Close-up view: coverage of all rights in the context of disability in seven recent State party reports

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

Disability is mentioned in the context of articles 6 (the right to work), 10 (the right to protection of the family, mothers and children) and 11 (the right to an adequate standard of living).

Under article 6 (the right to work), the report refers under the heading “Measures to integrate people with disabilities into working life” to a memorandum entitled “The Integration of Disabled Persons in the Federal Republic of Germany”. It emphasizes that the measures outlined in the memorandum also apply to the new Länder. The memorandum sets out in 16 chapters the range of support facilities available to people with disabilities. They include some far-reaching measures for the integration of people with disabilities into the workforce.

A special effort is reportedly being made on behalf of “young disabled persons in East Germany” with a view to implementing the agreement reached at the European Union Employment Summit in Luxembourg in 1997. In accordance with the aim agreed at the Summit, Germany states that it plans to offer a “new start” to “every single disabled person” before he or she has been out of work for twelve months. Together with unemployed persons in general, 20 per cent of unemployed “disabled people” are to be offered vocational training under this plan. Germany also reports on a “pilot project” to evaluate whether an extension of the "particular promotion of hiring and employing disabled persons from the compensation levy budget" to cover “fixed-term employment contracts” can make employers more prepared to employ “severely disabled persons".

Under article 10 (the right to protection of the family, mothers and children), the German report states that child benefits are payable for “children who, because of a disability, are unable to support themselves”.

Under article 11 (the right to an adequate standard of living), Germany notes that 33.1 per cent of the expenditure for “benefits to help cover living costs” in 1997 was spent on “integration assistance for disabled persons”. In 1997, some 38 per cent of people receiving assistance for “persons in special circumstances” were recipients of

“integration assistance for disabled persons”.

The Committee's list of issues

The list of issues¹⁸¹ mentions disability in the context of two articles, article 6 (the right to work) and article 15 (the right to cultural participation).

Under article 6, the Committee wished to be informed about “any action taken, pursuant to the memorandum ‘The Integration of Disabled Persons in the Federal Republic of Germany’".

Under article 15, the Committee requested information about “the benefits and assistance” given to, inter alia, “persons with disabilities … to participate in, and benefit from, the cultural activities of the State party”.

The State party's reply to the list of issues

The reply to the list of issues was not available at the time of writing.

181 E/C.12/Q/GER/2.

The summary records

The summary records of the meetings in respect of Germany¹⁸² show that the issue of disability was not raised during the Committee's discussions with the State party.

The Committee's concluding observations

There is no reference to disability in the Committee's concluding observations. ¹⁸³ (b) Japan - second periodic report (1998)

The State party’s report

Japan’s second periodic report under the ICESCR was published in 1998.¹⁸⁴

The report mentions disability in the context of articles 6 (the right to work), 9 (the right to social security), 10 (the right to protection of the family, mothers and children), 12 (the right to health) and 13 (the right to education).

Under the heading “General comments” and the subheading “Status and rights of foreigners”, the report mentions “welfare allowances for persons with disability” and

“special allowances for persons with disability” as examples of benefits that do not require Japanese nationality. Under the subheading “Measures for the socially disadvantaged”, the report presents a general policy statement on the situation of persons with disabilities. In 1995, Japan enacted the “Government Action Plan for Persons with Disabilities” designed to implement the “New Long-Term Programme for Government Measures for Persons with Disabilities” enacted in 1993. According to the report, the Action Plan has seven goals: “(a) Living in communities as ordinary citizens; (b) Promoting the social independence of persons with disabilities;

(c) Promoting a barrier-free society; (d) Targeting the quality of life (QOL); (e) Assuring security in living; (f) Removing psychological barriers; and (g) Promoting international cooperation and exchanges.”¹⁸⁵

The Action Plan is said to be “based on the principle of rehabilitation, which aims to restore all human rights to those in all stages of the life cycle, and of normalization, which strives to create a society where the daily lives and activities of persons with disabilities are equal in quality to those without disabilities”.¹⁸⁶

Under article 6, the report notes the importance of providing “detailed and considerable vocational guidance and vocational placement according to the person's capability and aptitude”.¹⁸⁷ It states that a job-seeking registration system for persons with disabilities has been established. Figures are provided showing an increase in both persons registered

182 E/C.12/2001/SR.48 and 49.

183 E/C.12/1/Add.68.

184 E/1990/6/Add.21.

185 E/1990/6/Add.21, para. 12.

186 Ibid.

187 Ibid., para. 26.

as job-seekers and persons having found employment. The report recognizes that the number of applicants with disabilities exceeds the number of employment opportunities.

