Disability and social justice: the International Covenant on Economic, Social and Cultural Rights
5.3 The relevance of specific ICESCR rights in the context of disability
5.3.4 Other ICESCR rights and disability
3. Nothing in this article shall authorize States Parties to the International Labour
Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.
General Comment No. 5 notes that article 8, in conjunction with other rights,
emphasizes “the importance of the right of persons with disabilities to form their own organizations” for the protection and promotion of economic and social interests.128 Furthermore, these organizations “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.”129 Trade union rights are important for all disabled workers and perhaps more so for those in sheltered employment. Problems may arise if traditional trade unions refuse to accept members with disabilities or if there is resistance to the organization of workers in sheltered work environments.
In reiterating the Standard Rules, General Comment No. 5 makes the important point that persons with disabilities who have not previously been employed have the right to social security. Importantly, it notes that the:
[i]nstitutionalization 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.132
This anti-institutionalization language is quite strong.
The provision of the Standard Rules corresponding to article 9 of the Covenant is Rule 8, according to which:
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.133
This support should cover the extra costs of disability and costs incurred by those caring for persons with disabilities.134 States should ensure that general social welfare schemes do not exclude or discriminate against persons with disabilities.135
According to Rule 8, social security systems should include incentives to restore income-earning capacities and provide or support vocational training and placement services. Social security programmes should also provide incentives to seek
employment.136 Income support should be maintained until the disabling condition disappears and the person concerned achieves adequate and secure income. Social protection systems should not discourage persons with disabilities from seeking employment.137
Important themes in the Committee’s approach to the right to social security in the context of disability are recognition of the extra costs of disability, avoidance of institutionalization and using social support to enable people with disabilities to lead an active life.
(b) The right to protection of the family, mothers and children in the context of disability (article 10)
Article 10 reads as follows:
The States Parties to the present Covenant recognize that:
1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while
131 Ibid.
132 Ibid., para. 29
133 Rule 8 (1).
134 Rule 8 (1 and 3).
135 Rule 8 (2).
136 Rule 8 (4 and 5).
137 Rule 8 (6).
it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.
2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.
3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions.
Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.
General Comment No. 5 requires States parties to endeavour to ensure that persons with disabilities can, when they so wish, live with their families. Importantly, it also requires them to ensure that “laws and social policies and practices” do not impede the realization of the rights of persons with disabilities to marry and form a family.138 In addition, persons with disabilities should have access to “necessary counselling services in order to fulfil their rights and duties within the family”.139
General Comment No. 5 reiterates Rule 9(2) of the Standard Rules, stating that
“persons with disabilities must not be denied the opportunity to experience their sexuality, have sexual relationships and experience parenthood.”140 It then stresses that “[t]he needs and desires in question should be recognized and addressed in both the recreational and the procreational contexts.”141 While the Committee notes that these rights are commonly denied to both sexes, it mentions explicitly that “[w]omen with disabilities also have the right to protection and support in relation to
motherhood and pregnancy.”142 It follows that
[b]oth 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).143
General Comment No. 5 also notes that article 10 (3) of the Covenant (which is reinforced by the corresponding provisions in the Convention on the Rights of the Child) entitles children with disabilities to special protection from exploitation, abuse and neglect.144 This is important for all children with disabilities but especially for those who reside in institutions.
The provision of the Standard Rules corresponding to article 10 of the Covenant is Rule 9, according to which:
States should promote the full participation of persons with disabilities in family life. They should promote their right to personal integrity and ensure that laws do not discriminate against persons with disabilities with respect to sexual relationships, marriage and parenthood.
138 General Comment No. 5, para. 30.
139 Ibid.
140 Ibid., para. 31.
141 Ibid.
142 Ibid.
143 Ibid.
144 Ibid., para. 32.
Rule 9 states that persons with disabilities should not be denied the opportunity to experience their sexuality, have sexual relationships and experience parenthood. They must have equal access to family planning methods and information in accessible form on the sexual functioning of their bodies. States should remove all “unnecessary obstacles” to the adoption or fostering of a person with a disability.145 It is incumbent on States to promote measures to change negative attitudes towards marriage,
sexuality and parenthood of persons (especially girls and women) with disabilities.
Part of this obligation involves encouraging the media to tackle negative attitudes.146 As persons with disabilities are particularly vulnerable to sexual and other forms of abuse in the family and institutions, they need to be educated on how to avoid, recognize and report such abuse.147
In the context of special protection for children with disabilities, Rule 4 on support services states that the special needs of girls and boys with disabilities should influence the design, durability and age-appropriateness of assistive devices and equipment.148
The main themes of the right to family life under article 10 of the ICESCR in the context of disability are the right to intimate association, the right to marry and found a family, the right to special protection for vulnerable children, and the need to ensure respect for privacy and the dignity of the person.
The main themes of the Committee’s approach to article 10 in the context of disability are accessibility, non-discrimination and participation.
(c) The right to an adequate standard of living in the context of disability (article 11)
Article 11 reads as follows:
1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international cooperation, the measures, including specific programmes, which are needed:
(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural
resources;
145 Rule 9 (1).
146 Rule 9 (3).
147 Rule 9 (4).
148 Rule 4 (5).
(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.
According to General Comment No. 5, the right to an adequate standard of living in the context of disability entails the fulfilment of basic material needs such as adequate food, housing and clothing.149 It further states that persons with disabilities may have
“particular clothing needs, so as to enable them to function fully and effectively in society”.150 Again, in the Committee's view the link between Covenant rights and the achievement of the goal of participation is plain.
