Disability Rights: International Law and Policy

Over 1 billion or around 15% of the total population in the world are having some form of
disability. Around 110-190 million people are facing major difficulties in functioning. 1
Disabled people were recognised as the world’s largest growing minority, but they remained
unnoticed in international human rights law until The Convention on the Rights of Persons
with Disabilities was adopted by the UN General Assembly in 2006.2 It has been seen that
People with disabilities were not even included in category of people to whom special
protection were given against discrimination in the post war instruments of human rights such
as International Bill of Rights (1948) and the European Convention on Human Rights. 3 It was
for the first time in Glor v. Switzerland (2009) when the discrimination on the basis of
disability has been recognised by The European Court of Human Rights.

Disabled people are often faced discrimination and difficulties in the enjoyment of their basic
rights and restricted from taking part in the society on an equal basis with other individuals.
A human rights perspective views people with disabilities as equal to non-disabled people
and extends the same basic rights to everyone without exception.

Universal Declaration of Human Rights paid a little attention to the disabled persons ‘rights.
The rights of the disabled persons may be read in the light of the articles of UDHR. Like
Article 7 states that “All are equal before the law and are entitled without any discrimination
to equal protection of the law. All are entitled to equal protection against any discrimination
in violation of this Declaration and against any incitement to such discrimination.” 4 and
Article 25 of the UDHR states “(1) Everyone has the right to a standard of living adequate for
the health and well-being of himself and of his family, including food, clothing, housing and
medical care and necessary social services, and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control. (2) Motherhood and childhood are entitled to special care
and assistance. All children, whether born in or out of wedlock, shall enjoy the same social
protection.”5 Moreover, the Preamble of the United Nations Charter affirms the dignity and
worth of every human being and promotes social justice. Persons with disabilities are de facto
entitled to all the fundamental rights upheld by the Charter6.

Various ‘soft’ as well as ‘hard’ laws enacted by United Nations, results in the shift to a
human rights perspective on disability. Some important developments are as follows-

 The Universal Declaration of Human Rights (1948)7,

1
World Health Organization, World report on disability, (2011), available at
https://www.who.int/teams/noncommunicable-diseases/disability-and-rehabilitation/world-report-on-disability
(Last visited on January 10, 2021).
2
Arlene S. Kanter, The Development of Disability Rights Under International Law: From Charity To Human
Rights, 29 (2017).
3
Id.
4
UN General Assembly, Declaration of Human Rights, 10 December 1948, A/RES/3/217A.
5
Id.
6
Id
7
Id
  Declaration on the Rights of Mentally Retarded Persons (1971)8,
 The Declaration on the Rights of Disabled Persons (1975)9,
 Declaration on the Rights of Deal Blind Person (1979),
 The International Year for Disabled Persons (1981)10,
 The World Programme of Action Concerning Disabled Persons (1982)11,
 Convention regarding Vocational Rehabilitation and Employment (Disabled Persons)
(1983), and
 The UN Standard Rules on the Equalization of Opportunities for Persons with
Disabilities (1993)12.

Even though, some of these are not legally binding and do not have legal force, still they have
been adopted by a large number of States and infer a strong commitment to take steps in
order to provide equal status to disabled people.

Many schooler and experts believed that a new convention was required to give status, right
and social acceptance to the rights of disabled people as the existing were not contributed
significantly to the concerned issue. In view of this, the UN General Assembly in 2001
passed a resolution to constitute an Ad Hoc Committee to consider proposals to protect or
promote the rights and dignity of disabled persons and hence, the UN Convention on the
Rights of Persons with Disabilities (CRPD) was adopted in 2006.

