ICESCR rights that facilitate participation

ICESCR rights can play a vitally important role in helping to prepare people with disabilities for a life of active citizenship and participation. In this regard, the

importance of the right to education for people with disabilities cannot be overstated.

It provides them with the means to lead a life of participation. Moreover, it educates others to be tolerant of the difference of disability. The right to health is important in itself. But it also important in that it primes people with disabilities to lead a life of active participation. Indeed, the ICESCR Committee has itself established a direct link between the right to health and participation.

(a) The right to education in the context of disability (article 13) Article13 states that:

1. The States Parties to the present Covenant recognize the right of everyone to education.

They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

52 General Comment No. 6, The economic, social and cultural rights of older persons, paras. 5 and 41.

53 General Comment No. 4, The right to adequate housing, paras. 6 and 8 (e).

54 Ibid., para. 11.

2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:

(a) Primary education shall be compulsory and available free to all;

(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free

education;

(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;

(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;

(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.

3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph 1 of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

The 1991 revised reporting guidelines indicate that States parties should report on disability under article 13.

General Comment No. 13 on the right to education (1999)⁵⁵ states that the right to education encompasses the following elements: availability, accessibility,

acceptability and adaptability. Accessibility is further asserted to have three overlapping dimensions: (a) non-discrimination, (b) physical accessibility and (c) economic accessibility.

General Comment No. 13 cites the failure to eliminate legal and de facto discrimination in the field of education and the failure to introduce free primary education as examples of violations of the right to education.⁵⁶ According to the Committee, the obligation to guarantee that the right to education is exercised without discrimination is immediate.⁵⁷ Consequently, the “minimum core obligation” of the right to education includes the right of access to public educational institutions and programmes on a non-discriminatory basis.⁵⁸ In addition, temporary special measures

55 General Comment No. 13, The right to education, paras. 36 and 16 (e).

56 Ibid. para. 59.

57 Ibid., para. 43.

58 Ibid., para. 57.

designed to bring about de facto equality for disadvantaged groups in the context of education are not to be regarded as discriminatory provided that they meet certain requirements.⁵⁹

In General Comment No. 5 the ICESCR Committee recognizes that persons with disabilities can best be educated in the general education system. Reiterating Rule 6 of the Standard Rules, the Committee notes that:

States should recognize the principle of equal primary, secondary and tertiary educational opportunities for children, youth and adults with disabilities, in integrated settings.⁶⁰

(emphasis added)

The implementation of an integrated approach requires States parties to make available the necessary equipment and support in order to “bring persons with disabilities up to the same level of education as their non-disabled peers”.⁶¹ The Committee mentions by way of example that sign language should be recognized as a separate language to which children should have access and whose importance should be acknowledged in their overall social environment.⁶²

While the Committee concedes in General Comment No. 13 that “[i]n some

circumstances, separate educational systems or institutions for groups defined by the categories in article 2 (2) shall be deemed not to constitute a breach of the Covenant,”

this concession is best interpreted in the light of the clear affirmation by the

Committee in General Comment No. 5 that persons with disabilities are best educated in an integrated educational system.⁶³

In General Comment No. 13 the Committee notes that:

States parties must closely monitor education - including all relevant policies, institutions, programmes, spending patterns and other practices - so as to identify and take measures to redress any de facto discrimination.⁶⁴

Also relevant in the context of disability is States parties' obligation to disaggregate educational data by prohibited grounds of discrimination. This implicitly includes disability.⁶⁵ General Comment No. 13 requires States parties to “remove gender and other stereotyping which impedes the educational access of girls, women and other disadvantaged groups”.⁶⁶ While the focus here is on gender, the obligation to remove stereotyping is relevant in the context of disability.

The theme of the comparable provision of the United Nations Standard Rules – Rule 6 – is equality and participation. It focuses on the integration of children with

59 Ibid., para. 32.

60 General Comment No. 5, para. 35.

61 Ibid.

62 Ibid.

63 General Comment No. 13, para. 33.

64 Ibid., para. 37.

65 Ibid.

66 Ibid., para. 55.

disabilities into the mainstream of the education system and the provision of adequate teaching and support devices and services. States should have a “clearly stated policy, understood and accepted at the school level and by the wider community,” on the provision of education to persons with disabilities in the mainstream education system.⁶⁷

Pursuant to Rule 6, integrated education and community-based programmes should be seen as complementary approaches to providing cost-effective education and training for persons with disabilities. Communities should be encouraged by national

community-based programmes to develop local education for persons with

disabilities.⁶⁸ According to Rule 6, special education may be considered but should be aimed at preparing students for the general education system. The quality of special education should reflect the same standards and ambitions as mainstream education, and, at a minimum, be allocated the same share of resources. The Rule mentions the possibility of the “current” appropriateness of special education in some instances, for example for persons with “particular communication needs”. The education of such persons should be aimed at providing effective communication skills and ensuring maximum independence.⁶⁹ Consideration should be given to the needs of people with communication disabilities, including the use of sign language in the education of deaf children, in their families and communities.⁷⁰

The overall themes of article 13 in the context of disability are non-discrimination, integration and the provision of adequate support and access.

