---

Since 2000, the Disability Rights Education and Defense Fund has collected country-based laws that protect the rights of individuals with disabilities. DREDF is providing this collection of laws and summaries in order to foster sharing of information and encourage the international dialogue on disability anti-discrimination. We have made every effort to collect up-to-date and accurate information based on existing written and Internet sources, but we make no guarantee, undertaking or warranty regarding the accuracy, completeness or currency of the materials published herein. In all cases, users are referred to official legislative and parliamentary publications for the original legal texts and language. Go to the complete collection.

---

A Survey of International, Comparative and Regional Disability Law Reform

Theresia Degener and Gerard Quinn

 

INTRODUCTION

The purpose of this paper is to survey the rise and influence of the rights-based approach to disability throughout the world. We take the equal opportunities model with its particular emphasis on non-discrimination as our key departure point.

The equal opportunities model has grown in status and authority at the international level and in the United Nations system. We examine the process of reform currently underway in many countries throughout the world. Although this process of reform is, by necessity, varied and complex, it does tend to gravitate more and more towards the equal opportunities/non-discrimination model, and this has been especially the case since the early 1990s. The U.N. Standard Rules of 1993 undoubtedly provided the key moral imperative for change on a worldwide basis, but there equally can be no doubt that the enactment of the Americans with Disabilities Act (ADA) showed that change was both possible and practicable.

This paper takes as a case study the steady move towards the eventual enactment of an equivalent to the ADA in the European region – we call this possibility a "Europeans with Disabilities Act". The first tentative steps in that direction are currently being taken, and we note how regional organisations such as the Council of Europe and the European Union can play a significant role as catalysts in the process of change, both at a regional level and also within individual Member States.

We present this paper in three parts:

Part One[1] deals with the underlying philosophical assumptions that are driving the process of change and the paradigm shift from welfare to rights. It traces the growing influence of non-discrimination values and principles at the level of the United Nations. It also takes a close look at the variety of strategies used by many countries to implement and place this paradigm shift into national operation, both in non-discrimination laws and in other ways.

Part Two[2] focuses on how one particular region in the world is beginning to take note of this paradigm shift, and initiating a corresponding process of change in law and policy. Our analysis demonstrates the importance of regional organisations as a driving force behind the process of change at both a regional level, and also within the relevant member states.

Part Three draws together some tentative conclusions about the nature of the reform process, its effective stimulation, and the space it leaves for new agendas, including the development of social rights policies that will underpin (and not undermine) the positive accomplishments of the non-discrimination ideal in the disability field.

PART 1

The Paradigm Shift in International

and Comparative Law

 

A. The Basis of the Shift: People with Disabilities as Subjects and Not Objects

 

Disability law has not been a field of legal research and teaching at many universities in the United States, nor has it been widely acknowledged in other countries around the world. In North America and most European countries, disability as an issue of law has commonly been addressed as an aspect of social security and welfare legislation, health law or guardianship. Thus disabled persons were depicted not as subjects with legal rights but as objects of welfare, health and charity programs. The underlying social policy behind such a legal response has been one that segregates and excludes people with disabilities from mainstream society, sometimes providing them with special schools, sheltered workshops, and separate housing and transportation. This policy was justified by the pervasive belief that disabled persons were incapable of coping with either society at large or all or most major life activities.

Fortunately, when some countries eventually made attempts to take a more integrative and inclusive approach to disability policy, major legal reforms resulted. Attempts to open up employment, education, housing, and goods and services for persons regardless of their disabilities have accompanied the growing understanding that disability issues belong in a social and not a medical category. A key element of this new concept is the recognition that exclusion and segregation of people with disabilities do not logically follow from the fact of impairment, but rather result from political choices based on false assumptions about disability. Inaccessibility problems are not inevitably raised by mobility, visual or hearing impairments, but instead are a corollary of political decisions to build steps but not ramps, to provide information in printed letter version only, or to forgo sign language or other forms of communication. Instead of viewing disability as an individual problem, the focus finally has shifted to how the environment and society as a whole fails to consider human differences.

 

1. The Significance of Viewing Disability as a Human Right Issue

With the paradigm shift from the medical to the social model of disability,[3] disability was reclassified as a human rights issue under international law. Reforms in this area were intended to provide equal opportunities for disabled people and to expose their segregation, institutionalization and exclusion as typical forms of disability–based discrimination. With the evolution of such civil rights legislation for disabled persons as the Americans with Disabilities Act (ADA), national legal paradigms shifted even further, from welfare law towards civil rights law. This new dimension of disability law has been welcomed as a major milestone on the path toward eventual recognition of the human rights of disabled people, a path which more and more governments seem to be willing to take.[4]

What remains unclear, however, is the scope of change. If the now undermined assumption that disability is a medical problem anchored much of the older welfare disability laws, should governments replace these laws with what we now call civil rights legislation? Do we still need benefits that traditionally had been given as compensation for social exclusion? What are the legal consequences of replacing the medical model of disability with the social model? Of course, these questions raise the delicate issue of how to distribute resources in society.

Then, too, these questions are closely connected with another issue that affects the outcome of law reform in disability law: the principle of equality. This principle, one of the most fundamental human rights, is relational: equality for disabled people raises additional questions, such as equal compared to whom, to what extent, and under which circumstances? Is it enough to open the doors to education, employment and political participation, or do we need to help everyone get inside? Have we helped everyone get inside if schools, job premises and public buildings are accessible but public transportation is not? Is it enough to prohibit invidious disability discrimination in employment, or do we need to ensure that more subtle or even "good will" forms of discrimination are also covered?[5] Is it enough to allow some disabled people to live outside institutions, or do we need to ensure that everyone gets out?[6] Have we achieved equality if disabled workers receive the same salary as non-disabled co-workers, but have to spend sixty percent of their salary on personal assistance services that non-disabled employees do not need?

2. The Rich Diversity of Equality Concepts

While there is consensus about the fundamental nature of the equality principle in domestic as well as in international law, the interpretation of this principle varies. The three main ways of understanding equality are as (1) formal or juridical equality, (2) equality of results, and (3) equal opportunity or structural equality.[7]

Juridical equality prohibits direct discrimination and aims at shifting the focus of a potential discriminator away from such characteristics as race, gender, disability, or sexual orientation. Since legitimizing unequal treatment on the basis of such characteristics is deemed to be arbitrary, juridical equality requires society to ignore the differences. This concept meets the demands of disability rights activists who try to overcome the medical model of disability, and it underlines the notion that disability is not the source of the problem. To achieve equality, however, disability does have to be taken into account when providing accessibility requires such changes as architectural modification or program adjustments. Granting equal access to all members of societies requires acknowledging the differences that exist among these members. Martha Minow has pointed out the moral policy dilemma of dealing with human differences such as disabilities.[8] Ignoring differences helps prevent stereotypes and stigmatization but at the price of failing to do justice to the reality of difference. Taking difference into account does justice to the reality of difference but potentially perpetuates false assumptions about the nature of difference.

Equality of results essentially examines disability through an outcome-analysis. Thus, according to equality of results, disabled workers who receive equal pay but bear an unequal cost of living burden with regard to their personal needs are discriminated against. The human rights theory that all human beings have equal value and dignity stands at the core of this way of understanding equality. As there can be no justification for inherently equal beings to own common resources unequally, this theory legitimizes the demand for equal allocation of resources.

Equality of results poses some thorny problems, however. The principle must first tackle the question of responsibility. Who is responsible for meeting these needs? Is it the State or the private sector? Second, equality of results might require a strong welfare state, which may interfere with the ideology of a free market system. At the same time equality of results itself could perpetuate injustice, because its focus is on results rather than treatment. Segregated education for disabled students, for example, might be deemed legitimate if special schools for disabled students provide the same educational opportunities and degrees as regular schools. To put it bluntly, if we accept equality of results as the sole way of understanding equality, the mainstreaming of disabled students into regular schools could be viewed as an illegitimate goal.

The third way in which to view equality, equal opportunity, is less rigid than the other two concepts in that it seeks to provide equal chances without ensuring equal results. In this regard, equal opportunity is more compatible with the market economy. It looks at the history of group discriminations, and identifies traditional or classic forms of discrimination. The equal opportunity paradigm recognizes both stereotypes and structural barriers as obstacles to inclusion: if stereotypes are the basis for discrimination then the fact of disability must be ignored, but disability must be taken into account where environmental or social norms act as the bars to genuine access and inclusion. This latter aspect of equal opportunity is encapsulated in the term "reasonable accommodation," which was developed in the United States in the 1970s.[9] Since then the idea has been adopted around the world, though often rephrased in other countries.[10]

The concept of equal opportunity is currently the most frequently applied equality concept in modern disability legislation. One reason for this might be the fact that this equality concept is compatible with the long-term goals of the free market economy, which is now the global economic model. Since civil rights legislation provides equal opportunities to underrepresented groups or minorities, it opens the gates for those who have not been able to participate meaningfully in the market, and thereby increases the pool of both consumers and producers. Nonetheless, in the absence of non-discrimination legislation there will always be instances in which the operation of purely self-interested individuals in the free market will produce unsatisfactory results for persons with disabilities, either individually or as a group. Even though the concept of equal opportunity for all works within the ambit of the free market, it also has the potential for gradually changing the notion of the capitalist market. This latter possibility might explain why those who have not been beneficiaries of the market economy in the past support this intermediate model of equality.

3. A Multi-Layered Reform Process: International, Regional and National Developments

The reform process in disability law has been going on in all parts of the world. The United States and Canada were the first countries to adopt anti-discrimination laws and other human rights legislation for persons with disabilities, starting with scattered equality provisions in various areas of the law in the 1970s and following with more comprehensive laws in the 1990s.[11] The 1990s in particular was a banner decade for disability law; more than forty nations enacted disability discrimination laws during this period. New equality laws for disabled persons emerged at the national as well as at the supranational and international level. Today we have binding and non-binding international human rights instruments adopted by the General Assembly of the United Nations that explicitly protect the rights of disabled persons. At the regional level, the Organization of American States (OAS) and the European Union (EU) have passed strong equality legislation on disability. The OAS is the first intergovernmental organisation to have a binding human rights treaty on disability. In 1999, the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities (IACPWD) [12] was adopted. While it does not contain individual rights, it is the first regional treaty to define disability-based discrimination.

