“soft” law
2.4 The United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993)
The United Nations General Assembly adopted a landmark resolution in 1993 entitled
“Standard Rules on the Equalization of Opportunities for Persons with Disabilities”.13 These Rules do not form part of a treaty and therefore lack legal effect.
12 General Assembly resolution 44/70 of 15 March 1990, annex.
13 General Assembly resolution 48/96 of 20 December 1993. See generally Bengt Lindqvist, “Standard rules in the disability field - a United Nations instrument”, Human Rights and Disabled Persons, Degener and Koster-Dreese, eds., (Dordrecht, Kluwer Academic Publishers Group, 1995), p. 63.
The Standard Rules are the main United Nations rules guiding action in this area. It should be noted that the traditional preoccupations of prevention and rehabilitation have been relegated to the background in favour of the rights perspective, even in their title.
The Rules consist of four parts:
1. Preconditions for equal participation;
2. Target areas for equal participation;
3. Implementation measures; and 4. Monitoring mechanism.
They were drafted against the backdrop of the 1982 WPA and explicitly take as their political and moral foundation the International Bill of Human Rights mentioned earlier.14 Although the Standard Rules lack the legal character of a convention,
[t]hey imply a strong moral and political commitment on behalf of States to take action for the equalization of opportunities for persons with disabilities.15
Although the rules are not compulsory, they can become international customary rules when they are applied by a great number of States with the intention of respecting a rule in international law.16
As befits a document that is inspired by the “rights-based” philosophy, the purpose of the Standard Rules is to:
ensure that girls, boys, men and women with disabilities, as members of their societies, may exercise the same rights and obligations as others.17
In general terms, States are required to remove obstacles to equal participation and actively to involve disability NGOs as partners in this process. Particular emphasis is placed on groups of people with disabilities who may otherwise be vulnerable on account of, for example, gender, youth, poverty, ethnic minority status, etc.
Parenthetically, even though persons with disabilities constitute a significant statistical minority in the world, they are not considered to be a minority for the purposes of United Nations law and policy.18
The definition of disability used in the Standard Rules emphasizes environmental factors. The term “equalization of opportunities” is defined in much the same way as under the WPA. Again, the Rules emphasize equal rights and equal obligations, the purpose being to stress that the core claim is not (as is too often assumed) for special rights on behalf of special groups but for the achievement of equality on the same terms as all persons.
14 Standard Rules on the Equalization of Opportunities for Persons with Disabilities, paras. 6-13.
15 Ibid., para. 14.
16 Ibid., para. 14.
17 Ibid., para. 15.
18 For a discussion of this point see Degener and Koster-Dreese, Human Rights and Disabled Persons, p. 12.
Section I of the Standard Rules deals with the preconditions for equal participation.
These include: (Rule 1) the need to educate society at large about the situation of persons with disabilities and the need for change; (Rule 2) multidisciplinary medical care; (Rule 3) adequate rehabilitation; and (Rule 4) adequate social support services.
Section II of the Rules identifies the following target areas for priority reform:
- Accessibility (physical and communicational)(Rule 5) - Education (Rule 6)
- Employment (Rule 7)
- Income maintenance and social security (Rule 8) - Family life and personal integrity (Rule 9)
- Culture (Rule 10)
- Recreation and sports (Rule 11) - Religion (Rule 12)
Section III of the Rules deals with implementation. The central “obligation” - such as it is - devolves on States themselves. It may be of interest to highlight some of the more relevant rules.
Rule 13 concerns one of the core preconditions for rational planning, namely the collection and analysis of accurate data. Paragraph 2 reads:
States should consider establishing a data bank on disability, which would include statistics on available services and programmes as well as on the different groups of persons with
disabilities.
States are expected to develop terminology and criteria for the conduct of national surveys “in cooperation with organizations of persons with disabilities”. Rule 14 deals with the need for States to develop (in association with NGOs) adequate policies at the national, regional and local levels and to integrate the needs and concerns of persons with disabilities into general development plans rather than treating them separately.
Rule 15 deals with the ideal contents of legislation to achieve equality of opportunity.
Unfortunately, the wording of this Rule is quite weak. It states that general human rights legislation (where it exists) should include the rights and obligations of persons with disabilities. It requires the removal of existing de jure discrimination and states that legislative action “may be needed” to break down barriers and punish violations.