(b) The obligation to adopt a plan of action for primary education in the context of disability (article 14)

Article 14 states that:

Each State Party to the present Covenant which, at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge, undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all.

General Comment No. 11 does not explicitly stipulate that the plan should cover primary education for children with disabilities. Among various prohibited grounds for discrimination, it mentions only gender.⁷¹ Still, as the core obligations of article 13 include the provision of all forms and levels of education without discrimination and the obligation to provide compulsory primary education free of charge, it is

reasonable to presume that States parties are under an obligation to cater for children with disabilities in their plan of action under article 14.⁷² The Committee notes that:

67 Rule 6.(6(a)).

68 Rule 6 (7).

69 Rule 6 (8-9).

70 Rule 5 (7 and 8).

71 General Comment No. 11, Plans of action for primary education, para. 6.

72 General Comment No. 13, para. 57.

Plans of action prepared by States parties to the Covenant in accordance with article14 are especially important as the work of the Committee has shown that the lack of educational opportunities for children often reinforces their subjection to various other human rights violations.⁷³

This argument applies with considerable force in the context of children with disabilities.

Rule 6, paragraph 1, of the Standard Rules states that:

[e]ducation for persons with disabilities should form an integral part of national educational planning, curriculum development and school organization.⁷⁴

In addition, Rule 6, paragraph 4, stipulates that:

[i]n States where education is compulsory it should be provided to girls and boys with all kinds and all levels of disabilities, including the most severe.⁷⁵

There is, therefore, strong support for the view that children with disabilities should be included in plans of action for primary education.

(c) The right to health in the context of disability (article 12)

The right to health is important in itself for people with disabilities. But it also serves a more instrumental function in helping to prime people with disabilities for a life of active participation in the mainstream.

Article 12 of the Covenant reads as follows:

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

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:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

According to General Comment No. 14 on the right to the highest attainable standard of health (2000), the core obligations include the following:

[t]o adopt and implement a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of the whole population; the strategy

73 General Comment No. 11, para. 4.

74 Rule 6 (1).

75 Rule 6 (4).

and plan of action shall be devised, and periodically reviewed, on the basis of a participatory and transparent process; they shall include methods, such as right to health indicators and benchmarks, by which progress can be closely monitored; the process by which the strategy and plan of action are devised, as well as their content, shall give particular attention to all vulnerable or marginalized groups.⁷⁶

(emphasis added)

While General Comment No. 14 does not list the groups in question, persons with disabilities normally fall into the above category.

According to General Comment No. 14, the right to health includes:

a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.⁷⁷

Thus, achievement of the right to health is linked by the Committee to the achievement of a broad range of attendant rights and other social supports:

the rights to food, housing, work, education, human dignity, life, non-discrimination, equality, the prohibition against torture, privacy, access to information, and the freedoms of association, assembly and movement … address integral components of the right to health.⁷⁸

The right to health contains the following elements; availability, accessibility, acceptability and quality.⁷⁹ The General Comment expressly mentions persons with disabilities under the heading of accessibility, noting that

health facilities, goods and services must be within safe physical reach for all sections of the population, especially vulnerable or marginalized groups, such as … persons with

disabilities.⁸⁰

According to the Committee, treatment of a disability is “preferably [provided] at community level”.⁸¹

It notes that:

States have a special obligation to provide those who do not have sufficient means with the necessary health insurance and health-care facilities, and to prevent any discrimination on internationally prohibited grounds in the provision of health care and health services, especially with respect to the core obligations of the right to health.⁸²

76 General Comment No. 14, The right to the highest attainable standard of health, para. 43 (f).

77 Ibid., para.. 4.

78 Ibid., para. 3.

79 Ibid., para. 12.

80 Ibid.

81 Ibid., para. 17.

82 Ibid., para. 19.

As stated in General Comment No. 5, disability is one such prohibited ground of discrimination.⁸³ That Comment adopts an integrationist approach, reiterating Rule 2, paragraph 3, of the Standard Rules which states that:

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.⁸⁴

In the context of the right of non-discrimination with respect to health, General Comment No. 14 expressly mentions “adequate access to buildings” as an inherent part of the right to health for persons with disabilities.⁸⁵ The Committee also stresses that States are obliged to ensure that the “private providers of health services and facilities comply with the principle of non-discrimination in relation to persons with disabilities”.⁸⁶

The obligation to guarantee that the right to health is enjoyed by all persons, including persons with disabilities, without discrimination is immediate. Failure in this respect constitutes a failure to implement the core content of the Covenant and thus, prima facie, a violation.⁸⁷ The Committee notes that:

many measures, such as most strategies and programmes designed to eliminate health-related discrimination, can be pursued with minimum resource implications through the adoption, modification or abrogation of legislation or the dissemination of information.⁸⁸

Issues such as the selective non-treatment of persons with disabilities can be dealt with under the notion of non-discrimination. The Committee recalls General Comment No. 3, which states that “even in times of severe resource constraints, the vulnerable members of society must be protected by the adoption of relatively low-cost targeted programmes.”⁸⁹

Importantly, a direct link is forged in General Comment No. 5 between the right to health and the achievement of the goal of participation. Paragraph 34 states that persons with disabilities have the right to receive social and medical services, including orthopaedic devices:

which enable persons with disabilities to become independent, prevent further disabilities and support their social integration.