National disability rights movements, which seem to have been able to learn quickly from each other as well as cooperate among themselves at the international level, have been a major driving force behind the above legal changes.

B. International Human Rights and Disability: Developments within the United Nations Human Rights Machinery

1.Soft Law Policy Developments

Despite being one of the largest minority groups in the world, encompassing 600 million persons (of which two out of three live in developing countries), disabled people had been rather ignored during the first three decades of the United Nations' existence. The drafters of the International Bill of Human Rights did not include disabled persons as a distinct group vulnerable to human rights violations. None of the equality clauses of any of the three instruments comprising this Bill (the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966) (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR)) mention disability as a protected category.[13] If disability is raised as an issue in these documents, it is only in connection with social security and preventive health policy.[14]

Only in the 1970s, with the promulgation of the Declaration on the Rights of Mentally Retarded Persons (1971)[15] and the Declaration on the Rights of Disabled Persons (1975),[16] did persons with disabilities become explicit subjects of human rights declarations. Even so, these early instruments still reflect a notion of disability that falls within the medical model, according to which disabled persons are primarily seen as individuals with medical problems, dependent on social security and welfare, and in need of segregated services and institutions. It was also during this time that the General Assembly clearly affirmed that disabled persons were covered by the "other status" category listed in the equality provisions found in the International Bill of Human Rights.[17]

Throughout the 1970s and the 1980s the General Assembly of the United Nations passed a number of resolutions that eventually led to the 1982 World Programme of Action Concerning Disabled Persons (WPA), the guiding instrument for the United Nations Decade of Disabled Persons 1982–1993. [18] The first two goals of the WPA, prevention and rehabilitation, reflected a more traditional approach to disability law and policy, but the third goal, equalization of opportunities, set the scene for change at the international level. "Equalization of opportunities" was defined as:

the process through which the general system of society, such as the physical and cultural environment, housing and transportation, social and health services, educational and work opportunities, cultural and social life, including sports and recreational facilities, are made accessible to all.[19]

Throughout the decade, the equal rights component of disability policy and law became the main target of the emerging international disability rights movement.

Other major influences that helped to shift the paradigm from the medical to the human rights model of disability were two thematic reports, one on human rights in the field of mental health and one on human rights violations with regard to disabled persons; both prepared by the United Nations Commission on Human Rights.[20] These reports were the first to recognize disability as a thematic subject within the human rights division of the United Nations, which in turn helped disabled persons to be regarded not only as recipients of charity measures but as subjects of human rights (violations). While one report resulted in a non-binding international human rights instrument aimed at the protection of disabled persons in institutions,[21] the outcome of the other has been rather poor. No significant follow-up activities were taken under the auspices of the United Nations Commission of Human Rights. Other significant guidelines and standards were adopted during the decade,[22] but proposals for a binding treaty on the human rights protection of disabled persons did not find majority support within the 3^rd Committee of the General Assembly in either 1987 or 1989, years in which Italy and Sweden respectively raised the possibility of such a convention.

As a compensatory alternative, the General Assembly eventually adopted the non-binding U.N. Standard Rules on the Equalization of Opportunities for Persons with Disabilities (Standard Rules) in 1993.[23] The Standard Rules firmly build on the WPA and clearly accentuate equality, now defined as follows:

The principle of equal rights implies that the needs of each and every individual are of equal importance, that those needs must be made the basis for the planning of societies and that all resources must be employed in such a way as to ensure that every individual has equal opportunity for participation. Persons with disabilities are members of society and have the right to remain within their local communities. They should receive the support they need within the ordinary structures of education, health, employment and social services. [24]

In contrast with other non-binding international disability instruments, the Standard Rules have a Special Rapporteur and a panel of experts who have been given the mandate to promote and monitor the implementation of the rules. The panel of experts consists of 10 representatives from six major international non-governmental organisations in the disability field.[25] Their reports reflect a clear human rights orientation towards monitoring, although the monitoring body was placed under the auspices of the United Nations Commission for Social Development instead of the Commission on Human Rights.[26]

2. Hard Law Developments: Protection under General Human Rights Instruments

Non-governmental organisations which focus on disability have had an increasing impact on how traditional human rights norms are interpreted and implemented, as well as on how modern human rights instruments are being designed.[27] While disability was a forgotten category when the ICCPR and the ICESCR were drafted, these treaties are currently interpreted in a way that supports the human rights approach to disability. General Comment No. 18 to the ICCPR, which deals with the right to equality (ICCPR, Art. 25), clearly rejects the concept of formal equality in the human rights context. The Comment affirms that equal treatment does not always mean identical treatment, and that States have a duty to take steps to eliminate conditions that perpetuate discrimination.[28]

The Committee on Economic, Social and Cultural Rights went even further and adopted a General Comment on how to interpret and implement the ICESCR with respect to persons with disabilities.[29] General Comment No. 5, which the committee adopted in 1994, is the only legal United Nations document to date that broadly defines disability-based discrimination:

Both de jure and de facto discrimination against persons with disabilities have a long history and take various forms. They range from invidious discrimination, such as the denial of educational opportunities, to more "subtle" forms of discrimination such as segregation and isolation achieved through the imposition of physical and social barriers. For the purposes of the Covenant, "disability-based discrimination" may be defined as including any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights.[30]

The Comment also emphasizes the human rights approach to disability by including a clear demand for anti-discrimination legislation:

In order to remedy past and present discrimination, and to deter future discrimination, comprehensive anti-discrimination legislation in relation to disability would seem to be indispensable in virtually all States parties.[31]

In a similar vein, the Committee on the Elimination of Discrimination Against Women has adopted General Recommendations that ask State parties to include specific information on the status of disabled women,[32] and has addressed the issue of disability in other thematic recommendations.[33]

More recent human rights treaties, such as the International Convention on the Rights of the Child, also include specific provisions concerning persons with disabilities that reflect a strong human rights approach.[34]

3. The New Agenda: Towards a New International Treaty on Disability?

The lack of binding human rights law for persons with disabilities at the global level has prompted disability rights activists and scholars to press for the adoption of a new convention on the elimination of discrimination against disabled persons.

Advocates of this idea recognize that States are reluctant to adopt yet another special human rights treaty. They appreciate the concern that an abundance of current human rights treaty obligations has created "treaty fatigue" in Member States that are already burdened by and unable to fulfill their existing reporting obligations.[35]

However, at least six principal arguments can be marshaled in favor of a new treaty on disability rights. First, a new treaty would be a significant advance in the creation of binding law and the ability to take action to prevent disability discrimination. In contrast, the current international standards represent a regime that is little more than a "toothless tiger" when it comes to actual human rights advocacy. Second, a new treaty would legitimise claims for additional attention and resources from the human rights division of the United Nations, governments, and other organisations. Third, a treaty on disability rights would provide an opportunity to both add specific content to the human rights of persons with disabilities and address hitherto unexplored areas, such as the right to be different. In light of recent developments in the area of bioethics and biomedicine concerning the detection and appropriate "treatment" of physiological differences, the right to be different might be as fundamental as the right to equality for persons with disabilities.[36] Fourth, a treaty would give disability rights organisations a specific tool for promoting human rights for persons with disabilities in domestic contexts and to their own governments. Fifth, a treaty would be a catalyst for empowering and mobilizing the global disability rights movement. Finally, the adoption of a disability treaty would place the disability agenda squarely within the United Nations human rights program. Thus, this step would underscore the fact that disability was primarily a human rights rather than a social welfare issue.

For these reasons, the United Nations, the member States and disability rights organisations should initiate the process for the adoption of an international treaty dealing specifically with the human rights of disabled persons. A resolution on the rights of persons with disabilities is traditionally tabled at meetings of the United Nations Human Rights Commission in Geneva. Ireland has taken over the role of main sponsor of that resolution from the Philippines for the past few years. During the Commission's 56^th session in March-April of 2000, Ireland tabled a resolution that, inter alia, called for the drafting of an international convention. The relevant part read:

30.  Considers that the next logical step forward in advancing the effective enjoyment of the rights of persons with disabilities requires that the Commission for Social Development should, as a matter or urgency, examine the desirability of an international convention on the rights of people with disabilities, and the form and content of such an instrument, and solicit input and proposals from interested parties, including particularly the panel of experts [set up to assist the U.N. Rapporteur under the U.N. Standard Rules].

Ireland received considerable support at the session, but not enough to secure passage of the resolution with paragraph 30 intact. In the evening, a resolution was adopted that was silent on the issue of a convention. However, the resolution will be tabled again in 2002 and Ireland has signaled its intention of trying again to get the question of a convention raised and agreed to.

C. The Reform Process in Comparative Law

At the domestic level, disability law in many countries underwent significant changes during the last decades. More than 40 out of 189 United Nations Member States have now adopted some kind of anti-discrimination law for persons with disabilities.[37] To compare and analyze these laws globally is a difficult enterprise for a number of reasons. First not only do these countries have different historic, economic and political backgrounds, they also adhere to different legal systems, notably common law or civil law. Since the common law tradition is based on case law and precedent, the judiciary plays a different role than the one that it assumes in the civil law tradition. Secondly, disability law as a branch of legal research is a fairly recent development in most countries. Thus, both legal literature on disability law and comparative studies on disability laws are still rather rare.[38] Most of the comparative legal literature that is published is focussed on European countries.

1. The Template: Using the ADA and Standard Rules as Model Laws Globally

With these reservations in mind, some observations still can be made with respect to anti-discrimination laws for disabled persons around the world. Most of these anti-discrimination laws were enacted during the last decade, with some countries enacting laws in the 80s. The United States was exceptionally early in adopting the Rehabilitation Act of 1973 as one of its first pieces of anti-discrimination legislation for disabled persons. U.S. law has subsequently been instrumental for the evolution of disability discrimination law in many countries. The Americans with Disabilities Act (ADA) of 1990 in particular has had such an enormous impact on foreign legal development that one is tempted to say that the international impact of this law is larger than its domestic effect.[39] Another incentive to enact disability discrimination legislation came from the U.N. Standard Rules for the Equalization of Opportunities of 1993 (Standard Rules) which states in Rule 15:

States have a responsibility to create the legal bases for measures to achieve the objectives of full participation and equality for persons with disabilities. . . . States must ensure that organizations of persons with disabilities are involved in the development of national legislation concerning the rights of persons with disabilities, as well as in the ongoing evaluation of that legislation. . . . Any discriminatory provisions against persons with disabilities must be eliminated. National legislation should provide for appropriate sanctions in case of violations of the principles of non-discrimination . . .[40]

The history of disability discrimination law in a number of countries reveals that either the ADA and/or the Standard Rules served as the model law for the development of domestic legislation. With respect to the legal character of the Standard Rules, this finding is an interesting example of the kind of impact a soft law can have internationally if taken seriously by governments. The fact that governments took disability seriously as a discrimination issue is a testament to the work of the disability movement in each country. Anti-discrimination laws for disabled persons are the result of determined effort by a social movement of organized persons with disabilities and disability advocates around the world. Disabled persons demanded human rights instead of pity laws, thereby acting as the impetus behind, as well as a living reflection of, the paradigm shift in national and international disability policy.

