that “... everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society”.

Article 14 of the African Charter on Human and Peoples’ Rights outlines that “... the right to property is guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws”.


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Frequently, the difference between the spirit of the provisions incorporated in international instruments for human rights and their practical implementation is quite distressing. For example, in the Republic of Macedonia, the right to personal possession in institutions that care for disabled persons does not exist. These persons do not possess even their own clothes (i.e. the right to retain their clothes after they have been washed). An interesting situation occurred when the Polio Plus- Movement Against Disability activists decided to purchase a bike for Ali Turkjan, a resident of the Special Institution of Demir Kapija; the bike was intended as an award for his efforts in the Creative Workshop within the Institution, with funds generated from the sale of Ali’s own work. It took two years to “persuade” the employees of the Institution that the bike was in fact owned by Ali, and not by the Institution.

14. Right to Seek Asylum Article 14 of the Universal Declaration of Human Rights outlines that “...everyone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations”. Prosecution based on disability is not permitted. However, this instrument does not regulate the issue of granting asylum; it only provides for the possibility for persons to seek asylum.

Article 22 (7) of the American Convention on Human Rights, regulates the right for every person to seek and be granted asylum in a foreign territory “... in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offences or related common crimes”.

The Convention Relating to the Status of Refugees of the United Nations adopted in 19511 with Article 33 (1) outlines that member states cannot expel or return (“refouler”) the refugee on the territory of the country where his life and freedom would be endangered.

Article 23 of the Vienna Declaration and Programme of Action reiterates that “... everyone, without distinction of any kind, is entitled to the right to seek and to enjoy in other countries asylum from persecution, as well as the right to return to one's own country”. It ought to be mentioned that threatening or violation of human rights during conflicts is one of the reasons for disability.

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Chapter VII

Economic, Social and Cultural Rights and Freedoms

1. Right to Work

1.1. General Provisions for the Right to Work

Many persons with disabilities are unemployed, or are given menial or poorly remunerated jobs. This is true, even though it can be demonstrated that with proper assistance, training and placement, the great majority of persons with disabilities can perform a large range of tasks, in accordance with the prevailing work norms. In times of unemployment and economic slump, persons with disability are usually the first ones to be fired or the last ones to be employed. Therefore, certain measures ought to be implemented to ensure equal opportunities for persons with disability for productive employment in the free labour market.

Article 6 of the International Covenant on Economic, Social and Cultural Rights outlines that “…states-signatories to the Accord recognise the right to work, including the right for every person to have equal opportunity to provide for his livelihood through employment which he has chosen or accepted freely”.

The right to work is also included in regional instruments. Article 1 of the European Social Charter explains that “…every person will have an opportunity to work for his livelihood by employment chosen by his free will”.

Article 6, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, outlines that “every person has the right to work”.

Article 15 of the African Charter on Human and Peoples’ Rights declares that “every person has the right to work” is a fundamental element.

Specifically, in terms of persons with disability, the Declaration on the Rights of Disabled Persons in its 3rd paragraph states that persons with disability “…have the right to be productive in any employment post be employed in any profession which will realise their productive capacity”. Similarly, paragraph 7 of the Declaration on the Rights of Disabled Persons


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includes “…the right to secure productive and useful employment or professional engagement, in view of their capacity and capability”.

Rule 7 of the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, under the title Employment, prescribes that member states “…should recognise the principle that persons with disability ought to be entitled to exercise their human rights, particularly in the field of employment”. This statement explains that disabled persons have the fundamental right to employment. Rule 7 also emphasises that “…disabled persons also must have equal rights in rural and urban areas, in terms of productive employment in the labour market”.

On a regional level, one of the most significant legal acts of the European Union is the Directive of the Council 2000/78/EC, passed on the 27th of November 2000, regarding the implementation of a general frame for equal procedures in employment and vocation; Article 5 of the Directive is particularly directed towards disabled persons, emphasising that “…the employer ought to take the necessary measures, in order to enable disabled persons full access, participation and progress at their employment posts or training, with the exception in circumstances when such measures would represent disproportional cost for the employer…”1.

The revised Disability Discrimination Act of 1995, which was enforced on the 1st of October 2004, the right to employment provided for by declaration, was transformed into practice. The right to employment projects that all service utilities should adjust their vicinities in order to be easily accessible for disabled persons. Furthermore, all undertakings, regardless of their size or capacity should devise concrete action plans and measures, which should be implemented in a timely framework. They can be exempted from this rule only in circumstances when those actions or measures could endanger the welfare and security of the disabled persons in case of, for example, evacuation due to fire. In addition, during the process of employment, promotion or dismissal, discrimination by the employer towards disabled persons is explicitly forbidden.

. 2. Right to Develop Work Skills

The right to developing work skills is extremely important for disabled persons, because the improvement of their work skills increases their capacity for independence and builds their self-respect. It is quite superfluous to point out that the development of skills through professional

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training increases the possibilities for disabled persons, which leads to higher competitiveness on the labour market.

Paragraph 132 of the World Program of Action for Disabled Persons contains a list of services that have to be provided for disabled persons, in order to improve and secure equal opportunity for more productive and effective employment. These services should include vocational assistance and direction, vocational training, acquiring and maintaining posts.

Paragraph 33 of the Tallinn Guidelines for Action on Human Resources Development in the Field of Disability projects that “…disabled persons have the right to receive vocational training and work in equal conditions as the rest of the labour force”.

Paragraph 6 of the Declaration on the Rights of Disabled Persons states that “…disabled persons have the right to…education, vocational training and rehabilitation…that will enable then to develop their skills and ability to their utmost capacity and will accelerate the process of their integration into society”.

In accordance with Article 1 (5) of the ILO Convention No. 142, states are expected to implement the programs and policies for “…encouraging and enabling all persons, on an equal basis and without any form of discrimination, to develop and use their work skills…’. Specifically, the Convention outlines that states will “…adopt and develop broad and coordinated policies and programs for vocational direction and expert training” (Article 1). Article 3 (1) is specifically related to disabled persons, outlining that “…every member will gradually broaden their systems for vocational direction, including producing continuous information regarding employment opportunities, aiming to secure the most detailed information and the most specific direction available to…disabled persons.”

The Recommendation concerning Vocational Rehabilitation of the Disabled Persons- ILO Recommendation No.99, underlines the different existing principles and methods for vocational direction, expert training and employment for disabled persons. Paragraph 2 projects that professional rehabilitation services should be available to all disabled persons. Paragraph 3 states that “…all necessary and applicable measures should be considered and implemented, in order to utilize and develop a specialised service for vocational direction for disabled persons who need assistance in choosing or changing their profession.” Paragraph 5 states that the principles for expert training, which are generally implemented during training programs for


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persons without disability, should also be available for persons with disability, if physical and educational conditions allow it.

The Recommendation concerning Vocational Rehabilitation and Employment of Disabled Persons aims to encourage members to improve vocational rehabilitation and assistance for the employment of disabled persons. Article 15 and Articles 31 to 37 emphasise the importance of employers’ organisations and employees’ organisations, and society itself in terms of the vocational rehabilitation and assistance during employment. Article 20 provides for the necessity of special efforts in order to secure availability of the services for vocational rehabilitation to disabled persons in rural areas and more isolated societies, at the same level and in the same manner as in urban areas. Part VII is related to contribution by disabled persons and their organisations towards the development of the services for vocational rehabilitation. Article 38 emphasises the requirement for taking measures in order to include disabled persons and their organisations in the development of vocational rehabilitation services.

Rule 19 (3) of Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, provides for “…the states’ responsibility to develop training programs in collaboration with associations for disabled persons, and that disabled persons should be included as instructors, tutors or advisors in the training programs for personnel.”

Paragraph 4 (1) ILO Recommendation No. 150, projects that “…members should adopt and develop comparative and coordinated policies and programs for professional direction and training, which are closely related to employment, particularly in public services for employment.” Furthermore, paragraph 5 (1) outlines that member states should implement and develop open, flexible and complementary systems for general, technical and expert education, regardless of whether these activities will take place in the framework of the formal educational system or outside of it. Paragraph 5 (2) determines that every person has access to professional direction and professional training. In addition, paragraph 7 (1) projects that members ought to be inclined towards providing adequate programs for all disabled persons. Chapter VII is particularly concerned with disabled persons: “If proven as useful, disabled persons should always have access to programs for vocational direction and vocational training, which are available for the general public. Otherwise, disabled persons should have access to specially adjusted programs”.

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Articles 9, 10, and 15 of the European Social Charter project the right for vocational direction and training. Article 9 outlines that states ought to “…provide or promote, subject to requirement, services which will enable all persons, including disabled persons, to resolve any problems related to vocation and promotion, while recognising the individual characteristics and their consideration regarding possible professions…”. This type of assistance should be free of charge for youth, including students and adults. Article 10 outlines that “…all parties subject to the contract are obligated to…secure or promote, where necessary, technical and professional training for all persons, including disabled persons, by contract with employers’ organisations, as well as guarantee a facilitated approach to a more advanced technical and higher education, based solely on individual capacity”. Article 15 emphasises the right to vocational training, rehabilitation and social adjustment for persons with physical or mental disability.

1.3. Equitable Recruitment Measures and Policies

The policies for just employment must include equal representation for disabled persons. Employment of disabled persons requires that these persons work on a level acceptable to their capacity and concentration, which in turn will enable their (re)integration into the labour force. The latter should include measures that will secure access to employment opportunities by direct representation and secure large number of employees with disabilities on the labour market.

In order to secure fair policies for representation of disabled persons, those policies must provide positive encouragement for the employment of disabled persons. In fact, policies for affirmative action are considered as necessary measures, directed towards providing equal opportunity for disabled persons and their competitiveness in the labour market on the same level as persons without disability.

The definition for discrimination, outlined in Article 1 of the Convention concerning Discrimination in Respect of Employment and Occupation - ILO Convention No. 111, does not include disability as basis for discrimination. However, Article 1 (2) outlines that the term discrimination includes “…all other forms of differentiation, exclusion or preference that results in the annulment or inequality of opportunity or treatment during employment or vocation, which can be applied by the concerned party, subsequent to consultation with the representative of the employees’ organisation or employers’ organisation…”. Thus discrimination on the basis of disability


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can be detected between the provision of this Convention, if the latter is determined by the member itself.

Article 5 of the Convention emphasises the necessity for special measures for the protection of disabled persons during employment. Thus, “…any member state subsequent to consultations with employers’ and employees’ organisations, where available, can provide special measures created to fulfil the requirements by persons due to special needs, such as…disability…or because they have need for special protection or assistance, which will not be considered as discrimination”.

ILO Convention No. 159, underlines the rule for adequate training and employment of disabled persons, not only in specialised institutions and workshops, but also in training centres and the free labour market, along with persons without disability (Article 3). The Convention stipulates that the employers’ and employees’ organisations, along with governments and organisations for disabled persons, take full responsibility for enabling these persons to exercise their rights. Article 7 states that “...the authorities should take measures aiming to secure and develop adequate services for the employment of disabled persons, maintaining and promoting them in their employment posts....”. Article 4 clarifies that all positive measures aimed at equalising opportunities for disabled workers cannot be regarded as discrimination against workers without disability. Articles 2 and 5 provide for consultations with employers’ and employees’ organisations during implementation of national policies for vocational rehabilitation and employment of disabled persons. Article 8 outlines that all necessary measures will be taken for the promotion and development of services for vocational rehabilitation in rural areas and other isolated communities. This Convention also contains a description regarding policies for representation.

Moreover, the Recommendation regarding vocational rehabilitation and employment of disabled persons prescribes the responsibility for all states to support the full approach towards the labour market via policies for representation (paragraph 11 (a)). In addition, the Recommendation recognises that the latter isn’t always possible and includes “…solid and continuous support by the government for incorporating different types of special employment posts for disabled persons, for which the free approach to employment is not always applicable (paragraph 11 (b)).

Article 15 (2) of the European Social Charter outlines that the states-signatories should secure “…adequate measures for the employment of

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disabled persons, for example specialised services for employment and measures for encouraging employers to employ disabled persons”.

The Recommendation relating to the vocational rehabilitation of disabled persons outlines different methods for extending the possibilities for employment and special employment of disabled persons. Paragraph 28 outlines that “…certain measures should be implemented, in close collaboration with employers’ and employees’ organisation, in order to promote the utmost possibilities for the employment of disabled persons as well as maintaining their employment post”. Paragraph 29 states that the measures should be based on the following principles: “...disabled persons should be offered employment opportunities for a post according to their qualifications, equal to those for persons without disability”; disabled persons should have the opportunity for adequate employment by their choice; the emphasis should be on the capacity and skills of disabled persons, as opposed to their disability.” Paragraph 30 specifies that the measures that will be implemented should include research designed for future analysis and demonstration of the working capacities of disabled persons as well as increasing and maintaining awareness of the matter. Paragraphs 32 and 35 are specifically related to special employment. Paragraph 35 of the Tallinn Guidelines for Action on Human Resources Development in the Field of Disability provides for the fact that employment opportunities “…can be initially promoted by measures relating to the standards for employment and salaries, which are applicable for all employees, and as a subsequent element, by measures intended for special support and stimulation. As an additional element to formal employment, the possibilities should be extended towards self-employment and cooperatives and other group schemes which result in revenue”. The Paragraph continues with the following, “…in areas where national employment campaigns have begun intended for youth and the unemployed, persons with disabilities should also be included. They should be actively represented, and in cases where both persons with and without disability are equally qualified, the candidate with the disability should be chosen for the position.”

The World Program for Action for disabled persons states in its 128th Paragraph that member states should “…apply policies and create a structure supported by the support services, which will enable disabled persons, particularly those from rural and urban areas equal opportunity for productive employment on the free labour market”. Moreover, Paragraph 129 outlines the proposed methods by which states can support the integration of disabled persons in the free labour market. Paragraph 131 is related to the collaboration on a central and local level between governments


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and employers’ and employees’ organisations, “…aiming to develop a common strategy and common action plan for providing numerous and improved employment opportunities for disabled persons. And, …the central and local authorities, when they are the employers, should promote the employment of disabled persons in the public sector. The legislation and regulation should not produce obstacles for the employment of disabled persons”. (Paragraph 133).

The Standard Rules on the Equalisation of opportunities for persons with disabilities obligate the states and other organisations to support the fulfilment of the policies directed at the representation of disabled persons. Moreover, paragraph 7 (2) projects that states should actively support the integration of disabled persons in free employment, and outlines the manner in which the state should pursue this objective. Rule 7 (6) outlines that “…state, employers’ and employees’ organisations should collaborate in order to secure equal representation and promotional policies…”. Rule 7 (7) summarises that “…the objective should be employment for disabled persons, and the smaller units for specialised and approved employment should be an alternative. It is important to achieve recognition of the quality of the programs by their level of relevance and usefulness”. Rule 7 (8) also adds that “…measures should be implemented for the inclusion of disabled persons in training and programs for employment possibilities in the private and informal sectors.”

1.4. Fair and Equitable Employment Conditions

In order to attain equal rights for disabled persons, particularly in the area of employment, it is necessary to implement international norms related to those conditions and fair salaries. Equal employment conditions include special measures by which disabled persons receive guarantees for equal opportunity and equal conditions, in which they will carry out their professional tasks, effectively and safely.

Paragraph 7 of the Recommendation relating to the vocational rehabilitation and employment for disabled persons states that “…disabled persons should enjoy equal treatment and opportunity in terms of employment, and for the maintenance of their position, as well as promotion”. Moreover, Paragraph 10 declares “…measures should be implemented for the promotion of employment opportunities for disabled persons, which satisfy the employment and salary standards, and which are applicable for employees in

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general”. Paragraph 11 projects a broad scope for possible measures that should be applied.

The International Covenant for Economic, Social and Cultural rights, in Article 7, asserts that states will recognise that every person has the opportunity to exercise the right for just and favourable working conditions. The latter includes 4 central components: financial compensation; safe and healthy working conditions; equal opportunity to be promoted to an appropriate higher level; rest; and calculated and reasonable restriction of working hours, as well as paid holiday and compensation for national holidays.

The protection of working conditions is provided for by the European Social Charter, in Articles 2 and 3, as well as in Article 7 of the Protocol of San Salvador.

Paragraph 25 of the Recommendation related to the vocational rehabilitation for disabled persons, states that disabled persons should not be subject to discrimination in terms of salaries and other employment conditions, if their work-related responsibilities and tasks are equal to those carried out by persons without disability.

Rule 7 of the Standard Rules on the Equalisation of opportunities for persons with disabilities provides several different measures that should be implemented in order to attain and secure fair and equal opportunities and employment conditions. Rule 7 (3) provides that states’ action programs should include “…measures for creating and adapting to work places, so that disabled persons can have easier access towards them; support for the use of new technologies, and development and production of support tools and equipment for disabled persons, which will enable them to gain and maintain employment; providing applicable training, employment and ongoing support, for example: personal assistants and interpreter services”.

The World Program for Action for disabled persons connects the recruitment policies with “…measures to improve the working environment” (Paragraph 131). In several paragraphs, the Program describes the measures which ought to be implemented in order to secure protection at the work place, as well as to avoid any work-related injuries or illnesses. Paragraph 95 of the Program states that “…technology for the prevention and control of most disabilities is available and is being completed, however it is never fully utilised. Member states should take certain measures in order to prevent disability as well as to raise awareness in terms of relevant information and technology”.


