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
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 3rd 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]
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 56th 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:
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.
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.
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.
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.
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.
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.
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]
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).
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.
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:
- (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:
- (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.
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:
- 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:
- 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:
- 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:
- 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:
- 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:
(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:
- 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. Indeed, eight collective complaints have already been lodged. The first concerned child labour law, and was made by the International Commission of Jurists (based in Geneva) against Portugal.[207] None of the complaints relate to disability so far, but it is probably only a matter of time before they do. This convention could therefore serve as a useful forum for INGOs and NGOs to discuss discrimination with respect to economic, social and cultural rights and programmes.
The second concrete result has to do with substance. The norms were completely reworked, and the result was the Revised European Social Charter of 1996.[208] Most significant for our purposes, Principle 15 has been completely modernised and reworded to embrace the equal opportunities philosophy (albeit imperfectly). It now reads:
Principle 15.
Disabled persons have the right to independence, social integration and participation in the life of the community.
The corresponding Article 15 now reads:
- With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular:
It is fairly plain that the drafters of the revised Article 15 took cognisance of the paradigm shift from welfare to rights taking place around the world.
Apart from a reference in its preamble, the original Charter of 1961 did not contain any legal provision relating to discrimination.[209] Interestingly, a new and specific provision was added to the Revised Social Charter (1996) to guarantee non-discrimination with respect to the rights set out in the Charter (Part V, Article E). The text copies that of Article 14 of the ECHR almost word by word. It does not, therefore, explicitly list disability as one of the prohibited grounds of discrimination. However, the European Committee of Social Rights has emphasised in its case law that the enumerated grounds set out in the Charter’s non-discrimination clause are not exhaustive.[210] It is therefore likely that if a proper case were presented, the European Committee of Social Rights would interpret the phrase “other status” as including persons with disabilities.
Equally important, the Additional Protocol will apply to the Revised Social Charter for those States that ratify both instruments (Part IV, Article D of the Revised Charter). The Revised Charter in combination with the Additional Protocol could be of great value. With the right kind of ratification, it is entirely possible that disability INGOs and NGOs, who are already on the frontlines monitoring for rights abuses, will be able to use the collective complaints mechanism to argue non-discrimination issues before the European Committee on Social Rights. This means that discrimination issues covering a broad range of social policy fields could be ventilated in Strasbourg, once we work out details about how the mechanism will work and precisely which ratifications will be needed.
This convention is highly relevant in the context of disability for a number of reasons. First of all, science can generate information that can be used to the detriment of individuals. The interesting thing about “objective” scientific facts is that they tend to fit with social determinism. Therefore, some mechanism is needed to deal with the uses and abuses of such information.
Secondly, human vulnerability brings many risks. It can exacerbate the “normal” risks that attend the inherently unequal relationship between patient and doctor. It tends to render individuals invisible in decision-making processes that affect them, and this in turn unfortunately tends to have drastic consequences for the attitudes of those who are in positions of power and responsibility. In a worst case scenario drawn from history, the vulnerability of persons with disabilities has been exploited to excuse the conduct of vicious experiments and to subject disabled persons to pointless or evil clinical trials. Careful controls are therefore called for to protect the rights and interests of vulnerable persons, even where the procedures in question can potentially lead to advances in medical understanding and treatments. The role of law is to draw a line – to insist on the dignity and equal inherent worth of all human beings.
The Council of Europe’s Biomedicine Convention unfortunately fails to reach this goal. It pays lip service to important human rights principles, for example, by stating in Article 1 that the parties shall:
protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine. [emphasis added]
However, the Convention fails to protect the human rights of disabled persons in the context of genetic research and medical experimentation. In particular, the Biomedicine Convention allows non-therapeutic medical experimentation to be carried out on persons who cannot give informed consent.[212] Human rights groups, such as the International Commission of Jurists, and other non-governmental organisations, such as Disabled Peoples’ International, criticized the treaty while it was drafted by the Parliamentary Assembly because of these and other shortcomings. Some national disability groups, notably organisations in Germany, convinced their governments not to sign the treaty after it was adopted in 1997. At an international U.N. expert meeting on International Norms and Standards Relating to Disability, which took place December 13-17, 1999 in Hong Kong (Special Administrative Region), People’s Republic of China, the European Biomedicine Convention was reviewed from a disability rights perspective. In particular, the provision relating to non-therapeutic experimentation was singled out for being incompatible with article 7 of the ICCPR[213] and the Nuremberg Code of 1947.[214] Both of these latter human rights documents state that medical research shall never be performed without informed consent.
The formal prohibition of torture, inhuman and degrading treatment is contained in Article 3 of the ECHR. The adoption of an entire convention in the area was intended to augment Article 3 by providing a proactive (non-judicial) mechanism that would enable the international community to prevent the occurrence of torture in the first place.
This convention has obvious and important applications in the context of persons with disabilities who are deprived of their liberty by a public authority. It covers persons with disabilities who are held for police interrogation, imprisoned in the penal system, or incarcerated in a mental institution or some other place of residential care.
The Convention establishes a European Committee for the Prevention of Torture, Inhuman and Degrading Treatment (CPT). Article 1 asserts that the Committee shall:
by means of visits, examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment.
The CPT’s members are independent and impartial experts from a variety of backgrounds, including law, medicine and public policy. They conduct periodic visits to places of detention located in the Contracting Parties and can conduct ad hoc visits; 72 periodic visits and 32 ad hoc visits had taken place as of August 2000. Prior notification of a visit must be given to the Contracting Party, but once given, the visit can occur immediately thereafter (Article 8). The Contracting Party in question must make all facilities available to the Committee, including full access to the place of detention. The Committee has the right to interview any person detained in private, and indeed has the right to receive information from any other person whom it believes can supply relevant information (ex., members of relevant NGOs). A Contracting Party may resist a visit, but only on such exceptional grounds as national security, public safety or the fear of public disorder, the medical condition of the person involved, and the need to carry out urgent interrogation (Article 9.1). None of these (except possibly the medical ground) would appear to apply in the case of persons with disabilities. The right to resist visits is not absolute, and the Committee is empowered to enter negotiations to try to reach an agreement about access.
The Committee works on the basis of confidentiality. After each visit it draws up a report outlining its factual findings as well as any recommendations for reform. These reports are shared with the Contracting Party and are not published unless the Party so requests. Most reports – together with the responses of the Contracting Party in question – are in fact published at the request of the Contracting Parties. If a Contracting Party does not co-operate or fails to introduce adequate reforms the Committee may make a public statement to this effect.
Subject to the strictures of confidentiality, the Committee makes a general report available to the Committee of Ministers of the Council of Europe each year. This report is conveyed to the Parliamentary Assembly and is made public (Article 12). It contains a detailed account of the activities of the CPT in the preceding year, and it also draws together the distilled essence of its observations and recommendations in a substantive section that follows a selected theme.
The CPT nearly always visits psychiatric institutions during each periodic visit. On at least two occasions thematic sections have included disability issues. The 3rd Annual Report, covering 1992, contains a detailed section on health care services in prisons, including a significant part that deals with adequate standards of psychiatric care and provision for prisoners.[216] The 8th Annual Report, which covers 1997, contains a specific and detailed section on visits by the Committee to places of psychiatric detention.[217] It spans issues such as the prevention of ill-treatment, patient living conditions and treatment, staff, means of restraint, and safeguards in the context of civil commitment.
With respect to ill-treatment, the Report states in part:
the CPT’s own on-site observations and reports received from other sources indicate that the deliberate ill-treatment of patients in psychiatric establishments does occur from time to time.[218]
The Report drawn up by the CPT on its second periodic visit to Ireland in 1998 contains an interesting case study. Amongst other establishments, the CPT visited the Central Mental Hospital, which is Ireland’s main centre for the detention of those who are found “criminally insane” by the courts. The CPT made several recommendations concerning quality and adequacy of service in relation to such areas as staffing, the treatment of patients, patient’s living accommodation, seclusion, and safeguards for involuntary patients. The Report was published with the consent of the Irish Government in December 1999.[219] The Government in turn published its own responses (including an outline of the actions it proposed to take with regard to the Central Mental Hospital) on the same day[220].
At the very least, the publication of the two reports has spurred further and better domestic law reform as well as provisions for safeguarding the human rights of persons with disabilities who have been involuntarily detained. It also afforded NGOs with a focused opportunity to raise relevant issues in the public domain. In short, the Convention and the watchdog mechanism of the CPT establishes a developed system to assess the conditions of confinement of those European citizens with disabilities who are confined in residential care or otherwise incarcerated.
The Council of Europe has had a long history of concern for national or ethnic minorities.[221] However, the Council did not adopt a convention as such until the mid-1990s. This timing coincides with the collapse of the Soviet Empire, and the influx of new Member States into the Council of Europe. The Council feared that the national minority problem, which has been driven underground for so long in Eastern Europe, would explode and cause violence and political instability. Therefore a convention finally was adopted, and remains the only “hard law” legal instrument in the world on the topic.
The philosophy behind the Council of Europe Convention on the Protection of National Minorities is quite clear, and resonates well with the core theme of the disability rights movement (equal opportunities for all). Underlying the convention is the notion that the just polity is one that is defined inclusively, on the basis of both non-discrimination and the understanding that positive space is sometimes required for the for the expression of difference. In a sense, the philosophy of the convention flows from the same broad concept of equality that animates the disability reform process.
Part I of the Convention sets out certain principles (Articles 1-3). Part II sets out the various rights that members of national minorities may enjoy. It tacks back and forth along the non-discrimination/positive action continuum. Neither collective rights nor individual complaints, per se, are created. Enforcement is accomplished through the requirement of periodic reports to the Committee of Ministers, which is assisted by an expert advisory committee.
The remarkable thing about the Convention is that the definition of what constitutes a national minority is left open. Thus, the drafters intended to make it plain that the meaning of the term is capable of evolving through time. As a result, one could conceivably argue that if a group suffers the same kind of marginalisation undergone by a classic national minority (e.g., the Roma people) in the past, then that group should be considered a “national minority” for the purposes of the convention.
Since the definition of a national minority is open, Contracting Parties are left with the choice of which groups to include in their periodic reports. While there is nothing to compel them to include situations pertaining to persons with disabilities in their reports, there equally is nothing to prevent them from doing so either.
This flexibility is particularly relevant in the context of those who are hearing impaired, and who have long argued that they constitute a linguistic minority. Many state reports have included detailed commentary on the treatment of linguistic minorities within their jurisdiction, and the Convention is very explicit on the kinds of rights linguistic minorities can claim (Article 10). In actual fact, Finland in its first report made oblique reference to the deaf or hard of hearing as a “national minority.” Although the reference was hardly unambigous, and certainly did not set a precedent, it nevertheless shows what would be possible if the analogous situation of the hearing impaired as a distinct group was taken seriously.
Under the terms of the Convention, if the relevant European NGOs could persuade a Contracting Party to include the hearing impaired in the category of “national minority”, there would be little to stop the Contracting Party from so reporting. Indeed, if the relevant NGOs could persuade their own Contracting Parties that people with disabilities suffer the same kind of discrimination that previously has been meted out to traditional national minorities, then likewise, there would be nothing to stop the Parties from reporting on the entirety of persons with disabilities as a minority group under the Convention. Nonetheless, the former scenario is more likely than the latter since the gap between traditional “national minorities” and all people with disabilities seems too large to traverse, at least at present.
3. Council of Europe Policy Recommendations in the Context of Disability.
Recommendations serve a useful function in any reform process by getting Member States both to address the central issues and to orient their policies toward more or less uniform European solutions. The following exemplify the wide variety of recommendations that exist in the field of disability.
This Recommendation is by far the most important issued by the Council of Europe in the context of Disability. It was adopted on 9 April 1992 by the Committee of Ministers within the framework of the Partial Agreement in the Social and Public Health Field, and is roughly contemporaneous with the drafting of the U.N. Standard Rules. In a sense, it attempts to apply the equal opportunities and non-discrimination model in a European environment. It replaced its 1984 forerunner, Resolution AP (84)3 “On a Coherent Policy for the Rehabilitation of Disabled People”,[222] which was much more welfare oriented.
The principles that animate Recommendation R(92)6 are set out in Part I which deals with General Policy as follows:
A coherent and global policy in favour of people with disabilities or who are in danger of acquiring them should aim at:
- helping them to lead independent lives, according to their own wishes.
It is an ongoing and dynamic process of mutual adaptation, involving on the one hand people with disabilities living according to their own wishes, choice and abilities, which must be developed as far as possible, and on the other hand, society which must demonstrate its support by taking specific and appropriate steps to ensure equality of opportunity.
The “aims” of both people with disabilities and policymakers are set out in this General Policy section, and include the following:
- [to] retain as much personal responsibility as possible in the planning and implementation of rehabilitation and integration processes;
- [to] exercise their rights to full citizenship and have access to all institutions and services of the community including education;
- [to]have as much personal self-determination and independence as possible, including independence from their own families, if they so desire.
-
the special situation faced by women and elderly people with disabilities should receive particular attention.
The body of Recommendation R (92) 6 comes in twelve parts: (1) general policy, (2) prevention and health education, (3) identification and diagnosis, (4) treatment and therapeutic aids, (5) education, (6) vocational guidance and training, (7) employment, (8) social integration and environment, (9) social, economic and legal protection, (10) training of rehabilitation personnel, (11) information and (12) statistics and research.
Various “fields of intervention” are identified in the general policy part, and the succeeding eleven substantive parts set out more specific recommendations sector by sector. The non-discrimination idea pervades all the identified “fields of intervention”, and the provisions in Part 5 dealing with education are especially impressive in this respect. Part 9 is also particularly important since it examines the legal framework that needs to underpin a coherent disability policy model. Paragraph 3 of Part 9 states:
The exercise of basic legal rights of people with disabilities should be protected, including being free from discrimination . . .
The Parliamentary Assembly of the Council of Europe published a landmark report in 1977 on the situation of the mentally ill in Europe.[224] It led to a Recommendation from the Parliamentary Assembly (Recommendation 818 (1977)) that calls for Member States:
to review their legislation and administrative rules on the confinement of the mentally ill [inter alia] by reducing to the minimum the practice of compulsory detention for an “indeterminate period,” …[225]
Recommendation 818 also calls on the Committee of Ministers to set up a working group of experts to prepare a draft Recommendation to Member States. The need for this policy Recommendation was evident after a number of leading cases in the European Court of Human Rights brought substantive and procedural deficiencies in European civil commitment law to light.
The group of experts was duly convened and produced a text which was adopted by the Committee Of Ministers in 1983 (Recommendation R (83) 2). The norms of the Recommendation are quite advanced for their day and refer to the grounds for involuntary loss of liberty, the procedure to be followed in such an event, and the substantive rights of those subjected to this exceptional power. This Recommendation was very influential throughout Europe.
The Parliamentary Assembly adopted another Recommendation on 12 April 1994 (Recommendation 1235(1994) on psychiatry and human rights), which invited the Committee of Ministers to update Recommendation R (83) 2 in light of medical and legal advances. The Recommendation of the Parliamentary Assembly included a list of principles, which was put forward as a guide to the revision of the 1983 instrument.
The Committee of Ministers duly convened a group of experts (Working Party on Psychiatry and Human Rights [CDBI-PH], created as a subordinate body under the authority of the Steering Committee on Bioethics) to update Recommendation R (83) 2. In March 2000, the Committee of Ministers published a discussion paper on reform options that had been produced by the Working Party[226] for consultation purposes. Misleadingly, the paper is styled a “white paper”, and the deadline for submissions was October 2000. Although technically beyond the scope of this paper, the “white paper” is a fascinating document and deserves extensive analysis by the European NGO community. A wholly revised Recommendation on this topic was expected from the Committee of Ministers later in 2000 or early in 2001.
The Council of Europe has long viewed sport as a key element in helping to bring about greater social cohesion. A conference of European Ministers for Sport adopted the European Sport for All Charter in 1975, and this remains the baseline document in this field. Article 1 of that Charter asserts that “[E]very individual shall have the right to participate in sport”. No distinction is made on the grounds of disability or capacity.
The third Sports Ministerial conference adopted a more specific resolution dealing with persons with disabilities in 1981: Resolution on Sport for Handicapped Persons (81/5). It reads in part:
[The Conference of Ministers]…Consider that sport is of paramount importance in preparing for life, restoring and maintaining health, rehabilitating motor functions…
Recognise sport as a valuable means of education, rehabilitation, enhancement of leisure activities and social integration…
In the Resolution, the Conference of Ministers for Sport undertook to do their utmost to introduce physical activities and sport to the education, rehabilitation and preventative treatment of the handicapped, and to take measures to make (existing) sports facilities easily accessible. The Conference called on the Committee of Ministers of the Council of Europe to, inter alia, draw up guidelines and establish priorities on this topic.
Gradually the emphasis shifted from rehabilitation to equal opportunities, non-discrimination and integrated sport. The 4th Conference of European Sports Ministers invited the Committee of Ministers to recommend to the Member States, inter alia,
- when building or converting sports facilities, to ensure that there is suitable access for these groups, thus increasing their participation opportunities in physical education and sport . . .
- [to] promote the adequate representation of [disability NGOs] in the decision making bodies concerning physical education and sport . . .
Eventually the Committee of Ministers adopted the European Charter on Sport for All : Disabled Persons in a Recommendation of 1986.[227] The body of the Charter is in two parts. Part A outlines certain actions appropriate for the Member States. Part B contains actions that are appropriate for sporting bodies to take themselves.
The following sections of Part A are worth noting as they fit in neatly with the principles of the equal opportunities/non-discrimination model. Among other things, the Governments of the Members States are exhorted to:
Part B of the Charter essentially states that Member States should, inter alia, work closely with sporting organisations to find ways to integrate sporting opportunities for persons with disabilities into mainstream sport (B:2), and to recognise that such persons can legitimately aspire to elite sport involvement (B:5).
In 1999 the Committee of Ministers adopted a Recommendation “On the Role of Sport in Furthering Social Cohesion”.[228] It exhorts member States to adopt global and integrated sports policy for all, and then proceeds to target certain disadvantaged or excluded groups, including persons with disabilities, for specific recommendations. Section 1(a) deals with disability and states:
with regard to the disabled:
This very interesting instrument clearly demonstrates the effects of the shift from welfare to rights. It recalls (in the opening recitals) that the principle underlying rehabilitation is ensure that persons with disabilities achieve “the greatest possible measure of social and economic participation as well as independence”.
The equal rights philosophy is also reflected in the way the Recommendation seeks to re-orient vocational assessment to the abilities of persons with disabilities (Principle 2.2.4), and recognises the need to rationally match those abilities with job openings in the labour market (Principle 2.2.5). Interestingly in the context of the debate over definitions of disability, it states:
2.2.3. Some classifications in medicine and other scientific fields focus on deviation from norms and on deficiencies. Such classifications do not appear to do justice to the abilities of people with disabilities. In only focusing on their weak points, they can hinder their social integration, put them at a disadvantage and lead to their exclusion.
For years NGOs have made this assertion, which flows visibly from an equal opportunities philosophy. The rest of the Charter goes on to specify how to facilitate a better fit between supply (i.e., a more accurate assessment of abilities) and demand (i.e., available jobs).
A three-year project on access to higher education was conducted under the auspices of the Council of Europe between 1993 and 1996. The Project Group carried out an in-depth study that compared the access policies of all Member States along several access axes, and presented its findings at a closing conference in Parma in 1996. Recommendation R (98) 3 was the main policy output of this process. It has particular resonance in the context of disability discrimination and access to higher education.
For the Purposes of the Recommendation, “access policy” is defined broadly in Article 1 as follows:
The relevant section in the accompanying explanatory amplifies the above as follows:
The term “access policy” includes not just admission to and participation in higher education, but the dimensions of equitable distribution and a reasonable chance of success by individuals. Large-scale under-representation of certain social groups, and large-scale under-performance or dropout by committed students, are thus both symptoms of a failure in access policy . . .[230]
The term “equal opportunities” is defined in the Recommendation as:
1.3. …one that is designed to meet all requirements of the principle of equality, not only formal or de jure equality and the absence of discrimination, but also full and effective equality in the sense of enabling all individuals to develop and fulfill their potential. The promotion of effective equality may require the adoption of special measures where this is necessary and consistent with the principle of non-discrimination to take account of the specific conditions of individuals or groups in society.
Among the accessibility objectives in Article 2 that are recommended both to governments and institutions of higher education are the following:
The Recommendation deals with the age-old tension between the need to maintain high academic standards and the achievement of equal opportunity for all in an interesting way. It asserts in Article 2 that:
2.4. Efforts to maintain and raise the quality of higher education should include the criterion of effective access offered to all groups in society, as well as that of excellence in teaching and research.
In other words, it treats the achievement of equitable access as a factor in the overall assessment of educational quality.
Article 3 of the Recommendation deals specifically with discrimination and explicitly includes the situation of students with disabilities. It states in the relevant parts:
3.1. Member States are recommended to consider the need for legislation to outlaw discrimination in higher education on grounds of [inter alia] disability. Account should be taken of [inter alia];
In terms of areas of substantive concern the Recommendation goes on to deal with admissions policies and access (Article 4), student progress after entry (Article 5), access and lifelong learning (Article 6), staffing and staff development (Article 7), funding (Article 8) and monitoring of progress toward equal opportunity (Article 9). All of these standards have applications in the context of disability, with Article 5.3 having particular importance (student progress) when it states in the relevant part:
5.3. To enable all sectors of a diverse student intake to achieve academic success, steps should be taken:
The modification of curriculum content and design is a contentious subject throughout Europe, but at least this Recommendation comes down firmly on the side that views curriculum adjustment as necessary for ensuring genuinely equal opportunities to education. There is a specific reference in the provision dealing with staffing (Article 7.1) that adverts to the need to increase the number of staff with disabilities.
A further perspective on integrated education is found in an interesting Declaration adopted by the Committee of Ministers in 1999, titled a Declaration and Programme on Education based on Democratic Citizenship, based on the Rights and Responsibilities of Citizens[231]. Among other things the Declaration asserts that one of the roles of education is to “prepare(s) people to live in a multicultural society and to deal with difference knowledgeably, sensibly, tolerantly and morally”.[232] In a sense this supports the point that the integration of children with disabilities (indeed all children who are “different”) into mainstream education benefits everyone in society.
f. Recommendation R (99) 4 on Principles Concerning the Legal Protection of Incapable Adults
Part of the disability reform agenda in Europe is devoted to reviewing how the rights and interests of incapable adults are handled. If citizens with disabilities are generally invisible, then those within this group who cannot vindicate their own rights or interests are the most invisible. Generally, the law has either neglected their concerns or abandoned them to the fate of unscrupulous family members or others. Incapacity in one area of life has generally translated into an assumption of incapacity in all areas.
In keeping with the newer philosophy of equality (i.e., a belief in the equal inherent worth of all citizens regardless of capacity), the Council of Europe has been taking a close look in recent years at the reform of European incompetency law. The Directorate of Legal Affairs held a major conference on the subject in Cadiz in 1994.[233] A survey was carried out among the Member States regarding the state of their laws and any proposals for law reform. Finally, a very eminent consultant, Professor Eric Clive of Edinburgh University, prepared a model Recommendation with an accompanying report.[234] Recommendation R (99) 4 is the result of the foregoing activity.
In essence, the reform process in this area is concerned with restoring the indicia of legal personhood (and equal personhood) to the individual concerned. This entails abandoning absolute distinctions, and adopting a graded response that recognises that competence and incompetence can subsist within the one person. Such an approach favours taking a proactive approach to maintaining the person’s existing levels of competence, while simultaneously providing adequate protections to the extent that the person is genuinely incompetent (assuming such a phrase remains appropriate). It is a reform process that is long overdue and is being inspired by the equal rights philosophy of the disability movement.
Recommendation R (99) 4 is a remarkable and forward-looking document. Part II sets out certain governing principles (i.e., principles that ought to govern the law reform process). The Recommendation asserts that the very first “governing principle” in the reform process is respect for human rights as follows:
In relation to the protection of incapable adults
The fundamental principle, underlying all the other principles, is respect for the dignity of each person as a human being. The laws procedures and practices relating to the protection of incapable adults shall be based on respect for their human rights and fundamental freedoms…
The second governing principle has to do with the need for flexibility (i.e., the abandonment of the old black and white distinction between legal competence and incompetence). Among other things, it states that “the range of measures should include…those which do not restrict the legal capacity of the person concerned”. The third principle has to do with maximum preservation of existing levels of competence. The fourth concerns the need for publicity to attend any public measures. The fifth discusses the standards of necessity and subsidiarity with respect to protective measures. The sixth adds the extra safeguard of proportionality. The seventh enshrines the requirement for procedural fairness and efficacy. The eighth establishes the interests and welfare of the person concerned as paramount in determining protective measures. The ninth deals with the need to respect the wishes and feelings of the person, and the last sets out the need to consult with all interested parties before measures are adopted.
Part III covers procedural principles in detail. Part IV focuses on the role of representatives (i.e., what should be the legitimate scope of their decision-making authority over the person concerned). Part V deals with principles governing interventions in the health field.
A fuller treatment of this Recommendation is out of place here, but it should properly be viewed as part of the larger project of rendering people with disabilities visible in the legal order – a project that is largely a result of the shift from welfare to rights and equal opportunities.
4. Council of Europe Working Groups, Studies, etc., in the Context of Disability
The Council of Europe has engaged in extensive research on disability issues over a number of years. Many of them take their cue – if not their exact terms of reference – directly from Recommendation R (92) 6. The following are particularly noteworthy.
The Council of Europe publishes a periodic review of disability legislation throughout Europe. It is currently in its sixth edition.[235]
Under the auspices of the Partial Agreement, the Council of Europe established in 1987 a committee of experts on the World Health Organisation’s (WHO) International Classification of Impairments, Disabilities and Handicaps (ICIDH). Over the years, this group has taken a lead role in Europe in assessing and proposing reforms to the WHO’s ICIDH. They also have produced valuable reports on a wide variety of topics connected with the ICIDH.[236]
The key issue here from an equal rights perspective concerns the need for continuing socialisation of the ICIDH’s three pronged definition of disability so as to reflect the equal opportunities agenda and the centrality of the dignity and autonomy of the person. In a major initiative, the Council of Europe hosted a joint seminar between the WHO and the various European disability NGOs on this topic in 1996.[237] The seminar and the process of dialogue that it initiated between the WHO and European NGOs was, at the very least, one factor that led ultimately to the reform of the ICIDH.
The employment of persons with disabilities has also been a longstanding concern of the Council of Europe. From 1993-1996, the Council’s activities in this area concentrated on the transition from sheltered to open employment. From 1996 onwards, they concentrated on the penetration of people with disabilities into the mainstream jobs market.
Useful studies have been published by the Council of Europe on a broad range of employment related topics, including the transition from sheltered employment to ordinary employment (1996), the state of sheltered employment in certain Member States (1997), and comparative analysis of vocational training and assessment (1997). A document on employment strategies to promote equal opportunities for persons with disabilities in the open labour market is presently being prepared for publication.
The Council of Europe is preparing new accessibility guidelines, as well as working on a recommendation to incorporate the principle of universal design into the curriculum of all professions involved in the built environment.
A separate Working Group of Experts is also engaged in developing concrete recommendations for gaining maximum utilisation of new technologies for the benefit of people with disabilities. Yet another Working Group of Experts is developing uniform assessment methods for allowances (e.g., social insurance benefits), in order to avoid the need for fresh assessment once individuals migrate across borders. Their report was due in 2000.
Obviously, the philosophy of equal opportunities and non-discrimination is the guiding principle in all the above activities. More specifically, the Council of Europe established a Working Group on Discrimination against Persons with Disabilities in November 1996. It has conducted a comparative analysis of disability discrimination law throughout the 41 Member States of the Council of Europe (unpublished as of September 2000), and also has surveyed the positions of NGOs, as well as employer federations and trade unions.
The Working Group is focusing particularly on anti-discrimination legislation, positive action (i.e., measures that tackle structural causes of discrimination), and the participation of people with disabilities in decision-making processes. The Group’s final report was adopted by the Council of Europe Committee on the Rehabilitation and Integration of People with Disabilities in spring 2000. The report is due to be published in October 2000, and many hope that its publication will lead to a Committee of Ministers Recommendation on disability discrimination.
A. The European Union and Disability
1. Background: The Legal Tools and Policy Instruments of the European Union[238]
a. The Economic Focus of the EU
From a historical perspective the European Union is an odd source of law and policy in the context of disability. The Union has its origin in three separate treaties which originally created three separate “communities”: the European Coal and Steel Community (Paris, 18 April 1951, Treaty establishing the European Coal and Steel Community – ECSC), the European Economic Community (Rome, 25 March 1957, Treaty establishing the European Economic Community – EEC [renamed the European Community Treaty in 1992 by Article G(1) of the Treaty on European Union – TEU]), and the European Atomic Energy Agency (Rome, 25 March 1957, Treaty establishing the European Atomic Energy Community – EURATOM). The EEC was officially transformed into the European Community or EC in 1965 after the merger of core provisions and institutions from the three original treaties (Treaty on the European Community – TEC).
The main idea behind the original EEC was to seek European unity through the unification of its disparate national markets into one common market (the theory of “functional integration”). The theory rests on the depressing (but very successful) insight that men co-operate best where they calculate such co-operation to be in their own self-interest. The forging of national markets into one common market thus serves to integrate not only economies but also people.
b. EC/EU Treaty Law as the basis of the EU “Constitutional Order”
EEC law focused in the main on the economic tools needed to create a great commercial republic in Europe. Among other things, this entailed protecting those core economic “freedoms” that help establish and augment a common market, such as the freedom of movement of workers (Articles 48-51, TEC), free movement of capital (Articles 76-73, TEC), free movement of goods (Articles 9-37, TEC), and the right of establishment (i.e., the right to set up as a professional in another Member State – Articles 52-58, TEC). It is of course theoretically possible to subsume at least some of these economic freedoms under the more general rubric of human rights – but they were not conceived or intended as such at the outset.
At the time of the drafting of the Treaty of Rome (the original EEC) in the late 1950s, there was some debate about whether the achievement of human rights as such should be added to the treaties as an objective of the Community.[239] Among other things, this would have created an unambiguous legal basis for enacting legislation on disability discrimination. However, for a variety of political reasons, the Member States decided to focus solely on the use of economic means toward functional integration. So, although the underlying goal of the EC was the integration of peoples, its foundational treaties concentrated only on achieving economic means to this end. From the narrow perspective of treaty law, the means toward the end were more important than the unstated end itself.
In purely institutional terms, the EC contrasts vividly with the Council of Europe. In order to obviate the natural temptation of Member States to preserve national competitive advantage, the EC conceived of a new institution that could assert the overall “European public interest” – the European Commission (Articles 155-163, TEC).[240] The members of the Commission are nominated by the Member States, but serve in an independent capacity (Article 157.1, TEC). In addition to guarantees of autonomy from Member States, the Commission has the sole (and jealously guarded) prerogative to make legislative proposals. Depending on which treaty provisions have been relied on for a legal basis, these proposals can then go to the European Parliament (directly elected by the people of Europe since 1979), and ultimately come up for adoption before the Council of Ministers (comprised of relevant Ministers from the Member States). A separate European Court of Justice (ECJ), based in Luxembourg, is charged with the task of interpreting and applying treaty law (Articles 164-188, TEC). This court is often confused with the European Court of Human Rights, based in Strasbourg, which interprets one treaty of the Council of Europe (the European Convention on Human Rights). As well, formal and informal issue-specific groups within the Community produce frequently influential findings and reports; such an informal grouping exists in the European Parliament that deals with a range of disability rights issues.[241]
All of this gives rise to a rich (if not confusing) and multi-layered patchwork of governance in Europe whereby legal competencies can either be reserved to the Member States, shared with the Community, or transferred to the Community. Until the Treaty of Amsterdam in 1997, disability matters lay within the sole prerogative of the Member States. This is no longer the case – as will be seen.
A chief difference between the EC and the Council of Europe is that in the EC, once a requisite majority in the Council of Ministers (in consultation with the directly elected European Parliament) adopts a legislative proposal by the Commission, this legislation takes precedence over any law to the contrary in the Member States, including domestic constitutional provisions (the doctrine of the “supremacy of Community law”).[242] There are two types of EC law: Regulations that are directly and automatically effective, and Directives that typically grant Member States both discretion as to the method of transposition or implementation and some time before full implementation (usually between three to five years).
The underlying treaties that constitute the EC have been re-visited on many occasions. The Member States periodically consider revisions to the treaties in a forum, called Inter-Governmental Conferences (IGCs), that lies outside of the Institutions established by the Union. This cumulative succession of amending treaties is said to form the basis of the EU’s “constitutional order”.[243]
One such IGC produced the Treaty of Maastricht in 1992.[244] The treaty basically created a new legal entity on the world stage called the European Union (EU or Union). Simply put, the EU comprises three pillars of operation (1) the existing European Community (Treaty on the European Community or TEC), which specialises in economic affairs, (2) justice and home affairs, and (3) common foreign and security policy. Only the first pillar entails supranational competencies of the type described above. The latter two pillars operate on a purely inter-governmental basis in a similar fashion to the Council of Europe. Only the first pillar is relevant in the context of disability.
Like all treaties, the Treaty of Maastricht had to be ratified in accordance with national law. The Danish people voted against it (thus delaying its operation), and the French nearly did so as well. There were two basic reasons for this. First, the EC or Union was seen as obsessed with markets and not with people. In other words, the human face of the EC or Union was completely undeveloped, giving rise to an imbalance between social Europe and economic Europe. Secondly, many ordinary citizens were particularly incensed by the fact that although unemployment remained high throughout the EU, there were no specific competencies at the level of the Union that would enable it to become involved. This clouded the legitimacy of the enterprise. The answer from the political establishment was the 1997 Treaty of Amsterdam (see below).
c. Weak Human Rights Provision in the Original Treaties – The Significance of “General Principles of Community Law” in the context of disability
Although extensive powers were ceded to the Brussels Institutions to forge a common market out of disparate national markets, no such competency was ceded in the general field of human rights.[245] While Article 100a of the TEC gave the Union an equivalent to the U.S. federal government’s Inter-State commerce clause in Article 1(8)(3) of the American Constitution, it never had a full equivalent to the U.S. 14th Amendment guarantee of equal protection. This proved to be a large gap. Both the Inter-State commerce clause and the 14th Amendment were cited in the ADA as grounds for that law’s underlying constitutional authority. The partnering of a power that enabled the U.S. federal government to reach deep into the private sector (Inter-State commerce clause) with the imperative of equality (14th Amendment) was simply unavailable in the EU until very recently.
No less than three EU “comite des sage” reports have been issued in recent years on the role of the EU in the human rights field[246] – all advocate the development of a more human face to the Union. The gradual rise of interest in disability policy in the EU can only be understood against the backdrop of this public clamour for a more human face to the Union and for an increased commitment to general human rights. The idea that the Community is bound by general principles that include respect for human rights was initiated during the 1960s in a “turf war” between the European Court of Justice and national constitutional courts. Basically, the ECJ began to insist on a doctrine favouring the supremacy of Community Law even over national constitutions. This was deemed necessary for the integrity of the Community legal order, and to prevent the inevitable tendency toward fragmentation that would result if national courts could have an equal say over the interpretation of Community Law. In a sense, the ECJ was engaged in trying to achieve the result of Marbury v Madison[247] for the EEC.
A major problem with such a result was the fear that acknowledging the supremacy of EEC law could well lead to the setting aside of those human rights norms that were protected in national constitutions. Constitutional courts threatened to revolt. To assuage them, the ECJ bounded EEC Community Law with the “general principles of Community Law” – principles which include respect for human rights. The Court was clearly not obligated to do so under the Community’s founding treaties, but felt impelled to do so in order to maintain the market integration project. The formula used by the ECJ to divine those “general principles of Community Law” by which it will be bound embraces laws that form part of the constitutional traditions common amongst the Member State and are subscribed to internationally.
Unfortunately, the utility of such general principles in the disability field was quite limited. Since most European Constitutions do not ban discrimination based on disability, this otherwise fascinating legal development was of little use to persons with disabilities. Indeed, since the main instrument used by the ECJ for inspiration was the ECHR, even less could be expected due to the weaknesses of Article 14 of that Convention, discussed above.
Any real change for people with disabilities would have to come through a revision of the underlying treaties. Pending such treaty changes, any innovations would have to come from an anomalous field – namely EU social policy. This was an anomalous source only in the sense that many disability NGOs felt that social policy continued to be a part of the problem, and not part of the solution.
The original TEC provides barren ground from which to begin addressing disability issues. The only colourable area where disability might arise concerns “social policy” (Articles 117-125). Indeed, disability first registered as an EU issue in the context of EU social policy, but EU social policy is rather peculiar.[248]
Essentially it deals with the social dimension to the creation of the single or common market. Therefore the 1965 TEC tends to concentrate on the social protections necessary for enabling a free market of workers to come into existence. It focuses in the main on the free movement of workers. There are two non-discrimination provisions, but they have proven to be of little avail for redressing most grounds on which persons suffer discrimination.
Article 6 of the TEC secures the right to non-discrimination with respect to the treatment of other Member States’ nationals. This is only of use in the disability context if Country A treats its own disabled citizens in a favourable way, and refuses to extend that treatment to a disabled national from another EU country who is lawfully resident in Country A. Quite apart from the fact that Article 6 is of little use if the disability laws and policies of Country A are underdeveloped, it only inures to the benefit of that tiny proportion of European citizens with disabilities who migrate to seek work in another Member State.
Article 117 of the TEC secures the right to equal pay for equal work as between men and women. Its presence on the treaty is due entirely to the desire of the French government to maintain high French labour standards for women as opposed to the corresponding German standards in this area. Article 117 is only of use when an employer treats female workers with disabilities differently than it treats male workers with disabilities. Since many employers (public and private) treat both sexes with disabilities equally unfairly, there is nothing for Article 117 to object to in the disability context.
In any event, these two prohibitions on discrimination were not subsumed under any broader or deeper equality provision, and as a result, no general prohibition existed under EC law against discrimination (whether direct or indirect) based on characteristics such as age, sexual orientation or disability. Of course, it was always theoretically possible to construct such a prohibition from general principles of Community Law, but this would be a pale substitute for an explicit provision in the text of the EC Treaty.
The European Social Fund has, of course, contributed greatly to the development of human resources in the disability field. But such provisions are completely distinct from the creation of any norms of non-discrimination.[249]
In short, the absence of hard legal rules in the TEC against discrimination on the grounds of disability meant that many Directives, dealing with the design of lifts for example, could safely ignore the needs of people with disabilities without incurring any censure.
b. The Successive HELIOS Programmes (1983-1996)
Article 235 of the TEC allows Council to adopt measures that fall within the broad objectives of the EC, but for which no specific competence has been provided elsewhere in the text of the treaties. However, unanimity in Council is required before Article 235 can be invoked, since otherwise the treaties themselves could be extended simply through majority voting.
This Article was used to initiate an action programme dealing with disability in the social affairs field. The programme was first created as the Community’s response to the United Nations International Year of the Disabled (1981), but has since gained an independent impetus. Indeed, ever since the early 1980s the European Commission has had a dedicated unit within DGV (now called DG Employment and Social Affairs) that specifically deals with disability integration issues.
Three such programmes in the field of disability have existed.[250] The main result (even if this was not a prior aim) was to energise the European NGO community. Prior to these programmes, many NGOs had not developed links across national borders, and many of the impairment-specific NGOs had not engaged in dialogue with other impairment sectors to seek common ground. The HELIOS programmes at least contributed to the opening minds, and therefore paved the way for reception of the equal opportunities and non-discrimination model into the European context. The main European NGOs are now affiliated with the Europeans with Disabilities Forum (EDF), which is headquartered in Brussels. Since 1993 the EDF (or a consortium of NGOs affiliated to the EDF) helps to prepare an annual European Day of Disabled People, which adopts a different theme each year.[251]
The HELIOS II programmes ceased at the end of 1996 when it was clear that there was no prospect of securing sufficient unanimity in the Council for a continuation. In a sense, they had already done their work by preparing the ground. The programmes generated a wealth of material and literature, including guides of good practice in a variety of sectors,[252] and much of this literature has influenced the evolution of disability thinking and policy at an EU level.
c. Council Recommendation on the Employment of Persons with Disabilities (1986)
Although the Council of Ministers had no formal competency until the Treaty of Amsterdam in 1997 to adopt legal measures in the disability field, this did not stop it from adopting non-binding recommendations and resolutions on disability issues. One such recommendation was issued in 1986 dealing with the “employment of disabled people in the Community”.[254] It was an interesting instrument that, inter alia, urged the Member States:
To take all appropriate measures to promote fair opportunities for disabled people in the field of employment and vocational training, … [255]
A guideline framework for positive action was appended.
d. Council Resolution on the Integration of Children and Young People within Ordinary Systems of Education (1990)
Another resolution was adopted on 31 May 1990 that addressed mainstreaming in education. In it the Member States agreed that:
Full integration into the system of mainstream education should be considered as a first option in all appropriate cases, and all education establishments should be in a position to respond to the needs of pupils and students with disabilities.[257]
Very little progress, however, had been reported on integration by 1992.[258] The basic problem is that education was (and largely continues to be) an issue within the exclusive competency of Member States, so the Union is limited in what it can require.
EU social policy was substantially restated by the European Commission in the early 1990s in anticipation of treaty changes. This restatement fit neatly with the disability agenda, although there was little consciousness of this at the time.
The problem that first initiated social policy changes concerned the financial viability of the so-called “European Social Model”. Financial problems forced reconsideration of the nature of social policy and its goals. Basically, the Commission recast social policy in terms of empowering people for active citizenship. Active social policy was defended as a “productive factor” in a market economy, and also as a “civilising factor” in a just society.
Relevant policy documents that were drafted at the time had specific references to disability. In a remarkable paragraph dealing with disability in the Green Paper on the Future of Social Policy (1993), the Commission stated:
Social segragation, even with adequate income maintenance and special provision, is contrary to human dignity and corrosive of social solidarity and community morale. Special facilities, institutions and legal rights are obviously necessary, but they should not be an obstacle or an alternative to the principle of “mainstreaming” . . .[259] [emphasis added]
This was a daring statement even in 1993. The White Paper of 1994 was even more forthcoming. It stated:
…as a group, people with disabilities undoubtedly face a wide range of obstacles which prevent them from achieving full economic and social integration. There is therefore a need to build the fundamental right to equal opportunities into Union policies.[260]
It was clear from this policy reconsideration that the Commission was already moving decisively towards recasting social policy in light of imperatives that are normally the preserve of civil rights. This shift was to pay handsome dividends in the context of disability.
Among other things, the 1994 White Paper promised that the Commission would “prepare an appropriate instrument endorsing the U.N. Standard Rules on the Equalization of Opportunities for Persons with Disabilities.”[261] In response the Commission adopted a landmark policy statement or Communication in 1996,[262] in which it firmly committed itself to the rights-based perspective on disability manifested in the U.N. Standard Rules. The Council of Ministers responded in late 1996 with an equally fulsome Resolution in which they collectively rededicated themselves at a European level to the pursuit of the equal opportunity approach that Member States had previously acceded to individually within the United Nations system.[263]
A number of positive steps were taken as a result of the Communication. First of all, the Commission established (or reinvigorated) an inter-service working group with the aim of “mainstreaming” disability issues into the Commission’s policy and legislative process. Another positive step was the creation of a High Level Group of representatives of the Member States to deal with disability issues. Incredible as it may seem, such a forum had never existed before. The basic idea was to allow for the ongoing exchange of views on how to achieve equal opportunities for persons with disabilities.[264] Yet a third positive step involved the increasing attention paid by “social partners” (EU level trade unions and employers) to the issues.[265]
Perhaps the most positive outcome was the foreclosing of any more arguments about whether the equal opportunities/non-discrimination model was the correct one. The Commission has since adopted a detailed blueprint on mainstreaming, and continues to stimulate the Member States with thought-provoking policy documents on employment.[266]
The late 1990s seemed to provide the ideal conditions for addressing the troubling absence of general human rights provision in the treaties, as well as the absence of any powers to tackle discrimination based, inter alia, on disability. The economic agenda of the EU had reached its natural end-point with the completion of the Internal Market in 1992 and the advent of Economic and Monetary Union in 1999. It was therefore entirely logical to expect the Union to either return to its political roots or to move forward to more humanitarian concerns (depending on how one interprets the evolution of the Union).
The stage was therefore set for sweeping changes. European NGOs (both general and disability specific NGOs) took advantage of this opportune time to submit four sets of inter-acting claims. The first set concerns the need for general human rights clauses in the treaties, and specifically with the need to create a power to suspend Member States that fail to consistently respect human rights.
The second set has to do with the need to broaden and deepen existing anti-discrimination clauses to (1) make them applicable to areas additional to the labour market (e.g., education, transport), and (2) include more groups within the provisions (including persons with disabilities). These disability-specific arguments were spelled out in detail by the EDF in the period leading up to the negotiation of the Treaty of Amsterdam;[267] the EDF campaign literature from the time makes compelling reading. Basically, the EDF wanted a new judicially enforceable Article 7 in the TEC to deal with broad issues of discrimination. Closely allied to this requirement was the argument that Article 100a (the legal basis for legislation harmonising the internal market – ex., setting a standard design for lifts) should be amended so that the needs of persons with disabilities should be factored into all harmonising proposals.
The third set claims a clearer legal base from which to authorise the administration of EU financial aid to NGOs and civil society. The fourth set concerns the need to add a new employment chapter to the TEC to deal with the legitimacy issue.
Before formal negotiations opened at the IGC, the Member States created a high level Reflection Group to prepare the ground for negotiations to take place. The IGC Reflection Group (called the Westendorp Group after its chair) supported the claims being made by disability NGOs.[268] Only one dissenting voice was heard (widely presumed to be the U.K. Conservative Government of the time).
The Treaty of Amsterdam added new and very general human rights provisions to the TEU. Full treatment of these developments is out of place here. Suffice it to say that respect for human rights is now stated to be a founding principle of the Union, and a new mechanism is in place to suspend the rights of Member States that persistently violate those rights. Nevertheless, any alleged violation would probably have to meet a high factual and evidentiary threshold before these provisions would be triggered in the context of disability.[269]
The basic claim made by European disability NGOs (i.e., through EDF) was the need for a general non-discrimination provision – one that was legally enforceable through the courts and explicitly included disability as one of the prohibited grounds of discrimination. Negotiating Member States accepted the political argument for the necessity behind such a provision. However, the new provision that finally emerged (Article 13) only creates the possibility that a unanimous Council might take action to combat discrimination based on one of several listed grounds, including disability.[270]
Article 13 of the TEU reads:
Without prejudice to the other provisions of this treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on [inter alia] disability . . .
Clearly Article 13 will need to be refined at the next Inter-Governmental Council, which will take place some time after the admission of new Eastern European Members (probably in about 4-5 years time). Nevertheless, the inclusion of Article 13 is a significant breakthrough since it represents the first time that European Governments have acknowledged the reality of the discrimination experienced by people with disabilities. The related disability-specific claim concerning harmonisation under Article 100a was also accepted politically. However, the text that eventuated was weak. A Declaration was added to the Treaty of Amsterdam, amending what is now Article 95 of the TEU (ex-Article 100a) as follows:
The Conference agrees that, in drawing up measures under Article 95 of the Treaty establishing the European Community, the institutions of the Community shall take account of the needs of persons with a disability.[271]
On the downside the Treaty of Amsterdam did not acknowledge the role played by NGOs in civil society, and failed to provide a solid legal basis for the adoption of social action programmes to support the same. This was a grave disappointment to many. Interestingly, disability was specifically mentioned in a draft clause dealing with social exclusion, but was removed at virtually the very last moment in negotiations in Amsterdam; the apparent reason for this concerned perceptions about cost.
The Treaty of Amsterdam also added a completely new employment chapter to the TEU. Article 125 of the TEU (ex-Article 109n) states in part that the Member States and the Community will:
work towards developing a coordinated strategy for employment and particularly for promoting a skilled, trained and adaptable workforce.
The Member States are required by Article 126(2) (ex-Article 109o) to:
regard promoting employment as a matter of common concern and shall coordinate their action in this respect within the Council . . .
For its part, the Community is required by Article 127(1) (ex-Article 109p) to:
contribute to a high level of employment by encouraging cooperation between Member States and by supporting and, if necessary, complementing their action . . .
In sum, the real breakthrough at Amsterdam was the recognition that discrimination against people with disabilities does happen. For the first time, people with disabilities are specifically mentioned in the text of the Treaties. No doubt this will prove to be a valuable stepping stone on the way to a general equality and non-discrimination clause. The Treaty of Amsterdam, like the Treaty of Maastricht, must itself be reviewed when additional Member States are admitted to the Union, giving disability NGOs a full agenda to ponder over the next few years.
c. Making the Shift a Reality for European Citizens with Disabilities.
Tackling Disability Discrimination Proper
–
i. Commission Proposal for a Directive on Article 13 banning disability Discrimination in the Context of Employment (1999).
On November 26 (1999), primarily on the basis of Article 13 of the Treaty of Amsterdam, the European Commission proposed two draft Directives on non-discrimination for adoption by the Council.[272] These Directives were adopted by the Council in June and November of 2000, and consequently will be binding on all Member States, regardless of whether they have any domestic constitutional norms to the contrary. The fact that the Directives achieved adoption is particularly significant since unanimity was needed in Council for all proposals coming under Article 13. Each Directive will allow for a period of time before national governments will be required to transpose them into national law.
The first Directive covers the ground of race only, and extends to all spheres including employment, education, cultural activities and the provision of goods and services (Article 3).[273] The second Directive covers all other grounds of discrimination mentioned in Article 13 except gender (which already has accreted a web of directives under Article 117 TEC) and race (which has a whole directive dedicated to it), but applies only in the area of employment.[274]
This second Directive will therefore include disability. It not only forbids direct discrimination but also prohibits indirect discrimination against people with disabilities (as well as others). Article 2.2(b) states that indirect discrimination is taken to occur:
where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:
(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or
(ii)as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.
Article 5 then provides for the principle of “reasonable accommodation” as follows:
In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures where needed in a particular case to enable a person with a disability to have access to, participate in, advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.
The explanatory memorandum accompanying the draft Directive amplifies this as follows:
Essentially the concept (“reasonable accommodation”) stems from the realisation that the achievement of equal treatment can only become a reality where some reasonable allowance is made for disability in order to enable the abilities of the individual to be put to work. It does not create any obligations with respect to individuals who, even with reasonable accommodation, cannot perform the essential functions of any given job. The obligation is limited in two respects. First, it only pertains to what is reasonable. Secondly, it is limited if it would give rise to undue hardship.
The Directive is stated to be without prejudice to the right of any Member State to maintain or adopt measures intended to prevent or compensate for disadvantage (i.e., take positive action).
The Commission has also proposed a well-funded Community Action Programme to complement the two Directives. The objects of the draft programme are (i) to improve understanding of discrimination issues, (ii) to develop the capacity of target actors, and (iii) to promote and disseminate the values and practices that underlie the fight against discrimination (Article 3). The programme proposes achieving its objects through transnational co-operation involving NGOs, as well as others primarily involved in fighting discrimination on specific grounds (excluding those of race and gender). Two pan-European networks of legal experts have now been formed under the Commission’s action programme. One deals with racial discrimination and the other deals with disability discrimination. Other networks are expected to be established in 2002. The disability discrimination network is directed by the Disability Law and Policy Research Unit of the School of Law at the National University of Ireland (Galway) under Professor Gerard Quinn, and includes as network members several participants at the DREDF (Disability Rights and Education Defense Fund, Inc.) hosted Principles to Practice symposium for which this paper was commissioned. The network aims to produce a baseline study of disability discrimination legislation and practice covering the EU Member States by early 2003. A five year work programme is being developed for the network.
Increasing Equal Opportunities in Employment.
The new TEU employment chapter added by the Treaty of Amsterdam does not confer hard legal powers as such, but it is nevertheless being put into operation in an interesting way. Essentially, the Commission and Council prepare guidelines according to which Member States must report on their employment policies. The original set of guidelines were formally adopted by the Heads of State on 15 December 1997, organised under the following four general headings:
improving employability;
developing entrepreneurship;
encouraging adaptability in business and among their employees; and
strengthening policies for equal opportunities.
Disability is explicitly addressed under the fourth heading (equal opportunities). The relevant part of heading (IV) reads:
The Member States will:
- give special attention to the problems people with disabilities may encounter in participating in working life.
National action plans (NAPs) based on the Guidelines were drawn up and submitted first in early April 1998 and annually thereafter. They are a very rich source of information on the employment strategies that have been developed by Member States with respect to the employment of persons with disabilities. In a background report analysing the detail of the various NAPs the Commission stated:
All Member States implement a wide range of measures to promote the participation of disabled people in the mainstream labour market. Although it is not uncommon for people with disabilities to be given early access to employability measures for the unemployed, priorities vary considerably from one Member State to another. Measures for people with disabilities include anti-discrimination legislation against disabled people, quota systems, rehabilitation and vocational programmes, wage subsidies, subsidies for the acquisition of technical aids or tools, information and awareness campaigns against prejudices affecting people with disabilities.[275]
The latest version of the Guidelines (adopted by the Heads of State in 1999) now deals with disability under the general heading of employability. A specific section under that heading is entitled “Promoting a Labour Market Open to All”, and the relevant 1999 Guideline reads:
Many groups and individuals experience particular difficulties in acquiring relevant skills and in gaining access to, and remaining in, the labour market. A coherent set of policies promoting the integration of such groups and individuals into the world of work and combating discrimination is called for. Each Member State will:
- Give special attention to the needs of the disabled, ethnic minorities and other groups and individuals who may be disadvantaged, and develop appropriate forms of prevention and active policies to promote their integration into the labour market.
A new draft Guideline incorporating several different “socially excluded Groups” has been proposed recently by the European Commission. It reads:
Combating Discrimination and Promoting Social Inclusion by Access to Employment.
Many groups and Individuals experience particular difficulties in acquiring relevant skills and in gaining access to, and remaining, in the labour market. This may increase the risk of exclusion. A coherent set of policies which promote social inclusion by supporting the integration of disadvantaged groups and individuals into the world of work, and combat discrimination in access to, and on, the labour market is called for.
. . .
- develop pathways consisting of effective preventive and active policy measures to promote integration…
-
identify and combat discrimination on grounds of…disability…in access to the labour market and education and training
-
implement appropriate measures to meet the needs of the disabled…as regards their integration into the labour market and set national targets for this purpose…
Under the Guideline, the Council of Ministers can direct very specific recommendations to particular Member States whose policies are deemed inadequate. A sort of “case law” on disability therefore has the potential to emerge. In short, the new employment provisions are useful because they help maintain momentum in the field of disability policy. The NAPs are also a very useful source of information on the current status of the employment situation for persons with disabilities throughout Europe.
Creating Equal Access to the Tools of the Information Society.
Europe was much slower than the U.S. to realise the liberating potential of new Information and Communications Technologies (ICTs) – the tools of the Information Society – for people with disabilities. The European Commission set up a High Level Group of Experts to ponder the future of EU social policy in the context of the coming revolution. In their interim report of 1996, the Group identified the disabled as a disadvantaged group and stated:
ICTs can indeed substantially contribute to the quality of life and autonomy of many people who have had problems gaining access to services or caring for themselves…This would be particularly valuable for people with disabilities or chronic health problems…[276]
Clearly the Group was thinking more in terms of access to services than in terms of personal liberation. Their final report referred to the risk of increasing isolation posed by ICTs, and recommended a number of proactive measures to ensure that the “socially excluded” are not forgotten.[277]
The European Commission issued its own Green Paper on the Information Society in 1996.[278] Among other things, it adverted to the potential of ICTs:
to improve the quality of life of older people and people with disabilities by facilitating independent living in the community and helping to open up new possibilities for access, participation and socio-economic integration.[279]
The Commission then issued a White Paper in 1998. It was much more forthcoming on the topic of ensuring equal access to ICTs by people with disabilities, and included a separate section on disability. The Commission’s objective in this regard was to “promote access and full integration of people with disabilities in the Information Society”. The White Paper recommended a series of “actions” for Member States, including collaboration with industry and NGOs. In fact a major transatlantic conference on this theme was organised by the European Commission, in conjunction with the U.S. Department of Labor and the President’s Committee on the Employment of People with Disabilities in October 1998 (held in Madrid).[280]
Little happened subsequent to this until January 2000, when the incoming President of the European Commission (Romano Prodi) suddenly issued a Communication on Europe: An Information Society for All.[281] Interestingly and remarkably, a specific section was set out on “Participation for the Disabled”. This time, instead of talking about access to services, the policy statement went:
Developments in digital technologies offer extensive opportunities to overcome barriers (socio-economic, geographical, cultural, time, etc.) for people with disabilities. Accessible technologies which address their specific needs enable their participation in social and working life on an equal basis.[282]
A number of important targets were proposed in the Communication, including the review of legislation and standards to ensure the inclusion of persons with disabilities, the development of a policy recommendation to Member States on their procurement policies, the making of all public web sites accessible, etc.
At a meeting of the Council in March 2000, the Council and the Commission concluded that they jointly should prepare an “Action Plan” on this topic for further consideration.[283] The official conclusions of the Presidency included a specific reference to disability.[284]
To help them draw up the draft Action Plan, the Presidency and the Commission organised a major Ministerial Conference on Knowledge and the Information Society that took place in Lisbon on 10-11 April 2000. For the first time at a Ministerial Conference of this sort, a full panel on “citizens with special needs” was convened that included quite a lot of participation from the United States.
A draft Action Plan on overall vision was duly prepared by the European Commission in May 2000 for consideration by the Council of Ministers at their July meeting in Portugal.[285] Included among the specific “actions” proposed were:
· The publication of “design for all” standards for ICT accessibility, particularly aimed at improving the employablity of people with disabilities (by the end of 2002);
On the other hand, the reference to developing a recommendation on public procurement policies (which was in the original Europe Communication) was abandoned
The issue of accessible access to the Information Society is likely to prove crucial in the years ahead. It is noteworthy that the disability perspective has registered from the very outset (albeit not perfectly). This is testament to the power and reach of the equal opportunities model across a broad range of policy sectors. Further policy exchanges between the U.S. and Europe on this topic would prove most beneficial.
The Draft EU Charter on Human Rights and Disability.
Although the Treaty of Amsterdam elevates the status of human rights in the Union, it does not set out a catalogue of such rights. Interestingly, the German Presidency in 1999 proposed the drafting of an EU Charter on Fundamental Rights. A specialised body composed of government representatives – representatives of the European Parliament and National Parliaments as well as the Institutions of the Union – have begun drafting such a Charter and plan to present it for adoption to Council in December 2000. It is still unclear whether the Charter will have some kind of legal status. Even if it does not, a Charter can still be used as a source of inspiration by the European Court of Justice, and could eventually form the basis of a Bill of Rights to be added to the treaties.
The Charter is in its second draft. Draft article 24 deals with disability and states:
- Persons with disabilities have the right to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.
This is clearly deficient. It shows the continuing power of the social services model. Nevertheless, the fact that disability is mentioned at all in such a high profile document means that the issue finally has reached the top policy echelon and cannot be ignored. For the moment, this is the real significance of the Charter in the disability field. There is much current speculation on whether the treaties will be integrated in the next few years into a written Constitution for the Union. If so, that will the occasion at which the real battle lines will be drawn.
Conclusions – the Prospects for a Europeans with Disabilities Act (EDA)
As is obvious, the European system of governance is complex. Legal competency is shared between two very different regional organisations and their respective Member States, with all parties engaged in a constant dialectic process. The new and encouraging factor is that disability issues have begun to surface at levels above the nation state.
The Council of Europe has adopted and tried to propagate the human rights or equal opportunities approach. This is to be expected given that organisation’s overall commitment to basic human values and human rights. Unfortunately, its main weapon – the European Convention on Human Rights – still lacks an equality clause with real bite, both generally as well as in the specific context of disability. If there is a mismatch within the Council of Europe, it is between the thrust of the excellent work being done under the Framework of the Partial Agreement in the Health and Social Policy field, and the ongoing activities of the other human rights instruments and bodies. In other words, the Council of Europe still has some distance to go in mainstreaming disability issues into the broad spread of its ongoing work.
The American experience shows that holding a principle is not enough. Principles need to be married to power to bring about real change. Whereas the Council of Europe has had plenty of principle but little power, the reverse tended to be true for the European Union. But this is true no longer. The Union is now said to rest on a foundation of basic principles that include respect for human rights. New supra-national legal competencies – albeit inchoate – are conferred on the Union to combat a range of discrimination, including disability discrimination, and the Commission seems eager to press ahead with legislative proposals in the employment field. As a matter of law, more can and should follow, though Treaty amendments are needed to clarify and purify this competency.
If the EU can contribute to the overall development of the equal opportunities model, it will be in the way it reconciles its traditional “European social model” (with its emphasis on social support, including health care) with the newer civil rights model. Formal freedoms need to be made real, with sufficient practical supports to enable people to take their rightful place as citizens. This is the challenge that lies ahead for both the U.S. and the EU.
PART 3
Current Trends and Future Prospects
What conclusions, if any, can one garner from the analyses in the two preceding Parts? Five particular conclusions strike the authors as significant.
First of all, the war of ideas is over. The paradigm shift to the human rights perspective is now nearly universal. Most countries are beginning to view disability as a human right issue. Admittedly, there is uneven commitment to, or even understanding of, the model worldwide. But its gradual ascendancy has been inexorable. The moral authority of the U.N. Standard Rules has helped to legitimate the shift, and the enactment of the A.D.A. powerfully demonstrates that change is possible and beneficial both for individuals and for their communities. If there is a broader message in the disability rights movement, it is that citizenship means equal effective access to all dimensions of the lifeworld.
Secondly, recognizing a paradigm shift at the level of ideas is one thing, making it a reality is quite another. Our comparative survey found a wide diversity of legal approaches. To a degree, this is quite understandable given the diversity of the world’s cultures and legal systems. The world is as diverse as is the population of people with disabilities. Yet, amid this diversity, one key factor emerges. The best legislation (of whatever variety) tends to be that which creates social, economic and public space for the difference of disability. That is, the law must recognize that strictly identical treatment, in and of itself, places a yoke of inequality upon people with disability. Furthermore, this inequality cannot be removed without requiring some accommodation for the difference of disability. Hence the overarching significance of the concept of “reasonable accommodation”. This, the crowning achievement of the ADA, is the critical element that permeates all effective legislation. Clearly, significant work needs to be done in educating people across different legal cultures about the nature and operation of this concept, without which legislation will either fail or not achieve as much as it could.
Thirdly, regional organisations – like the Council of Europe and the European Union – can act as powerful carriers of the fighting faith. They can facilitate the reception of equal opportunities and human rights ideas into national policy-making apparatuses. And they can, within their own sphere of competencies, adopt measures that can make a difference. Any strategy aimed at change must factor in the role (catalytic or otherwise) of such regional bodies, and seek to harness their moral, as well as legal and political, authority.
Our fourth conclusion is that the discrimination agenda – important though it is – does not exhaust the complete spectrum of issues that affect the full enjoyment of human right by persons with disabilities. Anti-discrimination law is an indispensable tool, but it has to be frankly admitted that although effective legislation can open doors, it cannot facilitate people entering through those doors if other needs are not met. In other words, a concern for formal freedom must be matched with a concern for the means by which that freedom is exercised. The importance of achieving actual economic, social and cultural rights for people with disabilities should not be forgotten. By this, we do not mean a social policy agenda that effectively traps people in a gilded cage of passive maintenance, as has been the case in the past. Rather, we mean a social policy that aims to put positive supports in place that will truly enable people to maximise their formal freedoms.
Lastly, most progressive disability legislation has been marketed politically on the basis that it is a “productive factor” in market economies. In other words, such legislation contributes to more rational labour market decisions and greater overall economic activity. We strongly agree. But we also feel that such legislation acts as a “civilising factor” in any society that respects difference and aims to create societies that are truly open to all.
Annex I:
LIST OF LAWS*
9.Costa Rica: (a) Law 7600 on Equal Opportunities for Persons with Disabilities, 1996
10.Ethiopia: The Rights of Disabled Persons to Employment, Proclamation No.
b) The Disabled Persons Act, 1993
17.Guatemala: Act for the Protection of Persons with Disabilities, Decree No.135-96
20.India: The Persons with Disabilities Act (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
21.Ireland: a) Employment Equality Act (#21 of 1998)
b) Equal Status Act (#8 of 2000),
c) National Disability Authority Act (#14 of 1999)
d) Comhairle Act (#1 of 2000)
b) Act Relating to Employment Promotion, etc. of the Handicapped, Law No. 4219 (1990)
c ) The Special Education Promotion Law, as amended 1994
25.Madagascar: New Labour Code as of 29 September 1994
28.Namibia: Labour Act (1992)
(b)Decree No. 50-97, Regulations and Policies for Act. No. 202
b) Employment Equity Bill, 1998
c) Skills Development Bill, 1998
b) Law on the Social Integration of the Disabled (1982)
c) Law on Infringements and Penalties of a Social Nature, 1988
36.Sri Lanka: Protection of the Rights of Persons with Disabilities Act, No.28 of 1996
37.Sweden: Law on the Prohibition of Discrimination Against Persons with Disabilities in Employment, SFS No: 1999-132
38.Switzerland: Constitution, adopted 1999
b) Local Government Act of 1997
b) Disability Rights Commission Act 1999
41.United States of America: a) Americans with Disabilities Act of 1990
42.Zambia: The Persons with Disabilities Act, 1996 (Act No. 33 of 1996)
43.Zimbabwe: Disabled Persons Act, 1992
Annex II
List of Useful European Disability Web Sites.
The Council of Europe disability web site.
The main Council of Europe site is at [www.coe.int]. The disability site is captured under the heading “Social” on the right hand margin. Click on “Social-Public Health”, which opens a page entitled “Partial Agreement in the Social and Public Health Field”. One of the sites in the left hand margin of the page is entitled “Integration of People with Disabilities” and leads to a number of useful links.
The European Commission (EU) disability web site.
Directorate General Employment and Social Affairs can be found directly at [www.europa.eu.int/comm/dgs/employment_social/index_en.htm]. From the opening page, click on “Employment and Social Affairs Website”, and then click on “social security and social integration”. One among many items will be “people with disabilities”.
The European Disability Federation (EDF) web site.
This is at (www.edf-feph.org).
[1] Theresia Degener wishes to thank Susan Dennehy, Arlene Kanter (Professor of Law and Director of Clinical Legal Education, Syracuse University), Debby Kearney, Jenny Kern, Martin Ladstaedter, Silvia Yee, Rodrigo Jiménez and Yoshiko Osawa.
[2] Gerard Quinn wishes to thank Thorsten Afflerbach of the Council of Europe and André Gubbels of the European Commission.
[3] There is a large body of literature on this subject. See, e.g., Victor Finkelstein, Attitudes And Disabled People: Issues For Discussion (New York: World Rehabilitation Fund, 1980); Michael Oliver, The Politics Of Disablement: A Sociological Approach (London: St. Martin’s, 1990); Michael Oliver, Understanding Disability: From Theory To Practice (New York: St. Martin’s, 1996); Jenny Morris, Pride Against Prejudice: Transforming Attitudes to Disability (Philadelphia: New Society, 1991).
[4]See United Nations, General Assembly, Implementation Of The World Programme Of Action Concerning Disabled Persons; Report Of The Secretary-General, U.N. Doc. A/54/388/Add.1 (1999).
[5]For example, should relegation to sheltered employment be considered a form of discrimination?
[6]See, e.g., Olmstead v. L.C. ex rel Zimring, 527 U.S. 581 (1999).
[7]See Gerard Quinn, The Human Rights of People with Disabilities Under EU Law, in The EU and Human Rights 281, 290 (Philip Alston ed., Oxford: New York: Oxford University Press, 1999). Other equality concepts with respect to disability law have been described by Aart Hendriks, The Significance of Equality and Non-Discrimination for the Protection of the Rights and Dignity of Disabled Persons, in Human Rights and Disabled Persons: Essays and Relevant Human Rights Instruments 40-62 (Theresia Degener & Yolan Koster–Dreese, eds., Dordrecht; Boston; London: Martinus Nijhoff Publishers, 1995); and Lisa Waddington, Disability, Employment and the European Community 53-66 (Antwerp: Maklu et al. [under the auspices of METRO – Institute for Transnational Legal Research at the University of Limburg, Maastricht], 1995).
[8] See Martha Minow, Making All the Difference: Inclusion, Exclusion and American Law 19-79 (Ithaca, N.Y.: Cornell University Press, 1990).
[9] See U.S. Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities (Washington, D.C.: Clearinghouse Publication 81, 1983); Gerard Quinn, Maeve McDonagh & Cliona Kimber, Disability Discrimination Law in the United States, Australia and Canada (Dublin: Oaktree Press, 1993).
[10] For instance, the term “adjustments” instead of “accommodations” is used in U.K. law. See Brian J. Doyle, Disability Discrimination: The New Law (London: Jordans, 1996).
[11] The landmark law being the ADA of the United States. See Americans with Disabilities Act, Pub.L. No. 101-336, 104 Stat. 327 (July 26, 1990) [42 U.S.C. § 12101 et seq.]. In Canada the 1982 Canadian Charter of Rights and Freedoms and the 1985 Canadian Human Rights Act contain anti-discrimination provisions for disabled persons. See Can. Const. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms); The Canadian Human Rights Act, R.S.C. ch. H-6, § 1 (1998) (Can.).
[12] Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities, A.G. Res. 1608, 29th Sess., O.E.A. Doc. OEA/Ser. P AG/doc.3826/99 (1999). For the period prior to the new treaty see Rodrigo Jimémez, Los Derechos Humanos de la Personas con Discapacidad (San José, Costa Rica: INAUD, Programa Mujer, Justicia y Género; Instituto Interamericano de Derechos Humanos; Disabled People International, 1996).
[13] See Universal Declaration of Human Rights, G.A. Res. 217 A(III), U.N. Doc. A/810, at 71 (1948) [The Universal Declaration of Human Rights may also be viewed at http://www.unhcrh.ch/udhr/index.htm, where it is available in most major world languages]; International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3; International Covenant on Civil and Political Rights, 17 December 1966, 999 & 1057 U.N.T.S. 171 & 407 respectively.
[14] See Universal Declaration of Human Rights, id. art. 25; International Covenant on Economic, Social and Cultural Rights, id. art. 12.
[15] G.A. Res. 2856, U.N. GAOR, 26th Sess., Supp. No. 29, at 93, U.N. Doc. A/8429 (1972).
[16] G.A. Res. 3447, U.N. GAOR, 30th Sess., Supp. No. 34, at 88, U.N. Doc. A/10034 (1976).
[17] For a more comprehensive analysis see Hendriks, Supra note 7.
[18] G.A. Res. 37/52, U.N. GAOR, 37th Sess., Supp. No. 51, at 185, U.N. Doc. A/37/51 (1983).
[19] United Nations, General Assembly, World Programme of Action Concerning Disabled Persons; Report of the Secretary-General: Addendum, at 21, U.N. Doc. A/37/351/Add.1 (1982).
[20] See U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Principles, Guidelines and Guarantees for the Protection of Persons Detained on Grounds of Mental Ill-Health or Suffering from Mental Disorder; Report by the Special Rapporteur: Erica-Irene A. Daes, U.N. Doc. E/CN.4/Sub.2/1983/17/Rev.1, U.N. Sales No. E.85.XIV.9 (1997); U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Human Rights and Disability: Report by Special Rapporteur: Leandro Despouy, U.N. Doc. E/CN.4/Sub.2/1991/31, U.N. Sales No. E92.XIV.4 (1993).
[21] See The Protection of Persons with Mental Illness and the Improvement of Mental Health Care, G.A. Res. 46/199, U.N. GAOR, 46th Sess., Supp. No. 49, at 188, U.N. Doc. A/46/49 (1992).
[22] See, for example, the Tallinn Guidelines for Action on Human Resources Development in the Field of Disability, G.A. Res. 44/70. U.N. GAOR, 44th Sess., Supp. No. 49, Annex at 196, U.N. Doc. A/44/49 (1990).
[23] See Standard Rules on the Equalization of Opportunities for Persons with Disabilities, G.A. Res. 48/96, U.N. GAOR, 48th Sess., Supp. No. 49, Annex at 202-11, U.N. Doc. A/Res/48/49 (1994) [hereinafter Standard Rules]. For comment, see Theresia Degener, Disabled Persons and Human Rights: The Legal Framework, in Human Rights and Disabled Persons, Supra note 7, 9-39, and Bengt Lindqvist, Standard Rules in the Disability Field –A New United Nations Instrument, in Human Rights and Disabled Persons, supra note 7, 63-68.
[24] Standard Rules, id. at 204, ¶¶ 25-26.
[25] The organisations were as follows: Disabled Peoples’ International, Inclusion International, Rehabilitation International, World Blind Union, World Federation of the Deaf, and World Federation of Psychiatric Survivors and Users.
[26] See United Nations, General Assembly, Report of the Special Rapporteur of the Commission for Social Development on Monitoring the Implementation of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, U.N. Doc. A/50/374, Annex at 4 (1995) [first report]; United Nations, General Assembly, Final Report of the Special Rapporteur of the Commission for Social Development on Monitoring the Implementation of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, U.N. Doc. A/52/56, Annex at 3 (1996) [second report]; United Nations, Economic and Social Council, Final Report of the Special Rapporteur of the Commission for Social Development on Monitoring the Implementation of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities on his second Missions, 1997-2000, U.N. Doc. E/CN.5/2000/3 (1999) [third report]; see also Dimitris Michailakis, The Standard Rules: A Weak Instrument and a Strong Commitment, in Disability, Divers-ability and Legal Change 117-30 (M. Jones & L.A. Basser Marks, eds., Hague; Boston; London: Martinus Nijhoff Publishers, 1999).
[27] While we focus here on the human rights division of the U.N., it should be mentioned that specialized international agencies such as WHO, ILO and UNESCO have also taken an equal opportunity approach to disability in recent years. As a strong binding instrument, ILO Convention No. 159, Convention Concerning Vocational Rehabilitation and Employment (Disabled Persons), 1983 is worth mentioning. See Convention No. 159: Convention Concerning Vocational Rehabilitation and Employment (Disabled Persons), in International Labour Organization, 2 International Labour Conventions and Recommendations 1919-1991 (1992). For an overview of the specialized agencies see Theresia Degener, Disabled Persons and Human Rights: The Legal Framework, Supra note 23, at 20-33.
[28] See General Comment No. 18, Report of the Human Rights Committee, U.N. GAOR, 45th Sess., Supp. No. 40, at 175, U.N. Doc. A/45/40 (1990).
[29] See Philip Alston, Disability and the International Covenant on Economic, Social and Cultural Rights, in Human Rights and Disabled Persons, supra note 7, at 94-105.
[30] General Comment No. 5 (1994) on Persons with Disabilities, Report on the Tenth and Eleventh Sessions, U.N. ESCOR 1995, Supp. No. 2 [according to U.N. Doc. E/1995/22/Corr.1-E/C.12/1994/20/Corr.1], at 102, ¶ 15, U.N. Doc. E/1995/22-E/C.12/1994/20 (1995).
[31] Id. ¶16.
[32] See General Recommendation No. 18, Report of the Committee on the Elimination of Discrimination Against Women, U.N. GAOR, 46th Sess., Supp. No. 38, at 3, U.N. Doc. A/46/38 (1992).
[33] See, for example, General Recommendation No. 24, Report of the Committee on the Elimination of Discrimination Against Women, U.N. GAOR, 54th Sess., Supp. No. 38, at 6, ¶ 25, U.N. Doc. A/54/38/Rev.1 (1999).
[34] For a discussion of article 23 of the United Nations Convention on the Rights of the Child, see Thomas Hammarberg, The Rights of Disabled Children – The UN Convention on the Rights of the Child, in Human Rights and Disabled Persons, supra note 7, at 147-155.
[35] For more on this problematic aspect of human rights implementation see Henry Steiner & Philip Alston, International Human Rights in Context 559 (Oxford: Clarendon Press , 1996).
[36] For more on this issue see Theresia Degener, Disabled Persons and Human Rights: The Legal Framework, supra note 23, at 36; Katarina Tomasevski, The Right to Health for People with Disabilities, in Human Rights and Disabled Persons, supra note 7, at 131–46.
[37] We have found anti-discrimination laws in the following countries: Australia, Austria, Bolivia, Brazil, Canada, Chile, China, Costa Rica, Ethiopia, Finland, Fiji, France, Gambia, Germany, Ghana, Greece, Guatemala, Hong Kong (SAR), Hungary, India, Ireland, Israel, Korea, Luxembourg, Madagascar, Malawi, Mauritius, Namibia, New Zealand, Nicaragua, Nigeria, Philippines, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Uganda, United Kingdom, United States, Zambia and Zimbabwe. See Annex I for the names of the laws.
[38] Lisa Waddington, Legislating to Employ People with Disabilities: The European and American Way, 1(4) Maastricht J. Eur. & Comp. L. 367 (1994); Quinn et al., Supra note 9; M. Jones & L.A. Basser Marks, supra note 26; Marge Hauritz, Charles Sampford & Sophie Blencowe, Justice for People with Disabilities: Legal and Institutional Issues (Sydney: Federation Press,1998); Marcia H. Rioux:, The Place of Judgement in a World of Facts, 41(2) J. Intell. Disability Res. 102 (1997); Patricia Thornton & Neil Lunt, Employment Policies for Disabled People in Eighteen Countries – A Review (York: University of York, Social Policy Research Unit, 1997), at <http://www.gladnet.org/ref/employment/18-count.htm> (visited 14 June 2000); Carley, Mark, International Equality at Work: Disability, Employment and the Law in Europe – Part One, Dec. Eur. Indus. Rel. Rev. 251 (1994), at <http://www.gladnet.org/ref/legislation/europe_d.htm> (visited 14 June 2000); Eric Besner, Employment Legislation for Disabled Individuals: What Can France Learn from the American with Disabilities Act?, 16 Comp. Lab. L.J. 399 (1995); Bernard Gutow, Survey of Rights of Workers with Disabilities: Comparison of the United States with the European Community, 11 (2) N.Y. Int’l L. Rev. 101 (1998).
[39] Within the US legal literature there is today no consensus on whether the ADA has been successful. See the ADA Symposium Issue: Backlash Against the ADA, 21 Berkeley J. Employment Lab. L. (2000).
[40] See supra note 23.
[41]For a comprehensive overview see Waddington, supra note 7.
[42] AG Flensburg, decision of August 27, 1992 – 63 C 265/92 (case-No), Neue Juristische Wochenschrift 272 (1993).
[43] Law 180 of 13 May 1978, cited in Thornton & Lunt, supra note 38.
[44] The Korean laws for example. Each statute’s prohibition on discrimination takes place in a kind of vacuum. There is no bestowal of individual rights or any mechanism that allows persons with disabilities to enforce the prohibition or report violations of the law. While the laws contain the potential for actual reform, the main legal emphasis is on discretionary and welfare-oriented disability programs that have led to exclusion in the past.
[45] Quinn, supra note 7, at 290.
[46] In the U.K, disability groups had fought for decades to achieve anti-discrimination legislation. They had prepared their own draft legislation which was rejected by the parliament. When the Disability Discrimination Act was passed in 1995 many disability rights activists were disappointed. See Doyle, supra note 10; Caroline Gooding, Blackstone’s Guide to the Disability Discrimination Act 1995 (London: Blackstone Press, 1996).
[47]The Architectural Barrier Act of 1968, Pub.L. No. 90-480, 82 Stat. 718 (codified as amended at 42 U.S.C.A. §§ 4151 – 4157 (2000)); the Rehabilitation Act of 1973, Pub.L. 93-112, 87 Stat. 355(codified as amended at 29 U.S.C.A. §§ 791, 793, 794(2000)); the Individuals With Disabilities Education Act (IDEA), Pub.L. 91-230, Title VI, April 13 (codified as amended at 20 U.S.C.A. §§1400 – 1485(2000)) which was enacted under another name (Education For All Handicapped Children Act) in 1975, the Voting Accessibility for the Elderly and Handicapped Act , Pub.L. 98-435, 98 Stat. 1678 (codified as amended at 42 U.S.C.A. §§ 1973ee –1 to 1973ee-6 (2000)), the Fair Housing Act Amendments Act of 1988, Pub.L. 100-43, Sept. 13, 1988, 102 (codified as amended at 42 U.S.C.A. §§ 3610 – 3614, 3614a (2000)).
[48] Loi 90-602 de 12 Juliet 1990.
[49] Penal Code as of 1995, Chapter 11, § 9 and Chapter 47, § 3.