2. Excursion: Disability Law as Pity Law in Europe

Disability law before the anti-discrimination era often helped construct and perpetuate the medical model of disability. The history of European domestic disability law is illustrative in this matter. In Europe we can distinguish three periods of modern disability law at the domestic level.[41]

The first period starts after World War I, when welfare legislation for disabled war veterans was introduced in most European countries. These welfare laws reflected society's obligation to compensate war veterans through disability pensions, rehabilitation benefits and employment quotas.

The second period of disability law began in the 60s, and extended welfare legislation to cover all disabled persons, with some countries focussing on disabled children in particular. These welfare laws brought charity for a broader group of people with disabilities. While disabled veterans were still (and continue to be) privileged, this second period of disability law paid less attention to the origin of impairment. The goal now was to rehabilitate persons with disabilities no matter what the cause of impairment. Laws were enacted in such areas as special education, medical and vocational rehabilitation benefits, employment quotas, and institutionalized care services.

Both, the first and the second period of disability law in Europe reflected the medical model of disability. Disabled persons received welfare benefits because disability was seen as a medical problem that left an individual unable to cope with society at large and all or most major life activities. Disabled children received a right to education, but in separate schools for the disabled. Disabled persons received medical and vocational rehabilitation, administered under the control of medical rehabilitation experts. Thus, while disabled persons were elevated from the status of being objects without rights to being subjects of welfare rights, these rights were given at the price of exclusion and the loss of self-determination. Even laws that had the explicit textual purpose of integrating disabled persons into the open labour market were based on the medical model. Employment quotas that obligated employers to hire a certain percentage of disabled employees were introduced because disabled individuals were seen as incapable of competing for jobs on their merits. These traditional quota schemes are not based on equality theory as we now know it, nor on the understanding of systemic discrimination that animates affirmative action programs within a contemporary race or gender context.

Thus, the first two periods of disability law helped to construct and perpetuate the medical model of disability. Legally disabled persons were denied the status of citizens through their relegation to the realm of pity law. A case from Germany elucidates this process. In 1992 the local court of Flensburg decided that nondisabled tourists are entitled to a reduction of their travel price if they are confronted by disabled tourists in their hotel. A couple with two children booked a full board holiday package with a German travel agency, and then filed a law suit against the travel agency because ten disabled tourists had spent their holidays at the same hotel with the family. The court's statement of facts elucidates the court's perception of disabled persons as "the other":

For a week, the hotel was occupied by a group of ten severely disabled persons, some of which were wheelchair-bound. These disabled persons participated in common meals in the dining-hall of the hotel. Most of them could not eat the food in a normal way, it ran from their mouths onto bibs that were tied around their necks. They were fed using instruments, among others one that was similar to a syringe. This scene was disgusting and impaired the well-being of the plaintiffs and their children. They could not avoid it because of the common mealtimes and the small physical dimensions of the dining-hall.[42]

The court then makes the following legal finding:

The plaintiffs are entitled to reduce the travel price. . . .The service that was carried out by the defendant was inadequate. Its suitability for an unencumbered vacation was impaired. The plaintiffs and their small children could not enjoy their meals in the hotel in an untroubled manner. The inescapable sight of disabled persons in a small place, at each mealtime, caused disgust and constantly reminded them of the potentials of human suffering in a haunting way. Typically, these experiences do not belong in the expected course of a vacation. If it were possible, the average holiday-maker would avoid these experiences. A holiday-maker does not necessarily have to be selfless or have high ethical standards. In particular, unimpaired meals in a hotel are integral part of a relaxing experience during a vacation. Advertisements of most tour organizers correspond to this.

While this decision has been highly criticized in Germany, it is not exceptional for German case law. Disabled persons are not perceived as citizens but as objects. They are put in the same category as broken toilets and dirty beaches – phenomena that can ground breach of warranty claims in German travel law. Non-disabled citizens have a right not to be confronted by disabled persons. Germany's history, in which disabled persons were excluded and eliminated under the regime of National Socialism, might have some impact on the formation of this legal perception. The legal construction of disability as a welfare and pity issue helps to avoid the human rights issues involved in this case. With regard to the human rights of the disabled persons in the Flensburg decision, the Court states:

Contrary to the defendant's point of view, the human dignity of the disabled persons, causing this reduction, is not violated by the granting of a warranty claim. Moreover, there is no exclusion of the disabled persons. The disabled persons are neither directly nor indirectly affected by these proceedings. This case is not about their rights, but about the question of which party has to bear the risk of the circumstances which lead to the unavoidable impairment of the plaintiff's vacation. A dismissal of the action would not undo the unpleasant encounter with the disabled persons, but instead only burden the plaintiff.

The denial of citizen's status to disabled persons does not necessarily follow from welfare legislation, but the themes of inherent disadvantage and segregation which underlie welfare policy easily lead to the further belief that disabled persons are somehow unequal and less worthy as human beings and members of society. Even in states as rich as Germany, which have the economic means to support a broadly justified social welfare system, the welfare approach can have a lingering and inhibiting influence on the development of a rights-based perspective in disability policy.

The third period of disability law started in the 90s when some European countries adopted anti-discrimination legislation for disabled persons. With these new laws, disabled persons finally gained the status of full citizens, because the paradigm shifted from a focus on individual impairment to the recognition of societal exclusion. A key element of disability discrimination legislation is the understanding that the exclusion and segregation of people with disabilities does not logically follow from the fact of impairments, but rather results from political choices based on false assumptions about disability. With the introduction of these laws, discrimination was finally recognized as a major obstacle in the lives of disabled persons. These laws are also the first disability laws which have been enacted because disabled persons campaigned and lobbied for their own rights, and not because rehabilitation experts decided what was best for "the handicapped".

Disability discrimination laws in Europe did not come over night. Rather, they had precursors in what may be called integration laws. During the 80s – the era of the United Nations Decade of the Disabled – many countries adopted integration, mainstreaming and de-institutionalization laws. The Scandinavian countries were outstanding with respect to integrating disabled children in education. Italy took the lead in the European de-institutionalization movement with the enactment of the Psychiatric Reform Act[43] as early as 1978. These laws were important for they helped to condemn the segregation and exclusion of disabled persons from society, but these laws did not identify discrimination as the main reason for exclusion and marginalization.

3. A Comparison of Anti – Discrimination Laws Globally

The laws that we analyzed come from 42 countries, and vary widely with respect to scope, concept of discrimination and equality, who is protected, enforcement method, etc. Some laws define disability based discrimination and clearly prohibit such acts of discrimination, while others leave the question of what constitutes discrimination to the courts or other monitoring bodies. Some laws purport to uphold the principle of equality, but provide no clear picture of what needs to be changed in society in order to reach this goal. While such questions are often dealt with in separate regulations enacted under the act, the language and structure of the statute may still reveal legislative intent. Some laws give the overall impression that even though they contain some anti-discrimination language, they are essentially social welfare laws, fostering programmes that are not necessarily aimed at complete social equality and integration for persons with disabilities.[44] However, it is important to remember that disability anti-discrimination law is truly a new development in disability policy around the world. These laws manifest a very recent shift in paradigm from the medical model to the social model of disability. The mere legal acknowledgment of disability as a discrimination category carries the recognition that persons with disabilities are persons with rights not problems.[45] Some of these anti-discrimination laws are strong, others appear to be "toothless tigers". Often domestic disability groups fought very hard for equality laws, and were not fully or perhaps even partially satisfied with the act that was finally passed by their legislators.[46] If the history of US anti-discrimination law informs us of only one thing, it is that the legislative battle for equality is long, and more than one statute needs to be enacted before we can reach the goal of comprehensive protection against discrimination. From the first attempts to include disability in the Civil Rights Acts of 1964 until the passage of the ADA in 1990, several decades went by in which at least five federal disability anti-discrimination acts[47] were passed by Congress.

a. A Wide Diversity of Different Legal Approaches

Those States that currently have some kind of disability anti-discrimination law today have chosen different legal approaches. Four different legal approaches to the enactment of anti-discrimination provisions for the protection of disabled persons can be distinguished: (i) criminal law; (ii) constitutional law; (iii) civil law; and (iv) social welfare laws.

(i) Using the Criminal Law

France,[48] Finland[49] Spain[50] and Luxembourg[51] prohibit discrimination against disabled persons in their criminal laws. The Spanish law prohibits disability-based discrimination in employee recruitment or in the course of employment if a disabled worker is capable of doing the job. Luxembourg and France outlaw disability-based discrimination in employment, business activities, and in the provision of goods and services to the public. The punishment is a maximum of two years imprisonment or a fine. The Finish Penal Code punishes employment-related discrimination, and discrimination with respect to goods and services for the general public. Some other states that generally have adopted a civil or social law approach to prohibit disability discrimination nonetheless make provision for the imposition of sanctions that have a broad penal or administrative aspect. For instance, the Australian discrimination statute characterizes the incitement of unlawful discrimination or harassment as an offence punishable with six months imprisonment or a fine. The victimization of a person who exercises his or her rights under the act is similarly declared an offence.[52] The Hong Kong Discrimination Ordinance also carries like provisions: a person who incites hatred towards, serious contempt for, or severe ridicule of persons with disabilities commits a serious offence of vilification and is liable to a fine or up to two years imprisonment.[53] The law of Mauritius imposes imprisonment or an administrative fine for certain violations of that country's anti-discrimination rules.[54] The same holds true for the anti-discrimination acts of Israel,[55] the Philippines,[56] Zambia,[57] and Zimbabwe[58] respectively.

