CESCR
General Comment No. 5
Persons with disabilities
Eleventh session 1994
E/1995/22
1. The central
importance of the International Covenant on Economic, Social and
Cultural Rights in relation to the human rights of persons with
disabilities has frequently been underlined by the international
community.[1] Thus a 1992 review by the Secretary-General of the
implementation of the World Programme of Action concerning Disabled
Persons and the United Nations Decade of Disabled Persons concluded
that “disability is closely linked to economic and social factors”
and that “conditions of living in large parts of the world are so
desperate that the provision of basic needs for all – food, water,
shelter, health protection and education – must form the cornerstone
of national programmes”.[2] Even in countries which have a relatively
high standard of living, persons with disabilities are very often
denied the opportunity to enjoy the full range of economic, social
and cultural rights recognized in the Covenant.
2. The Committee on Economic, Social and Cultural Rights, and the
working group which preceded it, have been explicitly called upon
by both the General Assembly[3] and the Commission on Human Rights[4]
to monitor the compliance of States parties to the Covenant with
their obligation to ensure the full enjoyment of the relevant rights
by persons with disabilities. The Committee’s experience to date,
however, indicates that States parties have devoted very little
attention to this issue in their reports. This appears to be consistent
with the Secretary-General’s conclusion that “most Governments still
lack decisive concerted measures that would effectively improve
the situation” of persons with disabilities.[5] It is therefore
appropriate to review, and emphasize, some of the ways in which
issues concerning persons with disabilities arise in connection
with the obligations contained in the Covenant.
3. There is still no internationally accepted definition of the
term “disability”. For present purposes, however, it is sufficient
to rely on the approach adopted in the Standard Rules of 1993, which
state:
“The term ‘disability’ summarizes a great number of different functional
limitations occurring in any population ... People may be disabled
by physical, intellectual or sensory impairment, medical conditions
or mental illness. Such impairments, conditions or illnesses may
be permanent or transitory in nature.”[6]
4. In accordance with the approach adopted in the Standard Rules,
this general comment uses the term “persons with disabilities” rather
than the older term “disabled persons”. It has been suggested that
the latter term might be misinterpreted to imply that the ability
of the individual to function as a person has been disabled.
5. The Covenant does not refer explicitly to persons with disabilities.
Nevertheless, the Universal Declaration of Human Rights recognizes
that all human beings are born free and equal in dignity and rights
and, since the Covenant’s provisions apply fully to all members
of society, persons with disabilities are clearly entitled to the
full range of rights recognized in the Covenant. In addition, insofar
as special treatment is necessary, States parties are required to
take appropriate measures, to the maximum extent of their available
resources, 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. Moreover, the requirement contained
in article 2 (2) of the Covenant that the rights “enunciated ...
will be exercised without discrimination of any kind” based on certain
specified grounds “or other status” clearly applies to discrimination
on the grounds of disability.
6. The absence of an explicit, disability-related provision in the
Covenant can be attributed to the lack of awareness of the importance
of addressing this issue explicitly, rather than only by implication,
at the time of the drafting of the Covenant over a quarter of a
century ago. More recent international human rights instruments
have, however, addressed the issue specifically. They include the
Convention on the Rights of the Child (art. 23); the African Charter
on Human and Peoples’ Rights (art. 18 (4)); and the Additional Protocol
to the American Convention on Human Rights in the Area of Economic,
Social and Cultural Rights (art. 18). Thus it is now very widely
accepted that the human rights of persons with disabilities must
be protected and promoted through general, as well as specially
designed, laws, policies and programmes.