Under article 9 (the right to social security), the report refers to a “disability pension”

under two different pension schemes. The “National Pension Scheme” is open to all residents and its size is dependent on the degree of disability. The “Employees' Pension Insurance Scheme” is based on contributions, the size of which depends on a person’s monthly salary, period of contribution and degree of disability. When a worker is injured or falls ill at work, s/he is entitled to medical compensation, long-term health care and

“temporary”, “long-term” or “permanent” disability compensation benefit.

Under article 10 (right to protection of the family, mothers and children), the report refers to a Law concerning the Provision of the Special Child-Rearing Allowance, which provides for the payment of compensation to the parent or guardian rearing a

“child with a mental or physical disability”. The monthly allowance depends on the degree of disability. The total number of recipients stood at 130,000 in March 1997.

Under the Child Welfare Law, the Government also reportedly provides medical aid and equipment for “children with potential disabilities”.

Under the heading “Protection of children”, the report notes that the Government has taken active steps to reinforce “the prevention, early diagnosis and early medical care of the mentally or physically disabled”.¹⁸⁸ It describes measures such as “the placing of disabled children in institutions for mentally disabled children, schools for mentally disabled children, institutions for physically disabled children, institutions for blind children, institutions for children with auditory/speech disabilities, and institutions for severely handicapped children, or enabling them to commute to such institutions”.¹⁸⁹ In October 1996, there were 816 “facilities for disabled children” attended by

approximately 38,000 children. The report further states that “home welfare measures such as counselling and guidance at child guidance centres and welfare offices and the dispatching of home helpers are also vigorously promoted.”¹⁹⁰

Under article 12 (the right to health), it is reported that the Mental Hygiene Law was renamed the Law concerning Mental Health and Welfare for the Mentally Disabled in 1995 to improve rehabilitation and protection facilities for “mentally disabled

persons”. The policy on mental health and welfare of “the mentally disabled has been changing from a system of hospitalization in mental hospitals to a system of

community care”.¹⁹¹ As regards access to medical care, “the Government pays part of the medical expenses for patients hospitalized on the orders of the prefectural

governors and for outpatients.”¹⁹² The Government also subsidizes the construction and management of rehabilitation institutions for the “mentally disabled” and provides counselling by doctors and social workers at health centres.

The Law for the Welfare of Physically Disabled Persons is said to provide for medical care and rehabilitation. Children with “physical disabilities” or with “diseases that

188 Ibid., para. 128.

189 Ibid.

190 Ibid.

191 Para. 197.

192 Para. 196.

might cause disabilities if left untreated” are provided with medical care under the Child Welfare Law.

Under article 13 (the right to education), the report mentions “a small number of infirm people” who are unable to go to ordinary schools and receive “basic education”. These students subsequently have the option of entering higher-level schools.

The Committee’s list of issues

In its list of issues the Committee requested information under article 6 (the right to work) on “the implementation of the provisions of the Covenant concerning the employment of persons with disabilities in Japan”.¹⁹³

The State’s reply to the list of issues

In its reply to the list of issues,¹⁹⁴ Japan states that various measures are being implemented with a view to requiring employers to hire persons with physical or intellectual disabilities. Companies with more than 56 employees are expected to hire more than 1.8 per cent of their employees from among people with disabilities. A figure of 1.48 per cent was recorded for 1999.¹⁹⁵ Various grants are reportedly given to employers and the Government’s aim is to promote the “independence of persons with disabilities in their vocational life by providing vocational rehabilitation”.¹⁹⁶ With regard to access to culture, the Government outlines its policies of making facilities such as museums and theatres accessible to “the aged and physically handicapped”. Loans and government support are provided for research and development relating to appliances and telecommunication/broadcasting services

“which facilitate greater benefits to the aged, handicapped or those who look after them”.¹⁹⁷

The summary records

In response to questions, a Japanese representative referred to incentives to encourage employment of the “handicapped”. OECD figures were cited to show that only 2.4 per cent of children attend special educational institutions in Japan, which is a relatively low level by international standards.¹⁹⁸

The Committee’s concluding observations

In its concluding observations, the Committee expressed concern that discrimination against persons with disabilities continued to exist in Japan, particularly in relation to labour and social security rights.¹⁹⁹

193 E/C12/Q/JAP/1, para. 13.

194 HR/ICESCR/NONE/2001/16.

195 Ibid. section III, paras. 1 and 2.

196 Ibid.

197 Ibid., reply to questions on article 15.

198 Ibid., para. 43.

199 E/C.12/1/Add.67, para. 25.

The Committee recommended that Japan abolish discriminatory provisions in its legislation and adopt a law against discrimination relating to persons with disabilities.

It also urged the State to speed up the employment rate for persons with disabilities in the public sector where legislation existed.²⁰⁰

(c) Mexico - third periodic report (1997) The State party's report

Mexico's third periodic report under the ICESCR was published in 1997.²⁰¹

Disability is mentioned in the context of articles 2 (the right to non-discrimination), 6 (the right to work), 7 (the right to just and favourable conditions of work), 9 (the right to social security), 10 (the right to protection for the family, mothers and children), 11 (the right to an adequate standard of living), 12 (the right to health) and 13 (the right to education).