While Finland and Spain also have anti-discrimination provisions in other fields of their legal system, France and Luxembourg stand out in that they regulates disability based discrimination exclusively in their criminal codes. That means that disability based discrimination is prohibited only if it constitutes a criminal offence, which in turn requires the perpetrator to have acted with bad intentions. In reality, however, disability based discrimination is often carried out by a perpetrator who has the best of intentions. The restaurant owner who doesn't serve wheelchair users because the entrance is inaccessible usually did not intend to deliberately keep out persons with disabilities, and likely has no hostile feelings towards persons with disabilities. Nor does he conceive of himself as a discriminator. While we do not have statistical evidence it seems probably that criminal disability anti-discrimination law is rarely proven and prosecuted.

(ii) Using Constitutional Law

A number of countries have constitutional anti-discrimination provisions which explicitly include disability. These are: Austria[59], Brazil[60], Canada[61], Finland[62], Fiji[63], Gambia[64], Ghana,[65] Germany[66], Malawi,[67] New Zealand,[68] South Africa,[69] Switzerland[70] and Uganda.[71] These clauses generally prohibit discrimination (via a negative command) against disabled persons without defining exactly what constitutes discrimination. Some equality clauses mention direct and indirect forms of discrimination.[72] The equality clause of Fiji's constitution is exceptionally broad, covering unfair direct and indirect discrimination and in addition stating:

Every person has the right of access, without discrimination on a prohibited ground [inter alia disability], to shops, hotels, lodging-houses, public restaurants, places of public entertainment, public transport services, taxis and public places.[73]

The constitutions of Austria, Brazil, Canada, Germany, Ghana, Malawi, South Africa, Switzerland, and Uganda also enable or entrust the legislator to take affirmative action to combat disability discrimination. Affirmative action means preferential treatment, whether in the form of quotas or by other means of positive discrimination. Affirmative action thus targets structural discrimination, which is one of the major obstacles to the equalization of opportunities for disabled persons. In the area of employment, many states have introduced quotas for the advancement of disabled persons, whereby employers have a duty to hire disabled workers as a certain percentage of their total workforce. Employment quotas were initially introduced into disability policy after World War II, and functioned as classical welfare measures. They were founded on the idea that disabled people cannot compete in the real world. With the rise of the civil rights movement in the context of race and gender, quota policies gained a new equality related meaning. This in turn influenced quota schemes in the disability field. In this respect, it is interesting to note that some of the constitutions provide for quota schemes in the area of employment,[74] whereas others do so in the area of political representation. For example, the constitution of Malawi provides that the Senate, which is a legislative body, shall include representatives of various interest groups, among them disability groups.[75] Similarly, the constitution of Uganda requires the parliament to have a certain number of representatives of persons with disabilities.[76] The Ugandan Parliament has five seats reserved for representatives from the disability community, and the first minister for disability (and women and the elderly), Mrs. Florence Nayiga Sekabiro, is a person with a disability. Based on the affirmative action clause of the constitution, Uganda's legislators passed several acts to increase the representation of disabled people in the public sphere. For instance, the Local Government Act of 1997 allocates a certain number of seats in elected political bodies at all levels to people with disabilities. As a result there are more than 2000 disabled elected officials at all levels of government today, from the parish to the district level.[77] Another interesting feature of those constitutions that include disability as a prohibited ground of discrimination , whether as originally drafted or through amendment, is that they also often recognize the right to use sign language . Finland[78] South Africa[79] and Canada[80] have such provisions in their constitutions.

Constitutional anti-discrimination clauses seem to be more effective in transforming society than criminal anti-discrimination clauses. Since in most countries the constitution is the highest law of the land, constitutional provisions and amendments receive more public attention, and may render lower law unconstitutional and void. Constitutional enactments also bind the judiciary, and thus may lead to reform in disability case law. Yet, there are several reasons why constitutional disability discrimination law can have a limited effect.

First, depending on the legal system, some constitutions fail to give substantive rights to citizens, which means that the anti-discrimination clause may not be invoked by a disabled person in court. Second constitutional rights only apply to public or so called vertical law. That is, constitutional provisions protect disabled persons against discrimination by national or local state entities, but not private employers or private providers of good and services. Finally constitutional provisions tend to be broad and vague. Neither disability nor discrimination is defined in any of the constitutional provisions except in the constitutional law of New Zealand.[81] This leaves vast discretion to the courts, and their rulings are very much determined by the prevailing legal culture.

For example in Germany, where there is no history of civil rights legislation and litigation, the constitutional anti discrimination clause has been rendered a toothless tiger by the Federal Constitutional Court. In a 1996 case filed by a girl who uses a wheelchair and was consequently denied access to a regular school, the Court decided that the school authorities did not violate the constitutional anti-discrimination clause.[82] The reasoning of the German Federal Constitutional Court is reminiscent of a case which was decided more than 150 years ago by the U.S. Supreme Court that upheld racial segregation in schools. As in Plessy v. Ferguson in 1886,[83] the German Court reasoned that educational segregation of disabled children is not discriminatory because it is separate but equal. The separate but equal ruling of Plessy was struck down in the U.S.A. in 1954 with the ground breaking decision of Brown v. Board of Education of Topeka,[84] in which the Supreme Court finally acknowledged that separate educational facilities are inherently unequal. The German Federal Constitutional Court, however, has been very reluctant to consider exclusion from education in the context of disability discrimination. While the court acknowledged that it would be discriminatory to deny admission to a disabled student who did not need any accommodations or special services, it was unwilling to extend its interpretation to include disabled students who need ramps, lifts, sign language interpreters, alternative reading formats, or any kind of special education services. Thus, the medical model of disability was only reinforced by this first decision on Germany's new anti-discrimination clause for persons with disabilities.

While these shortcomings of constitutional anti-discrimination provisions might lead to the conclusion that constitutional amendments are substantively ineffective, the example of Ireland indirectly supports the opposite conclusion. Because the equality clause in the Irish Constitution of 1937 is exceptionally weak, the Irish Supreme Court in 1997 struck down two pieces of civil anti-discrimination legislation that had included disability among other prohibited grounds of discrimination. The court ruled that the statutory requirement to engage in reasonable accommodations violated the property rights of employers,[85] and both laws had to be redrafted and weakened with respect to disability. Therefore, if the lack of a strong constitutional equality provision can act as a bar to the enactment of civil anti-discrimination laws, then the existence of strengthened constitutional anti-discrimination provisions could serve as an important and necessary foundation for statutory anti-discrimination laws.

Finally, a positive example of how to interpret rather vague constitutional equality clauses is found in a 1997 decision of the Supreme Court of Canada. In Eldridge v. British Columbia,[86] the plaintiffs brought their case before the British Columbia Supreme Court because the province did not provide medical interpretation services to deaf patients. Robin Eldridge had been unable to communicate with her physician, and John and Linda Warren had undergone the ordeal of giving birth to their twins without being able to fully comprehend what their doctors and nurses were telling them. The plaintiffs framed their action under the equality clause (Sec. 15) of the Canadian Charter of Rights and Freedoms, claiming that provincial hospitals legislation discriminated against the deaf by failing to provide for sign language interpretive services when effective communication is an inherent and necessary component of the delivery of medical services. While the lower courts rejected their claim, the Supreme Court of Canada found that the equality clause had been violated. By interpreting the equality clause in a way that recognizes that certain groups may need some accommodation in order to enjoy equality, Eldridge at least opens the possibility that Sec. 15 of the Charter requires governments to take positive and substantive steps to ensure that persons with disabilities and other groups who experience discrimination receive the "equal protection and equal benefit" of the law. However, despite encouraging comments in obiter dicta, the Supreme Court of Canada has continued to leave the issue of positive obligations under the equality clause open.[87]

(iii) The Enactment of Civil anti-discrimination Laws

A third approach is to enact civil anti-discrimination laws for persons with disabilities. A number of countries have adopted such laws and more countries are about to follow this path.[88] Countries with an civil rights oriented disability anti-discrimination law are: Australia,[89] Canada,[90] Chile,[91] Costa Rica,[92] Ethiopia,[93] Ghana,[94] Guatemala,[95] Hong Kong,[96] Hungary,[97] India,[98] Ireland[99], Israel,[100] Korea,[101] Madagascar,[102] Mauritius,[103] Namibia,[104] Nigeria,[105] the Philippines,[106] South Africa,[107] Spain,[108] Sri Lanka,[109] Sweden,[110] the U.K.[111], the U.S.A.,[112] Zambia,[113] and Zimbabwe.[114] With the exception of the law of Chile, all of these statutes cover employment-related discrimination against disabled persons. Some laws are labour laws and thus cover only the area of employment discrimination;[115] the laws differ to a great extent with respect to coverage of all other areas. The most comprehensive disability discrimination laws are from Australia, Canada, Hong Kong, the Philippines, U.K., and the U.S.A.

The Australian Disability Discrimination Act of 1992 prohibits discrimination in the areas of work, housing, education, land possession, the provision of goods and services, and access to premises, clubs, sports and other facilities.[116] The Canadian Human Rights Act of 1985 covers discrimination in the provision of goods, services, facilities, or accommodations that are available to the general public (including transportation). Furthermore it prohibits discrimination in employment and in the provision of commercial premises or housing.[117] The 1995 Disability Discrimination Ordinance of Hong Kong covers the areas of employment, education, premises, goods and services, facilities for the general public, barrister chambers, clubs and sports, and government activities.[118] The 1992 Magna Carta for Disabled Persons of the Philippines prohibits disability-based discrimination in the fields of employment, transportation, public accommodation, and goods and services.[119] The British Disability Discrimination Act of 1995 covers discrimination in employment, in the provision of goods, facilities and services, and to some degree, also covers the areas of education and public transportation.[120] Finally, the Americans with Disabilities Act of 1990 prohibits discrimination in the area of employment, state and local government activities (including education, transportation, social services, etc.), public accommodations (goods and services available to the public), and telecommunications.[121]

The civil laws of the other countries are also broad in scope, in that the legislation is often directed at a wide range of every day life activities, but anti-discrimination provisions are not included in every area covered by the law. For instance the 1996 Act on Equal Opportunities for Disabled Persons of Costa Rica legislates access to education, employment, public transportation, public services, information and communication, and cultural, sports and leisure activities. However, discrimination is explicitly prohibited only with respect to employment, public health services, and participation in culture, sports and leisure activities.[122]

The Indian Persons With Disabilities (Equal Opportunities, Protection of Rights And Full Participation ) Act, 1995 differs from the other civil rights laws in that it has rather weak non-discrimination provisions, but instead calls for quotas in various areas. Non-discrimination provisions cover transportation, roads, the built environment, and Government employment (excluding the hiring process).[123] However, duties to enable access for disabled persons apply only "within the limits of . . . economic capacity and development", and thus are rather easy to evade. A three per cent quota scheme applies to government employment, government aided educational institutions, and poverty alleviation schemes.[124] The government employment quota system reserves one percent of jobs to persons with certain types of impairments, notably visual, hearing and physical impairments.[125] A particularly interesting aspect of the law is that any shortfall under the three-percent quota requirement in government employment is to be accrued forward to the following year.[126] Theoretically, this could lead to a situation in which any government agency that had been avoiding its quota requirement could only hire or promote disabled employees. Many of the other foreign laws also have quota provisions, particularly in the public employment field. Nonetheless, as our brief overview of comparative European disability laws in section C.2 shows, employment quota schemes have a long tradition and do not necessarily pertain to the anti-discrimination principle.

