Broad view: four key rights in 20 State party reports (a) The right to non-discrimination (article 2(2))

The concepts of equality and non-discrimination are not explicitly mentioned in the context of disability in most the reports analysed.

Only one report (Sweden, fourth periodic report) mentions the creation of a law specifically and solely targeting disability discrimination (in the field of employment).

Germany refers to the insertion of disability as a prohibited ground for discrimination in the Constitution (third periodic report) and, in a section dealing with homosexual relationships, mentions disability in passing as one of many unlawful grounds for discrimination (fourth periodic report). The United Kingdom states that in the Cayman Islands disability is one of the prohibited grounds for discrimination in Labour Law (fourth periodic report). In the context of legal protection against

discrimination in employment, Algeria mentions that “disabled persons who cannot be employed in normal working conditions shall be entitled to sheltered work or, where necessary, places in sheltered workshops and to special training” (initial report).

As regards the integration, inclusion and equal participation of persons with a disability in society, just over half of the reports analysed (ten States parties) refer to

Senegal: second periodic report, 1999 (E/1990/6/Add. 25);

Sweden: third periodic report, 1994 (E/1994/104/Add. 1); fourth periodic report, 2000 (E/C.12/4/Add. 4);

Ukraine: third periodic report, 1994 (E/1994/104/Add. 4); fourth periodic report, 1999 (E/C.12/4/Add. 2);

United Kingdom: second periodic report, 1993 (Dependent Territories: E/1990/7/Add. 16); fourth report, 2000 (Overseas Territories: E/C.12/4/Add. 5);

Yugoslavia: second periodic report, 1998 (E/1990/6/Add. 22);

Zimbabwe: initial report, 1995 (E/1990/5/Add. 28).

176 The second periodic report of the United Kingdom concerns the United Kingdom and its Dependent Territories and deals only with articles 13 to 15. The fourth periodic report concerns its Overseas Territories and covers all Covenant rights.

problems in this regard and/or explicitly mention either a policy or a specific measure to deal with them (Algeria, initial report; Germany, third and fourth periodic reports;

Morocco, second periodic report; Panama, second periodic report; Republic of Korea, initial report; Sweden, third periodic report; Ukraine, third periodic report; United Kingdom, second periodic report (in connection with Isle of Man and Montserrat);

Yugoslavia, second periodic report; Zimbabwe, initial report). Four reports mention a policy or a measure taken to eliminate societal barriers in the form of an inaccessible social environment (Republic of Korea, initial report; Ukraine, third periodic report;

United Kingdom, fourth periodic report (in connection with the Falkland Islands);

Yugoslavia, second periodic report).

Three reports explicitly mention equality/equal opportunities as a goal in the context of persons with disabilities (Germany, third periodic report; Morocco, second periodic report; Republic of Korea, initial report) and only one report mentions the need for the elimination of prejudice against persons with a disability (Republic of Korea, initial report).

Although Sweden’s fourth periodic report improves on the previous report by citing a non-discrimination law in the field of employment, there is no clearly discernible progress under the heading of disability in most State parties between one report and the next.

In sum, fewer than half the reports analysed explicitly mention equality and non-discrimination in the context of disability and just over half mention participation and inclusion of persons with disabilities. It seems that these two key messages of General Comment No. 5 have not percolated through to the point where they influence all (or even most) policies and measures relating to disability in the areas covered by the ICESCR.

(b) The right to work (articles 6 and 7)

The aspect of the right to work that has been most instrumental in the shift towards a human rights perspective in the context of disability is access for persons with a disability to mainstream employment.

In addition to the two reports that mention non-discrimination laws in the area of employment (Sweden and the United Kingdom (Cayman Islands)), eleven reports (nine States parties) mention efforts to increase employment opportunities for persons with a disability (Algeria, first and second periodic reports; Germany, fourth periodic report; Guatemala, initial report; Iraq, second periodic report; Republic of Korea, initial report; Sweden, third and fourth periodic reports; Ukraine, third periodic report;

Yugoslavia, second periodic report). The most commonly reported measures are vocational rehabilitation and training and placement, or creation of work

opportunities. While many reports mention the integration of persons with disabilities into working life, they do not specify whether they are referring to mainstream or sheltered employment.

The right to vocational rehabilitation and to find suitable work is often dealt with in the context of persons with disabilities who have previously worked (e.g. those who have had accidents in the workplace).

Sweden’s fourth periodic report mentions financial assistance to persons with disabilities to make specific workplaces accessible to them.

Five reports (three States parties) provide statistics for employed/unemployed persons with disabilities (Germany, third periodic report; Sweden, third and fourth periodic reports; Ukraine, third and fourth periodic reports). But only Sweden’s fourth periodic report answers the vital question of what proportion of persons with disabilities are employed/unemployed.

Generally speaking, therefore, reports do not indicate the extent to which persons with disabilities participate in the mainstream workplace. While many mention

steppingstones to this goal such as different forms of social and economic support, references to the integration of persons with disabilities into working life do not explicitly relate to mainstream employment, and non-discrimination laws are rare.