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The report titled Disability prevention and rehabilitation - Outcome of the WHO Expert Committee on Disability Prevention and Rehabilitation, WHO, Geneva 1981, offers a review of the services for rehabilitation technology and the issues related to the attainment of similar tasks, such as organisational personnel, and those of an administrative nature.

2. Right to Education

Disabled persons are often excluded from mainstream education. Since education is essential for employment in many spheres, and a prerequisite to economic independence, the right to education is of special significance for the disabled. Education is also an important part of the rehabilitation process as disabled persons develop their capacities to become more independent and integrated into mainstream society.

The most important step for integrating disabled persons into the mainstream life is education. The legal foundation of the general entitlement to education is of little importance if no additional positive measures are introduced to ensure the access to high-quality primary, secondary and higher education for children, youth and adults with various types and degrees of disability. It is essential that there are no obstacles – legal, physical, or psychological, that would impede the access for disabled persons to education, as it is important to provide such persons with special education when needed and, if possible, to enable them to obtain education in an integrated environment. It is necessary to take into account the special educational needs of disabled persons and the socio-political reality of each state.

Also, it is important to highlight the meaning of education, not only as a part of rehabilitation, but also as a part of prevention. A high percentage of disabilities are a direct result of lack of information, poverty and poor health conditions, which may be prevented by means of adequate education.

2.1. Access to Education Access to education is the most fundamental aspect of the right to education. This is why it is essential to ensure the removal of all legal and technical obstacles and to undertake positive measures to facilitate access to education for all disabled persons. Several international instruments appeal for a uniform approach to education for disabled persons. General provisions related to the above may be found in Article 1 of the Convention against Discrimination in Education, paragraph 2 of the Salamanca Statement,

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article 1 of the Sundberg Declaration, and the pledge in the Copenhagen Declaration and Programme of Action. The goal of this obligation for a universal approach to education is the eradication of poverty, promotion of full and productive employment, and the fostering of social integration.

The Convention against Discrimination in Education confers a whole range of duties on states, for the purpose of eliminating and preventing discrimination in education. Although disability – as grounds against which discrimination is forbidden – is not explicitly mentioned in Article 1, it may still be deemed to be one of the factors determining the social origin of an individual, and differentiation on the basis of social origin is explicitly forbidden in this article. Article 3 binds signatory states to prevent and eliminate discrimination in education. Article 4 requires that Member States promote equality in educational opportunities.

Some international instruments provide more specific guidelines and areas of interest related to access to education. The Universal Declaration on Human Rights (Article 26) calls for free and mandatory education ”... at least in the basic and fundamental stages, ”, whereas Article 13 of the International Covenant on Economic, Social and Cultural Rights adds that “… secondary education, in its various types, including both technical and vocational education, should be both general and accessible for all through appropriate measures and especially through gradual introduction of free education.” In Article 23, the Convention on the Rights of the Child also points to the need for “…free services-whenever possible-and taking into account the income of the parents or guardians of the child.”

Article 13 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights confers a general right to education, including free and mandatory primary education. Furthermore, Article 13 (3) requires that the signatory states secure funds for special education programs, which are adapted to the special needs of persons with disabilities.

Article 17 of the African Charter on Human and People’s Rights advises that each individual should be entitled to education.

Rule 6 of the Standard Rules on Equalization of Opportunities for Persons with Disabilities emphasizes that states are to pay particular attention to certain vulnerable groups of disabled persons, such as very young children, girls, women and persons with the most serious disabilities.

Article 3 (1) of The World Declaration on Education for all-Meeting Basic Learning Needs outlines the principle that basic education should be


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provided to all children, youth and adults. In particular, article 3 (5) states that the learning needs of disabled persons require special attention and that steps need to be taken to ensure equal access to education for all categories of disabled persons as an integral part of the education system.

his special attention for the various groups of disabled persons implies that equal opportunities should be accessible to them throughout all levels of education, such as: pre-school education, primary and secondary schools, universities, and adult education programmes. This is one of the problems tackled by the World Programme of Action concerning Disabled Persons. The Word Programme of Action also calls for special attention to disabled persons in rural areas and highlights problems caused by travelling distances.

The right to education of children has been underlined by the International Conference on Children’s Rights In Education- Convened by the Danish Ministry of Education (Denmark 26-30-April 1998), which was based on the Convention on the Rights of the Child. The convention elaborated on the following issues that particularly refer to children with disabilities:

• Education is a right, not a privilege;

• The inclusion of children and their complete development must be supported by all educational goals, setting and practises.

• The existing barriers to implementation of the rights of children to education may be overcome and

• Education must respect individual, contextual and cultural differences.

The Sundberg Declaration refers to education of disabled persons Article 1 states that “…every disabled person must be provided with the right to exercise his own fundamental right to full access to education, training, culture, and information.” Article 2 provides that the states, national and international organisations must take efficient actions to ensure the highest possible inclusion of disabled persons. Furthermore, Article 5 states that disabled persons ought to have access to educational programmes adjusted to their own special needs. In accordance with Article 11, disabled persons have to be provided with institutions and equipment necessary for education and training.

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2.2 Quality of Education

Quality of education of disabled persons should be of the same quality of the education of persons without disabilities. Similarly, the quality of education should be equal regardless of gender, age, or degree of disability.

The international instruments underline the need to guarantee high standards of education for all. This is guaranteed in the Universal Declaration on Human Rights (Article 26(2)) and the International Covenant on Economic, Social and Cultural Rights (article 13(1)), which states that: “…education will be directed towards complete development of the human personality”. In this sense, the Sundberg Declaration says that education should pronounce self-fulfilment of all disabled persons and their full participation in social life.

Article 23 (3) of the Convention on the Rights of the Child states that: “…disabled children shall have effective access and shall receive education…in a manner conducive to the child’s fullest possible social integration and individual development, including his or her cultural and spiritual development”. Article 6 of the Convention Against Discrimination in Education describes the goals of education, which include full development of the human personality, strengthening of the respect for human rights and promotion of understanding tolerance and friendship among all nations. The Salamanca statement envisages that Member States “…shall give the highest policy and budgetary priority to the improvement of their education systems…” (point 3).

The content of educational programs should be harmonized with the high standards and needs of the individuals, for the purpose of enabling them to fully take part in the development of society.

Rule 6 of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities states that “…quality of education should reflect the same standards as general education and should be closely linked to it”.

Paragraph 122 of the World Programme for Action Concerning Disabled Persons says that educational services for disabled children and adults should be universal, individualized i.e. leading towards the projected goals, which are regularly examined and revised, and should offer a spectrum of choices comparable to the spectrum of specific needs in any one community.Paragraph 2 of the Declaration on Rights of Persons with Mentally Retarded Persons confers the right of persons with mental


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disability to receive such education as will enable them to develop their abilities and their maximum potential.

Articles 27 and 28 of the Tallinn Guidelines for Action on Human Resources Development in the Field of Disability state that the quality and content of education should prepare student with disabilities for an independent life and for inclusion into the economic mainstream.

2.3. Integrated Education

Integrated education means that disabled persons are entitled to be educated in the same schools and to follow the same curriculum as non-disabled students. Integrated education may include special education, provided that this education takes place in special departments in regular schools or as additional support in regular classes. Integrated education is the key to equal educational opportunities for disabled persons. It maximises the opportunities for disabled persons to participate in society and it eases the transition from schools to workplaces.

Many international instruments are focusing on the integrative function of education. According to the Sundberg Declaration (article 6), “… educational, cultural and informative programmes and training programmes must aim at integrating disabled persons into the ordinary living and working environment”. The Convention on the Rights of the Child also supports the inclusion of children with disabilities into the regular education systems and social surroundings.

The World Programme of Action Concerning Disabled Persons includes paragraph 120, which calls on Member States to adopt policies ”… that acknowledge the right of disabled persons to educational opportunities equal to the opportunities of other persons”. More explicitly, it says that “…education of disabled persons should- as much as possible- be carried out within the regular school system”.

The Salamanca Statement on education of individuals with special needs calls for inclusion of children with disabilities into the regular education system, which should be a norm in the education of all children with disabilities. Pursuant to the Framework of Action report, all children, regardless of their physical, intellectual, social, emotional or other conditions, should attend regular schools. Furthermore, the Statement adds “… regular schools where this inclusive orientation is included are the most effective means of combating discriminatory views for creating accepting

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communities, for developing inclusive societies and for achieving education for all. Moreover, these schools ensure effective education for the majority of children and improve the efficiency and, ultimately, economics of the entire educational system”.

The United Nations Children’s Fund estimates that 90% of children with disabilities may join the regular educational programmes, provided that certain preconditions are met. Regular schools are expected to educate children with minor disabilities who need little support, but it is better if all children could have access to the regular school system. This certainly calls for special measures, in order to satisfy the needs of students with disabilities.

First of all, as emphasized in Rule 6 of The Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Member States must have a clear policy that will be comprehended and accepted at the level of schools and the broader community. These policies and financial arrangements should encourage and facilitate the development of inclusive schools and the removal of barriers, which impede the transition from special to regular schools. The curricula should take into account the individual discrepancies and circumstances and should place special attention on children and youth with severe and multiple disabilities.

In accordance with the Salamanca statement and its Action Programme, it is required that changes are introduced in school management. Local administrators and school principals should be given the necessary authority and appropriate training, so that they have a decisive role. They should develop more flexible management procedures, engage resources, develop various learning options, mobilise “child-to-child” assistance, offer support for children with difficulties and establish close connections with the parents and the community. Principals should be primarily responsible for promoting positive attitudes throughout the school community as well as for implementing efficient cooperation between teachers and supporting staff.

In addition, international instruments underline the need of curriculum flexibility, addition and adaptation. Curriculums should be adjusted to the needs of children, in accordance with the principal that all children should be provided with equal education, such that will meet their various individual needs.

Support services are necessary in order to enable children with disabilities to obtain the same education as non-disabled children in regular schools. The facilities and equipment necessary for meeting the needs of disabled students


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are described in international instruments. The Standard Rules on the Equalization of Opportunities for Persons with Disabilities also mention the obligation to provide interpretation services.

The Salamanca Statement and its Framework of Action show the need of special materials and support teachers. Schools should have programs for support and, wherever necessary, assistance by expert teachers and external supporting staff. Adequate and accessible technology should be used when it is necessary to achieve higher grades, improve communication, mobility and learning. Training institutions and special schools are also very useful in the facilitation of providing this support. They may ensure access to new, innovative methods, as well as to special aids that are not provided in regular schools. Article 11 of the Sundberg Declaration-regarding the equipment required- stresses the importance of enabling developing countries to manufacture such equipment.

2.4. Special Education Nevertheless, not all disabled persons can follow education in mainstream schools. This is why they need a special form of education. This special education may be provided in special boarding schools or in special day schools and may be divided into different categories, according to the specific needs of disabled persons with various disabilities.

The goal of special education is to allow for “…all disabled persons, especially those with communication problems” to have access to educational programmes adjusted to their specific needs, “…with the aim of using their maximum capacity for serving society” (Article 5 of the Sundberg Declaration).

However, special education should be directed only towards students with serious and multiple disabilities and should be aimed at preparing them for obtaining education in the regular school system by integrating special educational services into mainstream education (Rule 6 (8) of The Standard Rules of Equalization of Opportunities for Persons with Disabilities).

Pursuant to standard rules for equal opportunities for persons with disability, Rule 6(9) states that special education may be appropriate especially for deaf and/or blind people, due to their special communication needs. This education may be provided in special schools or special departments within the regular schools. In any case, special education should not prevent individuals from following the regular curricula, although it is important to

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pay attention at the early stages on the instruction given “… that will result in effective communication skills”.

The United Nations Rules for the Protection of Juveniles Deprived of their Liberty guarantee that each youth-at the age at which they should attend special education-is entitled to education appropriate to his/her needs and abilities and that is designed to prepare him/her for reintegration in society. Of course, practise tells a different story.

2.5. Teacher Training

Teacher training is especially necessary in order to enable children and youth with disabilities to fully enjoy the advantages of the regular educational system. The Salamanca Statement requires from the Member States the provision of programs for training of teachers, which will focus on the provision of education for special needs in the inclusive schools. The Sundberg Declaration - in Article 9 - states that educators and other professionals responsible for the education programmes must be qualified to cope with the specific situations and needs of disabled persons. ”Their training must, consequently, bear in mind this request and be brought up on a regular basis”. Regarding the same issue, The Standard Rules of Equalization of Opportunities for Persons with Disabilities (rule 6 (6) (c)) appeals to the member states to provide continuous training and support for teachers, for the purpose of ensuring that education of disabled persons is an integral part of the educational system.

Also, the Tallinn Guiding Principals for Action on Human Resources Development in the Field of Disability states in paragraph 29 that the overall teacher training programme should include a course for learning skills of teaching children and youth with disabilities in the regular schools. Furthermore, paragraph 30 requires that the Member States develop national plans for training and employing an appropriate number of staff, including disabled persons.

The various training programmes provide all students and teachers with an orientation on disability. The required knowledge in schools includes: assessment of special needs, adjustment of the curricula, use of assistive technology, individualisation of teaching procedures, etc; not forgetting that the priority is to meet the needs of the students. Specialised training for education for special needs should include all types of disabilities, prior to further specialisation in one or more specific area of disability.


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Universities should play a significant role regarding research, assessment, preparation of teacher-trainers, and development of training programmes and other types of materials. The development of textbooks and the organisation of seminars for local administrators, supervisors, principals and senior teachers is unavoidably necessary, so that they may develop their capacities, be leaders in these fields, and provide support and training for the less experienced teaching staff. Also, cooperation needs to be established among the teachers, specialists, and parents, and disabled persons need to be

included in the research and trainings. In addition, what is important in the educational systems is the existence of educational personnel with disabilities, which will set examples for the disabled persons of how to overcome their disabilities.

2.6. Vocational Training

In order to ensure equal access to vocational training for disabled persons, there is a need to have laws in place. The transition from school to the workplace is most successful when it is already incorporated in the educational program. In this sense, the right to education may be looked upon as the first step to the right to employment.

The norms and standards for vocational training in the field of employing disabled persons are explained above1. The following are specific instruments in this area: the Convention Concerning Vocational Rehabilitation and Employment (Disabled Persons), and the Recommendation Concerning Vocational Guidance and Vocational Training in the Development of Human Resources.

3. Right to Health Care Legislation should be aimed at providing effective exercise of the right to health care, without any discrimination. All individuals should have health insurance and the necessary assistance at hand, without any financial barriers.

In their national health care systems, governments should give priority to the special needs of the disabled. The responsibility of creating policy must be accepted at all levels, for the priorities in the overall national development to take into account these needs and to strengthen the aspects of life that are preconditions for health. Prior to commencing the reforms of their national health protection systems, Member States should define the types of

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financing of health care to be used, in order to enhance the resources allocated to the health care sector.

There is a need for public and private financing schemes. The national health care system should encourage the participation of public agencies and private and non-governmental organizations in the planning and monitoring of its implementation and utilization.

The system of primary health care should ensure a wide spectrum of health services, rehabilitation, and other support in the realization of the basic health needs of the population, as well as to pay special attention to the vulnerable groups, such as disabled persons.

Article 25 of the Universal Declaration on Human Rights states that everyone has ”…the right to … security in the event of …sickness”. Article 10 of the American Convention on Human Rights in the Field of Economic, Social, and Cultural Rights urges Member States to meet the health care needs of the groups with highest risks and those whose poverty makes them most vulnerable.

Article 18 (4) of the African Charter on Human and People’s Rights states that the disabled shall have the right to special measures of protection in keeping with their physical needs.

Article 13 of the European Social Charter affirms the need of having Member States provide appropriate assistance and necessary care in case of illness to everyone without adequate financial means and ability to obtain such means.

Article 12 of the International Covenant on Economic, Social, and Cultural Rights acknowledges the right of each individual to the best possible physical and mental health achievable. This creates an obligation of Members States to create conditions that will provide medical services and care for everyone in the event of sickness.

Article 23 (3) of the Children’s Rights Convention envisages that, whenever possible, disabled children should be provided with free health services.

Article 7 of the Convention concerning Employment Promotion and Protection against Unemployment says that Member States shall provide compensation in cases requiring medical care of a preventive or curative nature. According to Article 10, the benefits include:

(a) primary health care;

(b) specialist care at hospitals;


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(c) medicine required; and

(d) hospitalization.

Furthermore, Article 13 imposes an obligation on Member States to provide benefits for individuals in case of illness. According to Article 16, the benefits shall be in the form of periodical payments.

Article 5 (4) of the Convention encourages Member States to ensure the provision of medical care to persons in receipt of unemployment benefit and their dependants. Article 23 notes that each Member whose legislation provides for the right to medical care and makes it directly or indirectly conditional upon occupational activity shall endeavour to ensure the provision of medical care to persons in receipt of unemployment benefit and to their dependants.

Article 7 of the Convention concerning Medical Care and Sickness Benefits, states that the contingencies provided for in the Convention should include:

(a) need for medical care of a curative and preventive nature; and

(b) inability to work as a result of illness and including suspension for earnings, as defined in the national legislation.

Furthermore, Article 8 states that the medical care shall include:

a) primary health care;

b) specialist care in hospitals;

c) medicine required;

d) hospitalisation; and

e) medical rehabilitation.