General Comment No. 12 on the right to adequate food states that food must be accessible to everyone, without discrimination, including “the physically disabled”
and “the mentally ill”.151 According to the Committee, “whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States have the obligation to fulfil (provide) that right directly.”152 Furthermore, General Comment No. 12 states that:
[e]ven where a State faces severe resource constraints, whether caused by a process of economic adjustment, economic recession, climatic conditions or other factors, measures should be undertaken to ensure that the right to adequate food is especially fulfilled for vulnerable population groups and individuals.153
(emphasis added)
According to General Comment No. 12, States parties are required to draw up a national strategy on the realization of the right to food. Such a strategy should “give particular attention to the need to prevent discrimination in access to food or resources for food”.154 Violations of the right to food are stated to include “denial of access to food to particular individuals or groups, whether the discrimination is based on legislation or is proactive”.155
Housing rights are particularly important for people with disabilities. General Comment No. 4 (1991) on the right to adequate housing states that disadvantaged groups, such as “the physically disabled” and “the mentally ill” must have “full and sustainable access to adequate housing resources” without discrimination, and that
“housing law and policy should take fully into account the special housing needs of these groups.” 156 States are required to “give due priority to those social groups living in unfavourable conditions by giving them particular consideration”.157
149 General Comment No. 5, para. 33.
150 Ibid.
151 General Comment No. 12, para. 13.
152 Ibid., para. 15.
153 Ibid., para. 28.
154 Ibid., para. 26.
155 Ibid., para. 19.
156 General Comment No. 4, para. 8 (e).
157 Ibid., para. 11.
The adequacy of housing, in the view of the Committee, is determined in part by
“social, economic, cultural, climatic, ecological and other factors”.158 Everyone has the right to “live somewhere in security, peace and dignity”.159 As regards location, General Comment No. 4 asserts that “[a]dequate housing must be in a location which allows access to employment options, health-care services, schools, child-care centres and other social facilities.”160
General Comment No. 4 emphasizes the interrelatedness of the right to housing and other human rights such as the right to non-discrimination, the right to freedom of expression, the right to freedom of association, the right to freedom of residence, the right to participate in public decision-making and the right not to be subjected to arbitrary or unlawful interference with one's privacy, family, home or
correspondence.161 Thus, in the case of persons with disabilities, fulfilment of the right to adequate housing entails providing housing that gives the individual access to equal participation in the political, social, economic and cultural spheres of society.
According to Rule 5 of the Standard Rules on accessibility, which deals with access to the physical environment, including housing, “States should recognize the overall importance of accessibility in the process of the equalization of opportunities in all spheres of society.” States are required to introduce programmes of action to make the physical environment accessible to persons with disabilities and to take measures to remove obstacles to participation. Such measures should include the development of standards and guidelines, and due consideration should be given to the enactment of:
legislation to ensure accessibility to various areas in society, such as housing, buildings, public transport services and other means of transportation, streets and other outdoor
environments.162
States should also include accessibility requirements from the outset in the design and construction of the physical environment, and:
ensure that architects, construction engineers and others who are professionally involved in the design and construction of the physical environment have access to adequate information on disability policy and measures to achieve accessibility.163
Organizations of persons with disabilities should be involved from the beginning in the planning of public construction projects and should be consulted on the
development of standards and norms of accessibility.164
(d) The right to cultural participation in the context of disability (article 15)
Article 15 reads as follows:
158 Ibid., para. 8.
159 Ibid., para. 7.
160 Ibid., para. 8(f)).
161 Ibid., para. 9.
162 Rule 5(a) (1).
163 Rule 5(a) (2 and 3).
164 Rule 5(a) (4).
1. The States Parties to the present Covenant recognize the right of everyone:
(a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications;
(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and cooperation in the scientific and cultural fields.
Read in conjunction with article 2 (2), this right is to be accorded to everyone without discrimination.
General Comment No. 5 reiterates Rule 10, paragraphs 1 and 2, of the Standard Rules, noting 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 ... 165
According to the General Comment, article 15 applies to places for recreation, sports and tourism.166 To facilitate the equal participation of persons with disabilities in culture, it urges States parties to inform and educate the general public about disability. This education should:
dispel prejudice or superstitious beliefs … and the general public should be educated to accept that persons with disabilities have the same rights as anyone else to use restaurants, hotels, recreation centres and cultural venues.167
General Comment No. 5 also notes that communications barriers must be eliminated to ensure that persons with disabilities can exercise their right to equal participation in cultural life. The Committee refers to the 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" which gives the following examples of useful measures:
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.168
165 General Comment No. 5, para. 36.
166 Ibid.
167 Ibid., para. 38.
168 Ibid., para. 37.
As cited above, Rule 10 of the Standard Rules requires States to ensure that persons with disabilities can participate equally in the creation and the enjoyment of culture.
Activities such as dance, music, literature, theatre, plastic arts, painting and sculpture must be open to persons with disabilities, and places such as theatres, museums, cinemas and libraries should be accessible. States should develop and use the necessary technology to make literature, films and theatre accessible to persons with disabilities.169 Rule 11 of the Standard Rules requires States to ensure that persons with disabilities have equal opportunities for recreation and sport. Places for
recreation and sports, such as hotels, beaches, sports arenas and gym halls, should be accessible to persons with disabilities, and measures such as projects to develop accessibility should be taken.170 Sports organization should be encouraged, together with organizations of persons with disabilities, to develop opportunities for persons with disabilities to participate in sports activities.171 The instruction and training provided to persons with disabilities should be of the same quality as that provided to able-bodied persons.172 In some cases, special arrangements or special games are needed. States should encourage persons with disabilities to participate in national and international events.173 In the context of tourism, the services of tourist authorities, travel agencies, hotels, voluntary organizations and others should be offered to persons with disabilities, taking into account any special needs. Suitable training should be provided to assist in this process.174
The right to culture is important for people with disabilities since it enables them to influence the way in which they are portrayed and gives them access to society's cultural products including sports, cinema and theatre.