Under the Convention the parties are required "to promote, protect, preserve and ensure the
full enjoyment of human rights by persons with disabilities and to promote respect for their
inherent dignity".13 “The Convention is guided by the following principles:

 Respect for inherent dignity, individual autonomy including the freedom to make
one's own choices, and independence of persons.
 Treating disabled persons with equality and non-discrimination and making all efforts
to ensure the same.
 Promotion and the full realization of all human rights and fundamental freedoms for
all persons with disabilities without discrimination of any kind on the basis of
disability.
 Ensuring full rights to women and children with disabilities.
 Full and effective participation and inclusion in society.
8
UN General Assembly, Declaration on the Rights of Mentally Retarded Persons, 20 December 1971,
A/RES/2856(XXVI), available at: https://www.refworld.org/docid/3b00f04e5c.html [accessed 11 January 2021]
9
UN General Assembly, Declaration on the Rights of Disabled Persons, 9 December 1975, A/RES/3447
(XXX), available at: https://www.refworld.org/docid/3b00f1c18.html [accessed 11 January 2021]
10
Hachen, H. J. "International year for disabled persons 1981." Spinal Cord 19.2 (1981): 63.
11
UN General Assembly, Implementation of the World Programme of Action concerning Disabled Persons and
the United Nations Decade of Disabled Persons: resolution / adopted by the General Assembly, 14 December
1990, A/RES/45/91, available at: https://www.refworld.org/docid/3b00f1f67f.html [accessed 11 January 2021]
12
UN General Assembly, Standard rules on the equalization of opportunities for persons with disabilities:
resolution / adopted by the General Assembly, 20 December 1993, A/RES/48/96, available at:
https://www.refworld.org/docid/3b00f2e80.html [accessed 11 January 2021]
13
UN General Assembly, Convention on the Rights of Persons with Disabilities: resolution / adopted by the
General Assembly, 24 January 2007, A/RES/61/106, available at:
https://www.refworld.org/docid/45f973632.html [accessed 11 January 2021]
  Respect for difference and acceptance of persons with disabilities as part of human
diversity and humanity.
 Equality of opportunity.
 Accessibility
 Respect for the evolving capacities of children with disabilities and respect for the
right of children with disabilities to preserve their identities.
 Adoption of immediate, effective and appropriate measures to raise awareness
regarding persons with disabilities and to foster respect for the rights and dignity, to
combat harmful practices relating to persons with disabilities, fostering of the
education system, etc.
 Ensuring that every such being has the inherent right to life and shall take all
necessary measures to ensure its effective enjoyment by persons with disabilities on
an equal basis with others.
 Ensuring effective access to justice for persons with disabilities on an equal basis with
others.
 Ensuring that persons with disabilities enjoy the right to liberty and security of
person.”14

Specific rights that have been provided for under the Convention are freedom from torture or
cruel, inhuman or degrading treatment or punishment, freedom from exploitation, violence
and abuse protecting the integrity of the person along with liberty of movement and
nationality, freedom of expression and opinion, and access to information, respect for
privacy, rights to live independently and be included in the community, right to personal
mobility, right to education, health, habitation and rehabilitation, work and employment,
adequate standard of living and social protection, participation in political and public life,
participation in cultural life, recreation, leisure and sport.

There is an Optional Protocol to the Convention on the Rights of Persons with

Disabilities which allows its parties to recognize the competence of the Committee on the
Rights of Persons with Disabilities to consider complaints from individuals.

Certain other United Nations instruments also address the issue of disability. Article 1 of the
UNESCO Convention against Discrimination in Education guarantees equal access to
education of all types and levels and prohibits the limitation of any person or group of
persons to education of an inferior standard. The ILO Convention Concerning Vocational
Rehabilitation and Employment (Disabled Persons) recognises the rights of disabled
persons to appropriate training and employment not only in specialised institutions and
sheltered workshops but also in open labour markets and stipulates that employers and
workers organisations, together with Governments and organisations, together with
Governments and organisations of disabled persons share responsibility for helping disabled
persons to realise their rights.

14
UN General Assembly, Convention on the Rights of Persons with Disabilities: resolution / adopted by the
General Assembly, 24 January 2007, A/RES/61/106, available at:
https://www.refworld.org/docid/45f973632.html [accessed 11 January 2021]
As such these soft law instruments are non-binding in nature which means governments are
not bound to consider them while formulating policy or law However, some of these non-
binding instruments such as UDHR and Standard Rules have been accepted so widely that
they form a part of customary law meaning thereby that the practice of using the instruments
is very common.