7. In accordance with this approach, the international community
has affirmed its commitment to ensuring the full range of human
rights for persons with disabilities in the following instruments:
(a) the World Programme of Action concerning Disabled Persons, which
provides a policy framework aimed at promoting “effective measures
for prevention of disability, rehabilitation and the realization
of the goals of ‘full participation’ of [persons with disabilities]
in social life and development, and of ‘equality’”;[7] (b) the Guidelines
for the Establishment and Development of National Coordinating Committees
on Disability or Similar Bodies, adopted in 1990;[8] (c) the Principles
for the Protection of Persons with Mental Illness and for the Improvement
of Mental Health Care, adopted in 1991;[9] (d) the Standard Rules
on the Equalization of Opportunities for Persons with Disabilities
(hereinafter referred to as the “Standard Rules”), adopted in 1993,
the purpose of which is to ensure that all persons with disabilities
“may exercise the same rights and obligations as others”.[10] The
Standard Rules are of major importance and constitute a particularly
valuable reference guide in identifying more precisely the relevant
obligations of
States parties under the Covenant.
1. General obligations of States parties
8. The United Nations has estimated that there are more than 500
million persons with disabilities in the world today. Of that number,
80 per cent live in rural areas in developing countries. Seventy
per cent of the total are estimated to have either limited or no
access to the services they need. The challenge of improving the
situation of persons with disabilities is thus of direct relevance
to every State party to the Covenant. While the means chosen to
promote the full realization of the economic, social and cultural
rights of this group will inevitably differ significantly from one
country to another, there is no country in which a major policy
and programme effort is not required.[11]
9. The obligation of States parties to the Covenant to promote progressive
realization of the relevant rights to the maximum of their available
resources clearly requires Governments to do much more than merely
abstain from taking measures which might have a negative impact
on persons with disabilities. The obligation in the case of such
a vulnerable and disadvantaged group is to take positive action
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 for all persons
with disabilities. This almost invariably means that additional
resources will need to be made available for this purpose and that
a wide range of specially tailored measures will be required.
10. According to a report by the Secretary-General, developments
over the past decade in both developed and developing countries
have been especially unfavourable from the perspective of persons
with disabilities:
“... current economic and social deterioration, marked by low-growth
rates, high unemployment, reduced public expenditure, current structural
adjustment programmes and privatization, have negatively affected
programmes and services ... If the present negative trends continue,
there is the risk that [persons with disabilities] may increasingly
be relegated to the margins of society, dependent on ad hoc support.”[12]
As the Committee has previously observed (general comment No. 3
(Fifth session, 1990), para. 12), the duty of States parties to
protect the vulnerable members of their societies assumes greater
rather than less importance in times of severe resource constraints.
11. Given the increasing commitment of Governments around the world
to market-based policies, it is appropriate in that context to emphasize
certain aspects of States parties’ obligations. One is the need
to ensure that not only the public sphere, but also the private
sphere, are, within appropriate limits, subject to regulation to
ensure the equitable treatment of persons with disabilities. In
a context in which arrangements for the provision of public services
are increasingly being privatized and in which the free market is
being relied on to an ever greater extent, it is essential that
private employers, private suppliers of goods and services, and
other non-public entities be subject to both non-discrimination
and equality norms in relation to persons with disabilities. In
circumstances where such protection does not extend beyond the public
domain, the ability of persons with disabilities to participate
in the mainstream of community activities and to realize their full
potential as active members of society will be severely and often
arbitrarily constrained. This is not to imply that legislative measures
will always be the most effective means of seeking to eliminate
discrimination within the private sphere. Thus, for example, the
Standard Rules place particular emphasis on the need for States
to “take action to raise awareness in society about persons with
disabilities, their rights, their needs, their potential and their
contribution”.[13]
12. 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 temper, complement,
compensate for, or override the results produced by market forces.
Similarly, while it is appropriate for Governments to rely on private,
voluntary groups to assist persons with disabilities in various
ways, such arrangements can never absolve Governments from their
duty to ensure full compliance with their obligations under the
Covenant. As the World Programme of Action concerning Disabled Persons
states, “the ultimate responsibility for remedying the conditions
that lead to impairment and for dealing with the consequences of
disability rests with Governments”.[14]
2. Means of implementation
13. The methods to be used by States parties in seeking to implement
their obligations under the Covenant towards persons with disabilities
are essentially the same as those available in relation to other
obligations (see general comment No. 1 (Third session, 1989)). They
include the need to ascertain, through regular monitoring, the nature
and scope of the problems existing within the State; the need to
adopt appropriately tailored policies and programmes to respond
to the requirements thus identified; the need to legislate where
necessary and to eliminate any existing discriminatory legislation;
and the need to make appropriate budgetary provisions or, where
necessary, seek international cooperation and assistance. In the
latter respect, international cooperation in accordance with articles
22 and 23 of the Covenant is likely to be a particularly important
element in enabling some developing countries to fulfil their obligations
under the Covenant.