Under article 2 (the right to non-discrimination), the report notes that it has taken measures “for the benefit of the poorer social groups”, including action to combat

“malnutrition, morbidity and mortality due to infectious and parasitic diseases”.

Under article 6 (the right to work), the State party report mentions disability in the context of a training programme for the disabled which provided training for 726 persons during 1995.

Under article 7 (the right to just and favourable conditions of work), the Mexican report states that incapacity rates due to accidents at work have been reduced.

Under article 9 (the right to social security), the report deals with two social insurance schemes. One is compulsory, and concerns “State workers” and their families. The other is voluntary and concerns everyone else, provided that they can afford to pay the contributions. These schemes cover medical services, “[c]ompensation for

occupational accidents” and “pensions in respect of incapacity to work”.

Under article 10 (right to protection of the family, mothers and children), the report mentions that children of a socially insured person “who cannot support themselves owing to a chronic illness or physical or mental deficiency”, are entitled to medical care and/or cash benefits. Under the heading “Situation of orphaned, abandoned and disabled children and young persons, and those deprived of their family environment, and street children”, the reports describes Mexico’s cooperation with UNICEF to provide a “basic food, nutrition, health and sanitation package”. In addition, the Government reports taking measures to provide

vulnerable children with “shelter and food, medical, psychological and learning-disability treatment, and cultural, sports and recreational activities, as well as education and training, including work training”.

200 Ibid., para 52.

201 E/1994/104/Add.18.

The national assistance policy to “promote the welfare of the disabled and incorporate them in development”²⁰² reportedly uses both public and private resources to “initiate a process of change in which the disabled will be the protagonists of their own development”.²⁰³

Under article 11 (the right to an adequate standard of living), the report mentions malnutrition as a cause of “mental retardation”.

Under article 12 (the right to health), it estimates that “9 per cent of the population suffers from mental subnormality and that 2 to 4 per cent have learning

difficulties”.²⁰⁴ The report also mentions that health care for mothers and new-borns addresses “prevention of mental defects due to congenital hypothyroidism”.²⁰⁵

With regard to article 13 (the right to education), the report notes that the new approach to education for persons with disabilities is now informed by “a new vision of the integration of disabled children in the regular school system”²⁰⁶. A national programme

“to promote the welfare and social integration of disabled persons and incorporate them in development”²⁰⁷ was established in 1995. Special education needs are catered for in schools in the general education system by means of special “operational and

administrative units”. At the same time, “special-education schools” and “new social integration centres” are encouraged. The report mentions the provision of training to upgrade the skills of personnel working with children with “special education needs”.

Public educational institutions run “extensive programmes of special education for disabled children”. Mention is made of the creation of a “disability registry” which provides information on children with disabilities in pre-school, primary and secondary education in all the country's public and private schools. These figures are provided in the report (2.9 million children aged 0-17 have some disability) and disaggregated according to the type of disability and number of children involved.

According to the report, 16.3 per cent of the 154,321 trainee teachers in public institutions in 1995 were following a course on “special education”.

A coalition of 91 Mexican NGOs submitted a parallel report²⁰⁸ to Mexico’s third periodic report which makes no mention of disability.

The Committee’s list of issues

In its list of issues,²⁰⁹ the Committee asked the State party about the measures it had taken to “establish appropriate, non-discriminatory working conditions for the disabled” with reference to article 7 of the Covenant.²¹⁰

Summary records

202 Ibid.

203 Ibid.

204 Ibid., para. 326.

205 Ibid., para. 387.

206 Ibid., para. 244.

207 Ibid., para. 449.

208 E/C.12/1999/NGO/3.

209 E/C.12/Q/MEX/1.

210 Ibid., para. 22.

According to the summary records,²¹¹ a Mexican representative stated that the national Senate was considering the possibility of ratifying ILO Vocational

Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159) and of acceding to the Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities. Fund-raising events were frequently held for disabled people.²¹²

The Committee’s concluding observations

The concluding observations on Mexico’s third periodic report make no mention of disability.²¹³

(d ) Russian Federation – third periodic report (2000) The State party's report

The third periodic report of the Russian Federation under the ICESCR was published in 1995.²¹⁴

Disability is mentioned in the context of articles 6 (the right to work), 7 (the right to just and favourable conditions of work), 9 (the right to social security), 11 (the right to an adequate standard of living), 12 (the right to health) and 13 (the right to education).

Under article 6 (the right to work), the report notes that the number of disabled women in the workplace declined by 80,000 during the reference period (1991-1992).

It also notes that 55 persons are “injured and become disabled” every day as a result of work-related accidents.