Interestingly the Rules do not take a definitive stand on whether this legislation should form a separate corpus (in accordance with the worldwide trend) or should be
integrated into broad or general anti-discrimination law. A combination of approaches may well be desirable, as may affirmative action (Rule 15, paragraph 3). Rule 15 also requires that “consideration” should be given to the establishment of a formal
complaints mechanism.
Rule 16 stipulates that persons with disabilities should be kept in mind when formulating economic policies in concert with NGOs. All kinds of economic tools, including tax exemptions, loans, earmarked grants etc., should be considered. Rule 17 deals with the need to establish a national coordinating committee (or other similar body) to act as a focal point. It should be permanent, given a legal basis and comprise representatives of public and private organizations, organizations of persons with disabilities and other NGOs.
Rule 18 concerns the need to encourage and support economically organizations of persons with disabilities, families and/or advocates. Such organizations play a vital role as a conduit for information and feedback and a source of input for policy development. Rule 19 stresses the need for adequate personnel training - especially where service providers are actively engaged in delivering services to persons with disabilities. Training modules ought to be planned in conjunction with disability organizations. Rule 20 deals with national monitoring of the progress of national plans. States are expected to cooperate internationally in developing “common standards” for national evaluation.
Rules 21 and 22 deal with cooperation between States and in the international community. It is interesting to note that the Standard Rules accept the notion of conditioning development aid programmes to the achievement of equality goals (Rules 21, paragraph 2, and 22, paragraph 2).
Section 4 of the Standard Rules deals with the monitoring mechanism. This sets the Rules apart from other “ordinary” General Assembly resolutions. The purpose of the mechanism is “to further the effective implementation of the Rules”. It should
“identify obstacles and suggest suitable measures that would contribute to the
successful implementation of the Rules”. A Special Rapporteur is assigned the task of monitoring implementation. The first such rapporteur, Bengt Lindqvist of Sweden, held office for two full terms from 1994 to 1997 and from 1997 to 2000. In 2000 the Economic and Social Council decided to renew his mandate “for a further period through the year 2002”.19 He reports to the Commission for Social Development. In 2000 he was invited to make a presentation to the United Nations Commission on Human Rights. Disability organizations were invited to select from among themselves a panel of experts to be consulted by the Special Rapporteur, an excellent innovation.
He is due to report on ways of reforming the Standard Rules in 2002.
The United Nations Special Rapporteur maintains his own web site (www.disability-rapporteur.org). He carried out surveys on disability and produced two final reports at the end of his two terms of office. Details of the first survey are contained in the first final report.20 States were asked four simple questions concerning their use of the Standard Rules. The results were deeply disappointing: only 38 submissions were received.
A second more comprehensive survey was conducted by the Special Rapporteur with the assistance of his panel of experts. This survey was designed (a) to assess the level
19 Economic and Social Council resolution 2000/10 of 27 July 2000.
20 “Monitoring the Implementation of the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities”, United Nations document A/52/56, annex.
of implementation of the Standard Rules; (b) to identify the main changes and accomplishments in the field of disability; and (c) to identify major problems and obstacles encountered during the implementation process. The results were published in 1997.21 It focuses on issues of general policy and legislation (Rule 15), accessibility (Rule 5), organizations of persons with disabilities (Rule 18) and coordination of work (Rule 17). A startling finding of the survey was that countries rank prevention and rehabilitation more highly in terms of their policy emphasis than effective anti-discrimination legislation. According to the survey, which was a highly significant stock-taking exercise, “it is clear that the traditional approach to disability is still very widespread.”22 The Special Rapporteur also collaborated in related surveys dealing with education (UNESCO), the right to work (ILO) and the right to health (WHO).
The Special Rapporteur’s second final report (E/CN.5/2000/3, annex) covers the period from 1997 to 2000. It makes for very interesting reading. In paragraph 119, he draws attention to aspects of the Rules that need to be updated and to gaps that need to be filled:
Some dimensions of disability policy have not been treated sufficiently. This is true concerning children with disabilities, in the gender dimension and for certain groups, mainly persons with developmental and psychiatric disabilities. It has been pointed out that the Rules do not include a strategy for improving living conditions of disabled people in regions with extreme poverty. Disabled persons in refugee or emergency situations are other areas that have not been dealt with … [T]he whole area of housing has not been included. Among other things this means that there is no guidance concerning the handling of the institutions where a great number of persons with disabilities still spend their whole lives under miserable
circumstances. The important events in the human rights area during the 1990s should perhaps also be more clearly reflected.