14. In addition, it has been consistently acknowledged by the international
community that policy-making and programme implementation in this
area should be undertaken on the basis of close consultation with,
and involvement of, representative groups of the persons concerned.
For this reason, the Standard Rules recommend that everything possible
be done to facilitate the establishment of national coordinating
committees, or similar bodies, to serve as a national focal point
on disability matters. In doing so, Governments should take account
of the 1990 Guidelines for the Establishment and Development of
National Coordinating Committees on Disability or Similar Bodies.[15]
3. The obligation to eliminate discrimination on the grounds of
disability
15. Both de jure and de facto discrimination against persons with
disabilities have a long history and take various forms. They range
from invidious discrimination, such as the denial of educational
opportunities, to more “subtle” forms of discrimination such as
segregation and isolation achieved through the imposition of physical
and social barriers. For the purposes of the Covenant, “disability-based
discrimination” may be defined 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. Through neglect, ignorance, prejudice and false assumptions,
as well as through exclusion, distinction or separation, persons
with disabilities have 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.
16. Despite some progress in terms of legislation over the past
decade,[16] the legal situation of persons with disabilities remains
precarious. In order to remedy past and present discrimination,
and to deter future discrimination, comprehensive anti-discrimination
legislation in relation to disability would seem to be indispensable
in virtually all States parties. Such legislation should not only
provide persons with disabilities with judicial remedies as far
as possible and appropriate, but also provide for social policy
programmes which enable persons with disabilities to live an integrated,
self-determined and independent life.
17. Anti-discrimination measures should be based on the principle
of equal rights for persons with disabilities and the non-disabled,
which, in the words of the World Programme of Action concerning
Disabled Persons, “implies that the needs of each and every individual
are of equal importance, that these needs must be made the basis
for the planning of societies, and that all resources must be employed
in such a way as to ensure, for every individual, equal opportunity
for participation. Disability policies should ensure the access
of [persons with disabilities] to all community services”.[17]
18. Because appropriate measures need to be taken to undo existing
discrimination and to establish equitable opportunities for persons
with disabilities, such actions should not be considered discriminatory
in the sense of article 2 (2) of the International Covenant on Economic,
Social and Cultural Rights as long as they are based on the principle
of equality and are employed only to the extent necessary to achieve
that objective.
4. Specific provisions of the Covenant
A. Article 3: Equal rights for men and women
19. Persons with disabilities are sometimes treated as genderless
human beings. As a result, the double discrimination suffered by
women with disabilities is often neglected.[18] Despite frequent
calls by the international community for particular emphasis to
be placed upon their situation, very few efforts have been undertaken
during the Decade. The neglect of women with disabilities is mentioned
several times in the report of the Secretary-General on the implementation
of the World Programme of Action.[19] The Committee therefore urges
States parties to address the situation of women with disabilities,
with high priority being given in future to the implementation of
economic, social and cultural rights-related programmes.
B. Articles 6-8: Rights relating to work
20. The field of employment is one in which disability-based discrimination
has been prominent and persistent. In most countries the unemployment
rate among persons with disabilities is two to three times higher
than the unemployment rate for persons without disabilities. Where
persons with disabilities are employed, they are mostly engaged
in low-paid jobs with little social and legal security and are often
segregated from the mainstream of the labour market. The integration
of persons with disabilities into the regular labour market should
be actively supported by States.
