Chapter 5: The rights of disabled people
Ngā tika o te hunga haua

Disabled persons have the inherent right to respect for their human dignity. Disabled persons, whatever the origin, nature and seriousness of their handicaps and disabilities, have the same fundamental rights as their fellow citizens of the same ages, which implies first and foremost the right to enjoy a decent life, as normal and full as possible.
(United Nations Declaration on
the Rights of Disabled Persons, 1975, Article 3)[1]

1. Introduction — Timatatanga

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What is disability?

Photo of people enjoying a game of wheelchair basketball.

The New Zealand Disability Strategy (NZDS) describes disability as a process that occurs when ‘one group of people create barriers by designing a world only for their way of living, taking no account of the impairments other people have’ (Minister for Disability Issues, 2001, p.7). ‘Impairments’ include physical, sensory, neurological, psychiatric, intellectual and any other impairment, and encompass people with permanent, intermittent, temporary and perceived impairments. This definition of disability contrasts with the ‘medical’ model, which locates disability within the individual and ignores the relationship between the individual with impairment and society.

Increasingly, disability is seen as a result of how society treats its citizens (Shakespeare, Gillespie-Sells, & Davies, 1996). Failure to recognise that we can’t all see signs, read directions, hear announcements, reach buttons, have the strength to open heavy doors and have stable moods and perceptions, diminishes the ability of many people to live independently and participate fully in society. Because disability relates to the connection between people with impairments and the environments in which they live, failure to accommodate their different abilities and lifestyle amounts to discrimination.

The right to vote, for example, has been determined both by gender and by race, with black men and women in South Africa denied the right to vote until 63 years after white women attained this right for themselves. In many countries, disabled people may still be prevented from voting due to the inaccessibility of polling centres. Although discrimination based on notions of gender or racial inferiority is now widely contentious, the assumption that disability justifies diminished opportunities remains comparatively unchallenged. The onset of chronic illness or injury, for many people, is the experience of a fall from privilege (Hammell, 2004).

To ensure a society that is inclusive and enables disabled people to exercise their right to live with dignity, it is necessary to reframe the social environment and re-design the physical environment in ways that better accommodate people with impairments.

For many disabled people, an understanding by the community of what the lived experience of disability means is more important than the strict definition of ‘disability’. First and foremost, disabled people want to be seen as fully human. Disabled people want to be valued as human beings and to be supported, where necessary, to reach their full potential (NZAPHR Consultations, 2004). [2]

As a recent report to the United Nations on human rights and disability pointed out, ‘The core problem in the field of disability is the relative invisibility of persons with disabilities, both in society and under the existing international human rights instruments’ (Quinn & Degener, 2000, p.3).

De-institutionalisation of services, especially for people with experience of mental illness and intellectual impairment, increased provision of services in community settings, and the growing assertiveness of consumer rights movements means that disabled people are no longer hidden away – whether at home or in institutions – and intense questioning of their right ‘to enjoy a decent life, as normal and full as possible’ is emerging as a result (OHCHR, 1975).

People with intellectual disabilities have identified what they see as the most important elements of an ‘ordinary life’ (National Advisory Committee on Health & Disability, 2003). These include: having your life taken seriously, being able to give and receive love, having long-lasting friendships, having your cultural values respected, being given opportunities to grow and learn, and being valued by others for what you have to offer. These elements are, in fact, of meaning to all New Zealanders.

2. International context — Ki ngā kaupapa o te ao

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There is currently no international treaty on the rights of disabled people. The full range of civil, political, economic, social and cultural rights apply to all people, but there is no mention of particular rights for disabled people in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) or the International Covenant on Economic, Social and Cultural Rights (ICESCR).

There is, however, specific reference to the rights of disabled children in the UN Convention on the Rights of the Child (UNCROC). Article 23 recognises that a mentally or physically disabled child ‘should enjoy a full and decent life’, in conditions that ensure dignity, promote self-reliance and facilitate the child’s active participation in the community. The disabled child has the right to special care, which, where resources allow, should be without charge.

UNCROC also provides that disabled children should have access to education, training, health care and rehabilitation services, preparation for employment and recreation opportunities. Disabled children should be able to achieve social integration and individual development, including cultural and spiritual development.

The Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) does not contain a specific reference to disabled women and girls, but the CEDAW Committee (1991) recommends that State parties provide specific information on disabled women in their reports to the United Nations. In particular, information should be provided on measures taken to deal with the situation of disabled women; that is, special measures to ensure they have equal access to education and employment, health services and social security and to ensure that they can participate in all areas of social and cultural life.

Furthermore, the United Nations Committee monitoring the implementation of the ICESCR issued General Comment 5 (1994) stating that disability is a protected ground of discrimination within the scope of the Covenant, defining disability-based discrimination as ‘including any distinction, exclusion, restriction or preference or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social, or cultural rights’.

Although it is not legally binding, the UN Declaration on the Rights of Disabled People provides a reference point for the equal treatment of disabled people and their access to services, and encourages States to ensure disabled people’s ‘right to enjoy a decent life’ (Article 3). Other non-binding documents include:

The 1993 Standard Rules on the Equalisation of Opportunities for Persons with Disabilities were intended to complement the World Programme for Action Concerning Disabled People. The Standard Rules cover a wide range of areas of everyday life such as access to employment and education as well as rehabilitation and international cooperation. Although they are non-binding, the Standard Rules require States to remove obstacles to equal participation and actively to involve non-governmental agencies (NGOs) dealing with disabilities as partners in this process. The Rules emphasise equal rights and equal obligations – not special rights, but the achievement of equality on the same terms as all persons.

Two International Labour Organisation[3] (ILO) conventions are also relevant:

New Zealand has ratified Convention 111 but not Convention 159.

Towards a convention on the rights of disabled people

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The United Nations General Assembly has established an ad hoc committee to develop a United Nations Disability Convention. New Zealand chaired and was represented on the working group that developed a draft text under the auspices of the ad hoc committee. This draft text is now being negotiated by the committee. The New Zealand Government and the New Zealand Human Rights Commission are taking an active role in this process, working with New Zealand NGOs and internationally through the Asia Pacific Forum of national human rights institutions (Working Group, 2004).

The Disability Convention aims to ensure visibility and status for disabled people. It will: