International Norms and Standards For People With Disability. Comparative Analyses

Limited edition
International Norms And Standards For Persons With Disabilities
LLM. Zaneta Stojkova
INTERNATIONAL
NORMS AND STANDARDS
FOR PERSONS WITH DISABILITIES
Comparative Analysis
1
Title:
“International Norms and Standards for Persons with Disabilities
- Comparative Analyses”
Author:
LLM. Zaneta Stojkova
Published by:
Polio Plus - Skopje
For the publisher:

Zvonko Shavreski
Translated in English by:

Translating Agency ESP
Computer graphic design:

OZ - Dizajn, Skopje
Cover page designed by:

Keti Zarevska - Gurmishevska
Circulation:
Limited Edition
50 copies
Printed by:
Jugoreklam - Skopje
2
Traveller, there are no roads.

Roads are made by walking.
Spanish proverb
3
4
POLIO PLUS
-Movement Against Disability
LLM Zaneta Stojkova
INTERNATIONAL
NORMS AND STANDARDS
FOR PERSONS WITH DISABILITIES
Comparative Analysis
Edition “Justiciana”
Skopje, 2004
5
This publication is supported by the British Government through the British
Embassy in the Republic of Macedonia
This book was translated with support by
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ACKNOWLEDGMENTS
This work might have never been published without the unselfish
commitment of a number of people and organisations (which of course are
comprised of people, right).
Polio Plus wishes to express its heartfelt thanks:
To the British Government, which through the British Embassy in Skopje,
for years in roll, sincerely supports the combat of persons with disabilities in
executing their rights. They are also the biggest donors to the Inter Party
Parliamentary Lobby Group (IPPLG) activities and by that, of this
publication, as well.
To the Macedonia Centre for International Co-operation, Handicap
International and European Disability Forum, for their efforts in the
empowerment of disabled people organisations, exchange of resources and
information contributed towards the animation of the movement of people
with disabilities and articulation of their unified voice.
Special thanks to the experts who directly contributed to the preparation of
this analysis: Dijana Tafchievska, Slavko Koteski, Toni Dabeski, Marjan
Gavrilovski and of course, to M.Sc. Zaneta Stojkova, who “confronted” the
provided materials with supporting cases from practice and demonstrated to
the diligent team of Polio Plus how to work under pressure.
Last, but not least, many thanks to the core of this activity – to the deputy
members of the IPPLG for their selfless determination to dedicate their time,
knowledge and position to the promotion and improvement of the situation
of persons with disabilities in our country.
POLIO PLUS
- Movement Against Disability -
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INTRODUCTION
Warning!!!
Professor Stephen W. Hawking in his masterpiece “A Brief History of
Time”, where, in a very comprehensible way, he presented to the public the
biggest dilemma of theoretical physics, stated “Even if it means that I will
lose half of my readers I must say that E = m x c 2 “. Paraphrasing his
statement, we will say this: even if we discourage half of the true promoters
of disability rights, we have to call attention to the fact that disability is an
issue of rights and obligations, which in practice are regulated by legal
norms – or if you prefer, formulas.
Models and Groups – A Chain Connection
Disability, as a phenomenon, has followed human civilization from its
earliest beginnings until today. There is no doubt that this phenomenon, in
expectation of futuristic replications /cloning, will be topical for long. Every
civilization, community, culture, state, even individual has approached and
treated this phenomenon differently, providing some strange solutions, all of
which by default proved to be – ineffective.
Basically, all approaches towards disability through the history of human
kind can be divided into three large groups:
1. For the traditional approach, disability is a burden, imposed on the
community because of some of its members. The reasons are different and
mostly not understandable, and the solutions are generally found in the
rejection or isolation of the member who is the cause of the problem
This approach is so dispersed that it cannot be regarded as a model because
its understanding of disability floats from primitive Darwinism to religion
and demonology, then to ideology and finally to families as the first cell that
faces and later on absorbs disability as a phenomenon.
2. The medical model imposes a definition according to which disability
means a deviant health condition. Such a condition naturally, and above all,
needs medical treatment. For the followers and promoters of this approach
(most often people from the medical profession or parents who cannot
comprehend the fact or understand the situation they are in) disability is
some kind of disease, and just like any other disease, it can be treated. The
beginnings of this approach started in the golden age of the Arab Caliphates
when, for the first time, people with disability, instead of being treated
according to the traditional approach, were subjected to treatment and cure.
9
Introduction Notes
Western civilization was behind them by almost a whole millennium, but

even so, stray wanderings off the point were evident (placements in isolated
monasteries, hospitals in shipwrecked ships on the rivers Thames and Seine,
islands for lepers and mentally retarded people, and so on).
3. The social model is sill in its primary phase and is difficult to be defined
and distinguished. New civil movements from the beginning of the ’60s
strongly influenced the development of this approach, and since the mid ’70s
it has achieved its form and dedicated followers. The autochthonic nature of
these attempts deserves to be marked as the last civil movement where
disability is plainly a social issue and location of the problem is not within
the individual (the person with disability), but within the society.
The followers and promoters of this model most often belong to one of these
three groups. The first is the group of members of the families of the
disabled people or their independent supporters whose leading motivation is
charity. In the second group are the human rights protagonists who put the
accent of their activities on providing a legislative frame for dignified life
and equal opportunities for people with disability, hoping that insisting on a
legislative framework will provide a suitable environment for rapid change
in the mentality of the whole community. In most of the cases the third
group encompasses people with disability (seldom their nearest and dearest),
who due to their education and financial independence (outcome and benefit
from the previous groups) become self-reliant and fully aware of their
abilities and disabilities. Their request is that they should be given the same
equal opportunities as everyone, (hypothetically speaking the “healthy”
population), and that for everything else they should be left to make it on
their own. The biggest problem is that their demands are very often rather
extensive and what is even more important (and more difficult) - they want
that here and now!
To date, there is no generally accepted definition of disability. Therefore,
the biggest “disability” of this comparative analysis from its very beginning
is in its “inability” to define the scope of its interest.
Disability in its essence (regardless of all its definitions) is a physiological
phenomenon (physical or mental), which results in the inability to carry out
certain activities (in general or in a normal, everyday fashion). That inability
on the other hand produces rejection (by the environment), frustration
(personal or from those closest), or development of some other ability, so
called capability (in a vulgarised economical term – compensation).
Disability is, crudely put, very much like pornography. It is hard to define,
but very easy to recognize, especially if you experience it with your own
10
skin. Anyway, as it is, disability, realistically speaking, is a real challenge

not only for the disabled person, but also for his/her nearest and dearest and
for the community as a whole.
About the idea for this analysis
In Republic of Macedonia, until it became independent, the socialist state

was responsible to take care of people with disabilities (in fact, for
everything else). This care was strongly based on the medical model and
resulted in excessive institutionalisation and instruction. After becoming an
independent state, the situation in Macedonia became even worse. The
caretakers were impoverished and persons with disabilities were faced with
increasing erosion of their previously acquired rights. New legislation on
rights and benefits was not even taken into account.
At the beginning of the new Millennium, under the influence and pressure of
the organisation of persons with disabilities, there has been a slight
improvement of the status of persons with disabilities and the community
has shown sensibility and awareness of their situation. This resulted in a kind
of offensive of the disabled people organisations and their supporters to
initiate the creation of a new and modern legal frame, which in a systemic
way will regulate the legal status of persons with disabilities.
Within this context, one of the most important moments was the establishing
of the Inter-Party Parliamentary Lobby Group (IPPLG) in May 2003 – the
European Year of Persons with Disabilities. The initiative for establishing
the IPPLG was undertaken by the association Polio Plus, but later on, it was
joined by all organisations of persons with disabilities. They are included in
the IPPLG work through its Technical and Advisory Committees. The
IPPLG programme of action received financial support from the British
Government and the Macedonian Centre for International Co-operation
(MCIC), and provoked huge interest and media support from all Macedonian
informative mediums. This opened lobby group is comprised of (19)
members - deputies coming from every political party in the Parliament of
the Republic of Macedonia who, by their own free will, demonstrated
commitment to fight, before all, for legal systemic regulation of legislation
pertaining to persons with disabilities. At this point it is important to note
that apart from the European Parliament Disability Inter-group, up to date
there is no such organised body in any of the European countries. The Lobby
group in its Long-term Action Plan, put as its final goal enactment of a
Systemic Law (lex generalis), which will be the basis for making special
laws (lex specijalis) and will incorporate elements for protection and
implementation of the enacted norms. In adopting a strategy that will lead
11
Introduction Notes
us to such a systemic solution, the necessity for serious comparative analysis

on the international norms and standards, that is, on the global situation and
the achievements in this field imposed in itself. Therefore, this analysis
(which does not tend to be comprehensive, but only expedient) is the first
phase on the road to the so-called Systemic Law. It will be followed by
another analysis (compendium) on the domestic legislation pertaining to
issues relevant and important for persons with disabilities in Macedonia.
Next year a Draft Systemic Law (with comments) will be made and given
for public debate, after which it will be presented to the Government. We
expect this Draft Law to be in front of the Parliament at the beginning of
2006.
About the Analysis
During 2004, extensive research was made for this comparative analysis.
This analysis comprises the previous experience and resources of Polio Plus
as a member of the European Disability Forum (EDF) and Disabled People
International (DPI). It also incorporates the position of a number of experts
from Macedonia and the Region. In the end, M.Sc. Zaneta Stojkova shaped
all these materials into a comparative analysis with supporting cases from
practice.
This analysis is divided into four closely related integral parts:
1. The first part, named “Basic characteristics of the rights of persons with
disabilities”, refers to legislative processes as mechanisms for social control,
legal remedies, due process of law and legal assistance, and provides special
overview on the obligations and responsibilities of the states. The process of
conveying a vision into a concrete policy and programme of action is
individual and differs from one country to the next, regardless of their status
of being developed or developing countries. In that respect, the principle of
equal protection before the law, the legal remedies and the additional
measures that states can undertake represent a basic starting point for
improvement of the situation of persons with disabilities.
2. The second part provides an overview at a universal level on the
international norms and standards adopted under auspice of the UN, as well
as other regional systems, like in Europe (with comprehensive overview on
the Council of Europe and EU legislation), but also those in America, Africa,
Asia and the Pacific, including the Middle East. This part also gives practical
information, which would approximate the efforts of the international,
national and local communities towards the goals of the international
12
standards for human rights that address persons with disabilities, and
provides identification of barriers in the implementation of these rights.
3. Part three is dedicated to “individual rights and freedom” and gives
special emphasise to the individual civil and political rights, as rights that are
exercised per se, (by the individual’s very existence). Strong accent is given
to economic, social and cultural rights, which, unlike the former, represent
readiness and possibility of the state to ensure exercise of these rights also
for persons with disabilities.
4. The fourth part sheds more light on those special groups, which, besides
their disabilities, are subject to multiple discriminations, such as women,
children or refugees with disabilities.
Finally, for those who wish to have deeper insight into this matter, there is a
comprehensive bibliography, which for this occasion was at our disposal,
and one small but useful glossary of terms and legal institutes that will
facilitate all interested readers to use this book, regardless of their previous
legal knowledge.
Momentum
A careful reader will notice that the documents which are referred to in this
analysis, and are of an earlier date, operate with terms like “or any other
status”, while those produced later explicitly address persons with
disabilities or disability as a basis. This means that disability as a basis and
issue of legal operation is an entirely new moment both in international and
national legislations.
This analysis is also a new moment for Macedonia and for the Region as
well. We hope that the material offered in this book will initially serve its
main purpose, but will also be the basis for further development of this
process.
And finally, there is another important moment. In the UN, the process of
enactment of a Universal Declaration on the Rights and Dignity of Persons
with Disabilities is currently ongoing. In January 2005 the Ad Hoc
Committee will hold its fifth session, and it is very likely that by the end of
the following year (2005), the General Assembly will adopt this Convention
(it will be the seventh Convention in the history of the UN). I sincerely
believe that this comparative analysis will urge the process of its ratification
and incorporation into the Macedonian legislation.
Skopje, Zvonko Shavreski
25.11.2004
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14
When I go to a country, I do not ask