Under article 7 (the right to just and favourable conditions of work), the problem of unsafe working conditions is elaborated on. The report states that in order to relieve the critical social situation in the Russian Federation, wages, pensions and allowances for, inter alia, “the disabled” are reviewed once a quarter. The report also mentions measures adopted to ensure the vocational rehabilitation of “the disabled”.

Under article 9 (the right to social security), the Constitution of the Russian

Federation reportedly ensures social security in the case of “disability”. Workers are stated to be entitled to “temporary incapacity benefits” when they cannot work owing to injury or illness. This provision also covers the situation “when artificial limbs have to be provided”.²¹⁵ A disability pension is paid to workers who can no longer work because of a disability. The amount of the pension, and the eligibility for additional benefits, are dependant on the number of years worked and the person's need for care.

211 E/C.12/1999/SR.44, 45 and 46.

212 E/C.12/1999/SR.46 para. 67.

213 E/C.12/1/Add.41.

214 E/1994/104/Add.8.

215 Ibid., para. 116.

Allowances are also paid to “able-bodied persons” who care for someone incapable of working.

Under article 11 (the right to an adequate standard of living), article 7 of the

Constitution of the Russian Federation reportedly spells out the State's obligation to

“provide State support” for, inter alia, “the disabled”. According to the report, assistance in the form of cash grants and assistance in kind are provided, inter alia, to

“families with disabled children”. Pensions are reportedly paid for “disabled children”. Up to the age of 16 "disabled children" are entitled to free medical care.

The Russian Federation reports that every year measures are taken to provide summer holidays for, inter alia, disabled children.

Under article 12 (the right to health), the Russian Federation reports a “humanization”

of health legislation through a “strengthening of the rights and guarantees of its application”. Particular attention is paid to “the least protected segments of the population”, including “the disabled”.

Under article 13 (the right to education), the report claims that “the State satisfies not only the educational requirements of ordinary members of society but also those of handicapped citizens for whom special educational arrangements are made.”

The Committee's list of issues

In its list of issues the Committee inquired about the effectiveness of the measures for the vocational rehabilitation of the disabled.²¹⁶

It also asked a question under article 3 about the protection of working women, young persons and the disabled.²¹⁷

The State party's reply to the list of issues

No record of a reply by the State party could be located at the time of writing.

The summary records²¹⁸

Referring to the issue of disability, a representative of the Russian Federation mentioned the lack of up-to-date rehabilitation equipment. He also referred to tax advantages and technical advice that the Government offered to companies to increase the employment of people with disabilities.²¹⁹

The Committee's concluding observations

The concluding observations mention disability in the context of employment. Under the heading “Positive aspects”, the Committee “notes with appreciation that

216 E/C.12/Q/RUS.1, para 23.

217 Ibid., para. 9.

218 E/C.12/1997/SR.11, 12, 13 and 14.

219 E/C.12/1997/SR.13, para. 56.

employers are given tax incentives for the hiring of disabled persons to facilitate their access to gainful employment.”²²⁰

(e) Senegal – second periodic report (1999) The State party’s report

Senegal’s second periodic report under the ICESCR was published in 1999.²²¹

Disability is mentioned in the context of articles 11 (the right to an adequate standard of living), 12 (the right to health) and 13 (the right to education).

Under article 11 (the right to an adequate standard of living), the report mentions the prevention of disability.

Under article 12 (the right to health), the reports states that nearly 2 per cent of the population is “disabled” and “among them, rural disabled persons account for 90 per cent”.²²² This has led the Ministry of Health to “revitalize its rural health programme to improve coverage for patients”.²²³

Under article 13 (the right to education), the report refers to the provision of “special education”, which is described as covering “the medical, psychological and

pedagogical needs of children whose normal schooling and training is rendered difficult because of a physical or other disability”.²²⁴

The Committee’s list of issues

In its list of issues, the Committee requested information on all measures being implemented by the State party to protect and fulfil the economic, social and cultural rights of ethnic and religious minorities, people with disabilities, older people and foreigners.²²⁵

Disability is also referred to in relation to the benefits and assistance given to certain groups to enable them to participate in and benefit from cultural activities.²²⁶

The State party’s reply to the list of issues No replies were received by the Committee.

The Committee’s concluding observations

The concluding observations on Senegal²²⁷ expressed regret that the State party had not provided written replies to the list of issues.

220 E/C.12/1/Add. 3, para.7.

221 E/1990/6/Add. 25.

222 E/1990/6/Add. 25, para. 82.

223 Ibid.

224 Ibid., para. 109.

225 E/C.12/Q/SEN/1, para. 8.

226 Ibid., para. 42.

227 E/C.12/1/Add.62.

In document Human rights and disability: the current use and future potential of United Nations human rights instruments in the Context of Disability (Page 126-141)