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.
