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The outlook on disabilities after the enactment of the United Nations Convention on the Rights of Persons with Disabilities

Essay 2015 8 Pages

Law - Miscellaneous

Excerpt

The outlook on disability issues and on persons with disabilities has changed throughout the centuries. The reason behind disabilities and the place of disabilities in society wanted to be understood. Several explanations came about which changed throughout the eras. In ancient times, it was believed that persons with disabilities were possessed by spirits which could only be released through the drilling of the skulls of the individuals. People with disabilities, both young and old, were abandoned in the countryside to die during Spartan times.[1]

With the influence of religion in society, the thinking altered into the idea that persons with disabilities were the result of sin. In both Muslim and Judeo-Christian scriptures, that is the Bible and the Koran, disability is found to be a result of evil or sin by the persons with disabilities themselves or their parents’. At this period in time, the persons were not killed but were severely segregated as they were not in harmony with God and were out of the natural order of the universe.[2] This outlook on disability was known as the moral model.

In the beginning of the 19th century, with the progress in the medical field, people with disabilities were seen as having a medical problem. This set off the medical model of disability which, as mentioned, saw disability as a ‘problem’ to be fixed which must be cured by medical intervention, hence attributing the responsibility of the disability on the person himself. As persons who were sick[3], it was acceptable for persons with disabilities to not participate in everyday life, such as going to school or to work. If not treated, parents were expected to institutionalize their children with disabilities in several institutions which emerged specially catered for persons with disabilities. Such practice led to massive segregation of persons. In certain instances, such segregation was enforced. An example is of a Chicago ordinance which stated that ‘‘No person who is diseased, maimed, mutilated, or in any way deformed so as to be an unsightly or disgusting object or improper person to be allowed in or on the public ways or other public places in this city, shall therein or thereon expose himself to public view’’.[4] Moreover, Hitler’s regime in World War II targeted persons with physical and mental disabilities as well. The Nazi’s Euthanasia Programme, more well-known as Operation T4, killed several persons with disabilities including children, amongst other persons, as they were deemed to be useless in society and not in line with a pure Aryan society thus needing to be removed[5].

After the aftermath of World War II, fundamental human rights came into the forefront in the international arena. The formation of the United Nations was a result of such. Several international conventions started being enacted promoting the respect to human rights and putting obligations on the state. People with disabilities were included in these conventions, even though not directly. The first convention that specifically addresses people with disabilities is the 1989 Convention on the Rights of the Child (also known as the CRC).[6] The United Nations then enacted a convention specifically concerning the rights of persons with disabilities.

The United Nations Convention on the Rights of Persons with Disabilities (hereinafter referred to as CRPD) marked a major paradigm shift from the medical model of disability towards the social model of disability. It built up upon the 1994 Standard Rules on the Equalization of Opportunities for Persons with Disabilities which was adopted by the UN General Assembly during the Decade of Disabled Persons[7], and the 1982 World Programme of Action on Disabled Persons which also adopted by the UN General Assembly during the International Year of Disabled Persons[8]. However, even though these were moving towards the social model, they were not legally binding. The first ever legally binding international instrument which was specifically enacted to focus on the rights of persons with disabilities was the CRPD.

The CRPD was adopted on the 13th December 2006 and entered into force on the 3rd of May 2008. Up till the present moment, it has 153 state parties in which all are bound by the obligations as per the Convention. The main purpose of the Convention, as found in its Article 1 is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” An important point to note about the CRPD is that it does not give a concrete definition of what a disability is. Rather, in its preamble, the Convention recognizes that disability is an “evolving concept”[9] and that it results from “the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.”[10] This statement by the Convention is in line with the social model theory, that is, the Convention shifted the responsibility from the person with disability (which is the reasoning of the medical model as the disability is attributed to the person) onto society as it is the way in which society interacts with people with disabilities that obstructs the person from reaching his or her full potential. Another important point, amongst others, that the Preamble makes is that persons with disabilities are diverse from each other[11], meaning that each individual with disabilities is unique, even if they might have the same disabilities. Albeit not giving a definition, the CRPD does give examples of disabilities which are found in Article 1 such as “long-term physical, mental, intellectual or sensory impairments”. Once again, in the same article, the Convention highlights that disabilities are those “which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”, thus focusing on the interaction between the individual and society and not on the disability per se.