whether there are good laws, but are they
enforced, as good laws are everywhere.
- Montesquieu
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PART ONE
BASIC CHARACTERISTICS OF THE RIGHTS OF
PERSONS WITH DISABILITIES
Introduction
Although human rights are regulated on an international level, the states are
the key protectors and promoters of those rights. The process of conveying a
vision into a concrete policy and programme of action is individual and
differs from one country to another regardless of their status of being
developed or developing countries. In that respect, the principle of equal
protection before the law, the legal remedies and the additional measures
that states can undertake represent a basic starting point for improvement of
the situation of persons with disabilities.
For that reason, the subject of Part One of this comparative analysis is the
particular responsibilities of the states. This part is divided into three
chapters. Chapter I is related to the legislative processes as mechanisms for
social control. This chapter treats in detail the principle of equal protection
before the law, and within that frame the prohibition of discrimination and
affirmative action. In addition, it gives a comparative overview on laws
against discrimination of persons with disabilities on a global level,
emphasising the wide diversity of different legal approaches. Chapter II is
dedicated to legal remedies for protection against rights violation, that is, to
due process of law, locus standi, legal assistance before the national courts
and finally to positioning of the regular national courts. Chapter III refers to
obligations and responsibilities of the states. It highlights a number of
measures that the states undertake with the view to improve the status of
persons with disabilities. These measures include collection of statistical
data, society awareness raising, policy-making and planning, and personnel
training at all levels. Finally, there is a short overview about the role of the
Ombudsman, National Coordinating Commissions, Non-Governmental
Organisations, Special Rapporteurs and National Councils or Agencies.
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Basic characteristic of the rights of persons with disability
Chapter I
The Legislative Process
One of the dominant features of jurisprudence in the 20th century, which
continues in the 21st century, has been the recognition of law as a tool for
change. An important feature of an effective legal system is its capacity to
reflect the changing needs and demands of a society in which it operates.
Although legislation is not the only means of social control, it definitely is
one of the most powerful vehicles of change and development. Continuous
law making becomes a natural response of a developing legal system to new
challenges and needs. Today, almost every area of national legislative
concern is affected in one way or another by international legislation on
human rights. However, although the international framework of rules and
standards is important, the importance of national legislation, as fundamental
link in the fulfilment of the international law should not be disregarded.
1. Principles of Equal Protection Before the Law
The principle of equality before and under law is a fundamental human right,
which is to be treated equally in accordance to our human nature. This right 1
is based on one fundamental characteristic of human nature, that is, human
beings as individuals have equal inner values, in themselves, not outside in
some other values, and are aims for themselves. Further on, civil and
political equality does not exclude eo ipso the category of different
treatment, however, it has to be based on determination of its necessity in
certain situations with respect to reasonability, procedure, justice and right.
By that, this right is defined as relative or basic equality, which for its own
realisation needs additional different treatment for different reality.
Prohibition of discrimination and affirmative actions are two polarities of the
range of rights, that is, of the action of implementing the law on human
1
There are three theories for equality: the first theory is about strictly equal treatment; the
second one implies equal treatment with exception to biological differences; the third theory
can be called: treatment in accordance with all essential differences. The problem with this
last theory is that it is difficult to maintain the necessary balance between legal equality and
different group rights. For details see: R. Graycar and J. Morgan, The Hidden Gender of Law,
Federation, 1990; Elizabeth A. Sheeny, Personal Autonomy and Criminal Law, CAC,
Toronto, 1987; M. Gaudron, Equal Rights and Anti-Discrimination Law, The Sir. Richard
Blackborn Memorial Lectures, 1992, Academy of Science, Canberra, Australia.
18
rights. Prohibition of discrimination is the bottom line of the principle for

equal protection before the law – equal effect of the laws for all. Without its
existence, we cannot talk about legal equality or about liberal equality and
democratic political systems in general. It is conditio sine qua non for the
rule of law and human rights. On the other hand, the institute affirmative
action of the state 2 is the other polar range of the principle for equal
protection before the law in de facto the unequal world of modern civil
society. In that respect, it is a paradox that affirmative principles serve the
principle of equal protection before the law by introducing temporal,
singular and case - restricted inequality of rights. Therefore, affirmative
actions should be looked upon as instruments for achieving the principle of
real or more effective equal protection under the law and lessening the gap
between the “normative and actual”.
1.1. Prohibition of Discrimination
The legal definition of discrimination implies differentiation in treatment of

an individual, which in itself includes unreasonable qualifications and
exclusions within a given legal context3. Discrimination can be direct or
indirect. Direct discrimination appears when clear legal or practical
differences and different standards for groups or persons are set, differences
that do not correspond with the principle of justice and reasonability.
Indirect discrimination is a much more complex problem, and is related to
practice when differences in result or outcome are produced by
implementation of such equality rules, which cannot be assigned as personal
abilities to persons concerned4.
Although the term prohibition of discrimination is created for protection and
as a guarantee for equality of all before the law, it does not provide for
absolute equality, but is more related to relative equality. The term relative
equality implies that it is just to treat the equal equally, the different
2
Affirmative actions of the state are known as positive or reverse discrimination, special
measures, benign discrimination, and transitional or preferential measures. For details, see
Lj.D. Frchkoski, International law on Human Rights, Magor, Skopje, 2001, page 56-68.
3
For details, see Minority Rights Group International, 1993/95, Manchester Free Press, UK
12, 13, Asbjorn Eide; article 14 and Protocol No. 12 from European Convention for
protection of Human Rights and Fundamental Freedoms, http://www.coe.int .
4
Indirect discrimination is mentioned for the first time in the verdict passed by the USA
Supreme Court in Griggs v. Duke Power Co, 1971, which states that the educational standards
prevent coloured people from employment in certain public sectors.
19
differently. This means that it is connected with inequalities and differences