In General Comment No. 5 the Committee refers to the United Nations General Assembly Declaration on the Rights of Disabled Persons and the World Programme of Action concerning Disabled Persons. In the context of rehabilitation services, it reiterates Rule 3 of the Standard Rules which states that these services should enable persons with disabilities “to reach and sustain their optimum level of independence

83 General Comment No. 5, para. 5.

84 Ibid., para. 34.

85 General Comment No. 14, para. 12 (b).

86 Ibid., para. 26.

87 Ibid., paras. 30, 43, 47.

88 Ibid., para. 18.

89 Ibid.

and functioning”. Thus, the Committee clearly sees independence and participation in society as major objectives of the right to health in the context of disability.

General Comment No. 5 states that all services for persons with disabilities “should be provided in such a way that the persons concerned are able to maintain full respect for their rights and dignity”.⁹⁰ In General Comment No. 14 the Committee lists some of the freedoms inherent in the right to health, including “the right to control one's health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation”.⁹¹ While persons with disabilities are not explicitly mentioned in this context, these freedoms have a special significance for them.

On the question of participation in decision making, General Comment No. 14 notes that

the right of individuals and groups to participate in decision-making processes, which may affect their development, must be an integral component of any policy, programme or strategy developed to discharge governmental obligations under article 12.⁹²

Within the category of “persons with disabilities”, General Comment No. 14 singles out children, stating that “[c]hildren with disabilities should be given the opportunity to enjoy a fulfilling and decent life and to participate within their community.”⁹³ As regards older persons, the Committee notes the importance of “physical as well as psychological rehabilitative measures aimed at maintaining the functionality and autonomy of older persons”.⁹⁴

In the context of mental health care, the Committee notes that “coercive medical treatments” are only to be applied in “exceptional cases” and “should be subject to specific and restrictive conditions, respecting best practices and applicable

international standards, including the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care."⁹⁵ States are also required to ensure “the promotion and support of the establishment of institutions providing counselling and mental health services, with due regard to equitable distribution throughout the country”.⁹⁶

The provision of the United Nations Standard Rules corresponding to article 12 of the Covenant is Rule 2 which states that:

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.⁹⁷

90 General Comment No. 5, para. 34.

91 General Comment No. 14, para. 8.

92 Ibid., para. 54.

93 Ibid., para. 22.

94 Ibid., para. 25. See also General Comment No. 6, The economic, social and cultural rights of older persons, paras. 5, 33, 40-42.

95 General Comment No. 14, para. 34.

96 Ibid., para. 36.

97 Rule 2 (3).

States should also ensure that persons with disabilities are provided with any regular treatment and medicines they may need to preserve or improve their level of functioning.⁹⁸

In order to fulfil these obligations, States should work towards the provision of programmes run by multidisciplinary teams, facilitating

early detection, assessment and treatment of impairment [which] could prevent, reduce or eliminate disabling effects. Such programmes should ensure the full participation of persons with disabilities and their families at the individual level, and of organizations of persons with disabilities at the planning and evaluation level. ⁹⁹

Rule 2 requires States to ensure:

that all medical and paramedical personnel are adequately trained and equipped to give medical care to persons with disabilities and that they have access to relevant treatment methods and technology.¹⁰⁰

Ongoing and up-to-date training should also be provided to prevent health care personnel from giving inappropriate advice to parents, thus restricting options for their children.¹⁰¹ At the local level, community workers should receive training for the early detection of impairments, the provision of primary assistance and referral to appropriate services.¹⁰²

According to Rule 3 on rehabilitation:

States should ensure the provision of rehabilitation services to persons with disabilities in order for them to reach and sustain their optimum level of independence and functioning. ¹⁰³ All persons with disabilities, including persons with severe and/or multiple disabilities, who require rehabilitation should have access to it.¹⁰⁴

National rehabilitation programmes should cover all types of disabilities and be based on “the actual individual needs of persons with disabilities and on the principles of full participation and equality”.¹⁰⁵ Such programmes should cover, inter alia, “basic skills training to improve or compensate for an affected function, counselling of persons with disabilities and their families, developing self-reliance, and occasional services such as assessment and guidance”.¹⁰⁶ While all rehabilitation services should be available locally, special time-limited rehabilitation courses may be organized in residential form.¹⁰⁷

According to Rule 3, persons with disabilities and their families should be able to participate in the design and organization of rehabilitation services and to involve

98 Rule 2 (6).

99 Rule 2 (1).

100 Rule 2 (4).

101 Rule 2 (5).

102 Rule 2 (2).

103 Rule 3.

104 Rule 3 (3).

105 Rule 3 (1).

106 Rule 3 (2).

107 Rule 3 (5).

In document Human rights and disability: the current use and future potential of United Nations human rights instruments in the Context of Disability (Page 101-110)