Article 18 foresees that the benefit in case of illness shall be periodical. “Illness” shall mean any unhealthy condition, regardless of the cause thereof. Article 22 and 23 say that the periodical payment shall be such that it will reach at least 60% of the total previous income of the beneficiary, or 60% of the wage of an average adult worker. Article 29 states that the benefit seeker shall retain the right to lodge a complaint in case his/her request is denied, as well as the right to lodge a complaint on the quality and quantity of the benefit.

Paragraph I of the Declaration of Alma-Ata provides that health, which is a condition of a complete physical, mental, and social welfare, is a

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fundamental human right. Paragraph II refers to the existing “… considerable inequalities in the health status…” of people, both between developed and developing countries and in the developed countries themselves. Article V states that governments are accountable for the health of their people, which may be achieved through the provision of appropriate health and social measures. The key social goal is to ensure a level of health for all individuals, which will enable them to live a socially and economically productive life. Article VII (6) states that “ … those in need should have priority in health care”, whereas Article VII foresees the formulation of national policies, strategies, and plans for actions by governments aimed at commencing and supporting the primary health care, in coordination with the other sectors. The Declaration is significant for disabled persons, as the promotion of primary health care shall result in the prevention of disabilities and improvement of rehabilitation services for those individuals.

Article 10 (d) of the Declaration on Social Progress and Development foresees that social progress and development shall aim at attaining the highest health standards and providing health care for the entire population. In addition, Article 19 notes that free medical services and adequate preventive and curative alleviations are a means of achieving the above-stated goals.

Paragraph 118 of the World Program of Action concerning Disabled Persons encourages the establishment and development of a public system of social care and health protection. Paragraph 96 requires that Member States coordinate their programs for disability prevention, which include systems of primary health protection covering all segments of the population, as well as public health activities that would help individuals to achieve a lifestyle that will ensure maximum defence against the causes of impairment.

4. Right to Social Security and Social Services

4.1. Right to Social Security

The social security system of a country is the primary method of administering economic benefits. Social insurance programmes such as worker’s compensation, disability insurance and unemployment insurance are envisaged to create a social security network for the disabled who are unable to cater for themselves. Public funds should be made available to cover the additional expenses incurred for specially designed housing, for


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transport, medical and health care, food, and other benefits needed by disabled people in order to enjoy a normal life of work and recreation.

Social security systems should not discriminate against disabled people, but on the contrary, they should provide services for dealing with the special needs of the disabled, especially in the labor market, in order for equal employment policy to be supported.

Article 9 (1) of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights advises

that “…everyone is entitled to social insurance which protects against consequences…..of disability preventing him, both physically and mentally, from securing the means for a dignified and decent life”.

Article 9 of the International Covenant on Economic, Social, and Cultural Rights provides that “…everyone is entitled to social security, including social insurance”.

Article 26 (1) of the Convention on the Rights of Children stipulates the right of every child to social insurance.

Chapter II, Basic Principles, paragraph 1, of the Vancouver Declaration on Human Settlements, specifies that the improvement of the quality of life begins with meeting the basic needs, including social insurance without discrimination.

Paragraph 118 of the World Programme of Action concerning Disabled Persons provides that social insurance for population in general should not exclude or discriminate against disabled people. The same statement is contained in rule 8 (2) of The Standard Rules on the Equalization of Opportunities for Persons with Disabilities. Article 6 of the Convention Concerning Employment Promotion and Protection against Unemployment urges states to ensure equal treatment of all when it comes to social benefits payments, free of any discrimination on the grounds of disability. The aforementioned should not impede the adoption of special measures aimed at satisfying the special needs of people facing problems in the labour market, in particular persons with disability.

Paragraph 29, Commitment 2 (d) of the Copenhagen Declaration and Programme of Action recommends policy implementation that ensures adequate economic and social care during disability.

Paragraph 23 of the Recommendation Concerning Vocational Rehabilitation of the Disabled provides that”…disabled persons should be provided with all

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rehabilitation services without losing other social care benefits that are not related to their participation in such services”.

Paragraph 7 of the Declaration on the Rights of Disabled People specifies that disabled persons are entitled to economic and social security.

4.2. Social Security and Insurance Related to Employment

There should be a strong commitment to the enactment of legislation which equalizes employment opportunities for disabled people. The adoption of the legislation providing employment opportunities will pay off in the long run, since the disabled shall become independent. The provisions for restoring the income earning capacity of disabled people are included in rule 8 of The Standard Rules on the Equalization of Opportunities for Persons with Disabilities, which reads “…states are responsible for the provision of social security and income maintenance for persons with disabilities”. Furthermore, rule 8 (4) specifies that “…social insurance systems should include incentives to restore the income earning capacities of persons with disabilities”. In addition, rule 8 (5) notes that “…Social security programmes should also provide incentives for persons with disabilities to seek employment in order to establish or re-establish their income-earning capacity”.

States should encourage the implementation of measures and programmes that provide entitlements for persons with disabilities equal to the entitlements enjoyed by others. Such measures should include worker’s compensation, disability insurance and unemployment benefits.

It is important to ensure that the social security systems provide assistance for employment and economic assistance for those who are unemployed against their will. Unemployment is widely spread among disabled people. Insurance, in case of unemployment, will help disabled people to find a job through special programmes adjusted to their special problems and ensuring economic support.

Other special measures designed for the purpose of meeting the special needs of disabled persons facing a special problem on the labour market, should cover the following:

a) long-term financial benefits for compensation of loss owing to disability;

b) income support granted as supplemental income in case of low income owing to disability;


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c) income maintenance granted during rehabilitation period; and

d) additional and special benefits, financial or other types of allowances, for refunding the additional expenses during disability.

If the injury or damage is caused by a work-related accident or illness, , the compensation is paid out of:

1) private insurance;

2) social insurance;

3) civil liability or tort law.

The disabled persons may be compensated on any, or all of the stated grounds. However, workers’ compensation is the easiest and the most inexpensive way in which a disabled person can acquire benefits. Legislation that will be enacted in the future should cover several issues, for ex.: calculation of the rate of contribution in the funds earmarked for compensation of workers and ,methods of distribution of benefits.

Disability insurance provides economic and social care during recovery. Legislation has to determine which types of services will be covered by the insurance, i.e. medical treatments, rehabilitation, and restoring income earning capacity.

The Universal Declaration of Human Rights, under article 25, specifies that everyone is entitled to security in case of events beyond one’s control affecting his earning. Article XVI of the American Declaration on the Rights and Duties of Man proclaims the right to state protection for all.

Article 19 of the Additional Protocol to the American Convention for Human Rights in the Field of Economics, Social, and Cultural Rights, provides that workers’ right to social security covers medical treatment and allowance, or pension benefits in case of injury suffered at work, or occupational disease.

Article 11, of the Convention on Elimination of all Forms of Discrimination against Women, specifies that states undertake all the appropriate measures for the purpose of eliminating discrimination against women in the area of employment. Furthermore, article 11 (1) (d) says that states shall take measures to ensure “…the right to social security in cases of…and other incapacity to work”.

Article 31 of the Convention concerning Minimum Standards of Social Security requires that states secure employment insurance benefits to

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employees. In compliance with Article 34, benefits should involve general and specialized care, nursing care, medical and pharmaceutical supplies, and hospital care. Article 35 provides that the institutions or Government departments administering the medical care shall co-operate, wherever appropriate, with the general vocational rehabilitation services, with a view to the re-establishment of handicapped persons in suitable work.

Article 4 of the Convention Concerning Benefits in the Case of Employment Injury provides that national legislation referring to benefits in case of employment injury protects all employees in the public and private sector. Article 6 specifies the contingencies covered in case of employment injury, as follows:

a) a morbid condition;

b incapacity for work resulting from such a condition and involving suspension of earnings, as defined by national legislation;

c) total loss of earning capacity or partial loss thereof in excess of a prescribed degree, likely to be permanent, or corresponding loss of faculty; and

d) the loss of support suffered as the result of the death of the breadwinner by prescribed categories of beneficiaries.

Furthermore, articles 7 and 8 determine that countries should define the concept “industrial accident” and should draft a list of commuting accidents considered to be industrial accidents under their legislation. In addition, Article 9 stipulates that countries shall provide the following to the persons protected:

a) medical care and allied benefits in respect of a morbid condition; and

b) cash benefits in respect of the contingencies specified in Article 6 (b), (c), and (d).

Article 9 also states that the entitlements to benefits may not depend on working experience, length of insurance, or contribution payment, and that benefits will be approved in any event. Articles 13 and 14 stipulate that financial benefits or periodic payments will be paid in case of temporary loss of earning capacity, or initial loss of earning, with a probability of becoming permanent. Additionally, article 16 provides that increments in periodical payments or other supplementary or special benefits, as prescribed, shall be


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provided for disabled persons requiring the constant help or attendance of another person.

Articles 19 and 20 provide that “…in the case of a periodical payment, the rate of the benefit, increased by the amount of any family allowances payable during the contingency, shall be such as to attain, in respect of the contingency in question, for the standard beneficiary, at least the percentage indicated therein of the total of the previous earnings of the beneficiary or his breadwinner and of the amount of any family allowances payable to a person protected with the same family responsibilities as the standard beneficiary”. Article 23 (1) provides that”… Every claimant shall have a right of appeal in the case of refusal of the benefit or complaint as to its quality or quantity”.

The Convention Concerning Employment Promotion and Protection from Unemployment acknowledges the important role of the social security system in providing assistance for employment and economic support for those who are unemployed against their will. Article 2 requires that each Member shall take appropriate steps to co-ordinate its system of protection against unemployment and its employment policy. To this end, it shall seek to ensure that its system of protection against unemployment, and in particular the methods of providing unemployment benefits, contribute to the promotion of full, productive and freely chosen employment, and are not such as to discourage employers from offering and workers from seeking productive employment.

Article 7 encourages states to declare as a priority objective a policy designed to promote full, productive and freely chosen employment by all appropriate means, including social security. Such means should include, inter alia, employment services, vocational training and vocational guidance. Article 8 adds that countries shall establish, subject to national law and practice, special programmes to promote additional job opportunities and employment assistance and encourage freely chosen and productive employment for identified categories of disadvantaged persons having or liable to have difficulties in finding lasting employment such as women, young workers, disabled persons, older workers, the long-term unemployed, migrant workers lawful residents in the country and workers affected by structural change. In addition, article 24 stipulates that states shall endeavour to guarantee to persons in receipt of unemployment benefit, under prescribed conditions, that the periods during which benefits are paid will be taken into consideration.

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Article 27 provides that “…In the event of refusal, withdrawal, suspension or reduction of benefit or dispute as to its amount, claimants shall have the right to present a complaint to the body administering the benefit scheme and to appeal thereafter to an independent body. They shall be informed in writing of the procedures available, which shall be simple and rapid”. The appeal procedure shall enable the claimant to be represented or assisted by a qualified person of the claimant's choice or by a delegate of a representative workers' organisation or by a delegate of an organisation representative of protected persons.

Article 21 (b) of the Recommendation concerning Professional Rehabilitation of Disabled specifies that financial assistance is an appropriate measure which would ensure that disabled persons fully use all specialized rehabilitation services. In addition, paragraph 22 (1) stipulates that financial assistance should be provided in order that the preparation for, and maintenance of the respective employment be facilitated.

Article 11 (a) of the Declaration on Social Progress and Development specifies that “…Social progress and development shall aim equally at the progressive attainment of the provision of comprehensive social security schemes and social welfare services; the establishment and improvement of social security and insurance schemes for all persons who, because of illness, disability or old age, are temporarily or permanently unable to earn a living”.

Rule 8 (1) of the Standard Rules for Equalization of the Opportunities for Persons with Disability provides that income support should be maintained as long as the disabling conditions remain in a manner that does not discourage persons with disabilities from seeking employment. It should only be reduced or terminated when persons with disabilities achieve adequate and secure income.

Paragraph 131 of the World Programme of Action for disabled persons encourages collaboration at the central and local level between governments and employers’ organizations, in order that measures are developed for rehabilitation of the employees who have suffered injury at the workplace.

4.3. Social Welfare Services

The issue concerning the organization of social welfare services for disabled persons on municipal and state level is important. The state has the principal responsibility for the provision of social welfare services, but it can also


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encourage municipalities to do the same, especially through financial assistance.

Strengthening the municipal programmes for disabled persons should be a national priority, because working through the municipalities helps disabled persons to integrate into society, and the community to understand the difficult position in which disabled persons find themselves. It is important to ensure active participation of local governments and municipal organizations, like association of citizens, commercial associations, women’s associations, consumers’ associations, religious bodies, political parties, and associations of parents, in the affirmation and strengthening of the rights of the disabled people.

Paragraph 17 of the Recommendation Concerning Professional Rehabilitation and Employment, requires that municipalities collaborate with governmental representatives in the process of identifying the needs of disabled in the community, and, if possible, in the involvement of disabled in the activities and services which are generally accessible. In compliance with paragraph 18, “…vocational rehabilitation and employment services for the disabled should be involved in the mainstreams of the community development, and, where appropriate, be financially…supported”.

Some parts of the World Programme of Action Concerning Disabled Persons concern the activity of municipalities. Countries are encouraged to provide financial support for local municipalities for the purposes of developing programmes helping disabled persons, and encouraging the collaboration between local communities in order that the exchange of information be facilitated. Furthermore, the importance of the involvement in the active participation of municipal organizations is acknowledged.

Paragraph 41 of the Tallinn Guidelines for Action on Human Resource Development reads: “…specific strategies for preventing disability should be involved in the municipal programmes for raising awareness”. Also, the state efforts directed towards early detection, intervention, and prevention, should be strengthened by raising public awareness concerning disability.

The state services are of essential importance, in addition to those organized in the municipalities. States should provide services which shall mitigate the effects of disability of disabled persons, and will help them to function in the best possible way. Furthermore, they must affirm the essential role of the local governments in the process of service provision and motivation of people to work for common economic development and social welfare of their municipalities, and the role of the international collaboration between

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local governments. Countries should introduce appropriate measures for implementation of equal opportunities policy, and for preventing situations which might lead to disability.

5. Right to an Adequate Standard of Living

Treatment of disabled persons according to the medical or charity model makes them dependent on certain (not disabled) people, and separates them from others in society. The model for independent living expresses the real nature of disability: the problem is not in the individual, but in her/his disability. The disability problem is based in the way in which society responds (reacts) concerning disability of individuals, and the way in which physical and social environments do that. The social model, therefore, might be a useful instrument, for the disabled and their partners, for the introduction of positive changes in their lives, and for the non-disabled to better understand disability1.

Therefore, this right is given a great importance and it is articulated under article 25 of the Universal Declaration on Human Rights, article 11 of the International Covenant on Economic, Social, and Cultural Rights, and article 27 of the Convention on the Rights of the Child. The right to a proper standard of living involves, among the rest, right to food, clothes, and housing. It is closely related to the right to social protection and social welfare services.

5.1. Housing

Proper housing is an important component of economic and social rights. Inadequate or poor dwelling contributes to health deterioration, loss of safety and dignity. States develop policies and directions, and provide services that ensure appropriate living conditions for the disabled.

Article 11 of the International Covenant on Economic, Social, and Cultural Rights states that “…everyone is entitled to an appropriate standard of living, sufficient for himself and for his family…to include housing. The member states shall undertake measures in order to ensure that this right can be exercised…”

Article 27 (3) of the Declaration on Social Progress and Development encourages states to provide assistance programmes, such as housing for parents and guardians. Furthermore, article 18 (d) sets out the implementation of the programmes for inexpensive homes in rural and urban


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areas, as appropriate tools in the effort to accomplish the goals towards social progress and development.

General Principle I, paragraph 1 of the Recommendation concerning Workers’ Housing, states that the recommendation refers to workers’ housing, including housing for the disabled. In addition, General Principle II, paragraphs 1-5 provide that the states shall promote, in the context of the general housing policy, construction of homes and similar facilities in order to provide appropriate and decent housing and suitable living environments for all workers and their families. Priority is given to those whose needs are most urgent, to maintenance, improvement and modernisation of the existing housing and similar facilities, which shall not cost more that a reasonable part of a worker’s income, regardless of whether it be for rent, an instalment for the purchase of the said lodging; and, to implement housing programmes that provide adequate scope for private, mixed-ownership, and public construction enterprises.

General Principle III, paragraph 8 encourages states to establish a central body that shall integrate all public services that are related to housing. The responsibilities of the said body should involve study and assessment of the needs for workers’ housing and for similar facilities, and designing programmes for workers’ housing. General Principle V, paragraphs 13-17, address the funding methods. The states are required to provide access to the private and public facilities through loans with fair interest rates, and in addition to the former, other appropriate methods for direct and indirect financial assistance. This should include subsidies, tax concessions, tax reduction for certain private, mixed-ownership, and public proprietors of the housing facilities, in order that the mixed-ownership and the similar non-profit housing associations are encouraged.

The states are also required to: provide access to private and public facilities through loans under fair terms for workers intending to own or build their own homes; undertake other steps which shall promote the purchase of homes; establish a national mortgaging system, or public guarantee for private mortgages, as tools for promoting the construction of homes for the workers; and stimulate saving and encourage investments. Paragraphs 19 to 25 of the Suggestions Concerning Methods of Application highlight other funding schemes, like encouraging provident funds and social insurance services to use their available reserves for long-term investments. Furthermore, the schemes include provision of incentives on the housing loans for workers, and granting special financial assistance to the workers who are unable to keep the appropriate housing due to low incomes.