[50] Law on Infringements and Penalties of a Social Nature, 1988.
[51] Penal Code of 1997, §§ 444 & 453 – 457.
[52] Disability Discrimination Act 1992, §§ 42 & 43.
[53] Discrimination Ordinance, 1995, § 47.
[54] The Training and Employment of Disabled Persons Act, 1996, § 18.
[55] Equal Rights for Persons with Disabilities Law, §§ 15 & 19 (d).
[56] Magna Carta for Disabled Persons, 1992, Title IV, § 46.
[57] The Persons with Disabilities Act, 1996, § 32.
[58] Disabled Persons Act, 1992, § 10 (c).
[59] Federal Constitution, as amended 1997 (Art.7).
[60] Constitution of the Federative Republic of Brazil, as amended 1993 (Art.7).
[61] Canadian Charter of Human Rights and Freedoms, 1982 (§ 15).
[62] Constitution as adopted in 1999 (§ 6).
[63] Constitution as of 1997 (§ 38).
[64] Draft of a Constitution for the Second Republic of Gambia of 1996 (§ 31). The draft was released for publication in 1997, but we have not ascertained for certain whether the Constitution has been adopted and is presently in force.
[65] Constitution as of 1992 (Art.29).
[66] Basic Law of the Federal Republic of Germany, as amended in 1994 (Art.3).
[67] Republic of Malawi (Constitution) Act 1994 (§20).
[68] Human Rights Act of 1993 (§ 21).
[69] Constitution, as of 1996 (§ 9).
[70] Constitution, adopted 1999 (Art.8).
[71] Constitution of the Republic of Uganda as of 1995 (Art.21).
[72] Fiji: § 38(2), South Africa: § 9 (3), Gambia: § 33, New Zealand: § 65.
[73] § 38(4).
[74] Brazil does so with respect to public employment, See Art.37 of that country’s Constitution.
[75] § 68 (2)(i).
[76] Art. 78 (1) (c )
[77] Personal communication with Mrs. Nayiga at an international human rights seminar for young disabled women in New York, 1-7 June 2000.
[78] Constitution, adopted in 1999, § 17. Though Portugal’s constitution has no anti-discrimination clause that explicitly includes disability, it should be mentioned here that the state’s obligation to protect and develop sign language was constitutionally enshrined in 1997 (Art. 74.2.h).
[79] § 6.
[80] § 14 establishes the right to an interpreter to any deaf party or witness in legal proceedings.
[81] This is probably because the Human Rights Act of 1993 is an entire statute that deals expressly with discrimination; the Constitution of New Zealand consists of several legislative acts.
[82] Bundesverfassungsgericht, decision of October 1996 – 1 BvR 1308/96 (case No.), Juristen Zeitung 1073 (1996).
[83] 163 U.S. 537.
[84] 349 U.S. 294 (1955).
[85] In the matter of Article 26 of the Constitution of Ireland and in the Matter of the Employment Equality Bill, Judgement of the Supreme Court May 1997; Re Article 26 and the Equal Status Bill, Judgement of the Supreme Court, May 1997 [both of these cases were Presidential referrals to the Supreme Court under the Irish Constitution]. See also Quinn, From Charity to Rights The Evolution of the Rights-Based Approach to Disability: International and Irish Perspectives in Access West: A Guide to Services, Supports and a Rights Based Perspective for People with Physical and Sensory Disabilities Living in the Western Health Board Region (Galway: Enable Ireland Galway & Western Health Board, 2001).
[86] Eldridge v. British Columbia (Attorney General) (1997), 151 D.L.R. (4th) 577 (S.C.C.).
[87] See: Vriend v. Alberta, [1998] 1 S.C.R. 493. For a more comprehensive analysis see: Bruce Porter, Beyond Andrews: Substantive Equality and Positive Obligations After Eldridge and Vriend 9(3) Const. F. 71 (1998); M. David Lepofsky, The Charter’s Guarantee of Equality to People with Disabilities – How Well Is It Working? 16 Windsor Y.B. of Access to Just. 155 (1998); Martha Jackman, “Giving Real Effect to Equality”: Eldridge v. British Columbia Attorney General) and Vriend v. Alberta, 4 Rev. of Const. Stud. 352 (1998).
[88] For example, Austria, Germany, The Netherlands, Portugal, Switzerland.
[89] Disability Discrimination Act of 1992.
[90] Canadian Human Rights Act, R.S.C. 1985, c. H-6.
[91] Act No 19.284 of 1994.
[92] Law 7600 on Equal Opportunities for Persons with Disabilities, 1996.
[93] The Rights of Disabled Persons to Employment, Proclamation No 101/1994.
[94] The Disabled Persons Act, 1993.
[95] Act for the Protection of Persons with Disabilities, Decree No. 135-96.
[96] Disability Discrimination Ordinance, 1990.
[97] Act No. XXVI of 1998 on Provision of the Rights of Persons Living with Disability and their Equality of Opportunity (hereinafter cited as Act No. XXVI).
[98] The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
[99] Employment Equality Act (1998), Equal Status Act (2000), and National Disability Authority Act (1999).
[100] Equal Rights for Persons with Disabilities Law, 5758 –1998 (hereinafter cited as ERPWDL).
[101] Act Relating to Employment Promotion, etc. of the Handicapped, Law No.4219 (1990) and
The Special Education Promotion Law, as amended 1994.
[102] Labour Code as of 29 September 1994.
[103] The Training and Employment of Disabled Persons Act, 1996 (Act No. 9 of 1996).
[104] Labour Act (1992).
[105] Nigerians with Disability Decree 1993.
[106] Magna Carta for Disabled Persons, 1991.
[107] Employment Equity Bill, 1998 and Skills Development Bill, 1998.
[108] Workers’ Charter of 1980.
[109] Protection of the Rights of Persons with Disabilities Act, No.28 of 1996.
[110] Law on the Prohibition of Discrimination Against Persons With Disabilities in Employment, SFS No: 1999 – 132, 1999.
[111] Disability Discrimination Act 1995 and Disability Rights Commission Act 1999.
[112] Americans with Disabilities Act of 1990, which needs to be read together with that country’s earlier disability discrimination laws, Supra note 47.
[113] The Persons with Disabilities Act 1996 (Act No.33 of 1996).
[114] Disabled Persons Act, 1992.
[115] Canada (Employment Equity Act, S.C. 1994-95, c. 44), Ethiopia, Ireland (Employment Equality Act), Korea (Act Relating to Employment Promotion, etc), Madagascar, Mauritius, Namibia, South Africa (Employment Equity Bill, 1998), and Sweden.
[116] §§ 3, 15, 22-30.
[117] §§ 5-10.
[118] §§ 11 – 20, 24, 25-29, 33-37.
[119] Title III, chapters I –III.
[120] §§ 4, 19, 22, 29, 30, 32-39, 40-47.
[121] Titles I –IV.
[122] Arts. 24, 31 & 55.
[123] Chapter VIII, §§ 44-47.
[124] Chapter VI, §§ 33-40.
[125] Chapter VI, § 33 (i)-(iii).
[126] Chapter VI, § 36.
[127] Act No.1678 on the Person with Disability (1985).
[128] Law of the People’s Republic of China on the Protection of Disabled Persons (1990).
[129] Decree No. 119101-S-MEP-TSS-PLAN, 1989.
[130] Act on Status and Rights of Patients (785/ 1992).
[131] The Welfare Law for Persons with Disabilities, Law No. 4179 (1989) and The Special Education Promotion Law, as amended 1994.
[132] Act No.202, Law for the Prevention, Rehabilitation and Equalization of Opportunities for Persons with Disabilities in Nicaragua (1995), See also Decree No. 50-97 (regulations).
[133] Family Law Code, Act No.3 (1994).
[134] Law on the Social Integration of the Disabled (1982).
[135] Title VII, § 38 (2).
[136] Chapter I, Art.3.
[137] Article 34.
[138] The general constitutional equality clause (Art. 17) does not cover disability, which is dealt with in a special provision (Art.29).
[139] With regards to public accommodations, goods and services (Title III).
[140] See Aart Hendriks, Disability as a Prohibitive Ground for Discrimination: Different Definition – Same Problems – One Way Out? in the present collection for an analysis of the issues raised by definitions of disability.
[141] § 107 (2) (b).
[142] § 9(2)(b).
[143] § 10(b)(ii).
[144] Art. 13(2).
[145] As found in various provisions, e.g. § 5 (2) and § 45.
[146] § 5 of the Employment Equity Act.
[147] As found in various provisions, e.g. § 12, 24 – 26.
[148] §§ 5 to 8.
[149] § 16(3)(b) of the Employment Equality Act (1988) and § 4(1) of the Equal Status Act (2000).
[150] § 8 (e).
[151] As found in several provisions, e.g.: §§ 29, 35, 43, 56, 60.
[152] Title II, chapters 1-7 (§§ 5-31).
[153] §§ 3 and 6.
[154] As found in various provisions, e.g.: §§ 6, 21, 32, etc.
[155] For instance, § 504 of the Rehabilitation Act, and Title I (§ 102), Title II (§ 202) and Title III (§ 302) of the ADA.
[156] §§ 7 and 9.
[157] Canada (Human Rights Act), Ghana, Ethiopia (very weak), India, Israel, Mauritius, Nigeria, Philippines, South Africa (Employment Equity Act, but specifically excluding quotas), Spain, Uganda, the U.S.A., Zambia, and Korea.
[158] The Nigerians with Disability Decree has provisions on the right to vote and the right to information (§ 13 and 12). The Magna Carta of the Philippines has provisions on the rights to vote, to assemble and to organise (§§ 29-31).
[159] Australia (§ 5), Canada (HRA, §§ 5-11), Fiji (Art.38), Germany (Art.3), Guatemala (Arts.35 & 44), Hong Kong (§ 6), Ireland (EEA, § 6 and ESA, § 3), Namibia (§ 107), Mauritius (§ 16), New Zealand (as found in various sections, e.g., §§ 22, 37, 42, 53, etc.), Philippines (§ 32), South Africa (Constitution, § 9), Sweden (§ 3), U.K. (§ 5) and Zambia(§ 19).
[160] France (Art.225-1), Luxembourg (Art.454), Ethiopia (§ 3), Uganda (Art.21(3)).
[161] Australia (§ 6), Fiji (Art.38), Namibia (§ 107), New Zealand (§ 65), the Philippines (§ 32), South Africa (§ 9), Sweden (§ 3 and 4), and Zambia(§ 19).
[162] Supra notes 145-156.
[163] Brazil, China, Costa Rica, Ghana, Guatemala, Israel, Nicaragua.
[164] Australia (§§ 35-40), Canada (HRA, § 14) Hong Kong (§ 7), Israel (§ 10), Sweden (§ 9), and U.K. (§ 55).
[165] §§ 12 & 13.
[166] Costa Rica (Law on Equal Opportunities: Art.4), Ghana (Constitution: Art.29(1)(4)) and Panama.(Art.520).
[167] For example, Brazil and Nigeria.
[168] In the authors’ opinion, the laws of the following countries can be read this way: Australia, Canada, Hong Kong, Hungary, the Philippines, USA and Zambia.
[169] See for example, § 302, Title III of the ADA, which details various aspects of what would constitute discrimination in the area of public accommodations.
[170] §§ 67 &113.
[171] §§ 26 & 48.
[172] §§ 20-25.
[173] Established by the Disability Rights Commission Act of 1999. This new body replaces the former National Disability Council that was established by the DDA, but was much weaker. See: Minty, Simon, Governance and Legislation: Introducing the UK Disability Rights Commission, 3 Disability World (2000) at http://www.disabilityworld.org/June-July2000/Governance/UKDisabilityRights.htm (visited 10 July 2000).
[174] Art.8.
[175] § 24.
[176] §§ 3, 9, 13. The disability movement in India is rather disappointed with the slow implementation of these provisions. See: Mohit, Anuradha, Governance and Legislation: Initiatives of the Government of India to Advance Asia & Pacific Decade of Disabled Persons 2 Disability World (2000) at http://www.disabilityworld.org/April-May2000/Governance/India.htm (visited 15 May 2000)
[177] § 14.
[178] §§ 4-6.
[179] §§ 3-7.
[180] Jari Korpi: Finland. In European Day of Disabled Persons 1995, Disabled Persons’ Status in the European Treaties: Invisible Citizens, Brussels 1995, 67-70.
[181] Statute of the Council of Europe, 5 May 1949, E.T.S. No. 1.
[182] Convention on Transfrontier Television, 5 May 1989, E.T.S. No. 132.
[183] Convention on Insider Trading, 20 April 1989, E.T.S. No. 130.
[184] This Partial Agreement dates back to Resolution (59) 23 of 16 November 1959 concerning “Extension of the Activities of the Council of Europe in the Social and Cultural Fields“. The membership of the Partial Agreement was increased in 1996: Resolution (96) 34, Authorising the States Concerned to Revise the Partial Agreement in the Social and Public Health Field, 2 October 1996.
[185] The political events of the late 1980s and early 1990s and the response of the Council of Europe are treated extensively in Denis Huber, A Decade which Made History: The Council of Europe 1989-1999, (Strasbourg: Council of Europe Pub., 1999).
[187] European Committee for Social Cohesion, Strategy for Social Cohesion, CM (2000) 92, 20 July 2000.
[188] See Partial Agreement Establishing the European Commission for Democracy Through Law (Venice Commission), adopted by the Committee of Ministers in Resolution 90(6) on 10 May 1990.
[189] The decision to establish such a post was taken at the Council of Europe’s Second Summit in October 1997. Mr Gil Robles (former President of the European Parliament) was elected by the Parliamentary Assembly in August, 2000 as the first and incoming Commissioner.