Compared to criminal and constitutional anti-discrimination laws, civil disability anti-discrimination legislation tends to be more explicit about the scope of the law and more detailed; most of the laws provide a definition of what constitutes discriminatory practice and/or equality. In addition, all the civil disability discrimination laws make some provision for their enforcement. Both the concepts of discrimination and equality and the different kinds of enforcement mechanisms will be discussed further below.

(iv) Social Welfare Laws and Disability

Finally, some countries choose to approach the issue of disability discrimination through the enactment of traditional social welfare laws for disabled persons. Countries that have done so are: Bolivia,[127] China,[128] Costa Rica,[129] Finland,[130] Korea,[131] Nicaragua,[132] Panama,[133] and Spain.[134]

In these laws, anti-discrimination provisions are found next to more traditional provisions on the prevention of disability and rehabilitation. Except for the Finnish 1992 Act on the Status and Rights of Patients, which provides that every resident in Finland is entitled to health and medical care without discrimination, these laws are focussed mainly on enacting and enforcing social services and integration principles rather than rights-based anti-discrimination provisions. Non-discrimination provisions found in social welfare legislation tend to be vague and/or restricted in scope, limited to the area of public employment or public education for example. The Spanish Act on the Social Integration of the Disabled (1982) is typical, in that it deals with the prevention, diagnosis and assessment of disability, the establishment of a system of benefits in cash and kind, medical and vocational rehabilitation, community services, integration at work, etc. The only anti-discrimination provision in the act states that any discriminatory disability–based provision found in labour regulations, collective agreements, individual contracts, or unilateral decisions shall be null and void.[135]

The Chinese Law of the People's Republic of China on the Protection of Disabled Persons of 1990 contains a general prohibition on discrimination against disabled persons, [136] but does not specify what that means for how society is organised. A textual analysis of the law gives the impression that the traditional medical model of disability, i.e., institutionalization and segregation, forms the framework of the act. For instance Article 29 stipulates "concentrated employment" for persons with disabilities as a guiding principle. This means that employment opportunities are provided in special welfare enterprises and institutions. Within these special institutions, discrimination against disabled persons regarding recruitment, employment, promotion, the awarding of professional or technical titles, payment, welfare, and other aspects of employment is prohibited.[137] Given that this is the only detailed anti-discrimination provision in the whole act, the law conveys a rather peculiar and limited concept of equality. The medical model underpinnings of the law are also evident in some provisions on the obligations of disabled persons. According to Art.10, Chinese disabled persons "should display an optimistic and enterprising spirit," which implicitly perpetuates the notion that disability fosters negative attitudes and depression.

Some countries, such as the Philippines, have laws that could be characterized as both a social welfare law and a civil rights law. The Magna Carta of the Philippines, however, clearly reveals the legislators' intent to move from the medical model to the human rights model of disability. Title I Chapter I Sec. 2 (b) states that "[d]isabled persons' rights must never be perceived as welfare services by the Government."

The history of U.S. disability discrimination law shows that states often begin initiating anti-discrimination provisions for disabled persons in social welfare legislation. This is the legal area where disability law tends to be first developed. The U.S.A. first prohibited certain forms of discrimination against disabled people in the Rehabilitation Act of 1973. The famous section 504 provides that every entity which receives federal financial assistance, or is conducted by any federal agency, must not discriminate against an "otherwise qualified" disabled person. The 1988 amendment to the Fair Housing Act, which prohibits discrimination in housing matters, was the first step towards including disability as a prohibited ground of discrimination in general U.S. civil rights legislation. A final step was taken with the 1990 adoption of the ADA. On a similar path, Costa Rica and Spain have enacted disability anti-discrimination provisions within social welfare legislation as well as civil laws.

In sum, discrimination provisions contained in social welfare legislation tend to be less comprehensive and reform-oriented. The paradigm shift from the medical model of disability to the human rights model of disability seems to be less obvious in this type of legislation.

b. Protected Groups: the Disability-Specific Approach or the Trans-Group Approach.

Some anti-discrimination laws for persons with disabilities are part of a law that seeks equality for multiple groups, while other laws focus on disability exclusively. The group law approach protects other minorities or groups such as women, homosexuals, children, the elderly, linguistic, or religious minorities that historically have been the targets of discriminatory practices. With the exception of Ghana,[138] all of the constitutional discrimination provisions protect disabled persons as a group among others. The same is true for discrimination provisions in employment laws and criminal laws. Disability discrimination laws that are designed as civil or social laws tend to be directed exclusively to persons with disabilities.

In addition to protecting persons who presently have a disability, some laws also protect persons who were disabled in the past (Australia, Canada [Human Rights Act], Hong Kong, New Zealand, the Philippines, U.K. and the U.S.A.), may be disabled in the future (Australia, Hong Kong, Sweden) or who are regarded as being disabled (Australia, Hong Kong, New Zealand, the Philippines, the U.S.A.). Furthermore, some laws also protect family members or other associates of disabled persons (Australia, Hong Kong, New Zealand, the Philippines, the U.S.A.[139]), as well as persons who are victimized because they make a complaint about a discrimination or exercise their anti-discrimination rights (Australia, Canada [Human Rights Act], New Zealand, U.K.)

Most discrimination laws that are examples of civil or social legislation give a definition of disability. Usually the definition is medically oriented in that disability is defined as a physical or mental impairment that results in some significant functional limitation.[140]

c. The Diversity of Equality and Discrimination Concepts at Play

The underlying equality concepts of the disability discrimination laws here reviewed differ widely. Some laws support a more formal equality model, in that their guarantee of equal treatment is implicitly conditioned on the premise that disabled persons fully adapt to non-disabled culture and society. Some of the constitutional anti-discrimination clauses can be read this way, as shown by the German education case. The formal equality model can also be seen behind those laws that explicitly mention that discrimination may in some circumstances be justified by the factor of disability. For instance, the 1992 Labour Act of Namibia provides that a person shall not be regarded as having been unfairly discriminated against if the disabled person, because of his or her disability, is unable to perform the job.[141] The 1992 Disabled Persons Act of Zimbabwe provides that disability may be a legitimate excuse for employment discrimination,[142] and the denial of any public service or amenity seems to be excused if is "motivated by a genuine concern for the safety of the disabled person concerned."[143] While the Korean Special Education Promotion Law as amended in 1994 prohibits discrimination against disabled students in all schools, only special school principals "should take appropriate measures to provide appropriate convenience for entrance examinations and schooling for children with disabilities based on types and degree of disability."[144] Thus, principals at regular schools are implicitly limited in their responsibility for discriminatory omissions when a student with disabilities cannot be schooled or examined "conveniently".

About one fourth of the laws reviewed here, however, are based on a structural equality concept. Therefore this includes the commitment that society has to change in order to guarantee true equal opportunity for persons with disabilities. The key phrase in this respect is reasonable accommodations or reasonable adjustments, which have to be undertaken by the employer, service provider, government, or any other entity under anti-discrimination obligations. The following countries have included such a provision in their anti-discrimination laws, even though it does not always apply to all areas covered by the discrimination prohibition: Australia,[145] Canada,[146] Hong Kong,[147] Hungary, [148] Ireland,[149] Israel,[150] New Zealand,[151] the Philippines,[152] Sweden,[153] UK,[154] the U.S.A.,[155] and Zimbabwe.[156]

Another indication that the structural equality concept underlies a discrimination law may be found in the presence of affirmative action provisions, as they indicate the understanding that positive actions may have to be taken in order to achieve true equality. Sixteen countries[157] have affirmative action provisions in their laws, most of them relating to quota schemes.

Most anti-discrimination laws focus on the area of employment discrimination. This can be explained by the fact that this is the area in which discrimination law relating to minority groups in general was first developed; anti-discrimination laws relating to race and gender were first adopted in the employment sector. Thus it makes sense for disabled persons to follow that path. However, we should also recall that employment rights fall into the realm of economic, social and cultural human rights. This is the set of human rights that traditionally has been applied in the context of disability, whereas civil and political rights have usually been neglected in disability policy. It is all the more remarkable, then, that some of the disability discrimination statutes examined here explicitly guarantee non-discrimination with respect to civil and political rights for persons with disabilities.[158] Others do not mention civil and political rights explicitly, but may still cover them through anti-discrimination provisions directed at ensuring accessibility to public premises, services and accommodations.

The underlying concept of discrimination that underpins a law may be deduced from its statutory definition of disability-based discrimination (if there is one), and the scope of coverage of its discrimination prohibitions. Since the latter has been already discussed in this paper, the remainder of this section shall focus on definitions of discrimination, as enacted in approximately half of our reviewed statutes.

The majority of these definitions define discrimination as unfavorable treatment on the basis of disability,[159] whereas a minority of the statutes define discrimination as unjustified differentiation.[160] Some laws distinguish between direct and indirect forms of discrimination,[161] with the latter commonly defined as the general application of requirements or conditions with which disabled persons usually have more difficulty complying. The aforementioned key phrase in the structural equality concept is explicitly incorporated in the discrimination concept of 12 statutes, which make the "denial of reasonable accommodations" discriminatory.[162] Interestingly, some discrimination acts have provisions requiring access to public places, buildings, transportation, etc., but the fact of inaccessibility is not defined as a discriminatory practice.[163] In the result, accessibility seems to be granted as a welfare service where access is not formulated as an individual right.