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Part III, paragraph 24 of the Habitat Agenda acknowledges the obligation for countries to ensure that people safeguard their dwellings, and to protect homes and neighbourhoods. Paragraph 25 requires the states to provide consistency and coordination of macroeconomic and housing policy, as a social priority in the frames of the national programmes for development and urban policies. Furthermore, to promote broad, non-discriminative access to open, successful, efficient, and appropriate funding for all people including mobilization of innovative financial and other resources – public and private – for development of municipalities. Increase of the available housing facility through appropriate regulatory measures and stimulations on the market (P.44), and the promotion of shelters and services for disabled persons are also an obligation for states in accordance with paragraph 25 of the Habitat Agenda.

Paragraph 30 stipulates that countries should strengthen existing financing mechanisms in order to fund homes and neighbourhoods. Paragraph 31 (d) provides that “…states shall promote access to the market for those who are less organized and informed, or otherwise excluded from the participation, by providing support, where appropriate, and by promoting lending mechanisms and other instruments related to their needs”. Paragraph 44 (b) requires from countries to create and promote market-oriented incentives for encouraging the private sector to meet the needs for accessible rented and privately owned housing. Paragraph 49 (e) encourages states to use their public policies, like consumption, tax, monetary, and planning policy, in order to stimulate the sustainable housing markets.

Paragraph 51 provides that states should adopt policies that will ensure access to new public housing facilities or buildings, and public lodgings for disabled persons. Moreover, during renovations of existing housing facilities, it is expected that similar measures be adopted. Financial housing institutions serve the conventional market, but they do not always appropriately meet the different needs of a larger segment of the population, especially of those belonging to the disadvantaged and vulnerable groups, like the disabled.

In order that the existing financing systems for housing be improved, paragraph 61 requires that the countries should:

1) adopt policies which shall increase mobility of housing funding and shall extend loans to more people living in poverty, maintaining the lending systems solvency;


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2) establish a comprehensive and detailed body of law regulating the right to ownership

3) encourage the private sector to mobilize the resources for meeting the diverse living requirements, including rental, maintenance, and rehabilitation of apartments; and

4) decentralize the lending operations of mortgage markets and encourage the private sector to do the same, in order to provide greater access to loans.

Paragraph 68 states that by improving quality and decreasing construction costs, housing buildings and other structures shall last longer, be better protected from disasters, and be accessible for the disabled, thus a better living environment shall be created.

Paragraph 8 of the Vancouver Declaration on Human Settlements provides that “… adequate shelter and services are a basic human right which imposes an obligation on governments to ensure that it is enjoyed by everyone, starting from direct assistance for those most disadvantaged through guided programmes for self-help and community action” (Part III, Guidelines for Action).

Global Strategy for Shelter to the year 2000, Annex 1, sets the leading directions, which the states should take into account when drafting national shelter strategies. A brief description of the said direction is given below:

1. The national strategy for shelter should set clear, operative goals for development of shelter conditions, regarding both the construction of new shelters, and extensions and maintenance of existing shelters, infrastructure, and services.

2. The adequate standard aimed at should be identified on the basis of an analysis conducted on the standard and on the possibilities available to the target population.

3. The goals of the shelter policy should be related to the goals of the economic policy in general.

4. The direct governmental support should be mainly directed towards those

5. The public sector is responsible for the development and implementation of measures arising from the national policies for shelter, and for the adoption of measures stimulating the activity in other sectors as well.

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6. Development of administrative, institutional, and legislative tasks, for which the government is directly responsible, for example, registration of land, and construction regulation.

7. The analysis of the access shall provide criteria for defining the real priorities and the appropriate approach for engaging the public sector.

8. Mechanisms for coordinating activities between the agencies and the internal activities of the agencies should be developed. Also, it is necessary to develop solutions for permanent monitoring, review, and revision of the strategy.

5.2. Food

National legislation should contain provisions which would facilitate increases in production and improved food distribution. Countries can increase access to food through approximating primary health care. Hunger is one of the key factors responsible for the increased number of disabled persons, and the increased access to food through measures like subsidies in rural environments for increased production, trade, fair prices, and other measures, shall assist in terms of prevention of physical disability. Attainment of sufficient food provision involves eradication of hunger faced at present by hundreds of millions of people, and reduction of the risks from hunger spreading in the future. Every kind of effort is to be undertaken which shall address the symptoms and the causes for hunger. The assistance in food is essential for saving and maintaining life. However, the direct food transfer must be followed with activities directed towards post-crisis rehabilitation of the affected households. Greater attention should be paid to establishing improved mechanisms for facing future disasters and on appropriate investments for the purpose of reducing vulnerability in crises. Lack of food must be overcome by efforts in areas like nutrition, health, education, improvement, reproductive health, acquisition of property, and income generation, i.e. by investment in people. Aid in food may provide direct help for the people having no purchasing power, and may strengthen trade through building transport infrastructure, or may increase market systems through local marketing and local food procurement. The Universal Declaration on Human Rights, under article 25, asserts the right to food. Article 12 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, states that


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“…everyone has a right to appropriate food, which ensures the possibility for enjoyment on the highest level of physical, emotional, and intellectual development”. In addition, article 12 underlines the obligation for the countries to improve food distribution. Article 11 of the International Covenant on Economic, Social, and Cultural Rights, states that everyone is entitled to appropriate food and to be free from hunger: “…countries shall pass, individually or through international collaboration, measures needed for protecting the said right including the specific programmes”. The measures involve specific programmes for improving production methods, conservation and distribution of food, through full utilization of the technical and scientific inventions, dissemination of the educational principles concerning food, and through development or reform of the agricultural systems, in a way which would provide the best development and utilization of natural treasures possible. Article 27 (3) of the Convention on the Rights of the Child provides material aid and programmes for support granted by the government, especially in terms of food, in order to help parents and other persons responsible for children. Article 10 (b) of the Declaration on Social Progress and Development determines eradication of hunger and malnutrition as one of the goals for social progress and development. Paragraph 4 of the Universal Declaration on Eradication of Hunger and Malnutrition provides that each country should eradicate the impediments for food production and should provide adequate incentives for farmers. It is necessary to implement effective measures, such as reforms in agriculture, taxation, credits, and investment policy. Moreover, paragraph 11 requires that countries adjust their agricultural policies and give priority to food production. The World Food Summit of Africa-WFS, which resulted as a conclusion from the Regional Conference for Africa of the UN Food and Agriculture Organization- FAO1 in 1996, through its Political Statements urges all countries to state their commitment to the policies which shall provide access and permanence in procurement of appropriate food, as well as access to adequate food for all. The Action Plan of this Summit underlines the need for each country to choose the strategy for maintaining food supplies, because of the diverse individual circumstances. However, in any case, the goals to be achieved are as follows:

a) Creating a political and economic environment for food security; b) Improving access to food for poor and vulnerable groups; c) Accelerating agricultural and rural development;

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d) Providing adequate and timely aid in food and help in urgent situations.

e) Increasing the capacity for domestic food supply; and f) Increasing the capacity for export in order to meet import needs

The World Summit of Europe held in 1996 in Tel Aviv underlines several goals including the following:

a) Creation of a political and economic environment for food security; b) Provision of sustainable security networks and social support systems for lack of food; c) Ensuring access to appropriate food provisions; and d) Strengthening the role of Europe in improving global food security.

5.3. Transportation

Mobility is one of the most important factors in the rehabilitation of disabled persons. It contributes to their having a decent standard. It is related to general access to the environment. There should be no discrimination against disabled persons in the provision of services regarding public transportation; there should indeed be special measures which would enable all disabled persons free movement and access to their work place and to other public places.

States should adopt legislation that provides access to transportation services for disabled persons. These governmental initiatives are vital for the integration of these individuals into mainstream society and for the right to work.

Governments can provide these services in different ways, for example: by rendering public transportation more accessible, by remodelling the pedestrian paths with the objective of making them more accessible for disabled persons, specifically for those who are using wheelchairs or for individuals with a visual impairment, by designing parking lots which give priority to disabled persons or by providing support for employers and municipal organizations to provide transportation.

Other measures such as: financial subsidies, improvement of existing public transportation systems, specially adapted cars and transfer of new transportation technologies are also important for enabling integration of disabled persons in mainstream society.


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Article 18 (d) of the Declaration on Social Progress and Development encourages the development and expansion of transportation systems, specifically in developing countries.

Paragraph 11 (h) of the Recommendation concerning Vocational Rehabilitation and Employment (Disabled Persons) stipulates that disabled persons should be provided with adequate transportation means to and from the place of rehabilitation and work.

Paragraph 104 (a) from the Housing Agenda stipulates that states should support (the access to) the policy of integrated transportation which researches the entire field of technical and management possibilities and pays adequate attention to the needs of all population groups/categories, specifically to those whose mobility is reduced as a result of a physical disability, old age, poverty or some other reason.

Paragraph 114 of the World Program of Activities for disabled persons encourages the states in their efforts to ensure access to all new public transportation systems for disabled persons . In addition, it is recommended that states adopt measures that would encourage access to the existing public transportation systems for disabled persons.

On a regional level, the EU has adopted several legal documents related to this issue, i.e. on June 4, 1998 the Council passed a Recommendation (98/37b/EK) for a parking map for disabled persons encouraged by the Resolution passed at the European Conference of the Ministers of Transportation from April 22, 1997 which, for its part, encourages the reciprocal recognition of parking maps for disabled persons, taking into consideration the need to provide disabled persons with the opportunity to park closest to their destination.

In addition, on May 10, 2000 the Commission passed an Announcement entitled “Towards Europe Free of Obstacles for Disabled Persons ” which raises the issue of developing an integrated strategy for the elimination of the social and physical obstacles which render access impossible to disabled persons . The European Parliament adopted a similar resolution regarding the same issue.

It can be concluded that the stipulated right to adequate living standards sets the frame which may include different contents, depending on social assumptions. One of the most recent and most revolutionary principles is the principle of universal design, i.e. “design for all”. The comprehensive social order which takes into consideration the different possibilities and needs of individuals lies in the very essence of the principle of universal design. In

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addition, its consistent practical application will result in elimination of the obstacles and creation of the prerequisites needed for complete and equal realization of the rights of all.

The European Institute for Design and Physical Disability, a specialized European institution which set the basis for the concept of universal design, was founded in April, 1993 in Dublin, Ireland. After the adoption of the Declaration at the International Conference for Universal Design in 2002 in Yokohama, Japan on a universal level, in 2003, on a regional level, the Council of Ministers of the EU has adopted the Resolution for the Introduction of the Principle of Universal Design in the Programs for All Professions which Deal with Urban and Physical Planning which enabled the students of these faculties to understand the principle of universal design in its real context.1.

6. Right to Social Integration The overall objective of disability policy is to promote the social integration of disabled persons. Therefore, the principle of social integration, together with the objective itself – creation of equal opportunities for all – is incorporated in all major instruments related to the issues of physical disability.

Paragraph 9 of the Declaration on the Rights of Disabled Persons stipulates that these individuals have the right to live with their families or with their guardians and to participate in all social activities. Article 23 from the Convention on the Rights of the Child requires the member states to provide disabled children with conditions that facilitate their active participation in the community.

According to Commitment 4 from the Copenhagen Declaration and Programme of Action, states are obliged to promote social integration. In addition, according to paragraph 1, the states are obliged to enable the physically enabled access to the social environment.

Paragraphs 22 and 63 from the Vienna Declaration and Programme of Action stipulate the following “... states ensure the active participation of disabled persons in all spheres of social life”.

The overall objective of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities is the social integration of disabled persons through creation of equal opportunities in all social spheres. At the same time, the main objective of the World Program of Action


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concerning Disabled Persons is the creation of equal opportunities for persons with disabilities and thus integrate them into society.

7. Right to Participate in Cultural Activities The right to participate in cultural activities should be guaranteed to all, including disabled persons. In reality, however, these individuals are often deprived of the possibility to fully participate in the cultural life of the community to which they belong. This deprivation is expressed through the physical and social barriers that are a result of a lack of information, indifference and fear.

Article 27 of the Universal Declaration for Human Rights stipulates the following: “...everyone has the right to freely participate in the cultural life of the community.... Article 15 (1) (a) from the International Covenant for Economic, Social and Cultural Rights recognizes the right of each individual to participate in cultural life. This right is violated, for example, in cases when disabled persons are denied access to the facilities/locations where cultural activities are hosted (such as cinemas, theatres, libraries, sport stadiums, museums, etc) as well as in cases when disabled persons are excluded from activities as a result of prejudices against their ability to participate.

The right to participate in cultural life is embedded also in the regional instruments for protection of human rights. Thus, Article 14 of the

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights underlines the right of each individual to participate in the cultural and artistic life of the community. Furthermore, Article 17 (2) of the African Charter on Human and Peoples’ Rights guarantees the right of each individual to participate in the cultural life of his community.

Rule 10 of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities stipulates that states must provide disabled persons with the opportunity to be included and to participate in the cultural activities under the same conditions as everyone else.

Paragraph 135 of the World Program of Action Concerning Disabled Persons stipulates that states should provide disabled persons with the opportunities to put their creative, artistic and intellectual potential into use, not only for their own benefit, but also for the purpose of enriching the

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community. Therefore, they should be provided with access to cultural activities.

8. Right to Accessible Physical and Information Environment

For people with disabilities, the majority of human rights, including the freedom to receive information, the freedom of movement, the right to work or the right to social integration are greatly dependant on accessibility. Many disabled persons are excluded from active participation in society due to the fact that entrance doors are not sufficiently wide enough for wheelchairs; the stairs and steps they cannot climb give access to buildings, buses, trains and aircrafts; telephones and electric switches cannot be reached, or the sanitary facilities cannot be used. Similarly, certain other types of barriers also fail to take into account disabled persons, such as oral communication, which ignores the needs of the aurally and visually impaired. These barriers are a result of ignorance and lack of consideration, and exist despite the fact that the majority of them can be avoided by careful planning without incurring any major costs.

Although some countries have adopted legislation and launched campaigns for public education with the purpose of eliminating these obstacles, the problem still remains a crucial one. Legislation which would set standards for access to information technology and public places is needed, standards which would take into consideration the needs of disabled persons.

8.1. Information on Standards of Accessibility

The majority of the aforementioned information and sources are based on the experiences of industrialized countries. As member states adopt initiatives to implement the UN’s priority issue of accessibility, as set forth in the Standard Rules, along with other documents, there is an evident need for expansion of the traditional definitions of accessibility solutions and the development of effective and realistic opportunities for accessibility policy in developing countries. Based on our research, we believe that a virtual path must be traced which would facilitate the exchange of information among policy makers, the community of disabled persons, and the construction industry when it comes to accessibility issues for the purpose of researching special demands to create environments without limitations every step of the way.


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8.2. Access to Public Places At the same time, legislation that would set standards to regulate the needs of disabled persons is needed for the construction of both private and public buildings. Physical barriers often represent an obstacle for the complete integration of disabled persons in public life. Part B 2b (1) of the Copenhagen Declaration and Programme of Action specifies that states should make an effort to render the physical environment accessible to disabled persons . This Declaration underlines the following:

a) Accessibility rules, such as architectural accessibility rules; b) Public housing, such as shelters for the homeless; and, c) Public transportation, such as travelling with the physically disabled.

Moreover, the guide entitled “Designing with Care: A Guide to Adaptation to the Built Environment for Disabled People” (International UN year dedicated to disabled persons (IYDP), 1981) provides technical and architectural guidelines for construction in both the private and public sectors, with special attention to disabled persons .

Paragraph 11 (g) of the Recommendation concerning Vocational Rehabilitation and Employment specifies that all barriers and obstacles affecting transportation of disabled persons and access to and free movement in working premises during their training and working hours should be eliminated.

Paragraph 17 of the Habitat Agenda states that one of the Agenda objectives is to increase the access of disabled persons to housing facilities through improvement of their quality of living. Part III states that accessibility standards should be in compliance with the Standard Rules on the Equalization of Opportunities for Persons with Disabilities.

Paragraph 23 of the World Programme of Action Concerning Disabled Persons specifies the following: “... each individual which is, in any form, in charge of an enterprise, should render that enterprise accessible for disabled persons”. This also includes public agencies, nongovernmental organizations, private companies and individuals. In addition, paragraph 113 asserts that states should adopt a policy that would enable research of the accessibility aspects in the planning of homes, including the rural regions of developing countries.

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9. International Co-operation Funds are needed for the implementation of economic, social and cultural rights. Funds are in fact also needed for the implementation of civil and political rights because those rights require, for example, the establishment of a functioning legal system or the provision of accessible information for disabled persons. Article 2 of the International Covenant on Economic, Social and Cultural Rights stipulates that “... each member state is obliged to take steps, both individually and through international assistance and cooperation, especially on an economic and technical level and using to the highest possible extent all available sources, to achieve gradual and complete realization of the rights recognized in this pact with every measure appropriate, including especially the adoption of legal measures”.

The Convention on the Rights of the Child also appeals for cooperation in the implementation of specific positive results, as for example Article 4 which concerns the implementation of economic, social and cultural rights, or Article 23 which concerns the dissemination of information relating to health care, rehabilitation, educational and technical services for children with disabilities.