[190] 4 November 1950, E.T.S. No. 005.
[191] See Andrew Drzemczewski, A Major Overhaul of the European Human Rights Convention Control Mechanisms: Protocol No 11, in 6(2) Collected Courses of the Academy of European Law 126 (1997).
[192] Supra note 190, at Art. 46.2.
[193] See Gerard Quinn, Civil Commitment and the Right to Treatment under the European Convention on Human Rights, 5 Harv. Hum.Rts. J. 1 (1992).
[194] (24 October 1979), A-33.
[202] Conclusions Cycle I, p. 72 (1970). See generally Lenia Samuel, Fundamental Social Rights: Case Law of the European Social Charter 338-47 (Strasbourg: Council of Europe Pub., 1997).
[203] Id.
[204] Conclusions Cycle XIII-3, p.190 (1996).
[209] The preamble to the 1961 Charter reads in the relevant part:
Considering that the enjoyment of social rights should be secured without discrimination on grounds of race, colour, sex, religion, political opinion, national extraction or social origin . . . .
[210] See Council of Europe, the Revised European Social Charter and Explanatory Report (Strasbourg: Council of Europe Pub., 1996) and the Additional Protocol to the European Social charter Providing for a System of Collective Complaints and Explanatory Report (Strasbourg: Council of Europe Pub., 1997).
[211] 4 April 1997, E.T.S. No. 164.
[212] Id. Art. 17.2.
[213] International Covenant on Civil and Political Rights, supra note 13.
[214] For the text of the Code, see The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation 2 (George J. Annas & Michael A. Grodin eds., New York: Oxford University Press,1992).
[215] 26 November 1987, E.T.S. No. 126.
[216] 3rd General Report on the CPT’s Activities Covering the Period 1 January to 1 December 1992, CPT/Inf (93) 12, at ¶¶ 41-44.
[217] 8th General Report on the CPT’s Activities Covering the Period 1 January to 31 December 1997, CPT/Inf (98) 12.
[218] Id. at ¶ 27.
[219] Report to the Irish Government on the Visit to Ireland Carried Out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 31 August to 9 September 1998, CPT/Inf (99) 15, at ¶¶ 140-45.
[220] Response of the Irish Government to Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Ireland from 31 August to 9 September 1998, CPT/Inf (99) 16, Part C.
[221] See Patrick Thornberry and Maria Amor Martin Estebanez, The Council of Europe and Minorities (Strasbourg: Council of Europe Pub., 1994); and John Murray and Jan Niessan, The Council of Europe and the Protection of the Rights of Migrants, Refugees and Minorities (CCME Briefing Paper No. 13) (Brussels: Churches’ Commission for Migrants in Europe, 1993).
[222] Adopted by the Committee of Ministers on 17 September 1984.
[223] Adopted by the Committee of Ministers on 22 February 1983.
[224]Council of Europe, Parliamentary Assembly, III Documents, 29th Sess. (2nd Part), Report on the Situation of the Mentally Ill: Draft Recommendation Presented to the Committee on Social and Health Questions, prepared by Rapporteurs MM. Tabone & Voogd, Doc. No. 4014 (12 September 1977).
[225] Recommendation 818(1977), adopted 8 October 1977, at ¶13.I.i.
[226] White Paper on the Protection of the Human Rights and Dignity of People Suffering from Mental Disorder, Especially Those Placed as Involuntary Patients in a Psychiatric Establishment, CM(2000) 23 Addendum, 10 February 2000.
[227] Recommendation R (86) 18, adopted 4 December 1986.
[228] Recommendation R (99) 9, adopted 22 April 1999.
[229] Adopted by the Committee of Ministers on 17 March 1998.
[230] Council of Europe’s Higher Education and Research Committee, Explanatory Memorandum to Recommendation R (98) 3 at ¶21, in CM (98)28, Appendix IV, Draft Recommendation of the Committee of Ministers to Member States on Higher Education.
[231] Dec-7.5.99, adopted by the Committee of Ministers on 7 May 1999.
[232] Id., Art. 11.iv.
[233] 3rd European Conference on Family Law: Family Law in the Future: Proceedings [Cadiz, 20-22 April 1995] (Strasbourg: Council of Europe Pub., 1995).
[234] Group of Specialists on Incapable and other Vulnerable Adults, Report Prepared by Dr Eric Clive (CJ-S-MI, 21 January 1997).
[235] Committee on the Rehabilitation and Integration of People with Disabilities, Legislation on the Rehabilitation of People with Disabilities in Sixteen Member States of the Council of Europe (5th Edition, Strasbourg: Council of Europe Pub., 1993).
[236] See for example, S.C. van Stokkom, The Use and Usefulness of the ICIDH in the maintenance of People With Disabilities at home and in their Communities (1998) (Strasbourg: Council of Europe Pub.); H. Gardent, Use of the ICIDH in Relation to Elderly People (1997) (Strasbourg: Council of Europe Pub.); O. Sjogren, The Use and Usefulness of the ICIDH for the Education of Children with Impairments or Disabilities (1997) (Strasbourg: Council of Europe Pub.); D.W. Kraijer, The ICIDH in the Field of Mental Retardation (1993) (Strasbourg: Council of Europe Pub.); F. Chapireau, The Conceptual Framework of the ICIDH (1992) (Strasbourg: Council of Europe Pub.); etc.
[237] See The Use and Usefulness of the International Classification of Impairments, Disabilities and Handicaps (ICIDH): Proceedings, International Workshop, Strasbourg, France, 25-27 March 1996 (Strasbourg: Council of Europe Pub., 1999). Note the presentation made on behalf of the European Commission at that seminar which was strongly in favour of reform of the ICIDH.
[238] See generally The Evolution of EU Law (Paul Craig & Gráinne de Búrca eds., Oxford: Oxford University Press, 1999).
[239] See generally Alina Kaczorowska, EU Law Today, (London: Old Bailey Press, 1998).
[240] See generally Michelle Cini, The European Commission: Leadership, Organisation and Culture in the EU Administration (Manchester; New York: Manchester University Press, distributed exclusively in the U.S.A. by St. Martin’s Press, 1996).
[241] The informal grouping has produced some influential reports on the status of persons with disabilities in Europe: See for example, Committee on Petitions (Rapporteur Mary
Elizabeth Bannotti, MEP), Resolution on the Rights of Disabled People, PE 218.897/DEF 1996 (adopted 13 December 1996).
[242] See Penelope Kent, Ch. 5 The Supremacy of Community Law in Law of the European Union (London: Pitman Pub., 1996).
[243] See Craig & de Búrca, Supra note 238.
[244] For a general guide See Alexander Noble, From Rome to Maastricht: the Essential Guide to the European Union (London: Warner Books, 1996).
[245] See generally Lamy Betten and Nicholas Grief, EU Law and Human Rights (European Law Series) (London; New York: Longman, 1998).
[246] The two most recent reports were Leading by Example: A Human Rights Agenda for the European Union for the Year 2000 – Agenda of the Comite Des Sages and Final Project Report (Vienna: European University Institute, 1998), also available at http://www.iue.it/AEL/events.htm; and Affirming Fundamental Rights in the European Union: Time to Act – Report of the Expert Group on Fundamental Rights (Brussels: European Commission, 1999).
[247] 5 U.S. 137 (1803). In this case, the United States Supreme Court stated that the U.S. Constitution is the supreme law of the land, and the Supreme Court was the body with the final word on its interpretation.
[248] See Tamara K. Hervey, European Social Law and Policy (London; New York: Longman, 1998).
[249] See generally Andrew Evans, The E.U. European Structural Funds (Oxford; New York: Oxford University Press, 1999).
[250] Council Resolution of the Representatives of the Governments of the Member States of the European Communities Meeting with the Council of 21 December 1981 on the Social Integration of Handicapped People [1983-88], O.J. C347/1 (1981); 88/231/EEC: Council Decision of 18 April 1988 Establishing a Second Community Actio Programme for Disabled People (Helios) [1988-1992], O.J. L104/38 (1988); 93/136/EEC: Council Decision of 25 February 1993 Establishing the Third Programme to Assist Disabled People (Helios II 1993 to 1996), O.J. L56/30 (1993). For a comprehensive collection of these and other EU texts on disability See European Disability Law (Colección Solidaridad 8) (Santiago Munoz Machado & Rafael de Lorenzo eds., Madrid: Fundación ONCE; Escuela Libre Editorial, 1997).
[251] See for example, European Commission, Employment and Social Affairs, European Day of Disabled People 1999, Conference Report on Violence and Disabled People: Root Causes and Prevention (Brussels, 3 December 1999).
[252] An independent evaluation of the HELIOS II programme has been carried out: see The Evaluation of HELIOS II – Final Report (London: Tavistock Institute, 1997). See also Report from the Commission to the Council, the European Parliament, the Economic and Social Committee, and the Committee of the Regions on the Evaluation of the Third Community Action Programme to Assist Disabled People (HELIOS II 1993-1996) COM (98) 0015 FINAL (Brussels: 20 January 1998).
[253] 86/379/EEC: Council Recommendation of 24 July 1986 on the Employment of Disabled People in the Community, O.J. L225/43 (1986).
[254] See generally, Waddington, Supra note 7.
[255] Supra note 252 at ¶1.
[256] Resolution of the Council and the Ministers for Education Meeting within the Council of 31 May 1990 Concerning Integration of Children and Young People with Disabilities into Ordinary Systems of Education, O.J. C162/2 (3 July 1990).
[257] Id. at ¶2.
[258] Report of the Commission on Progress with Regard to the Implementation of the Policy of School Integration in the Member States (1988-1991), SEC/92/1891 FINAL (Brussels: 5 November 1992) [Com(92) 1981].
[259] Green Paper on European Social Policy – Options for the Union, COM (93) 551 (1993), at 48.
[260] White Paper: European Social Policy – A Way Forward for the Union, COM(94) 333 (1994), at 51.
[261] Id.
[262] Communication of the Commission on Equality of Opportunity for People with Disabilities – A New European Community Disability Strategy, COM (96) 406 FINAL (20 December 1996).
[263] Resolution of the Council and of the Representatives of the Governments of the Member States Meeting within the Council of 20 December 1996 on Equality of Opportunity for People with Disabilities, O.J. C012/1 Vol. 40 (13 January 1997).
[264] As an example of their output See Employment and People with Disabilities – Report of the Special Meeting of the High Level Group on Disability (Brussels, 15 October 1997); High Level Group on Disability Compendium on Member States’ Policies on Equality of Opportunity for People with Disabilities (October 1998).
[266] See European Commission A DG V Services Working Paper, Mainstreaming Disability within EU Employment and Social Policy (1998); European Commission Staff Working Paper, Raising Employment Levels of People with Disabilities: The Common Challenge, SEC (98) 1550 (Brussels: 22 September 1998); Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions: Towards a Barrier Free Europe for People with Disabilities COM(2000) 248 FINAL (Brussels: 12 May 2000).
[267] Two key documents are vital background reading in this regard; European Day of Disabled People1995, Disabled Persons Status in the European Treaties – Invisible Citizens; and European Day of Disabled People 1996, How Can Disabled Persons in the European Union Achieve Equal Rights as Citizens: The Legal and Economic Implications of a Non-Discrimination Clause in the Treaty on European Union. See also the following European Day Reports: Towards Equalisation of Opportunities for Disabled People – Into the Mainstream (1996); Disabled People – Consumers (1998); the theme of the 1999 European Day was violence against people with disabilities (see supra note 251).
[268] Reflection Group’s Report (Brussels: 5 December 1995).
[269] See generally The EU and Human Rights, Supra note 7.
[270] See Amsterdam: What the Treaty Means (Ben Tonra, ed., Dublin: Institute of European Affairs, 1997).
[271] Declaration (No. 22) Regarding Persons with a Disability, Declarations Annexed to the Final Act of Amsterdam.
[272] For an overview of the Commission package see generally, Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on Certain Community Measures to Combat Discrimination, O.J. C369/3 (Brussels: 26 October 1999).
[273] Council Directive 2000/43/EC of 29 June 2000, O.J. L180/22 (19 July 2000).
[274] Council Directive 2000/78/EC of 27 November 2000, O.J. L303/16 (2 December 2000).
[275] European Commission, Background Report – From Guidelines to Action: The National Action Plans for Employment (1998).
[276] Building the European Information Society for Us All: First Reflections of the High Level Group of Experts: Interim Report 33 (Brussels: European Commission, Directorate V, Employment, Industrial Relations & Social Affairs; Secretariat of the High Level Group of Experts, 1996).
[277] European Commission, Directorate-General for Employment, Industrial Relations & Social Affairs; European Social Fund – Policy Development; Adaptation to Industrial Change, Building the European Information Society for Us All: Final Policy Report of the High Level Expert Group 51 (Luxembourg: Office for Official Publications of the European Communities, 1997).
[279] Id. at ¶111.
[280] See Harnessing the Information Society to Raise Employment Levels for People with Disabilities – a new transatlantic Agenda Sponsored eu/us conference (Madrid, 26-27 October, 1998); the conference participants, program and conclusions are available at http://www.conf-us-ue-disability.org/frames.htm..
[281] Com (2000) 22.
[282] Id. at 13.
[283] Lisbon European Council, Presidency Conclusions – Preparing the Transition to a Competitive, Dynamic and Knowledge-Based Economy, 23-24 March 2000 at 3.
[284] Id. at 3: “Special attention [in the drafting of the Action Plan] must be given to disabled people”.
[285] Com (2000) 330, also at http://europa.eu.int/ISPO/docs/policy/docs/e_europe/actionplan_en.pdf.
[286] Id. at 17-18.
* Note that some of the names of the laws may not be the official name. Translation in some cases by the author (TD).