Some of the discrimination laws characterize acts of harassment and victimization as prohibited forms of discrimination.[164] The Canadian Human Rights Act, additionally bans discriminatory public communications, publications and hate messages.[165] Another interesting finding is that a significant number of discrimination laws also address the issue of exploitation or abuse of persons with disabilities.[166]

While few anti-discrimination laws actually support the principle of segregated education for students with disabilities,[167] only a minority of the acts contain a clear statement that separate education is inherently unequal and a classic form of disability discrimination.[168] The most comprehensive definitions of disability discrimination can be found in the laws of Australia, Canada, Hong Kong, New Zealand, the Philippines, U.K., and the U.S.A. These laws define discrimination with respect to every area covered by the law, including employment, public accommodation, and goods and services. Within each area, the definitions give long lists of the kinds of actions that would be considered discriminatory, and specify such aspects of discrimination as the denial of participation, granting participation under unequal conditions, or the award of separate benefits.[169] In addition to the factor of disability itself, some of the laws explicitly include the use or accompaniment of such auxiliary aids as guide dogs or interpreters as illegitimate reasons for discriminatory treatment (e.g., Australia, Hong Kong).

d. A Variety of Enforcement Mechanisms

The enforcement of legislation is commonly the task of public administrative agencies and the courts. Legislation that seeks to transform society to some extent, such as human rights and anti-discrimination laws, usually establish some kind of special enforcement body. This could be a human rights or an equal opportunity commission, an ombudsperson, a national council, or a public agency. Among the disability legislation under review, only the civil or social law statutes include specific provisions on the enforcement or monitoring of the law.

Thus, the Australian Disability Discrimination Act establishes the Human Rights and Equal Opportunity Commission and a Disability Discrimination Commission.[170] The Canadian Human Rights Act is enforced by a Human Rights Commission and a Human Rights Tribunal.[171] The Equal Rights for Persons with Disabilities Law of Israel entrusts various ministries with the enforcement of the law, and additionally establishes a Commission for Equal Rights.[172] In the U.K., a Disability Rights Commission is the watchdog of the Disability Discrimination Act.[173]

A significant number of acts entrust representatives of disability organisations with the monitoring of the law. For instance, the Law of the People's Republic of China on the Protection of Disabled Persons establishes the China Disabled Persons' Federation, which has the responsibility to represent and protect the rights and interests of disabled persons in China.[174] The Hungarian discrimination act establishes a National Disability Affairs Council in which disability organisations must be represented.[175] The Indian law establishes a rather elaborate multi-sectoral planning and monitoring mechanism: a Central Coordination Committee is headed by the Chief Commissioner for Persons with Disabilities, and several State Coordination Committees manage disability matters at the state level. The law also requires a certain number of seats in each committee to be filled by disabled persons. [176] The Nigerian discrimination law establishes a National Commission for Persons with Disabilities, whose chairman must be a disabled person, and within which all major disability groups need to be represented.[177] Similarly, the Disabled Persons Act of Ghana establishes a National Council on Disabled Persons in which six seats are reserved for representatives of disability organisations. The law of Zimbabwe establishes a Disability Board in which at least half of the seats must be filled by representatives of disability organisations.[178] Similar requirements hold for the Zambian Agency for Persons with Disability, which is the enforcement body of the Zambian discrimination law.[179]

The functions of these monitoring bodies are manifold, and vary from advising and information gathering for the government to awareness raising in the general public to investigation and complaint filing. The Disability Board in Zimbabwe and the Zambian Agency for Persons with Disabilities also have the mandate to issue "adjustment orders", requiring specific action from owners whose premises and/or services are inaccessible to persons with disabilities.

e. Conclusions on the Trends within Comparative Law

Disability anti-discrimination laws around the world take various approaches. Disabled persons may be protected against discrimination in constitutional, criminal, civil, or social law. From our review, the most comprehensive legal approach to preventing and protecting against disability based discrimination seems to be the enactment of civil rights legislation. However, it must be kept in mind that our main method for the evaluation of these laws was textual analyses of the legislation itself. The few cases analysed and cited above reveal that the impact an anti-discrimination law may have on society depends on judicial interpretation to a large extent, along with a political and social commitment to enforcement, and not only the text itself.

Today there is no universal definition of disability-based discrimination, and no universal concept of what equalization of opportunities for disabled persons actually entails. Definitions of discrimination range along the gamut from unjustified differentiation to direct or indirect unfavorable treatment to detailed lists of discriminatory practices. However, we can conclude that modern disability discrimination laws generally adhere to the principles of desegregation, de-institutionalization, and reasonable accommodation, which together work to actively abolish structural as well as overt discrimination. In addition to a strong definition of discrimination, laws need to provide clear and effective enforcement mechanisms in which disabled persons individually or as a group play a major role.

Not all disability laws that act to improve the living conditions and social integration of disabled persons have been analyzed in this paper. Many countries have laws that have the effect of advancing the integration of persons with disabilities into the community and public life. For example, many building laws require (new) buildings designed for the general public to be accessible to disabled people. Education laws often provide for integrated education as a fundamental principle of education policy. In Scandinavia, social welfare laws secure a minimum income for persons with disabilities, thus facilitating their economic independence. Other countries have strong legal provisions explicitly establishing independent living services for disabled persons. The Finish Services and Assistance for the Disabled Act of 1987 is especially notable for giving severely disabled persons in that country the right to independent living services such as transportation, housing, interpretation services, and to some extent, personal assistance services. Because the act's main purpose is to enable disabled persons to live as independent members of society on an equal footing with others, the act is also called the Disabled Person's Equality Act.[180] However, these disability laws have not been reviewed here because they do not fall within the concept of anti-discrimination laws. Even though these laws aim to establish equal opportunities for disabled persons, they do not identify and prohibit inaccessibility, segregation, or the denial of independent living as forms of discrimination. It should be remembered that anti-discrimination law is not the only route to equality for persons with disabilities, but the rights-based approach is one of the most prominent legal methods being used by many states around the world today, and is the subject of the present review.

This global overview of discrimination laws for persons with disabilities give rise to both hope and concern. The concern is that not every instance of anti-discrimination language in legislation may actually achieve or even aim at equal rights for disabled persons. National and international disability organisations need to act as watch dogs to ensure that their legislators do not use anti-discrimination language as a pretext while fundamentally adhering to a medical model of disability policy. But there is also clear evidence that anti-discrimination legislation for disabled persons is on the rise all over the world. With that fact, persons with disabilities can have real hope that disability policy will finally achieve the ideals of human rights and structural equality.

Part 2

Case Study: Using Regional Law as a Catalyst for Change – Towards a "Europeans with Disabilities Act"

 

This part focuses in from the global to survey major human rights and anti-discrimination developments in the European region, with a view to establishing whether there are realistic prospects for the adoption of a Europeans with Disabilities Act similar in depth and scope to the Americans with Disabilities Act (ADA).

In the aftermath of the Second World War, two very different and yet complementary regional organisations were established in Europe: the Council of Europe (1949) and the European Economic Community or EEC (1957), now known as the European Union (EU). The formal competencies of both these organisations extend to the issue of disability.

In fact both organisations have taken an active interest in disability law and policy over the last several decades, and especially from the early 1990s onwards. The paradigm shift from welfare to rights that is so characteristic of the ADA of 1990, and which was ratified at an international level in the U.N. Standard Rules in 1993, is also strikingly evident in changes that first took place in national and regional European policy over the last decade.

The fact that new and reforming ideas in this area should come from the Council of Europe is no surprise since the very raison d'etre of this body is to advance and protect human rights. That the European Union should concern itself with the issue is of some initial surprise since this body is better known for its success (and near preoccupation) with the establishment of an internal market common to the national markets of its Member States. Nonetheless, its newly found interest in the subject is of profound significance. The EU's openness to new thinking on disability could perhaps be explained by its tendency to view appropriately tailored equality strategies as a "productive factor" in an advanced market economy. We recall that this market-perfecting rationale was also one of the most powerful impulses behind the enactment of the ADA.

In purely legal terms, the involvement of the EU is significant in that it has at its disposal much more powerful legal weapons compared to those wielded by the Council of Europe. Indeed, the EU could potentially enact a Europeans with Disabilities Act to rival the ADA in scope and depth. As will be seen, the first steps toward such a comprehensive measure have already been taken in Brussels.

The relevant laws and policies of the Council of Europe and the European Union both reflect the pattern of change taking place within their respective Member States, and also help to further augment and drive the overall process of reform across the continent. The chief animating ethic of this reform process stems directly from broad notions of equality and non-discrimination, though the specific manifestation of this agenda in the legal and policy initiatives of both organisations is quite bewildering, even to those who are seasoned watchers of these bodies. Nonetheless, these initiatives can be usefully clustered under the following themes.

First, since this reform process aims to honour human dignity, it aims to restore the visibility of the person, especially in those contexts where they are most vulnerable. A good example of an initiative that follows this theme is the mental health law reform process underway throughout Europe. It seeks to restore human visibility by extending the full benefits of the rule of law and legal protections to those who have been involuntarily detained. Equal attention is now being paid to the conditions of confinement, to ensuring adequate rights to treatment, and to the prohibition of certain forms of treatment that degrade the dignity of the person. Underlying this trend is the ethic of equal human self-worth, leading quite naturally to a deliberate policy dedicated to restoring equal visibility to all people. The Council of Europe plays a leading role in this regard.

Secondly, the reform process is leading to a new awareness of the rights of persons who are incapable of vindicating their own rights and interests, and who have a need for flexible legal responses. A good example is the radical reform of incompetency law currently underway throughout Europe. The European Parliament (a body of the European Union) has taken an active interest in this area in the past, but the Council of Europe has also taken a lead role in helping to spur the process of internal law reform. None of this could take place without an overall strategy of equality.

Thirdly, the reform process is founded on a gradual acceptance that one of the most important entailments of equal citizenship is that the lifeworld should be open to all on genuinely equal terms. A good example is the broad movement toward equal opportunities and non-discrimination laws and programmes that are intended to help people take power in their own lives, and to participate on terms they set for themselves. This is leading to the proliferation of specific non-discrimination laws in diverse fields such as education, employment, transport, telecommunications, etc. Both the Council of Europe and the European Union have taken a very active interest in this dimension of the reform process. The European Union is actually poised to adopt hard legal measures to guarantee the right of non-discrimination (including the associated concept of reasonable accommodation) in the important employment context.