Article 3 of the CRPD sets out the principles dealt with in the rest of the same Convention. The first principle is that of the “[.] individual autonomy, including the freedom to make one’s own choices [.]” A manifestation of this principle can be found in Article 12 of the CRPD which deals with the individual’s right to legal capacity, such as the right to control their financial affairs. In cases of intellectual disabilities, the individual also has the right to decide whether to accept medical treatment or whether to be admitted in hospital or not. By having legal capacity, the person with individuality can freely choose whether to accept or decline help. The concept of legal capacity is also extremely important in cases where non-legal guardianships may take advantage of the individual with disabilities for personal reasons. Thus, Article 12 may act as a safeguard in such situations. Another example is in Article 25 which is about the right to adequate health. Article 25 (d) states that “require health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent [.]”, thus highlighting once again the freedom to choose. The same Article also mentions the topic of sexual and reproductive health of persons with disabilities and how the ratifying States are obliged to provide such health programmes. Mentioning the right to sexual health is groundbreaking as it further fights the dehumanisation of persons with disabilities[12]. It also challenges the misconception that persons with disabilities are asexual beings.[13]

The second principle found in Article 3 is that of non-discrimination. A number of articles deal with non-discrimination. Article 5 prohibits discrimination based on disabilities and obliges the State to provide persons with disabilities equal and effective legal protection against any discrimination endured. Moreover, States are also obliged to “take all appropriate steps to ensure that reasonable accommodation is provided.” The CRPD takes into consideration that women and children with disabilities may suffer from a double marginalization, because of their sex and their disabilities. This is highlighted in Article 6 and Article 7 of the Convention. Both Articles pose on the States parties the obligation to empower both women and children with disabilities. Article 23 addresses discrimination on the basis of disability when it comes to family life, such as depriving the custody of children to a parent due to his or her disability. The right to inclusive education is highlighted in Article 24. Article 24 (2) (a) states that “persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability.” Compared to the previous way of thinking and the past segregation of children in institutions, the CRPD took a huge step in obliging its States Parties to include children with disabilities in everyday ‘normal’ education together with children with non-disabilities. Moreover, individualized support should be provided to ensure the full integration and possibility of education. Article 25 prohibits discrimination on the basis of disability when issuing health or life insurance. With regards to employment, Article 27 guarantees non-discrimination to the right to work, including in the recruitment process and in the possibility of promotion.

Another principle highlighted in Article 3, which goes hand in hand with the principle of non- discrimination, is that of full and effective participation and inclusion in society. The Convention makes sure that its States Parties provide such chance to participate in society through the obligations that are set in Article 4. This article requires its States to change any laws and policies which do not comply with the intentions of the Convention, such as those which discriminate, in order for persons with disabilities to fully participate in society. Articles 29 and 30 of the CRPD highlight the right to participate in political and public life; and the right to participate in cultural life, recreation, leisure and sport. Article 29 obliges the State to provide access to persons with disabilities to vote, as this is their right. It also obliges States to promote participation of persons with disabilities in public affairs. Article 30 obliges the States to provide access in the cultural area of life.

Just as seen, in order for persons with disabilities to be able to participate in society, access needs to be available. This is another principle of the Convention. Several Articles of the CRPD focus on accessibility. Apart from the Articles mentioned previously, a standalone article which specifically focuses on this issue is Article 9. It highlights the several areas that need to be addressed such as “the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas.” The States need also to make sure that private entities are also accessible to persons with disabilities. Several other Articles guarantee accessibility, such as Article 13 which deals with justice; Article 21 which makes sure that information and communication services are accessible; Articles 24 and 25 which deal with the right to education and to health respectively; and Articles 29 and 30 which have been mentioned previously. In addition to these, the right to accessibility to international development programmes is guaranteed by Article 32.

An interesting Article set by the CRPD is that of Article 8 which addresses awareness-raising. This article obliges States to undertake awareness campaigns at the national level. Apart from raising awareness about different types of disabilities, the Convention obliges States Parties to also make its citizens aware of the capabilities that persons with disabilities have.[14] The same article further gives example of measures that each State Party must undertake in order to raise awareness, from public awareness campaigns to awareness in the work place, in the education sector and in the media. The same United Nations also raises awareness through its various campaigns, such as dedicating days to a specific disability for example the 2nd of April dedicated to Autism.[15]

A Committee on the Rights of Persons with Disabilities is enacted by Article 34 of the CRPD. The main function of the Committee is to monitor the implementation of the Convention in its States Parties, on other words, seeing whether the States are keeping up with the obligations as set out by the Convention. The Committee, made up of eighteen independent experts, meets twice a year in Geneva. Amongst its other functions, the Committee examine each State report which each State Party is required to submit within 2 years of becoming a State Party, and then every 4 years. The governments of each State are encouraged to consult civil society, such as organisations for persons with disabilities, to input in the report process. This puts persons with disabilities in the forefront in the international human rights arena, thus empowering them. At the end of the examination of each report, the Committee gives its own general recommendations and suggestions to each State for further improvement where needed in its concluding observations.