21. The “right of everyone to the opportunity to gain his living
by work which he freely chooses or accepts” (art. 6 (1)) is not
realized where the only real opportunity open to disabled workers
is to work in so-called “sheltered” facilities under sub-standard
conditions. Arrangements whereby persons with a certain category
of disability are effectively confined to certain occupations or
to the production of certain goods may violate this right. Similarly,
in the light of principle 13 (3) of the Principles for the Protection
of Persons with Mental Illness and for the Improvement of Mental
Health Care,[20] “therapeutical treatment” in institutions which
amounts to forced labour is also incompatible with the Covenant.
In this regard, the prohibition on forced labour contained in the
International Covenant on Civil and Political Rights is also of
potential relevance.
22. According to the Standard Rules, persons with disabilities,
whether in rural or urban areas, must have equal opportunities for
productive and gainful employment in the labour market.[21] For
this to happen it is particularly important that artificial barriers
to integration in general, and to employment in particular, be removed.
As the International Labour Organization has noted, it is very often
the physical barriers that society has erected in areas such as
transport, housing and the workplace which are then cited as the
reason why persons with disabilities cannot be employed.[22] For
example, as long as workplaces are designed and built in ways that
make them inaccessible to wheelchairs, employers will be able to
“justify” their failure to employ wheelchair users. Governments
should also develop policies which promote and regulate flexible
and alternative work arrangements that reasonably accommodate the
needs of disabled workers.
23. Similarly, the failure of Governments to ensure that modes of
transportation are accessible to persons with disabilities greatly
reduces the chances of such persons finding suitable, integrated
jobs, taking advantage of educational and vocational training, or
commuting to facilities of all types. Indeed, the provision of access
to appropriate and, where necessary, specially tailored forms of
transportation is crucial to the realization by persons with disabilities
of virtually all the rights recognized in the Covenant.
24. The “technical and vocational guidance and training programmes”
required under article 6 (2) of the Covenant should reflect the
needs of all persons with disabilities, take place in integrated
settings, and be planned and implemented with the full involvement
of representatives of persons with disabilities.
25. The right to “the enjoyment of just and favourable conditions
of work” (art. 7) applies to all disabled workers, whether they
work in sheltered facilities or in the open labour market. Disabled
workers may not be discriminated against with respect to wages or
other conditions if their work is equal to that of non-disabled
workers. States parties have a responsibility to ensure that disability
is not used as an excuse for creating low standards of labour protection
or for paying below minimum wages.
26. Trade union-related rights (art. 8) apply equally to workers
with disabilities and regardless of whether they work in special
work facilities or in the open labour market. In addition, article
8, read in conjunction with other rights such as the right to freedom
of association, serves to emphasize the importance of the right
of persons with disabilities to form their own organizations. If
these organizations are to be effective in “the promotion and protection
of [the] economic and social interests” (art. 8 (1) (a)) of such
persons, they should be consulted regularly by government bodies
and others in relation to all matters affecting them; it may also
be necessary that they be supported financially and otherwise so
as to ensure their viability.
27. The International Labour Organization has developed valuable
and comprehensive instruments with respect to the work-related rights
of persons with disabilities, including in particular Convention
No. 159 (1983) concerning vocational rehabilitation and employment
of persons with disabilities.[23] The Committee encourages States
parties to the Covenant to consider ratifying that Convention.
C. Article 9: Social security
28. Social security and income-maintenance schemes are of particular
importance for persons with disabilities. As stated in the Standard
Rules, “States should ensure the provision of adequate income support
to persons with disabilities who, owing to disability or disability-related
factors, have temporarily lost or received a reduction in their
income or have been denied employment opportunities”.[24] Such support
should reflect the special needs for assistance and other expenses
often associated with disability. In addition, as far as possible,
the support provided should also cover individuals (who are overwhelmingly
female) who undertake the care of a person with disabilities. Such
persons, including members of the families of persons with disabilities,
are often in urgent need of financial support because of their assistance
role.[25]
29. Institutionalization of persons with disabilities, unless rendered
necessary for other reasons, cannot be regarded as an adequate substitute
for the social security and income-support rights of such persons.