(c) The right to education (article 13)

The most important aspect of the right to education in the context of promoting a change of approach to disability is the inclusion of persons with disabilities in the general education system.

Most reports (except for Algeria, second periodic report; Germany, fourth periodic report; Guatemala, initial report; Nigeria, initial report; Ukraine, fourth periodic report) refer in some way to formal education of persons with disabilities (which is not taken here to include shorter targeted vocational education).

The majority of reports deal with the education of persons with disabilities mainly (and sometimes solely) in the context of special educational facilities. Only four explicitly mention the importance, and their active pursuance, of a policy of inclusion of persons with disabilities in the general education system (Morocco, second periodic report; Panama, second periodic report; United Kingdom, second periodic report (Isle of Man); Zimbabwe, initial report).

Three reports mention the establishment of special units connected to general schools for persons with disabilities (United Kingdom, second periodic report (Cayman Islands, Isle of Man), fourth periodic report (Gibraltar); Yugoslavia, second periodic report). One report mentions personal educational assistants for children with

disabilities but does not say whether this occurs in special or general schools (United Kingdom, fourth periodic report (St. Helena).

Three reports provide statistics on the number of special schools and/or students (Iraq, second periodic report; Republic of Korea, initial report; Yugoslavia, second periodic report).

Germany mentions the provision of transport adapted to individual needs as a means of equalizing opportunities between children with disabilities and able-bodied children (third periodic report).

Only one report touches on the physical accessibility of educational establishments (United Kingdom, fourth periodic report (Falkland Islands).

Ukraine’s fourth periodic report mentions a legal right for everyone to free primary education, regardless, inter alia, of health, but does not explicitly mention disability (fourth periodic report).

Most reports mention children only in connection with education in the context of disability.

To sum up, while some States parties espouse the objective of achieving integrated education, the provision of integrated education for persons with disabilities (with all its attendant planning and logistical problems) is not the norm or the reality in many States.

(d) Right to cultural participation (article 15)

The right to cultural participation covers both the enjoyment and the creation of culture. The creation of culture is the sharing of a perception of reality or a specific point of view. Cultural expression has a particular value for those whose perspectives were not communicated in the past or were ignored. Both the right to create culture and the right to take part in cultural life enhance the visibility of persons with disabilities in society and thus assist in changing perceptions of disability.

Only one report (Yugoslavia, second periodic report) mentions persons with disabilities in the context of article 15. It provides information regarding both the participation in culture and the creation of culture by persons with disabilities.

Under the heading of participation, the report mentions theatre groups involving persons with disabilities and “social groups” attached to organizations for persons with disabilities. Some of these organizations receive minor government grants.

According to the report, most mainstream cultural venues are still inaccessible to persons with disabilities. With regard to the creation of culture, the report mentions the publication of magazines by organizations of persons with disabilities, the creation of a school of poetry by persons with disabilities and fashion design for persons with disabilities.

All in all, the fact that only one report mentions persons with disabilities in the context of the right to culture indicates that many States parties have not yet taken fully on board the general goals of participation and independence. This poor record is deeply disappointing, as achievement of a right to culture clearly has the potential to produce a multiplier effect.

(e) Conclusions

A comprehensive account of the situation of persons with disabilities under the ICESCR would include: (a) a general policy statement based on the criteria of equality, inclusion and participation and a social definition of disability; (b) an account of how this perspective is applied and realized in the context of each right;

and (c) an assessment of the extent to which these rights are currently enjoyed by persons with disabilities. None of the reports analysed comes close to fulfilling these requirements. Measured against the above benchmarks, the coverage of persons with disabilities is, at best, piecemeal. Moreover, in most cases it is not clearly and explicitly based on a policy such as the one described above.

Many reports mention persons with disabilities in the same breath as other groups of persons perceived as “innocent, vulnerable or dependent” (Nigeria, initial report) such as “orphans, helpless women, the aged, the disabled and incapacitated persons”

(Nepal, initial report). As a result, discrimination and lack of enjoyment of rights is obscured for each of these groups by an image of inherent helplessness, implying the need for charity rather than empowerment and justice.

In most cases, the terms disability and handicap are used interchangeably¹⁷⁷ and offensive terminology¹⁷⁸ such as “mentally retarded”¹⁷⁹ is commonplace. However, more recent reports indicate that there has been some improvement in this regard.

More often than not, the concept of rights is absent from descriptions of measures to meet the needs of persons with disabilities. In the reports analysed, no reference is made to the United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities or to the ICESCR Committee’s General Comment No. 5.

There is only one reference to the International Year of the Disabled (Republic of Korea, initial report) and one to the World Programme of Action concerning Disabled Persons (Algeria, initial report). Three reports mention the creation of national

institutions to further the rights of persons with disabilities (Guatemala, initial report;

Morocco, second periodic report; Sweden, fourth periodic report).

All of the above suggests that States parties to the ICESCR have not fully internalized the move to a rights-based perspective on disability. The problem is not a lack of normative clarity in the ICESCR. Perhaps greater levels of NGO involvement – both in the drafting of States reports and in the work of the ICESCR Committee – could provide leverage for change in the right direction.

5.4.2 Close-up view: coverage of all rights in the context of disability in