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February 15, 2004

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Ensuring rights of people with disability

Andrea Coomber

One tenth of the world's population live with some kind of disability. Human rights violations against disabled people are widespread, and often acutely dehumanising. Across the globe, disabled people are routinely subjected to horrifying denials of their basic human rights, suffering inhumane and degrading treatment, discrimination and violations of rights to life, education, privacy, family life, education and the list goes on. In addition to being disabled by institutions, social policies and attitudes, often the very laws intended to protect and uphold our human dignity, undermine the enjoyment of disabled people's rights. Critically, people with disabilities seldom enjoy equal access to justice and the ability to assert their most basic rights through legal processes.

Some countries have provided disability discrimination legislation, which has granted some but by no means adequate protection for people with disabilities. However in most of the world, disabled people are unseen and unheard. Their rights simply fail to register in the public domain, including on the radar of human rights NGOs, lawyers and judges.

'Human Rights' approach to disability
It has now been ten years since the United Nations General Assembly adopted the Standard Rules for the Equalisation of Opportunities for Persons with Disabilities. This period has witnessed a sea change in the way in which people with disabilities are perceived. Formerly objects of charity, the agency of people with disabilities is increasingly being recognised, with human rights to be asserted through legal processes.

The notion that disabled people are holders of rights however axiomatic to some remains novel in certain circles. As a recent United Nations study revealed , while disabled people's NGOs have adopted the language and principles of rights, many mainstream human rights NGOs local, regional and international have been slow to consider disability within their remit. There exists, it seems, a mindset that disabled people are already catered for in the charity sector, and therefore human rights organisations need not get involved.

There are also problems of constructing the treatment of disabled people in human rights terms. Lawyers who might consider discrimination against religious, racial or sexual minorities rife in their jurisdiction, fail to consider that exclusion of disabled people is similarly unacceptable. Organisations working on illegal detention and ill treatment may overlook the institutionalisation and forced treatment of people with mental illnesses. Lawyers litigating to stop the educational segregation of ethnic minority students in schools for disabled children, fail to question why the disabled children themselves are being 'educated' in warehouses… As lawyers, we need to be challenged to see disabled people in our daily work.

The days of NGOs ignoring disabled people are numbered: disabled people and disabled people's organisations won't stand for invisibility. They are increasingly, forcefully demanding their rights. At the same time, the credibility of human rights defenders is at stake. By failing to consider the human rights of disabled people, they are failing to uphold their mandate of protecting and promoting human rights for all.

The United Nations, for one, is now listening. Moves are underway towards a convention specifically upholding the rights of disabled people, which is discussed in this issue of the Bulletin. Slowly but surely, academics and international NGOs are seeing the treatment of disabled people as a human rights issue, whether their entry point is the right to health, education, illegal detention or the right to non-discrimination.

Protecting disabled people's rights through law
To date, however, there has been a dearth of legal attention paid to disability as a human rights concern. Legal provisions protecting disabled people's rights be they constitutional, civil or criminal exist in nearly 50 states. While, in some of these jurisdictions there is a growing body of case law, in other parts of the world there is no legislation or case law specifically protecting the rights of disabled people. Significantly, at a regional and international level there is scant jurisprudence.

Beyond the failure of many human rights NGOs to engage in this issue, there are other reasons for this absence of the promotion and protection of disabled people's rights. At a domestic level, disabled people seldom have access to the means of safeguarding their rights. Many disabled people do not enjoy equal access to lawyers due to obstacles such as a lack of legal aid, language barriers, problems of physical access to lawyers and court buildings and the operation of legal constructs such as competence and guardianship. These problems of access to justice are simply more pronounced at an international level. Together these factors represent a significant challenge to the legal assertion and enforcement of disabled people's human rights.

While the drafting of a convention is critical, it is likely to be a difficult and time-consuming process. In the meantime, existing instruments and mechanisms need to be more effectively used by disabled people. Regional courts and commissions, and treaty bodies need to be animated towards greater consideration of disability in their work. National human rights institutions are at the forefront of this push. Beyond litigation, these efforts need to be reinforced by the training of judges, lawyers and disability activists in how international law can be used to support disabled people. Lawyers and NGOs need to challenge the way they conceptualise disability, and need to mainstream consideration of disabled people into the way they approach their daily work. Greater interaction of disability rights organisations and the 'mainstream' human rights movement will be central, and mutually enriching, in this regard.

Andrea Coomber is Legal Officer for the Equality Programme at INTERIGHTS, a London based international human rights law centre.


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