D. Article 10: Protection of the family and of mothers and children
30. In the case of persons with disabilities, the Covenant’s requirement
that “protection and assistance” be rendered to the family means
that everything possible should be done to enable such persons,
when they so wish, to live with their families. Article 10 also
implies, subject to the general principles of international human
rights law, the right of persons with disabilities to marry and
have their own family. These rights are frequently ignored or denied,
especially in the case of persons with mental disabilities.[26]
In this and other contexts, the term “family” should be interpreted
broadly and in accordance with appropriate local usage. States parties
should ensure that laws and social policies and practices do not
impede the realization of these rights. Persons with disabilities
should have access to necessary counselling services in order to
fulfil their rights and duties within the family.[27]
31. Women with disabilities also have the right to protection and
support in relation to motherhood and pregnancy. As the Standard
Rules state, “persons with disabilities must not be denied the opportunity
to experience their sexuality, have sexual relationships and experience
parenthood”.[28] The needs and desires in question should be recognized
and addressed in both the recreational and the procreational contexts.
These rights are commonly denied to both men and women with disabilities
worldwide.[29] Both the sterilization of, and the performance of
an abortion on, a woman with disabilities without her prior informed
consent are serious violations of article 10 (2).
32. Children with disabilities are especially vulnerable to exploitation,
abuse and neglect and are, in accordance with article 10 (3) of
the Covenant (reinforced by the corresponding provisions of the
Convention on the Rights of the Child), entitled to special protection.
E. Article 11: The right to an adequate standard of living
33. In addition to the need to ensure that persons with disabilities
have access to adequate food, accessible housing and other basic
material needs, 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”.[30] The right to adequate
clothing also assumes a special significance in the context of persons
with disabilities who have particular clothing needs, so as to enable
them to function fully and effectively in society. Wherever possible,
appropriate personal assistance should also be provided in this
connection. Such assistance should be undertaken in a manner and
spirit which fully respect the human rights of the person(s) concerned.
Similarly, as already noted by the Committee in paragraph 8 of general
comment No. 4 (Sixth session, 1991), the right to adequate housing
includes the right to accessible housing for persons with disabilities.
F. Article 12: The right to physical and mental health
34. According to the Standard Rules, “States should ensure that
persons with disabilities, particularly infants and children, are
provided with the same level of medical care within the same system
as other members of society”.[31] The right to physical and mental
health also implies the right to have access to, and to benefit
from, those medical and social services including orthopaedic devices
which enable persons with disabilities to become independent, prevent
further disabilities and support their social integration.[32] Similarly,
such persons should be provided with rehabilitation services which
would enable them “to reach and sustain their optimum level of independence
and functioning”.[33] All such services should be provided in such
a way that the persons concerned are able to maintain full respect
for their rights and dignity.
G. Articles 13 and 14: The right to education
35. School programmes in many countries today recognize that persons
with disabilities can best be educated within the general education
system.[34] Thus the Standard Rules provide that “States should
recognize the principle of equal primary, secondary and tertiary
educational opportunities for children, youth and adults with disabilities,
in integrated settings”.[35] In order to implement such an approach,
States should ensure that teachers are trained to educate children
with disabilities within regular schools and that the necessary
equipment and support are available to bring persons with disabilities
up to the same level of education as their non-disabled peers. In
the case of deaf children, for example, sign language should be
recognized as a separate language to which the children should have
access and whose importance should be acknowledged in their overall
social environment.
H. Article 15: The right to take part in cultural life and enjoy
the benefits
of scientific progress
36. The Standard Rules provide that “States should ensure that persons
with disabilities have the opportunity to utilize their creative,
artistic and intellectual potential, not only for their own benefit,
but also for the enrichment of their community, be they in urban
or rural areas. ... States should promote the accessibility to and
availability of places for cultural performances and services ...”.[36]
The same applies to places for recreation, sports and tourism.