The Optional Protocol to the Convention gives additional functions to the Committee on the Rights of Persons with Disabilities. States parties which have ratified the OP, which up till now are 86 States, allow the Committee to undertake inquiries after following information received indicating serious or systematic violations of the Convention in the State. An additional feature of the Optional Protocol is that of receiving individual complaints for alleged violations of the Convention. Such procedure further empowers individuals with disabilities, as it’s the very own individual that submits the complaint in an international arena. The first ever individual communication that the Committee dealt with was that of H.M. v Sweden[16] in the year 2012 in which the Committee found violations of Articles 3,4,5,19,25,26 and 29 of the Convention. The applicant suffered from a chronic connective tissue disorder and the only remaining option for her rehabilitation to stop the progression of the impairment was hydrotherapy through an indoor pool in the house. She applied for planning permission to extend the house but was refused building permission by the Orebro Local Housing Committee. The applicant stated that this resulted in discrimination against her. The Committee took into account the definition of discrimination as found in Article 2 of the CRPD. Article 2 defines discrimination as any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

It further adds that discrimination may come in all forms, “including denial of reasonable accommodation.” The same article further defines what ‘reasonable accommodation’ is under the Convention. As a result the Committee found that the applicant’s rights have been breached, as she was denied reasonable accommodation thus resulting in discrimination.

It would not have been possible for the above individual, and other individuals, to bring forth their case on a supranational plane if it was not for the enactment of the CRPD. As seen, apart from accepting individual complaints, the CRPD safeguards the rights of persons with disabilities and requires its States Parties to safeguard such rights through the various obligations in itself. In addition, the CRPD revolutionized the way in which society looks at individuals with disabilities; from objects of charity and medical treatment into subjects with full rights and dignity.

[...]


[1] Romel W. Mackelprang and Richard O. Salsgiver, ‘People with Disabilities and Social Work: Historical and Contemporary Issues’ [1996] Social Work 7

[2] Romel W Mackelprang and Richard O Salsgiver, Disability: A Diversity Model Approach in Human Service Practice (Lyceum Books 2009)

[3] People with disabilities were considered sick under the medical model. See Deborah Kaplan, 'The Definition Of Disability - Perspective Of The Disability Community' (Peoplewho.org, 2015) <http://www.peoplewho.org/debate/kaplan.htm> accessed 23 April 2015.

[4] Romel W Mackelprang and Richard O Salsgiver, Disability: A Diversity Model Approach in Human Service Practice (Lyceum Books 2009)

[5] Peter Vogelsang and Brian B. M. Larsen, 'Euthanasia – The ‘Mercy Killing’ Of Disabled People in Germany' (The Danish Center for Holocaust and Genocide Studies, 2002) <http://www.holocaust-education.dk/baggrund/eutanasi.asp> accessed 23 April 2015.

[6] Article 2, Article 23 of the CRC

[7] Un.org, 'World Programme Of Action Concerning Disabled Persons' <http://www.un.org/esa/socdev/enable/dissre00.htm> accessed 23 April 2015.

[8] Ibid

[9] Preamble (e) of the UN Convention on the Rights of Persons with Disabilities.

[10] Ibid.

[11] Preamble (i) of the UN Convention on the Rights of Persons with Disabilities.

[12] Oana Georgiana Girlescu, 'Sexuality And Disability: An Assessment Of Practices Under The Convention For The Rights Of People With Disabilities' (LLM, Central European University 2012).

[13] Margaret Wangui Murugami, 'Disability And Identity' (2009) 29 Disability Studies Quarterly.

[14] Article 8 (1)(c)

[15] 2nd of April declared as World Autism Awareness Day by the United Nations. Accessed from <http://www.un.org/en/events/autismday/>

[16] HM v Sweden, UN Doc CRPD/C/7/D/3/2011 (21 May 2012)

Details

Pages
8
Year
2015
ISBN (eBook)
9783668379671
ISBN (Book)
9783668379688
File size
472 KB
Language
English
Catalog Number
v351251
Institution / College
University of Malta
Grade
A
Tags
disability crpd united nations

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Title: The outlook on disabilities after the enactment of the United Nations Convention on the Rights of Persons with Disabilities