Fourthly, the reform process is leading to the awareness that economic and social programmes that traditionally have been part of the problem could become part of the solution if they were re-oriented to facilitate participation and choice. This awareness is reflected in the reform of the European social model currently underway, and is especially prevalent within the European Union. Just as American policy makers are coming to the realisation that formal freedoms need to be augmented with social supports to make freedom real, so too are European policy makers coming to the realisation that social protection is devoid of purpose unless it is tied to a strategy that liberates people and ensures their civil rights.

What follows is an account of how the equal opportunities and non-discrimination model is taking hold in European disability policy as reflected in the Council of Europe and the European Union. After looking at the relevant laws and policies of the two organisations. I will conclude by drawing some analytical strands together and assessing the possibility for the enactment of a Europeans with Disabilities Act.

 

A. The Council of Europe and Disability.

1. Background: The Legal Tools and Policy Instruments of the Council.

The Council of Europe was established in 1949 and is the older of the two organisations. Its membership is much broader than that of the EU, and currently stands at 41. Significantly for the reach of disability-related activities, its membership includes most East European countries; Georgia is the latest Member State. The United States, Canada and Mexico have consultative status.

The main object of the Council is as stated in Article 1of its founding statute:

1. (a)…to achieve a greater unity between its Members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress.

These aims are pursued through the organs of the Council by:

1. (b)…discussion of questions of common concern and by agreements and common action in economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realisation of human rights and fundamental freedoms.[181]

The fundamental philosophy of the Council of Europe seeks to augment the nation-state in order to avoid any repetition of a slide into totalitarianism and consequential conflict between European states. Hence the Council traditionally has laid heavy emphasis on maintaining high (if not exactly uniform) human rights standards through Europe.

In terms of its jural character, the Council is a classic inter-governmental organisation. That is, it has no power over states except the authority that states are willing to cede to it voluntarily. This emphasis on inter-governmentalism is reflected in the organs of the Council. The main political organ is the Committee of Ministers, which has a Presidency that rotates every six months. The Council possesses its own expert Secretariat (permanent international civil servants), presided over by a Secretary General (currently Walter Schwimmer of Austria).

The Council also has a Parliamentary Assembly (previously called a Consultative Assembly), whose members are drawn on a pro-rata basis from the national parliaments of Member States. The Assembly sometimes debates important disability related matters.

The competence of the Council is broad, though matters of national defense are explicitly excluded under Article 1(d) of the founding Statute. In keeping with the character of the Council, the instruments used by it are classically inter-governmental in nature. The most important tool at its disposal is the adoption of conventions or legally binding treaties that are open for signature to all Member States. Some conventions are in fact open for signature to non-Member States. At least 177 treaties have been concluded in this way on topics ranging from trans-frontier television[182] to insider trading[183] to a broad range of human rights. By far the most important of these conventions is the world-famous European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), though virtually all of the human rights conventions have either direct or indirect relevance in the context of disability, including disability-based discrimination.

The Committee of Ministers can also adopt Recommendations directed to Member State governments, dealing with the formulation of their policies. Though such Recommendations are non-binding in law they can be extremely influential. Sometimes the inspiration for the adoption of a Recommendation comes from leading cases decided in the European Court of Human Rights. Often, these cases reveal wide gaps in European law that could be addressed effectively through uniform law reform. As will be seen, some leading cases in the field of mental health have prompted important Recommendations. Often the impetus for a Recommendation comes in response to a spontaneously initiated reform process that shows signs of diverging or veering off course, and requires a firm conceptual steer from Strasbourg.

Finally, the Council of Europe hosts a bewildering web of inter-governmental activities that provides fora for the discussion of a broad range of issues. Where an issue does not seems to fall squarely within the remit of the Council, or where only a few Member States wish to pursue a certain policy matter, the Council may nevertheless facilitate discussion of the issue by concluding what is called a Partial Agreement. Under such Partial Agreements the machinery of the Council is made available to those Member States that wish to use it for the purposes of the agreement. Under one such Partial Agreement, the Partial Agreement in the Social and Public Health Field, many relevant disability matters (including discrimination based on disability) have been discussed and studied.[184] Steerage is provided for these activities by the Committee on the Rehabilitation and Integration of People with Disabilities (CD-P-RR).

One interesting result from the end of the Cold War was that the Council of Europe, as a matter of necessity, began to revise its own self-understanding. It no longer saw itself as a "democratic club," but also was forced to act as a "democratic school," especially with respect to newer Member States from the former soviet bloc. The fall of the Berlin Wall led to the emergence of new democracies out of the former communist bloc. With the urgent need - born of political imperative - to admit these new states, the Council realised that its role also had to change.[185] It was increasingly called upon not merely to police standards but also to promote standards, and to actively facilitate democratisation of the new regimes. To achieve these aims, the Council acquired new tools and bodies such as the ADACS Programme.

ADACS stands for Activities for the Development and Consolidation of Democratic Stability. Its current programmes include Demosthenes (institution-building through the training of policy-makers), Themis (training of the judiciary), and Lode (development of local democracy). The 2000 ADACS Programme dealing with social cohesion supports a number of disability related projects. Interestingly, one such project has to do with the training of officials in Bosnia in the drafting of disability rights legislation.[186] Other projects include a programme for the de-institutionalisation of children with disabilities in Russia. Curiously, a recent Council of Europe Strategy on Social Cohesion does not appear to mention disability.[187]

Other relevant Council of Europe post-Cold-War developments include the Venice Commission on Democracy through Law,[188] the Office of the Commissioner for Human Rights,[189] and the creation of a process within the Secretariat for the monitoring of the human rights situation in Member States, etc. All of these bodies have an interest in the disability field.

Parenthetically, in keeping with their inter-governmental nature, these fora traditionally did not actively involve non-governmental organizations (NGOs) or INGOs (i.e., NGOs that span several European countries) in their deliberations. Currently, however, and due in no small part to the equal opportunities philosophy, the Council consults actively with disability NGOs.

2. Council of Europe Conventions in the Context of Disability.

The Council of Europe has passed a web of conventions that protect a very broad range of rights, including the right to be free from discrimination. Most of these conventions have either direct or indirect relevance in the context of disability.

a. Disability and the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms (1950)[190] (ECHR)

This convention is the European regional equivalent to the U.N.'s International Covenant on Civil and Political Rights. It sets out a full and detailed list of civil and political rights, and – equally important – establishes an elaborate process of judicial enforcement through the European Court of Human Rights. Until 1994, the European Commission of Human Rights assisted the Court. Protocol No. 11 of 1994 dissolved the Commission, but its jurisprudence remains persuasive before the Court.[191] In essence, the Court provides a "system of outer" judicial supervision that is intended to complement rather than supplant national judicial systems, which are still considered primary.

Proceedings before the European Court of Human Rights must be initiated within six months of a final domestic judicial decision. A decision is first made on admissibility, and then on the merits. Adverse judgments are "enforced" politically by the Committee of Ministers, which "supervises their execution".[192]

Several rights from the ECHR have figured quite prominently in the case law of the Court with regards to disability. In particular, the rights to liberty (Article 5), fair trail (Article 6) and to freedom from torture, inhuman or degrading treatment (Article 3) have given rise to a very rich jurisprudence in the context of mental disability, and civil commitment in particular.[193]

Article 5.1(e) of the ECHR specifically allows for the "lawful detention of persons of unsound mind" (i.e., civil commitment as an exception to the general right to liberty), but a series of important judgments have refined this exceptional power. This is important since the traditional civil commitment process was highly disadvantageous, even in comparison to the corresponding criminal process. Unlike the criminal process, the ground of incarceration in a civil commitment could simply point to a condition as such, and not to a condition as manifested in certain behaviour. The decision making process was generally reflexive and not reflective. Very few substantive or procedural rights were allowed to the person being incarcerated. The length and degree of the loss of liberty was indeterminate, and the consequential effect on remaining rights was severe. Typically, civil commitment in the past led to a near complete forfeiture of civil capacity.

One example of how the Court of Human Rights has narrowed the potential misuse of the civil commitment exception in the ECHR is found in Winterwerp v Netherlands.[194] In its decision, the Court refused to adhere to any single definition of mental illness, and instead tied the definition to advances in medical science. It insisted that the term "unsound mind" should never be used as a subterfuge with which to incarcerate those who simply deviate from social convention or who hold unpopular political views. The Court has also devised an elaborate jurisprudence on the criteria of "lawfulness" as required for the detention of a person under Article 5.1(e). The evidence must be credible and objective. The party bringing the motion must not be the same as the receiving party (or institution). Domestic law must be fully complied with, and any failure to comply will amount to a separate breach of the Convention. Furthermore, Article 5(4) requires a periodic review of commitment, and Article 6 guarantees a right of reasonable access to the ordinary courts for the hearing of any general civil claim or argument against the lawfulness of detention. The mere fact of civil commitment is not in itself enough to warrant denying a person's legal capacity. Placing a sane person in a mental institution raises issues under both Article 5(1)(e) and Article 3. Likewise, placing a person "of unsound mind" in a prison without treatment raises similar issues.

In general, Article 5 (alone, as well as in combination with Articles 6 and 3) has given rise to what has been termed the "creeping criminalisation" of civil commitment law in Europe. The phrase refers to the manner in which many of the substantive and procedural safeguards that normally attend criminal incarceration proceedings are gradually being grafted on to the civil commitment process.

By far the most serious weakness of the ECHR in the context of disability concerns the inadequacy of its non-discrimination provision. The main equality/non-discrimination norm of the Convention is contained in Article 14, which states:

14. The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The first overall limitation stems from the fact that the critical bite of Article 14 is reserved exclusively for the enjoyment of rights contained in the Convention itself. That is, it does not provide for a general anti-discrimination clause that could apply, for example, in the field of public transport. Secondly, the grounds on which discrimination is prohibited do not explicitly include disability. It is, of course, entirely possible to interpret the phrase "other status" as one which sweeps in persons with disabilities. But it would have been easier to make a case for coverage under the ECHR if disability were explicitly mentioned.