37. The right to full participation in cultural and recreational
life for persons with disabilities further requires that communication
barriers be eliminated to the greatest extent possible. Useful measures
in this regard might include “the use of talking books, papers written
in simple language and with clear format and colours for persons
with mental disability, [and] adapted television and theatre for
deaf persons”.[37]
38. In order to facilitate the equal participation in cultural life
of persons with disabilities, Governments should inform and educate
the general public about disability. In particular, measures must
be taken to dispel prejudices or superstitious beliefs against persons
with disabilities, for example those that view epilepsy as a form
of spirit possession or a child with disabilities as a form of punishment
visited upon the family. Similarly, the general public should be
educated to accept that persons with disabilities have as much right
as any other person to make use of restaurants, hotels, recreation
centres and cultural venues.
Notes
[1] Geneva, World Health Organization, 1990.
[2] For a comprehensive review of the question, see the final report
prepared by Mr. Leandro Despouy, Special Rapporteur, on human rights
and disability (E/CN.4/Sub.2/1991/31).
[3] See A/47/415, paragraph 5.
[4] See paragraph 165 of the World Programme of Action concerning
Disabled Persons, adopted by the General Assembly by its resolution
37/52 of 3 December 1982 (para. 1).
[5] See Commission on Human Rights resolutions 1992/48, paragraph
4 and 1993/29, paragraph 7.
[6] See A/47/415, paragraph 6.
[7] Standard Rules on the Equalization of Opportunities for Persons
with Disabilities, annexed to General Assembly resolution 48/96
of 20 December 1993 (Introduction, para. 17).
[8] World Programme of Action concerning Disabled Persons (see note
3 above), paragraph 1.
[9] A/C.3/46/4, annex I. Also contained in the Report on the International
Meeting on the Roles and Functions of National Coordinating Committees
on Disability in Developing Countries, Beijing, 5-11 November 1990
(CSDHA/DDP/NDC/4). See also Economic and Social Council resolution
1991/8 and General Assembly resolution 46/96 of 16 December 1991.
[10] General Assembly resolution 46/119 of 17 December 1991, annex.
[11] Standard Rules (see note 6 above), Introduction, paragraph
15.
[12] See A/47/415, passim.
[13] Ibid., paragraph 5.
[14] Standard Rules (see note 6 above), Rule 1.
[15] World Programme of Action concerning Disabled Persons (see
note 3 above), paragraph 3.
[16] See note 8 above.
[17] See A/47/415, paragraphs 37-38.
[18] World Programme of Action concerning Disabled Persons (see
note 3 above), paragraph 25.
[19] See E/CN.4/Sub.2/1991/31 (see note 1 above), paragraph 140.
[20] See A/47/415, paragraphs 35, 46, 74 and 77.
[21] See note 9 above.
[22] Standard Rules (see note 6 above), Rule 7.
[23] See A/CONF.157/PC/61/Add.10, p. 12.
[24] See also Recommendation No. 99 (1955) concerning vocational
rehabilitation of the disabled, and Recommendation No. 168 (1983)
concerning vocational rehabilitation and employment of persons with
disabilities.
[25] Standard Rules (see note 6 above), Rule 8, paragraph 1.
[26] See A/47/415, paragraph 78.
[27] See E/CN.4/Sub.2/1991/31 (see note 1 above), paragraphs 190
and 193.
[28] See the World Programme of Action concerning Disabled Persons
(see note 3 above), paragraph 74.
[29] Standard Rules (see note 6 above), Rule 9, paragraph 2.
[30] See E/CN.6/1991/2, paragraphs 14 and 59-68.
[31] Standard Rules (see note 6 above), Rule 4.
[32] Ibid., Rule 2, paragraph 3.
[33] See the Declaration on the Rights of Disabled Persons (General
Assembly resolution 3447 (XXX) of 9 December 1975), paragraph 6;
and the World Programme of Action concerning Disabled Persons (see
note 3 above), paragraphs 95-107.
[34] Standard Rules (see note 6 above), Rule 3.
[35] See A/47/415, paragraph 73.
[36] Standard Rules (see note 6 above), Rule 6.
[37] Ibid., Rule 10, paragraphs 1-2.
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