An agreement was reached at the World Summit on Social Development, according to which the Copenhagen Declaration and the Programme of Action would be implemented with the assistance of the 20/20 Initiative, by which 20% of national budgets and 20% of assistance for development will be allocated to the basic social services.

Cooperation is crucial for achieving progress in every part of the world. Cooperation should exist on all levels, including:

a) Cooperation and coordination between states;

b) Agencies for multilateral and bilateral assistance;

c) International financial institutions, such as the World Bank and

the regional banks for development;

d) International organizations and different specialized agencies

and bodies of the United Nations system;

e) Including South-South, North-South and South-North

exchanges of best practices; and,

f) Continuous development of political instruments, planning and


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management.

Bilateral and multilateral donors should put aside adequate funds for the physical disability component in their financial aid. At the same time, the donors might associate their aid with projects for disabled persons. However, the experiences from the donors that invest in the improvement of the overall situation of physical disability in developing countries are opposite to the abovementioned information. Often, there is a discrepancy between “the declarative” and “the real” which leads us to conclude that there are double standards according to which numerous donors operate, both in developed and developing countries.

The donor-agencies must establish business relations with disabled persons and/or their organizations. The staff in these agencies should be sensitive to their problems. One method to do this would be to organize joint workshops which would facilitate the implementation of policy directions which would adequately take into consideration the problems of disabled persons.

Paragraph 12 of the Vienna Declaration and Programme of Action encourages the international community to help in the reduction of debt in the developing countries, with the objective of assisting these countries in providing their own people with complete realization of economic, social and cultural rights.

Article 23 of the Declaration on Social Progress and Development specifies that the realization of the objectives of social progress and development requires implementation of the provisions for technical, financial and material aid, both bilaterally and multilaterally, on the largest scale possible and under favourable conditions, as well as improved coordination for realization of the social objectives implemented in the national development plans. Paragraph 7 of the Universal Declaration on the Eradication of Hunger and Malnutrition specifies that in order to encourage food production in the developing countries, international action should be undertaken aimed at providing continuous technical and financial aid. In addition, all donor states should implement the concept of planning ahead the aid in food products and furthermore put all the efforts to provide products and/or financial aid.

Paragraphs 147 and 148 from the Habitat Agenda specify that the international community should support the states in promoting:

a) Coordination of macro-economic policies on all levels for the

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establishment of an international financial system which leads to economic and social development, as a component of sustainable development;

b) An environment that attracts foreign direct investment

and encourages savings as well as domestic investment;

c) Capacity building in all developing countries;

d) Financial assistance for developing countries to accelerate

sustainable development; and,

e) Facilitated access to the international financial resources for all

developing countries – they would draw great benefit from the

growing international financial markets in order to promote

sustainable development.

Paragraph 179 of the World Programme of Action concerning Disabled Persons states that donor-states should have an understanding of the requests for assistance in the sphere of physical disability. They are urged to include assistance for disabled persons in their bilateral and multilateral assistance programs. Furthermore, paragraph 174 specifies that international organizations or multilateral financial institutions that cooperate with the member states in the financial risks should give advantage to the programs that assist disabled persons. The multilateral and bilateral assistance agencies in their programs should include measures that ensure allocation of increased resources and periodic expansion of the services related to prevention, rehabilitation and equality of opportunities.

Paragraph 53 of the Tallinn Guidelines for Action on Human Resources Development in the Field of Disability specifies that international development programs should include the participation of disabled persons in these schemes. In conclusion, we would underline the fact that financial assistance on the part of bilateral and multilateral donors is not sufficient for the improvement of the status of disabled persons. On the contrary, a universal standard among the industrial countries and developing countries is indispensable. In addition, the donor should approach the situation with disabled persons in developing countries and give “an assessment” of the activities of the organizations dealing with disabled persons, with certain sensitivity. Otherwise, we would witness an “elephant in a China-shop” effect.


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The respect of an individual and love towards your neighbor should be a constructive

force, not a philanthropic weakness.

- Komt

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PART FOUR

MULTIPLE DISCRIMINATIONS - RIGHTS OF SPECIAL GROUPS

Introduction The voices of protest against oppression have been heard throughout all historical epochs and every historical stadium surpassed its own visions for man’s freedom. Progressing through history to modern times, these voices and visions gradually developed into society programmes for action.

The minimum universal values, on which we have legitimate right to insist, are general in its nature and have to be interpreted in respect to the local conditions, that is, within the context of the moral and cultural structure of the concerned societies. However, this sensitivity for societal conditions should not generate circumstances for multiple discriminations. And the dynamic way of living not always prevents that. For that matter, the fourth part of this comparative analysis reviews the situation of the vulnerable groups, especially those who suffer from discrimination on various bases, among which is disability.

This part is divided into three chapters.

Chapter VIII refers to individual civil, political, economic, social and cultural rights of women, with special emphases on women with multiple disabilities who encounter discrimination on various bases, by virtue of their sex, as well as their disability.

In Chapter IX are elaborated the individual civil, political, economic, social and cultural rights of children with disabilities who suffer from multiple discrimination.

Chapter X reviews the rights of adolescents, elderly persons, poor, indigenous people, refugees and ethnic minorities who face discrimination on multiple levels.

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Multiple Discriminations – Rights of Special Groups

Chapter VIII

Rights of Women with Disabilities

1. Situation

Women suffer from double discrimination by virtue of their sex, as well as their disability. This results in many women and young girls being denied their basic human rights. The combination of male preference in many cultures and the universal devaluation of disability can be deadly for disabled females. Selective abortion is a related reproductive rights issue of great concern to women with disabilities. Today, in both industrialized and developing nations with access to reproductive technology, it is becoming easier to utilize selective abortion if a foetus is considered "imperfect" by medical profession's or society's standards. Legislation which permits sterilization of people with disabilities, threatens both the rights of disabled women to procreate and the very existence of children born with disabilities. Certain countries have laws which mandate the forced sterilization of persons with genetic defects1.

In developing countries, women are too often denied access to education, rehabilitation, labour protection, and health care because of cultural preferences for males. It is seen as a waste of resources to help disabled women become productive members of society. Consequently, women with disabilities are the last priority in these countries, and are condemned to live their lives knowing that they will not improve. Disabled women's lack of access to health care will aggravate their disability and make it difficult for them to be rehabilitated quickly.

Violence perpetrated against women is one of the major causes of disability among women in developing countries. Moreover, women who are already disabled are even more vulnerable to violence. Rape of women and girls in situations of armed conflict, whether civil or international, constitutes by definition a grave breach of international human rights and humanitarian law. Article 27 of the Fourth Geneva Convention states that "…women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault." Article 147 includes in the list of acts constituting grave breaches of the Convention "…wilfully causing great suffering of serious injury to body or health."These violations of the rights of women with disabilities have led to mobilisation


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for their cause. For the first time, hundreds of women with disabilities joined non-disabled women in Beijing, China for the UN Fourth World Conference on Women and specifically addressed issues of particular concern to women with disabilities. Two hundred women with disabilities and their allies from over thirty nations attended the First International Symposium on Issues of Women with Disabilities outside of Beijing the day before the opening ceremony for the NGO Forum. This meeting marked the largest international gathering of women with disabilities anywhere, ever. Armed with a commitment to the ideals of inclusion, freedom and independence for women with disabilities, activists worked to translate into action workable strategies for change. In the wake of the NGO forum, international groups such as Women's International Linkage on Disability (WILD) were formed to work on local and international disability rights issues affecting women.

International instruments have also been adopted, and one of the main challenges has been to agree on a common definition of discrimination against women through these instruments, as States do not all agree on what constitutes discrimination. Roles may be assigned to women that vary from culture to culture, and these different cultural roles may or may not be discriminatory from one culture to the next.

2. International Instruments Concerning Women Rights Rule 9(3) of The Standard Rules on the Equalization of Opportunities for Persons with Disabilities provides that States "…should promote measure to change negative attitudes towards marriage, sexuality and parenthood of persons with disabilities, especially of girls and women with disabilities, which still prevail in society."

Article 45 of the World Programme of Action concerning Disabled Persons speaks of the special situation of women with disabilities. It speaks of social, cultural and economic obstacles that affect the health of women. Disabled women have a lack of access to health care, vocational training and employment.

More general human rights instruments or instruments pertaining to women are also applicable to women with disabilities.

The second paragraph of the Charter of the United Nations provides that the people of the United Nations are determined "…to reaffirm their faith in fundamental human rights in the dignity and worth of the person (and in) the equal rights of men and women…." In addition, Article 1 (3) sets out one of the main purposes of the United Nations as: "…promoting and encouraging

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respect for human rights and fundamental freedoms for all without discrimination as to (…) sex…” Article 13 calls for the General Assembly to initiate studies and to make recommendations for the purpose of "…assisting in the realisation of human rights and fundamental freedoms for all without distinction as to (…) sex…"

Article 55 (c) provides that the United Nations shall promote "…universal respect for and observance of, human rights and fundamental freedoms for all without distinction as to (…) sex…” Furthermore, article 56 states that "…all members pledge themselves to take joint and separate action in co-operation with the Organisation for the achievement of the purposes set forth in Article 55." As recognized since the 1970 Declaration on Principles of International Law, this creates a Charter-based duty to respect and to observe human rights.

The Preamble of the Convention on the Elimination of All Forms of Discrimination against Women states that "…discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic, and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity."

The Convention is also concerned that women in poverty have the least access to food, health, education, training, and opportunities for employment and other needs. Article 1 gives a definition of discrimination against women: "the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field".

Obligations of the States Parties are stipulated in Article 2 (a). The provision provides that States Parties should undertake appropriate measures to promote the principle of gender equality in exercising of rights. Besides the obligation to decry discrimination against women, Article 2 (b) states that states inter alia are duty-bound to “…embody the principle of equality of men and women in their national constitutions or other appropriate legislation” and to undertake other measures (legislative, judicial and administrative). Ratio legis of the provision implies that it is not sufficient to incorporate appropriate principles into a legal frame, but it will be


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necessary to undertake additional measures “...including sanctions where appropriate, in prohibiting all discrimination against women." and securing legal protection before competent bodies in order to de facto achieve equality. Different areas are covered in the convention: education (Article 10), employment (article 11), access to health care (article 12), and civil rights (article 15).

The International Covenant on Civil and Political Rights in its provisions guarantees rights to be applied equally to men and women, and prohibits all discrimination based on sex. Article 2 states that the rights recognised in the Covenant are to be recognised "…without distinction of any kind, such as … sex… or other status". Although disability based discrimination is not explicitly stated in this provision, the term other status may apply to persons with disabilities. In addition, Article 3 speaks that states undertake to ensure the equal right of men and women to the enjoyment of all rights set forth in the present Covenant Furthermore, Article 26 states that all persons are entitled "…to equal protection of the law regardless of (…) sex (…) or other status."

In Part II, article 2 (2) of the International Covenant on Economic, Social and Cultural Rights the principle of equality is articulated, which requires that"… States Parties of this Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". In Article 3 of Part II, as well as in the International Covenant on Civil and Political rights, it is stated that the Parties undertake to "…ensure the equal right of men and women to the enjoyment of all rights set forth in the present Covenant." Part III, Article 7 of the ICESCR states: "…equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work." Article 10 states that special protection should be given to mothers during childbirth. The Preamble of the Declaration on the Elimination of Violence Against Women states "…that some groups of women, such as women belonging to minority groups, indigenous women, refugee women, migrant women, women living in rural or remote communities, destitute women, women in institutions or in detention, female children, women with disabilities, elderly women and women in situations of armed conflict, are especially vulnerable to violence." Article 4 provides that States should condemn violence against women. Violence against women, as defined in Article 1, is "…any act of

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gender based violence that results in, or is likely to result in physical, sexual or physical harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life."

The Beijing Declaration promotes fundamental human rights for women. Article 9 provides that the Parties are committed to: "…ensure the full implementation of the human rights of women and of the girl child as an alienable, integral and indivisible part of all human rights and fundamental freedoms." While Article 13 speaks of the full participation of women in all spheres of society, Article 14 provides that women's rights are human rights. Article 17 is of significant importance in that it recognises a woman's right to control all aspects of her health.

Article 26 addresses the problem of women and poverty. It states that the State Parties are determined to "…eradicate the persistent and increasing burden of poverty on women…” Article 29 focuses on preventing and eliminating all forms of violence against women and girls. Article 32 provides that State Parties commit to "…intensifying efforts to ensure equal enjoyment of all human rights and fundamental freedoms for all women and girls who face multiple barriers to their empowerment and advancement because of factors such as (… ) Disability."

Article 2 of the Beijing Platform for Action states that: "…the human rights of women and of the girl child are an inalienable, integral and indivisible part of universal rights (…) the Platform seeks to promote and protect the full enjoyment of all human rights and the fundamental freedoms of all women throughout their life cycle." In Chapter IV, Article 46 recognises that women "…face barriers to full equality and advancement because of factors such as their (…) disability."

In Paragraph 5 of the Vienna Declaration and Programme of Action is stated that human rights are universal, indivisible and independent. Paragraph 18 provides for the elimination of gender-based violence and all forms of sexual harassment and exploitation. In addition, it calls for the eradication of all forms of discrimination on grounds of sex.

In The Copenhagen Declaration and Programme of Action, pursuant to Commitment 5, States Parties commit themselves to achieving equality and equity between men and women. At the national level, States will "…promote changes in attitudes, structures, policies, laws and practices in order to eliminate all obstacles to human dignity, equality and equity in the family and in society, and promote full and equal participation of urban and


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rural women and women with disabilities in social, economic, and political life, including in the formulation, implementation and follow-up of public policies and programmes…". Commitment 6 provides that States Parties commit themselves to ensure full and equal access to education for girls and women in order to obtain social equality.

3. Regional Instruments Pertaining to Women Rights Regional human rights conventions have been applied less often to issues regarding women's rights. However, there are certain advantages available at the regional level, which cannot be attained at the international level, such as geographical proximity, cultural similarity and economic interdependence. Regional systems may have certain organs in place to deal with women's rights, such as the Council of Europe's Steering Committee for Equality between Women and Men and the Organisation of American States' Commission on Women.

The European Social Charter obliges States Parties in Article 4 to recognise equal remuneration for women and men for equal work. Article 8 deals with the right of employed women to protection. Article 17 provides that State Parties are to take measures for the social and economic protection of mothers. Furthermore, Article 1 of the Additional Protocol to the European Social Charter prohibits discrimination in employment matters on the grounds of sex.

Article 1 of the American Convention on Human Rights and article 3 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights (Protocol of San Salvador) provide that the parties to the Convention undertake to ensure the rights in these conventions, "without any discrimination for reasons of (…) sex…” Article 17 of the American Convention on Human Rights deals with the rights of the family and states that the "…right of men and women of marriageable age to raise a family shall be recognised." and that "…no marriage shall be entered into without the free and full consent of the intending spouses." Article 6 of the Additional Protocol to the American Convention on Human Rights in the Field of Economic, Social, and Cultural Rights provides that States Parties are to "undertake to implement and strengthen programs that help to ensure suitable family care, so that women may enjoy a real opportunity to exercise the right to work". Article 9 provides for maternity leave. In Article 15 (3) (a) it is stated that States Parties should provide special care and assistance to mothers during a reasonable period before and after childbirth.

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Article 18 (3) of the African Charter on Human and People's Rights contains an anti-discrimination clause with regard to women. It provides that "…the State shall ensure the elimination of any discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions."

Chapter IX Rights of the Child

One of the most vulnerable groups among persons with disabilities are children. They are more vulnerable to wars, exploitation, malnutrition, physical and psychological ill treatment, trafficking etc., and rely on adults for the enforcement of their human rights mechanisms.

1. International Instruments Pertaining to the Rights of

the Child The Convention on the Rights of the Child (CRC), the most complete statement of children's rights, is lex specialis and is the first to give these rights the force of international law. The term child, as defined in the Convention, is related to a person under the age of 18, unless national laws mandate an earlier age of majority.

Article 2 provides that States Parties must respect and ensure the rights in the Convention "…without discrimination of any kind, irrespective of … disability …” Furthermore, Article 19 (1) states that the child shall be protected from "…all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse…."

Although there is no direct obligation for the State Parties to undertake measures to provide for children with disabilities to enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community, Article 23 (1-4) identifies the importance for children with disabilities to have effective access to and receive education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities. Child’s Rights Committee clarifies that although Article 23 refers to children with disabilities their rights are not restricted to only this article.


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The Convention on the Rights of the Child (CRC) is supplemented by two protocols: The Optional protocol on the involvement of children in armed conflict and the Optional protocol on the sale of children, child prostitution and child pornography of 2000.

Other international instrument, in which the rights of the child are included, is the Universal Declaration of Human Rights. Its Article 25 (2) clearly states that "…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."

The International Covenant on Civil and Political Rights state in Article 24 (1) that, "Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State…". The Article 10 of the International Covenant on Economic, Social and Cultural Rights states that "…special protection should be accorded to mothers during a reasonable period before and after childbirth… Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions."

Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law."

The Section II paragraph 21 of the Vienna Declaration and Programme of Action welcomes the early ratification of the Convention on the Rights of the Child by a large number of States and urges universal ratification of the Convention by 1995 and its effective implementation by States parties through the adoption of all the necessary legislative, administrative and other measures and the allocation to the maximum extent of the available resources. In addition, it is stated that all actions concerning children, non-discrimination and the best interests of the child should be of primary considerations.

The Protocol II Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts states in Part II, Article 4 (3) (a) that children "…shall receive an

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education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care." Article 4 (3) (b) states that all appropriate steps shall be taken to facilitate the reunion of families temporarily separated. Article 4 (3) (c) provides that "…children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities. Furthermore, Article 4 (3) (d) states: "…measures shall be taken, if necessary, and whenever possible with the consent of their parents or persons who by law or custom are primarily responsible for their care, to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being."

Other international instruments concerning the rights of the child include:

• the World Declaration on the Survival, Protection and Development of Children and its Plan of Action adopted at the 1990 World Summit for Children,

• The outcome document of the UN General Assembly Special Session on Children ("A World Fit for Children".)

• follow-up meeting to the World Summit for Children,

• the 1990 United Nations Guidelines for Prevention of Juvenile Delinquency ("Riyadh Guidelines"),

• the 1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("Beijing Rules"),

• the 1990 United Nations Rules for Protection of Juveniles Deprived of their Liberty,

• International Convention for the Suppression of Traffic in Women and Children (1921),

• and ILO conventions

o on minimum age (Industry, No.5, 1919 and No.59, 1937), (Sea, No.7, 1920 and No.58, 1936), (Agriculture, No.10, 1921), (Trimmers and Stokers, No.15, 1921), (Non-industrial Employment, No.33, 1932 and No.60, 1937), (Fishermen, No.112, 1959), (Underground Work, No.123, 1965), (Minimum Age, No.138, 1973)


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o on night work of young persons (Industry, No.6, 1919 and No.79, 1946), (Non-industrial employment, No.90, 1948),

o on medical examination of young persons (Non-industrial Occupations, No.79, 1946), (Underground Work, No.124, 1956),y

o and the ILO Convention on the Worst Forms of Child Labour (No.182, 1999).

2. Regional Instruments Pertaining to the Rights of the

Child The European Social Charter in its Article 7 states that, “right of children and young persons to protection. “With a view to ensuring the effective exercise of the right of children and young persons to protection, the contracting parties undertake,” the following:

1. To provide that the minimum age of admission to employment shall be 15 years, subject to exceptions for children employed in prescribed light work without harm to their health, morals and education;

2. To provide that a higher minimum age of admission to employment shall be fixed with respect to prescribed occupations regarded as dangerous or unhealthy;

3. To provide that persons who are still subject to compulsory education shall not be employed in such work as would deprive them of the full benefit of their education;

4. To provide that the working hours of persons under 16 years of age shall be limited in accordance with the needs of their development, and particularly with their need for vocational training;

(...)

9. To provide that persons under 18 years of age employed in occupations prescribed by national laws or regulations shall be subject to regular medical control

10. To ensure special protection against physical and moral dangers to which children and young persons are exposed, and particularly against those resulting directly or indirectly from their work."

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Article 17 obliges the States Parties to take measures to provide economic and social protection for children, that is "… with a view to ensuring the effective exercise of the right of mothers and children to social and economic protection, the Contracting Parties will take all appropriate and necessary measures to that end, including the establishment or maintenance of appropriate institutions or services."

Though there were no fundamental changes in the Revised Form of the European Social Charter, in article 7 the age limit goes up from 16 to 18 years of age and states that “… with a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the Parties undertake, either directly or in Cupertino with public and private organisations, to take all appropriate and necessary measures designed:

1.

a. To ensure that children and young persons, taking account of the rights and duties of their parents, have the care, the assistance, the education and the training they need, in particular by providing for the establishment or maintenance of institutions and services sufficient and adequate for this purpose;

b. To protect children and young persons against negligence, violence or exploitation;

c. To provide protection and special aid from the state for children and young persons temporarily or definitively deprived of their family's support; and

2. To provide to children and young persons a free primary and secondary education as well as to encourage regular attendance at schools."

Article 19 of the American Convention on Human Rights provides that "… every minor child has the right to measures of protection required by his condition as a minor on the part of his family, society, and the state."

The Additional Protocol to the American Convention on Human Rights in the Field of Economic, Social, and Cultural Rights proclaimed in Article 15 (3) (b) and (d), States undertake to guarantee adequate nutrition for children and to help create an environment in which children receive and develop the values of understanding, solidarity, respect and responsibility. Article 16


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outlines a comprehensive set of rights for children including the right to special protection, the right for the young child, save in exceptional circumstances, not to be separated from his mother, the right for children to remain under the protection of their parents, and the right to free and compulsory education.

Article 18 (3) of the African Charter on Human and Peoples' Rights provides: "The State shall ensure the elimination of every discrimination against women and also censure the protection of the rights of the woman and the child as stipulated in international declarations and conventions...".

There are more specific instruments at the regional level pertaining to this matter. The first one is the African Charter on the Rights and Welfare of the Child is based on the Convention on the Rights of the Child (CRC), but adapted to the regional context. The second instrument, the European Convention on the Exercise of Children's Rights, focuses on procedural aspects in the enforcement of existing rights of children.

Other instruments include inter alia the 1993 Hague Convention on the Protection of Children and Co-operation in Respect of Inter-country Adoption, the 1980 Convention on the Civil Aspects of Child Abduction, the 1975 European Convention on the Legal Status of Children Born out of Wedlock and the 1980 European Convention on the Recognition and Enforcement of Decisions Concerning Custody of Children and on the Restoration of Custody of Children. However, most of these are private international law treaties dealing with questions of jurisdiction, and not substantive law.

3. International Instruments Specifically Relating to Disabled Children

The Convention on the Rights of the Child (CRC) is the first international treaty (legal act), which recognises the rights of disabled children. The most important article for the protection of disabled children is article 23 (1) which states that "States Parties recognise that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community."

In addition, Article 23 (2) states that “States Parties recognise the right of disabled children to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those

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responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition, and to the circumstances of the parents or others caring for the child."

Article 23 (3) states that "…taking into account the special needs of children with disabilities, assistance, as defined in paragraph 2, shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child. Assistance shall be designed to ensure that the disabled child has effective access to and receives education, training, health, care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achievement of the fullest possible social integration and individual development, including his or her cultural and spiritual development."

Further on, as defined in paragraph 4 "States parties undertake to promote and improve the international co-operation to gradually achieve full realisation of the rights provided by this article. In this regard, particular account shall be taken of the needs of developing countries".

Other articles in this convention are also of special relevance to the protection of disabled children. These include: article 24 (the child is entitled to the highest attainable standard of health), and article 19 (States shall protect children from physical or mental harm and neglect, including sexual abuse or exploitation).

Most importantly, the Convention's general principles: article 2 (non-discrimination), article 3 (the best interests of the child), article 6 (life, survival and development), and article 12 (respect for the views of the child) are also crucial for the protection of the rights of children with disabilities. The African Charter on the Rights and Welfare of the Child has a very comprehensive approach regarding the protection of disabled children. Indeed, in Article 13, which refers to children with disabilities, is stated that: "…every child who is mentally or physically disabled shall have the right to special measures of protection in keeping with his physical and moral needs and under conditions which ensure his dignity, promote his / her self-reliance and active participation in the community. States Parties shall ensure, subject to available resources, to a disabled child and to those responsible for his care, of assistance for which application is made and which is appropriate to the child's condition and in particular shall ensure that the disabled child has effective access to training, preparation for employment and recreation opportunities in a manner conducive to the child achieving the fullest


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possible social integration, individual development and his cultural and moral development. The States Parties to the present Charter shall use their available resources with a view to achieving progressively the full convenience of the mentally and physically disabled person to movement and access to public highway buildings and other places to which the disabled may legitimately want to have access to. Chapter X

Rights of Special Groups

1. Rights of Adolescents In Article 15 (3) (c) of the Additional Protocol to the American Convention on Human Rights in the Field of Economic, Social, and Cultural Rights States undertake to adopt special measures for the protection of adolescents in order to ensure the full development of their physical, intellectual and moral capacities.

The goals mentioned in the United Nations Rules for the Protection of Juveniles Deprived of their Liberty are protections provided specifically for juveniles. Other related instruments that apply to youth are United Nations Guidelines for Prevention of Juvenile Delinquency ("Riyadh Guidelines") and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("Beijing Rules").

2. Rights of Elderly Persons

Article 4 of the Additional Protocol to the European Social Charter states that “With a view to ensuring the effective exercise of the right of elderly persons to social protection, the Parties undertake to adopt or encourage, either directly or in co-operation with public or private organisations, appropriate measures designed in particular:

1 To enable elderly persons to remain full members of society for as long as possible, by means of:

a adequate resources enabling them to lead a decent life and play an active part in public, social and cultural life;

b provision of information about services and facilities available for elderly persons and their opportunities to make use of them;

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2 To enable elderly persons to choose their life-style freely and to lead independent lives in their familiar surroundings for as long as they wish and are able, by means of:

a. provision of housing suited to their needs and their state of health or of adequate support for adapting their housing;

b. the health care and the services necessitated by their state;

3. To guarantee elderly persons living in institutions appropriate support, while respecting their privacy, and participation in decisions concerning living conditions in the institution.

Also, the Additional Protocol to the American Convention on Human Rights in the Field of Economic, Social, and Cultural Rights confers in Article 17 the right to special protection for the elderly. The Preamble of the Declaration on the Elimination of Violence against Women states "…that some groups of women, such as women belonging to minority groups, indigenous women, refugee women, migrant women, women living in rural or remote communities, destitute women, women in institutions or in detention, female children, women with disabilities, elderly women and women in situations of armed conflict, are especially vulnerable to violence".

3. Rights of the Poor 3.1. Disability and Poverty

Poverty can greatly increase the chance of a person becoming disabled, and a person with disabilities has a greater chance of experiencing poverty. There are many reasons why those who are living in poverty experience more disabilities than those who are not poor. Among these are:

a. Poor people may not have adequate food; b. They may live in unhealthy environments; c. They may have low-paying or dangerous jobs, if any at all; they may

be victims of violence; d. They have less access to medical treatment; e. They are less educated and, therefore, may not learn about treatment. f. Poor people lack access to information, influence and resources,

which may cause them to live in poor living conditions and without proper medical care.


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3.2. United Nations instruments and measures for the eradication of poverty

The whole United Nations system has a major role to play in the area of eradicating poverty. Addressing poverty issues has been the major theme at many United Nations International Conferences such as:

• The World Summit for Children (New York 1991)

• The Earth Summit (Rio de Janeiro, 1992)

• The World Conference on Human Rights (Vienna, 1993)

• The International Conference on Population and Development (Cairo, 1994)

• The Social Summit (Copenhagen, 1995)

• The Fourth World Conference on Women (Beijing, 1995); and

• The United Nations Conference on Human Settlements (Habitat II) (Istanbul, 1996)

The United Nations Development Programme (UNDP) supports programmes that assist governments and organisations of civil society in developing economic and social policies and programmes to address the whole range of factors that contribute to poverty. These programmes seek to increase food security, improve the availability and quality of shelter and basic services, and generate opportunities and sustainable livelihoods. UNDP assistance supports efforts to identify and prioritise poverty eradication needs at the country level, targeting current gaps and weaknesses in the capacity of government and civil society institutions to address poverty issues.

In 1992, the General Assembly adopted a resolution proclaiming October 17 as the International Day for the Eradication of Poverty (General Assembly resolution 50/176 of December 1992). The United Nations proclaimed the year of 1996 as the International Year for the Eradication of Poverty (General Assembly resolution 48/183 of December 1993). The General Assembly recognised that "…poverty is a complex and multi-dimensional problem with origins in both the national and international dimensions, and that its eradication in all countries, in particular in developing countries, has become one of the priority development objectives for the 1990's in order to promote sustainable development."

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The United Nations then proclaimed the period from 1997 to 2006 as the First United Nations International Decade for the Eradication of Poverty (General Assembly resolution 50/107 of December 1995). The General Assembly decided by resolution that in 1996 the theme would be the eradication of poverty as an "…ethical, social, political and economic imperative of humankind" (General Assembly resolution 51/178 of December 1996). The resolution also declared Poverty, environment, and development as the theme for 1997 and Poverty, human rights and development as the theme for 1998.

The objective for the decade was to eradicate absolute poverty, and reduce overall global poverty through decisive national action and international co-operation in implementing fully and effectively all relevant agreements, commitments and recommendations of major United Nations conferences since 1990. The General Assembly recommended that the causes of poverty should be addressed through action in the areas of environment, food security, population, migration, health, shelter, human resources development including clean water and sanitation, rural development and productive development, and by addressing the needs of vulnerable groups.

In order to help eradicate this problem of poverty and its endless cycle, Governments may turn to several instruments for assistance and guidance. Commitment 2 of The Copenhagen Declaration and Programme of Action provides that States commit themselves to eradicate poverty. In this context, the States must take efforts to provide for the basic needs of all. Moreover, pursuant to commitment 2, at the national level States must ensure that people living in poverty have access to productive resources, including credit, land, education and training, technology, knowledge and information, as well as public services. At the international level, states must "…strive to ensure that the international community and international organisations, in particular, the multilateral financial institutions, assist developing countries in need in their efforts to achieve our overall goal of eradicating poverty and ensuring basic social protection."

Article 15 (h) states that "…one of the world's largest minorities, more than one in 10, are people with disabilities, who are too often forced into poverty, unemployment and social isolation." In the Declaration, the participating governments commit to eradicate poverty. Paragraph 23 provides that "…poverty has various causes, including structural ones. Poverty is a complex multi-dimensional problem with origins in both the national and international domains. No uniform solution can be found to tackle poverty and international efforts supporting national efforts, as well as the parallel


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process of creating a supportive international environment, are crucial for a solution to this problem (…). The eradication of poverty cannot be accomplished through anti-poverty programmes alone, but will require democratic participation and changes in economic structures in order to ensure access for all to resources and opportunities."

In Paragraph 27 is stated "The international community, the United Nations, the multilateral financial institutions, all regional organisations and local authorities, and all actors of civil society need to positively contribute their own share of efforts and resources in order to reduce inequalities among people." Further on, Paragraph 82 states: "Nothing short of renewed and massive political will at the national and international levels to invest in people and their well-being will achieve the objectives of social development."

In addition, Paragraph 96 talks about the need for inter-agency collaboration and states that "The United Nations system, including technical and sector agencies and the Bretton Woods institutions, should expand and improve their co-operation in the field of social development to ensure that their efforts are complementary and, where possible, should combine resources in joint initiatives for social development…"

Articles 5-6 of the Beijing Declaration recognise that the unequal status of men and women is due in large part to the increasing poverty that is affecting the lives of the majority of the world's people, including women and children. In addition, Article 26 focuses on measures to address poverty.

The United Nations Report of the World Social Situation 1997 sets forth national strategies for dealing with the eradication of poverty:

1. Promoting the high and sustained rates of economic expansion and employment creation through policies designed to create an enabling environment for poverty reduction;

2. Increasing incomes and participation in the economy by the unemployed and working poor through targeted measures to improve their skills and training and upgrade their health status and living conditions;

3. Expanding opportunities for the poor to engage in gainful economic activity by widening their access to land, credit and other productive factors;

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4. Targeting those localities and intervening in those areas where the poor reside and where needs are greatest in terms of priorities for poverty reduction;

5. Addressing the pressing economic and social problems of the aged, the disabled, the infirm and those otherwise unable to engage in productive activity through programmes of public assistance and income maintenance.

6. Channelling the benefits from increased participation in the world economy towards the poorest segments of the population through policies promoting an expansion of labour-intensive exports and a reduction of trade restriction on consumer goods.

Article 4 of the Basic Principles on the Role of Lawyers provides that "…special attention should be given to assisting the poor so as to enable them to assert their rights and where necessary call upon the assistance of lawyers."

The United Nations Millennium Declaration gives guidelines for poverty eradication and development, and sets concrete goals. To implement the Declaration, the international community has agreed on Millennium Development Goals, which include the eradication of extreme poverty and hunger, achieving universal primary education, promoting gender equality and empowering women, reducing child mortality, improving maternal health, combating HIV/AIDS, malaria and other diseases, ensuring environmental sustainability, developing a global partnership for development.

In the combat for eradication of poverty on the domestic level, national strategies for suppression of poverty and the coordinative bodies established to create a programme of action and ensure its implementation play the key roles. Persons with disabilities are directly involved in the work of the coordinative bodies. While in some states it is just declarative (like in Republic of Macedonia), in others it is substantial (like in Bosnia and Herzegovina).

4. Rights of Indigenous People

The rate and risk of disability among indigenous people are higher because of dangerous working conditions, lower standards of living, and the poor quality of the preventive medical services available to them. Above all, disabled persons belonging to such groups do not usually have access to suitable rehabilitation services.


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The first instrument concerning indigenous populations was the 1957 ILO Convention on the Protection and Integration of Indigenous and other Tribal and Semi-Tribal populations in Independent Countries. However, it was ratified by less than thirty countries.

The first International Conference of NGOs on Indigenous Issues was held in Geneva in 1977, followed by a second conference, which took place in 1981. The decisive step was the establishment of the UN Working Group on Indigenous Populations in 1988, under the auspices of the Sub-commission on the Prevention of Discrimination and Protection of Minorities of the UNHCR. The Working Group drafted a (Draft) Declaration on the Rights of Indigenous Peoples in 1994. The International Decade of Indigenous People (1995-2004) has led to the creation of the Permanent Forum on Indigenous Issues, and in 2001, a Special Rapporteur was appointed to receive information and communications on the situation of the human rights of indigenous people.