The weaknesses of Article 14 are universally and frankly acknowledged. It could be broadened if it referred to more grounds than those listed. It could be deepened if it stretched beyond the convention rights themselves so as to prohibit discrimination in a broad range of fields. In fact an opportunity to broaden and deepen the protection of Article 14 arose recently. The main impulse for this process of reform came from persons and organisations primarily concerned with issues of gender and race. From the gender perspective, the need for reform arose from the concern that Article 14 could not sustain even mild measures of affirmative action. From the race perspective, the need for reform arose because the narrow scope of Article 14 (confined to the equal enjoyment of convention rights) failed to secure real equality in those contexts where it mattered most, including the areas of employment and the enjoyment of social services.

The end-product of this reform process was Protocol 12 to the Convention,[195] Article 1 of which reads:

1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. [emphasis added]

It is important to note that Protocol No. 12 is additional to the ECHR. That is, it does not replace Article 14 of the Convention as such, but stands as a separate option. For those Member States that choose to ratify it, the Protocol merely adds to Article 14. For those States that do not ratify it, only the original Article 14 (and nothing else) applies.

The text italicised in Article 1 of Protocol No. 12, above, is the only change from the original Article 14. As such, the Protocol is clearly intended to carry the protective coverage of the Article 14 non-discrimination norm beyond the rights secured by the convention itself, but does not add to or extend the grounds of prohibited discrimination as originally drafted. Therefore disability is still not explicitly covered under the Council of Europe's main legal weapon against discrimination. This situation stands in vivid contrast to that in the European Union, see below, and if only because of the unfavourable comparison with the EU, the ECHR's current shortcomings must surely rank as a standing embarrassment to the Council of Europe.

Certain other rights that are additional to those set out in the original convention have been added by Additional Protocols. Of special interest in the context of disability is the right to education that is contained in the First Protocol (1952).[196] The right reads as follows:

2. No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

The combination of Article 2 of the First Protocol (education) and Article 14 of the ECHR (non-discrimination) should have been a fruitful source of jurisprudence in the context of education discrimination against students with disabilities. This has not been the case so far for two main reasons.

First of all, in an area of law or in circumstances where there is ambiguity, the interpretation of the ECHR will depend in part on the state of domestic law throughout Europe. That is, the evolving norms are pegged at the current state of European law generally. The European Court does not typically or lightly use the norms of the Convention to strike out boldly and require wholesale reform from Member States. The harsh reality is that education across Europe has tended to be largely exclusionary and discriminatory in the past. It was perhaps inevitable that the organs of the ECHR would come to reflect this by timidly interpreting the right to an equal education. Secondly, any meaningful enforcement of the right would demand a critical examination of current European educational systems, and inevitably result in adverse judgments that would have a bearing on how state resources are allocated and used. In other words, full compliance with an adverse judgment would require better planning, new legislation and the allocation of fresh resources. Put bluntly, such requirements would threaten or at least appear to constrain the executive prerogatives of the state.

In at least two applications the European Commission on Human Rights could have taken a bold line with respect to educational discrimination against students with disabilities, but chose not to consider the substantive issues by refusing admissibility.[197] While strict separation of powers concerns have not acted as a bar to admissibility for the Commission or Court in the past where they were inclined to be activist toward a Member State, they evidently have chosen not to be activist on this issue.

However, the right kind of test case strategy could still create some positive jurisprudence on educational issues in the future, for the simple reason that domestic law and policy in this area is changing in the member states and the Court is bound to take some cognisance of this trend.

b. Disability and the European Social Charter (1961),[198] the Additional Protocol to the European Social Charter Providing for a System of Collective Complaints (1995),[199] and the Revised European Social Charter (1996)[200]

Civil and political rights do not fully exhaust the field of human rights. Indeed the non-discrimination ideal places just as much emphasis on economic and social supports as it does on the enjoyment of classic civil and political rights. Economic, social and cultural rights are also implicated by the broad notion of human rights and have particular resonance in the context of disability. Indeed, disability is one of the best fields in which to establish (and not just assert) the much-vaunted interdependence and indivisibility of both sets of rights.

The European Social Charter of 1961 is the European regional equivalent to the U.N.'s International Covenant on Economic, Social and Cultural Rights (1966). The title of the Charter is misleading since it is in fact a legally binding treaty, though it was quite weak as originally drafted.

Part I outlines 19 general principles which Contracting Parties undertake to respect in the formulation of relevant domestic economic and social policies. Part II states in greater detail the rights (Articles 1-19) that correspond to these principles. Part III (Article 20) deals with the kinds of "undertakings" that Contracting Parties assume upon their ratification of the text. Part IV (Articles 21-29) details the reporting requirement that accompanies the undertakings entered into by particular Contracting Parties. According to Part 1:

The Contracting Parties accept as the aim of their policy, to be pursued by all appropriate means, both national and international in character, the attainment of conditions in which the following rights and principles may be effectively realised: [19 principles follow]

Most of the principles have general relevance for all rights and considerable indirect relevance in the context of disability. They include principles such as the opportunity to earn a living in an occupation freely entered into (Principle 1), the right to just conditions of work (Principle 2), the right to appropriate facilities for vocational training (Principle 10), the right to benefit from measures enabling the person to enjoy the highest possible standard of health attainable (Principle 11), and the right to benefit from social services (Principle 14). Persons with disabilities are mentioned explicitly in both Articles 9 and 10, and Principle 15 and Article 15 apply specifically to the case of persons with disabilities.

The Charter was subject to three structural weaknesses that deserve mention. The first weakness had to do with the critical bite of the norms. The relevant norms of the original Charter were fairly hollow, and seemed designed to act as lip service to the contemporary reality of social policy across Europe at a particular point in time, rather than as the engine driving any process of real social change.

A second weakness had to with the a la carte nature of the obligations entered into. Apart from being required to abide by certain core rights (which did not include Article 15), any Contracting Party had discretion over which of the remaining Articles it would agree to be bound by.[201] In the result, a Contracting Party could even opt out of the original Article 15.

Yet a third weakness had to do with the "enforcement mechanism" of the Social Charter, which merely entailed periodic reporting to the Council of Europe and to a committee of independent experts (formerly styled the Committee of Independent Experts on the European Social Charter and now the European Committee of Social Rights). However, even though the Committee lacks the authority to issue "binding" judgements, it has built up a considerable body of "case law" that consists of interpretations of the Charter. The Committee of Ministers adopts a resolution at the end of each supervision cycle that covers named Articles and named countries. It also has the power to issue more specific recommendations directed at particular Contracting Parties that fail to comply with their obligations under the Charter.

With specific reference to disability Principle 15 stated:

15. Disabled persons have the right to vocational training, rehabilitation and resettlement, whatever the origin and nature of their disability.

The emphasis on vocational training was in keeping with the thinking of the times. The corresponding Article 15 read:

15. With a view to ensuring the effective exercise of the right of the physically or mentally disabled to vocational training, rehabilitation and resettlement, the Contracting Parties undertake:

(1) to take adequate measures for the provision or training facilities, including, where necessary, specialized institutions, public or private;

(2) to take adequate measures for the placing of disabled persons in employment, such as specialized placing services, facilities for sheltered employment and measures to encourage employers to admit disabled persons to employment.

Obviously both Principle 15 and Article 15 as originally conceived flow from a welfare mentality, and not from a human rights or equal opportunities mentality. This was the case despite the fact that Article 15 occurred in an instrument ostensibly dedicated to human rights. There was nothing unusual in this since the Charter dates back to a time when the paradigm shift to full and equal rights in the disability context was not even on the distant horizon. Granting access to welfare and rehabilitation was seen as exhausting the human rights entitlements of persons with disabilities.

Nevertheless, to its credit the European Committee of Social Rights has interpreted Article 15 generously. In its very first cycle of conclusions (reports on the Charter's implementation that are periodically issued by the Committee) the Committee gave its understanding of Article 15 as follows:

For a long time aid to the handicapped was classed together with aid to the aged; since the second world war, aid to handicapped persons has developed on separate lines, under the influence of Anglo-Saxon legislation. Traditional assistance policies are now out of date and in legislation the emphasis regarding this category of persons has shifted to vocational training and rehabilitation, [and] . . . reintegration within society. [202]

According to the above interpretation, the overriding purpose behind Article 15 was to enable the persons addressed in it to work and be independent. Overall the Charter reflects this trend, and after referring to handicapped persons in Articles 9 and 10, raised the rights of physically or mentally disabled persons to training, vocational rehabilitation and social resettlement to the level of being separate social rights. Such rights are inconceivable in the absence of the means of bringing them into effect, and the Charter therefore incorporated some of the provisions already contained in relevant International Labour Organization (ILO) recommendations. Under Article 15 of the Charter, the Contracting Parties undertook to guarantee to disabled persons:

- training facilities, including, where necessary, specialised institutions (paragraph 1);

- that their placing shall be promoted by means of specialised services, sheltered employment and measures to encourage employers to admit physically or mentally disabled persons to employment (Paragraph 2).[203]

Even though the intention may have been to broaden the traditional approach, the fact remains that the text harboured a contradiction between reliance on specialised, separate and/or targeted measures, and integrationist measures. Furthermore, the actual operation of Article 15 failed to keep pace with the range of disability discrimination issues that could arise. For example, in the analysis of State Party reports by the European Committee on Social Rights, a prominent issue has been the treatment of non-nationals with disabilities. Italy was found in violation of Article 15 on account of the excessive and unexplained large amount of persons with disabilities who were unemployed, but who were actively seeking entry to the labour market[204].

It was clear by the mid-1990s that the Charter was woefully out of date. For one thing, many European constitutions had by then made at least some of the economic and social rights guaranteed within them justiciable. Perhaps the best example is the recent Finnish Constitution of 1995. The flood of emerging democracies into the Council meant that more emphasis had to be placed on the real enjoyment of these rights and not just on rhetorical enjoyment.

Two concrete results ensued from the process of reflection initiated in the early 1990s. The first result has to do with "enforcement". An Additional Protocol was concluded in 1995 that, once ratified by a particular Member State, would enable any INGO that held consultative status with the Council of Europe to lodge a "collective complaint" against that State with the European Committee of Social Rights (Article 1).[205] At least three European level disability INGOs have that entitlement at present.[206] More European INGOs can and should apply. Under Article 2 of the Additional Protocol, Contracting Parties may also opt to vest purely national NGOs with such an entitlement (ex., the Forum of People with Disabilities, which is a purely national disability organisation in Ireland).

Sufficient ratifications have now been garnered to enable this Additional Protocol to become operative with respect to those Member States that have signed it