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. Introduction — Timatatanga
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What is disability?
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).
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 Declaration on the Rights of Mentally Retarded Persons 1971
- the Proclamation on the Full Participation and Equality of Disabled People in
the Asia Pacific Region
- the World Programme for Action Concerning Disabled People 1983.
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:
- ILO Convention 111 concerning Discrimination in Respect of Employment and Occupation
1958 (which deals with discrimination generally)
- Convention 159 concerning Vocational Rehabilitation and Employment (Disabled
Persons) 1983.
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:
- set out all civil, political, economic, social and cultural rights as these relate
to disabled people
- elaborate on issues of specific relevance (such as accessibility, mobility and
living independently and being included in the community)
- provide an international framework for monitoring and accountability for member
States.