The Vienna Declaration and Programme of Action as the final document of the World Conference on Human Rights focuses on the rights of indigenous populations, including persons with disabilities. Section II, paragraph 20 obliges States to “…recognize the inherent dignity and the unique contribution of indigenous people to the development and plurality of society and strongly reaffirms the commitment of the international community to their economic, social and cultural well-being and their enjoyment of the fruits of sustainable development. States should ensure the full and free participation of indigenous people in all aspects of society, in particular in matters of concern to them.” States should ensure respect for all human rights and fundamental freedoms of indigenous peoples.

Additionally "...considering the importance of the promotion and protection of the rights of indigenous people, and the contribution of such promotion and protection to the political and social stability of the States in which such people live, States should, in accordance with international law, take concerted positive steps to ensure respect for all human rights and fundamental freedoms of indigenous people, on the basis of equality and non-discrimination, and recognize the value and diversity of their distinct identities, cultures and social organization”. It also requires legislative reform to "…assure access to these and other rights of disabled persons."

The Copenhagen Declaration and Programme of Action gives special emphasis on disadvantaged groups, such as disabled persons and indigenous peoples. Commitment 4 provides that in order to promote social integration,

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States should respect the rights of indigenous peoples to maintain and develop their identity, culture and interests. Furthermore, States must ensure that indigenous peoples are able to participate in the social, economic, and political life of their country. Commitment 6 requires States to recognise the right of indigenous people to education that is responsive to their specific needs, aspirations and cultures. States must also ensure that indigenous peoples have full access to health care.

5. Rights of Refugees 5.1. Rights of Refugees with Disabilities

Disabled persons who have to leave their countries find themselves in particularly disadvantaged situations. Disabled refugees are an extremely vulnerable group and are therefore in need of special attention. However, there are no legal instruments at an international level, as such, to protect the rights of disabled refugees. Disabled refugees can only refer to scattered provisions of conventions, instruments and international humanitarian law.

According to the Convention relating to the Status of Refugees, the legal definition for a refugee is "…a person who is outside his country of origin and cannot return to it owing to a well-founded fear of persecution for reasons of race, religion, nationality, or political opinion." Indeed, Article 1 states that “…"The term refugee shall apply to any person who: (...) (2) as a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or is outside the country of his former habitual residence and as a result of such events, is unable or, owing to such fear is unwilling to return to it".

The 1951 dateline originated in the wish of governments, at the time the Convention was adopted, to limit their obligations to refugee situations that were known to exist at that time, or those which might subsequently arise from the events that had already occurred. By accession to the 1967 Protocol, States undertake to apply the substantive provisions of the Convention to refugees as defined in the Convention, but without the 1951 dateline.

The Refugee convention applies to all refugees, equally. Some of the basic provisions are stated as below.


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a. Article 24 of the Convention relating to the Status of Refugees: "The Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals…"

b. Social security (legal provisions in respect to employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by social security scheme), subject to the following limitations:

o there may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition;

o national laws or regulations of the country of residence may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfil the contribution conditions prescribed for the award of a normal pension."

Other provisions to which disabled refugees will refer for their protection are: Articles 3 (non-discrimination), 7 (exemption from reciprocity), 17 (wage-earning employment), 18 (self-employment), 19 (liberal professions), 31 (refugees unlawfully in the country of refuge).

Article 33 prohibits for states to expel or return a refugee, if that implies returning to his/her country of origin, and cannot to, where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. (Principle of non-refoulement).

The benefits provided in Article 33(2) may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

The Standard Rules on the Equalization of Opportunities for Persons with Disabilities, in Rule 21, require that measures to achieve the equalisation of opportunities of disabled refugees should be integrated into general development programmes.

The Trust Fund for Handicapped Refugees was set up with funds originating from the Nobel Peace Prize granted to the UNHCR in 1981. Before this, little was known of disabled refugees, many of whom became disabled

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through violent encounters. Since then, the UNHCR has helped many disabled refugees by covering the costs of social, medical and rehabilitative assistance when these were not provided by the home country of the refugee, or when they were denied access to these services and facilities.

The Guidelines for Educational Assistance to Refugees emphasise that all "…measures for disabled refugees are based on the concept of community-level care and are incorporated into the overall Care and Maintenance Programme."

5.2. Rights of Refugee Children

Article 22 (1) of the Convention on the Rights of the Child states: " State Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall … receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties."

The 1951 Convention on the Status of Refugees does not mention children specifically, though some of its provisions, such as that on education, are especially important to refugee children. UNHCR has, however, made children a policy priority, and has adopted several documents to guide its work in that area.

The 1987 Conclusion on Refugee Children (Conclusion No. 47 (XXXVIII) stresses that "… the need for internationally and nationally supported programmes geared to preventive action, special assistance and rehabilitation for disabled refugee children and encouraged States to participate in the "Twenty or More" Plan providing for the resettlement of disabled refugee children." The "Ten or More" plan created in 1973 and increased in 1984 to the "Twenty or More" plan, together with other special programmes, gives the highest priority to children who are disabled or victims of torture.

The 1997 Conclusion on Refugee Children and Adolescents (Conclusion No.84) is concerned with the prevention of sexual violence, exploitation, trafficking and abuse. It addresses the rights of child and adolescent victims through provision and appropriate legal and rehabilitative remedies.

The UNHCR has also adopted Guidelines on Refugee Children in 1988, which are incorporated into UNHCR Policy on Refugee Children.


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5.3. Rights of Refugee Women

UNHCR, besides on matters related to rights of refugee children, works on rights pertaining to refugee women. In that direction, UNHCR adopted a Policy of Refugee Women in 1990 and Guidelines for the Protection of Refugee Women in 1991. The Guidelines review refugee women's legal and physical protection needs. They give concrete recommendations on how to involve refugee women in decisions affecting their security and how to identify particularly risky situations. Additionally, the Guidelines emphasize safety and suggest mechanisms to improve the reporting of physical and sexual protection problems and programmes for improved protection.

5.4. Regional Instruments Applicable to Refugees Article 4 of the Convention Governing the Specific Aspects of Refugee Problems in Africa states that "Member States undertake to apply the provisions of this Convention to all refugees without discrimination as to race, religion, nationality, membership of a particular social group or political opinions."

The Addis Ababa Document on Refugees and Forced Population Displacements in Africa states in recommendation 8 that " …the international Community, the UN, the UNHCR and other relevant organisations, should support and assist host Governments in fulfilling their responsibilities towards refugees in a manner consistent with the principles of refugee law on the one hand, and legitimate national security, social and economic interests on the other hand. In particular, financial, material and technical assistance should be made available to (…) provide food, water, shelter, sanitation and medical services on a timely basis so that refugees and local populations alike are not put in a life-endangering situation."

The Cartagena Declaration on Refugees calls for improved "protection afforded to refugees, safeguarding their human rights and implementing projects aimed at their self-sufficiency and integration into the host society". In addition, it asks for a study on the "possibilities of integrating [persons with disabilities] into the productive life of the country by allocating to the creation or generation of employment the resources made available by the international community through UNHCR, thus making it possible for refugees to enjoy their economic, social and cultural rights.

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6. Rights of Ethnic Minorities Often, persons belonging to minority groups who are disabled are discriminated on the basis of their race or ethnicity as well as their disability

In 1992, the United Nations General Assembly adopted the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, and in 1995, a Working Group on Minorities was established.

Among other rights provided by the International Covenant on Civil and Political Rights is the right of minorities stated in Article 27. Taking into account that the majority of states were against the collective concept of minority rights, that is, including minority rights into the international treaty on individual rights, implicates that the rights provided in Article 27 are individual per se, although it stipulates a possibility for their collective enjoyment. Article 27 states that “…in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right1, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” This article is very important as violation of the rights provided in this article can be subject to individual petition before the Human Rights Committee1.

The Vienna Declaration and Programme of Action, in section II, paragraph 19 reaffirms the obligation of States to ensure that persons belonging to minorities may exercise fully and effectively all human rights and fundamental freedoms without any discrimination and in full equality before the law in accordance with the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.

The Commitment 4 of the Copenhagen Declaration and Programme of Action provides that States undertake to promote and protect the rights of persons belonging to ethnic minorities.

The International Convention on the Elimination of all forms of Racial Discrimination provides protection for persons with disabilities against discrimination based on their race. Racial discrimination is defined in the Convention as "…any distinction, exclusion, restriction or preference based on race, colour, descent, national or ethnic origin, which has the purpose of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life".


201

SELECTED BIBLIOGRAPHY

1. PUBLICATIONS

1. Albrecht Gary L., Seelman Katherine D., Bury Michael: Handbook of Disability Studies, Sage Publications, London, 2001;

2. Beddard R.: Human Rights and Europe, Grotius Publishers, 1993; 3. Brownlie Ian, Guy S. Goodwin-Gill: Basic Documents on Human Rights,

Oxford, OUP, 2002; 4. Buergenthal T.: International Human Rights, 1988; 5. Cassese A.: Human Rights in European Community, 3 vol. Baden-Baden,

Nomos Verlagsgesellschaft, 1991; 6. Council of Europe: A Coherent Policy for the Rehabilitation of People with

Disabilities, Council of Europe Publishing, Strasbourg, 1999; 7. Degener Theresia: Disability Discrimination Law: A Global Comparative

Approach, Paper presented at Disability Rights in Europe: From Theory to Practice, 25-26 September 2003, University of Leeds;

8. Dictionary of Law, Oxford University Press,1997; 9. Donnelly Jack: International Human Rights, Westview Press, 1998; 10. Eide A.: The Historical Significance of the Universal Declaration,

International Social Science Journal, 158, 1998; 11. Frckoski Lj.D.: International Human Rights Law, Magor, Skopje, 2001; 12. Gaudron M.: Equal Rights and Anti-Discrimination Law, The Sir. Richard

Blackborn Memorial Lectures, 1992, Academy of Science, Canberra, Australia;

13. Ghandhi P.R.: International Human Rights Documents (London, 1995) text on European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment;

14. Gomien Dona, Davis Harris, Zwaak Leo: Law and Practice of European Convention on Human Rights and the European Social Charter, Council of Europe, 1996;

15. Graycar R., Morgan J.: The Hidden Gender of Law, Federation, 1990; 16. Ishej R. Mishelin: Human Rights- compendium of basic political essays,

speeches and documents from the Bible till today, MI-AN Skopje, 2002; 17. Harris A., Enfield S.: Disability, Equality and Human Rights, A Training

Manual for Development and Humanitarian Organizations, Oxfam GB, Action on Disability and Development, 2003;

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18. Jackman M.: Giving real effect to equality: Eldridge vs. British Columbia (Attorney General) and Vriend vs. Alberta, (1998) 4/2 Rev of Constitutional Studies 352-71;

19. Jacobs F.: The European Convention on Human Rights, Oxford, OUP, 1975;

20. Janis M.W., Kay R.S., Bradly A.W.: European Human Rights Law, Oxford University Press, 2000;

21. Lepofsky D.M.: The Charter's Guarantee of Equality to People with Disabilities- How well is it working?, (1998) 16 Windsor Yearbook of Access to Justice 155-214;

22. Lucas Erika, Adjusting to disability rules, Professional Manager Magazine, Volume 13, Issue 5, September 2004;

23. Merrills J.: The Development of International Law by the European Court of Human Rights, New York, Manchester University Press, 1993; with Robertson A.: Human Rights in the World, New York, Manchester University Press, 1989;

24. Minority Rights Group International, 1993/95, Manchester Free Press, UK 12, 13, Asbjorn Eide;

25. Nussbaum C. Martha: Judging other culture: The case of Female Genital Mutilation, Sex and Social Justice;

26. Polio Plus: Zbirka dokumenti na Sovetot na Evropa koi se odnesuvaat na hendikepot, Jugoreklam, Skopje, 2002;

27. Porter B.: Substantive Equality and Positive Obligations After Eldridge and Vriend, (1998) 9/3 Forum Constitutional;

28. Quinn G.: From Charity to Rights -The Evolution of the Rights-Based Approach to Disability: International and Irish Perspectives, CPI Handbook of Services (Dublin, 2000);

29. Robertson A.H.: Human Rights in the World, 1996, str.28; Human Rights Today, a United Nations Priority, 1998;

30. Robertson A.H.: The Council of Europe, London, Stevens, 1961; 31. Save the Children, Children’s Rights: Reality or Rhetoric?, The UN

Convention on the Rights of the Child: the first ten Years; 32. Sheeny Elizabeth A.: Personal Autonomy and Criminal Law, CAC,

Toronto, 1987; 33. Shmeder Richard: What about FGC? And why understanding culture

matters in the first place?, Daedalus volume 129, number 4 (Fall 2000); 34. Sohn: The New International Law: Protection of the Rights of Individuals

rather then States, AUL Rev. 1982; 35. Steiner H.J., Alston P.: International Human Rights in Context, 1996; 36. Stojkova Z.: Prohibition of Torture in the frames of the Strasbourg System,

master thesis, University “Ss. Cyril & Methodius”, Law Faculty, Skopje, 2003;

37. The Center for Universal Design N.C. U.S.A. publication; Information center for disabled people “Lotos”, Tuzla;


203

38. United States Agency for International Development, Bureau for Europe and Eurasia, Office of Democracy, Governance and Social Transition, The 2003 NGO Sustainability Index for Central and Eastern Europe and Eurasia, Seventh Edition, June 2004;

39. Van Dajk P., G. J. H. van Hoof: Theory and Practice of the European Convention on Human Rights, 1990, Kluwer Law and Taxation Publishers;

40. Vasak K.: The International Dimensions of Human Rights, T.C. van Boven, Survey of International Law of Human Rights;

41. Zwart Tom: The Admissibility of Human Rights Petitions, the case Law of the European Commission on Human Rights and the Human Rights Committee, Martinus Nijhoff Publishers, 1994;

42. Human Rights- basic document: 50 anniversary of the Universal Declaration of Human Rights: 1948-1998, Ministry of Justice, Skopje, 1998;

Literature available on the Internet

1. http://www.un.org 2. http://www.unece.org 3. http://www.coe.int 4. http://www.echr.coe.int 5. http://www.echr.coe.int/eng/Jtm 6. http://europa.eu.int/eur-lex/en/lif/reg/en_register_1640.html 7. http://europa.eu.int/comm/employment_social/socdial/social/news/declarati

on_en.htm 8. http://europa.eu.int/comm/employment_social/socprot/disable/strategy_en.

htm 9. http://www.aohr.org 10. http://www.enableireland.ie/accesswest/intros/essayindex.html 11. http://www.euro-ombudsman.eu.int 12. http://www.disabilityworld.org/JuneJuly2000/Governance/UKDisabilityRi

ghts.htm 13. http://www.usaid.gov/ 14. http://www.disabilityworld.org/May2000/Governance/India.htm 15. http://www1.umn.edu/humanrts/instree/z1afchar.htm 16. http://www.unhchr.ch/html/menu3/b/o_c_ref.htm 17. http://www.fao.org 18. http://www.hrw.org/

http://www.un.org/

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http://www.echr.coe.int/

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http://europa.eu.int/comm/employment_social/socprot/disable/strategy_en.htm

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http://www.aohr.org/

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http://www.euro-ombudsman.eu.int/

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http://www.unhchr.ch/html/menu3/b/o_c_ref.htm

http://www.fao.org/

http://www.hrw.org/

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2. LEGAL DOCUMENTS

1. Loi 90-602 de 12 Juliet 1990 (France); 2. Labour Act as amended in 1992(France); 3. Penal Code as of 1995 (Finland); 4. Constitution as of 1995 (2000)- (Finland); 5. Employment Contracts Act (55/2001)- (Finland); 6. Criminal Code (Organic Law 10/1995, 23rd November)- (Spain); 7. Statute of Workers' Rights (Royal Legislative Decree 1/1995 24th March)-

(Spain); 8. Law on the Social Integration of the Disabled, 1982 (Spain); 9. Criminal Code as modified in 1997 (Luxemburg); 10. Disability Discrimination Act 1992 (Australia); 11. The Training and Employment of Disabled Persons Act, 1996 (Mauritius); 12. Equal Rights for Persons with Disabilities Law, 1998 (Israel); 13. Magna Carta for Disabled Persons, 1992 (Philippines); 14. Draft of a Constitution for the Second Republic of Gambia of 1996, part 32

(Zambia); 15. Persons with Disabilities Act, 1992 (Zimbabwe); 16. Federal Constitutional Law as amended in 1997 (Austria); 17. Constitution of the Federative Republic of Brazil, as of 1993; Charter of

Human Rights and Freedoms as of 1982; Constitution as amended in 1995 and in 2000; Constitution as of 1997 (Brazil);

18. Charter of Human Rights of Freedoms, Constitution Act 1982 (Canada); 19. Canadian Human Rights Act, R.S.C. 1985; 20. Canadian Human Rights Act, R.S.C. 1985; 21. Constitution of Fiji as of 1997; 22. Draft of a Constitution for the Second Republic of Gambia (1996); 23. Constitution as of 1992 (Ghana); 24. The Persons with Disabilities Act of 1993 (Ghana). 25. Basic Law of the Federal Republic of Germany as amended in 1994; 26. Republic of Malawi (Constitution) Act 1994; 27. Human Rights Act 1993 (New Zealand); 28. Constitution as of 1996 (South Africa); 29. Employment Equity Bill 1998 and Skills Development Bill of 1998 (South

Africa); 30. Constitution as of 1999 (Switzerland); 31. Constitution as of 1995 (Uganda); 32. Local Government Act, 1997 (Switzerland); 33. Act to Combat Discrimination and to Amend the Act of 15 February 1993

to Establish a Centre for Equal Opportunity and to Combat Racism (Belgium);

34. Act No 19.284 of 1994 (Chile);


205

35. Law 7600 for Equalization of Opportunities for Persons with Disabilities,1996 (Costa Rica);

36. Decree No. 119101-S-MEP- TSS- PLAN of 1989 (Costa Rica); 37. The Rights of Disabled Persons to Employment, Proclamation No 101/1994

(Ethiopia). 38. Act for the Protection of Persons with Disabilities, Decree No.135-96, 1996

(Guatemala); 39. Act. No. XXVI of 1998 on Provision of the Rights of Persons Living with

Disability and their Equality of Opportunity (hereinafter cited as Act No. XXVI)- (Hungary);

40. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (India);

41. Employment Equality Act of 1998, Equal Status Act of 2000 and National Disability Authority Act (2000);

42. Act Relating to Employment Promotion, etc of the Handicapped, Law No,4219 (1990) and The Special Education Promotion Law, 1994 (Korea);

43. The Welfare Law for Persons with Disabilities, Law No.4179 (1989)- (Korea);

44. Labour Code as of 29 September 1994 (Madagascar); 45. The Training and Employment of Disabled Persons Act (Act No.9 of 1996)-

(Mauritius); 46. Act of 3 April 2003 to establish the Act on the Equal Treatment on grounds

of Disability or Chronic Illness (Netherlands); 47. Labour Act as amended in 1992 (Namibia); 48. Nigerians with Disability Decree, 1993 (Nigeria); 49. Protection of the Rights of Persons with Disabilities Act, No.28 of 1996 (Sri

Lanka); 50. Prohibition of Discrimination Against Persons With Disabilities in

Employment Act, SFS No: 1999- 132, 1999 (Sweden); 51. Disability Discrimination Act 1995 and Disability Rights Commission Act

1999 (Great Britain); 52. Act No.1678 on the Person with Disability, 1985 (Bolivia); 53. Law of the People's Republic of China on the Protection of Disabled

Persons, 1990 (People Republic of China); 54. Social Law Code (Germany); 55. Act No.202 Regulations and Politics Regarding Disabled in Nicaragua/Act

for the Prevention, Rehabilitation and Equalization of Opportunities for Persons with Disabilities in Nicaragua, 1995 (Nicaragua);

56. Family Law Code, Act No. 3 as amended in 1994 (Panama); 57. Hong Kong Discrimination Ordinance, 1995; 58. Americans with Disabilities Act- ADA (USA); 59. The Architectural Barrier Act of 1968; 60. The Rehabilitation Act of 1973; 61. The Individuals With Disabilities Education Act (IDEA)- (enacted under

another name “Education For All Handicapped Children Act” in 1975);

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62. The Voter Accessibility Act as of 1984; the Fair Housing Act as amended in 1988.

3. STRASBOURG JURISPRUDENCE

1. Pfunders case i.e. Austria v. Italy, Application 788/60, Yearbook 4 (1961),

p.116 (138) and (140); 2. Cyprus v. Turkey, Application 6780/74 and 6950/75, Yearbook 18 (1975),

p.82 (118-120); Application 8007/77, Cyprus v. Turkey, D&R 13 (1979), p.85 (148-149); Cyprus v. Turkey, Resolution DH (79) 1 of 20 January 1979, Yearbook 22 (1979),440;

3. Greece v. United Kingdom (over Cyprus), Application 176/56 and 299/57, Yearbook 2 (1958-59), 174-8 and 186, and 178-80 and 196;

4. Cruz Varas case, (v. Sweden), Series A, No.201; 5. Austrian municipalities v. Austria, Yearbook 17 (1974), p. 338 (352); 6. Klass v. Federal Rebublic of Germany case, Series A, No.28, Application

5029/71, Yearbook 17 (1974), p.178 (208); 7. Open Door and Dublin Well Woman case, Series A, No.246; 8. Yasa case, Judgment of 2 September 1998; 9. Norris case, Series A, No. 421; 10. De Jong, Baljet and van den Brink case, (v. Sweden), Series A, No.77; 11. Malone case, Report of 17 December 1982, Application 82 (1984), p.52; 12. Marckx case, (v. Belgium), Judgment of 13 June 1979, Application 31

(1979), p.12-14; 13. Kirkwood v. United Kingdom case, Application 10479/83, D&R 37 (1984),

p. 158 (182); 14. Becker v. Denmark case, Application 7011/75, Yearbook 19 (1976), p. 416

(450); 15. X v. Federal Republic of Germany case, Application 155/56, Yearbook 1

(1955-1957), p.163; 16. Gericke v. Federal Republic of Germany, Application 2294/64, Yearbook 8

(1965), p.314 (320); 17. Denmark, Norway, Sweden v. Greece, Application 4448/70, Yearbook 13

(1970), p.108; 18. Denmark, Norway, Sweden and the Netherlands v. Greece, Application

3321-3323 and 3344/67, Yearbook 11 (1968), p.690; 19. Irish case, Yearbook 19 (1976) 512 and Judgment of 18 January 1978,

Series A, No. 25; Report of 25 January 1976, B.23/I (1976-1978) p.411; 20. France, Norway, Denmark, Sweden and the Netherlands v. Turkey case,

Application 9940/82-9944/82, D&R 35 (1984); 21. Spenser v. United Kingdom case, Application 28851/95 and 28852/95, Commission Decision from 16 January 1998 year 92-A Decision and Reports from the European Commission for Human Rights 56-75 (March 1998 year);

22. Campbell and Fell case, Series A, No. 80, para.61; 23. Retimag case, Application 712/60, Yearbook 4 (1961), p. 384;


207

24. Greek case (Vardikos case), Resolution DH (70)1 of the Committee of Ministers of 15 April 1970, Yearbook 12 (1969), Part II, 54 (1-14); Report of 5 November 1969, p.186;

25. Campbell and Cosans case, (v. United Kingdom), Series A, No. 48; Judgment of 25 February 1982; Report of 16 May 1980, B.42 (1980-1983) pp.43-44;

26. Albert and La Compte v. Belgium case, A 58 (1983); 27. Minelli case, Series A, No.62; 28. Pakelli case, Series A, No.64; 29. Zimmerman and Steiner case, Series A, No.66; Judgment of 10 february

1983, A.58 (1983), p.13; 30. Sunday times case, Judgment of 26 April 1979 (no. 30), 2 Report 245; 31. Airey v. Ireland, Judgment from 11 September 1979 year, Series A no. 32; 32. Van Drugenbrek v. Belgium, Judgment from 24 June 1982 year (No. 50), 4

Report 443; 33. Vicks v. Great Britain, Judgment from 2 March 1987 year (No. 114), 10

Report 293: 34. Tin, Wilson and Ganel v. Great Britain, Judgment from 25 October 1990

year (No. 190), 13 Report 666; 35. Vinterverp v. Netherlands, Judgment from 24 October 1979 year (No. 33),

2 Report 387; 36. X v. Greta Britain, Judgment from 24 October 1981 year (No. 46), 4 Report

188; 37. Johnson v. Great Britain, Judgment from 24 October 1997 year, Reports,

1997-VII 2391, 27 Report 296; 38. A and B v. Netherlands case, Judgment from 26 March 1985 year (No. 91),

8 Report 235; 39. Spycatcher (Observer and Guardian v. Great Britain); 40. United Communist Party v. Turky case; 41. Sidiropulos v. Greece case; 42. Shasanju and others v. France case; 43. National Police Union of Belgium v. Belgium case; 44. Geskin v. Great Britain case; 45. Ayri v. Irland case; 46. Griggs v. Duke Power Co. case, Supreme Court of the USA, 1971 year; 47. Plessy v Ferguson case, 163 U.S. 537 (1896); 48. Brown v. Board of Education of Topeka casa, 349 U.S. 294 (1955); 49. Eldridge v. British Columbia case, (Attorney General) (1997) 151 D.L.R.

(41&) 577 (S.C.C.); 50. Vriend v. Alberta case, [1998] 1 S.C.R.493; 51. Velasquez-Rodriguez case, Inter-American Commission for Human Rights

(IACHR); 52. Sandra Lovelace of 30 July 1982, Case No. 24/1977; 53. Kitok v. Sweden of 27 July 1988, Case No. 197/1985; 54. Ominayak v. Canada of 26 March 1990, Case No. 167/1990.

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GLOSSARIUM Actio popularis - an activity undertaken on behalf of the people with no direct involvement

of the party concerned Ad hoc - solely for now, solely for this case, solely for this purpose. Advisory opinions - advisory opinions of courts. Affirmative actions - (lat. affirmativus) individual, time-limited actions of the state in support of opportunities for realization of certain prescribed rights of individuals or groups that the latter are not able to exercise themselves due to various social, physical or political handicaps; alt. positive or reverse discrimination, social/special measures, benign discrimination, and transitional preferential measures. Conditio sine qua non - a condition without which something is not imaginable or doable, i.e. an unavoidable, necessary, needed, absolute condition. “Death row” - the time period spent since the passing of the final court ruling until the execution of the death penalty. De facto - according to the facts, from a factual perspective; antonym de jure. De jure - according to the law, from a legal perspective; antonym de facto. Due process of law - legal procedure, equality before the courts. Eo ipso - in itself (on its own).


209

Erga omnes - directed towards everyone; antonym inter partes. Female circumcision - circumcision of women. Appears in three forms: 1). Sunna or “traditional” circumcision; 2). Excision or clitoridectomy; 3). Infibulations or Paranoiac circumcision. Human right dimension - dimension of human rights and the rule of law. In abstracto - generally, observed individually; antonym in concreto. Indigenous people - native/autochthonous peoples. Inter alia - amongst oneself. Just satisfaction - impartial satisfaction. L’effet utile - principle of effectiveness. Lex generalis - (lat. lex, legis) systemic, general law. Lex specialis - (lat. lex, legis) special, individual law. Locus Standi - (lat. a place to stand) the right to bring an action or challenge some decision. Questions of locus standi most often arise in proceedings for judicial review. Non-decisions - not making decisions.

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Nullum crimen, nulla poena sine lege - no criminal act, no penalty without a law. Ordre public - public order. Obiter dictum -(lat. A remark in passing) something said by a judge while giving judgement that was not essential to the decision in the case. It does not form part of the ratio decidendi of the case and therefore creates no binding precedent, but may be cited as a persuasive authority in later cases. Prima facie - (lat. first appearance, on the face of things). Prima facie case is a case that has been supported by sufficient evidence for it to be taken as proved in the absence of adequate evidence to the contrary. Princip na non-refoulment - bans on states to deport refugees, should this result in returning them to their country of origin, where their life or freedom would be jeopardized due to their race, religion, nationality, membership in a certain social group, or because of their political views. Qui se pretend victim - the party claiming to be a victim of an alleged insult. Ratio legis - legal – legal grounds, spirit and goal of laws.


211

CONTENTS INTRODUCTION 9 PART ONE BASIC CARACTERISTICS OF THE RIGHTS OF PERSONS WITH DISABILITIES

17 Chapter I The Legislative Process

18 1. Principles of Equal Protection Before the Law 18

1.1. Prohibition of Discrimination 19 1.2. Affirmative actions 20

2. Disability Discrimination Laws: A Global Comparative Approach

20

2.1. A Wide Diversity of Different Legal Approaches 21 2.1.1. Criminal Law 21 2.1.2. Constitutional Law 22 2.1.3. Civil Rights Laws 27 2.1.4. Social Welfare Laws and Disability 30

Chapter II Legal Remedies for Protection Against Rights Violations

32 1. Due Process of Law 32 2. Locus Standi 33 3. Legal Assistance before National Courts 35 4. Regular National Courts 36 Chapter III Obligations and Responsibilities of States

40 1. Responsibilities of States 41

1.1. Collection of Statistics 41 1.2. Raising Awareness in Society 42 1.3. Policy-making and Planning 43 1.4. Personnel Training 44

2. Bodies that help on improvement of the status of persons with disability

45

2.1. Ombudsman 45

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2.2. National Co-ordinating Committees 45 2.3. Non-governmental Organizations 47 2.4. Special Rapporteurs 49 2.5. National Councils or Agencies 49

PART TWO SYSTEMS OF PROTECTION

53 Chapter IV Universal System of Human Rights Protection - UN

54 1. General International Norms on the Rights of Persons with Disabilities

54

2. Specific International Norms Pertaining to Rights of Persons with Disabilities

64

Chapter V Regional Systems of Human Rights Protection

73 1. Europe 73

1.1. Council of Europe 73 1.1.1. The Council of Europe Instruments for Human Rights Protection

74

A) European Convention on Human Rights and Fundamental Freedoms (ECHR)

74

B) European Social Charter 76 C) Other Legal Acts of the Council of Europe 79

1.1.2. Mechanisms for Protection of Human Rights in the Council of Europe

80

A) A System based on the European Convention on Protection of Human Rights and Fundamental Freedoms with headquarters in Strasbourg

80 I. Organizational Setup of the System 81

a) European Commission of Human Rights 81 b) European Court of Human Rights 82 v) Committee of Ministers 83

II. Procedure within the System 84 a) Individual petitions 84 b) Interstate cases 86

B) Controlling the Implementation of the European Social Charter

89


213

1.2. European Union 91 2. North and South America 99

2.1. Instruments for Protection of Human Rights in North and South America

100

A) American Declaration on the Rights and Duties of Man, 1948

100

B) Inter-American Convention on Human Rights, 1969 101 C) Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities

101

2.2. Mechanisms on Human Rights Protection in North and South America

102

A) Inter-American Commission on Human Rights 102 B) Inter-American Court of Human Rights 103

3. Africa, Asia and the Near East 104 PART THREE INDIVIDUAL RIGHTS AND FREEDOMS

109 Chapter VI Civil and Political Rights and Freedoms

110 1. Right to Freedom and Security 110 2. Prohibition of Torture 111 3. Right to Freedom of Expression 114 4. Freedom of Peaceful Assembly and Association 116 5. Right to Respect Private and Family Life 118 6. Right to Equal Protection before the Law 120 7. Access to the Judicial System 121 8. Freedom of Religious Orientation (Religion) 121 9. Availability of Information 122 10. Freedom of Movement 123 11. Prohibition of Discrimination 124 12. Participation in Political Life 127 13. Right to Possession 128 14. Right to Seek Asylum 129

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Chapter VII Economic, Social and Cultural Rights and Freedoms

130 1. Right to Work 130

1.1. General Provisions for the Right to Work 130 1.2. Right to Develop Work Skills 121 1.3. Equitable Recruitment Measures and Policies 134 1.4. Fair and Equitable Employment Conditions 137

2. Right to Education 139 2.1. Access to Education 139 2.2. Quality of Education 142 2.3. Integrated Education 143 2.4. Special Education 145 2.5. Teacher Training 146 2.6. Vocational Training 147 3. Right to Health Care 147 4. Right to Social Security and Social Services 150 4.1. Right to Social Security 150 4.2. Social Security and Insurance Related to Employment 152 4.3. Social Welfare Services 156 5. Right to an Adequate Standard of Living 158

5.1. Housing 158 5.2. Food 162 5.3. Transportation 164

6. Right to Social Integration 166 7. Right to Participate in Cultural Activities 167 8. Right to Accessible Physical and Information Environment 168

8.1. Information on Standards of Accessibility 168 8.2. Access to Public Places 169

9. International Co-operation 170 PART FOUR MULTIPLE DISCRIMINATIONS - RIGHTS OF SPECIAL GROUPS

175 Chapter VIII Rights of Women with Disabilities

176 1. Situation 176 2. International Instruments Concerning Women Rights 177


215

3. Regional Instruments Pertaining to Women Rights 181 Chapter IX Rights of the Child

182 1. International Instruments Pertaining to the Rights of the Child

182

2. Regional Instruments Pertaining to the Rights of the Child 185 3. International Instruments Specifically Relating to Disabled Children

187

Chapter X Rights of Special Groups

189 1. Rights of Adolescents 189 2. Rights of Elderly Persons 189 3. Rights of the Poor 190

3.1. Disability and Poverty 190 3.2. United Nations instruments and measures for the eradication of poverty

191

4. Rights of Indigenous People 194 5. Rights of Refugees 196

5.1. Rights of Refugees with Disabilities 198 5.2. Rights of Refugee Children 199 5.3. Rights of Refugee Women 199 5.4. Regional Instruments Applicable to Refugees 200

6. Rights of Ethnic Minorities 201 SELECTED BIBLIOGRAPHY

208

GLOSSARIUM

211

CONTENTS

209

216

CIP – Categorisation of publications National and University Library St Kliment Ohridski , Skopje

364.65-056.26(094.2) 364.65-056.36(094.2)

STOJKOVA, Zaneta International Norms and Standards for Persons with Disabilities: Comparative Analysis / Zaneta Stojkova – Skopje: Polio Plus, 2004 – 261 pages : 23 cm Endnotes – Bibliography: page 245-253 ISBN 9989-0-8 a) Persons with Disabilities- Standards – International Acts b) Persons with Disabilities – Standards – Comparative Analysis