when they are just and committed to provide reasonable treatment of an
individual.
1.2. Affirmative actions
The institute affirmative action in legal terms acts for singular, temporary
restricted action of the state aiming to provide supportive possibilities for
realisation of certain rights of individuals or groups which they themselves
are not able to exercise because of different social, physical or political
disabilities. The ultimate goal of this institute is to decrease the difference
between the formal and the actual equality, and not to create new rights for
some as privileged rights bearers.
The most important critical point in implementation of this legal instrument
is the question of what criteria are to be used in measuring the equality of
possibilities and the goals that are to be achieved.
2. Disability Discrimination Laws: A Global Comparative

Approach
On a national, domestic level, disability laws in many countries underwent

significant changes during the last few decades. At present day, 44 out of
189 UN Member States have adopted some kind of anti-discrimination laws
for persons with disabilities. The laws in these forty- four countries differ to
a great extent with respect to scope, concept of discrimination and equality,
protected groups, enforcement, and other aspects. Some laws define
disability-based discrimination and clearly prohibit these acts of
discrimination; others leave the question of what constitutes discrimination
to the courts or other monitoring bodies. Some laws uphold the principle of
equality but entail no clear picture of what needs to be changed in the society
in order to reach this goal.
While these questions are often dealt with in separate regulations amending
the act, the language and the structure of the statute may reveal its legislative
intent. Some laws give the impression that although they contain some anti-
discrimination language, they are rather a social welfare law fostering
programs that are not necessarily aimed at complete social equality and
integration of persons with disabilities.
20
However, it is important to notice that disability discrimination law is truly a

new development in disability policy around the world. These laws legally
manifest the shift in paradigm from the medical model to the social model of
disability. To legally treat disability as a discrimination category implies the
recognition that persons with disabilities are persons with rights, not
problems. Some of these anti-discrimination laws are strong; others appear
to be 'toothless tigers.'
Often domestic disability organisations fought very hard for equality laws
and were not satisfied with the act that was finally passed by their
legislators. The history of US discrimination law tells us that the legislative
battle for equality is long, and more than one statute needs to be passed by
the legislator to 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 and at least five federal disability discrimination acts5 were passed
by the Congress.
2.1. A Wide Diversity of Different Legal Approaches
Discrimination laws are not the only route to equality for persons with
disabilities. This is just one rights-based approach taken by many states
around the world today. Those States, which have passed some kind of
disability discrimination law, today have chosen different legal approaches.
Four different legal approaches can be distinguished. Anti-discrimination
provisions for protection of persons with disabilities are regulated in (a)
criminal law, (b) in constitutional law, (c) in civil law, and (d) in social
welfare laws.
2.1.1. Criminal Law
France,6, Finland7, Spain8 and Luxembourg9 prohibit discrimination against
persons with disabilities in their criminal laws. The Spanish law prohibits
5
See: The Architectural Barrier Act of 1968, 42 U.S.C.A. §§ 4151-4157; The Rehabilitation
Act of 1973, 29 U.S.C.A. §§ 791,793,794; The Individuals With Disabilities Education Act
(IDEA), 20 U.S.C.A. §§ 1400-1485 (enacted under another name “Education For All
Handicapped Children Act” in 1.975); The Voter Accessibility Act as of 198442 U.S.C.A. §§
1973ee, 1973ee-1 to 1973ee-6, the Fair Housing Act as amended in 198842 U.S.C.A. §§
3610-3614, 3614a
6
See Loi 90-602 de 12 Juliet 1990
7
See Penal Code as of 1995, Chapter 11(9) and Chapter 47 (3)
8
See Art. 314 Criminal Code (Organic Law 10/1995, 23rd November)
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disability- based discrimination regarding recruitment or in the course of

employment if the worker with disability is capable to do the job.
Luxembourg and France outlaw disability-based discrimination in
employment, business activities and in provision of goods and services to the
public. The punishment is imprisonment of maximum two to three years or a
fine. The Finnish Penal Code punishes employment-related discrimination
and discrimination with respect to goods and services for the public.
Other states, which have adopted not criminal but civil or social law statutes
regarding disability discrimination, also provide for criminal or
administrative penalties within these civil or social laws. For instance, the
Australian Discrimination Statute sanctions incitement of unlawful
discrimination or harassment as an offence punishable with six months
imprisonment or a fine. Victimization of a person who exercises his or her
rights under the act is also declared an offence10. Similar provisions are in
the Hong Kong Discrimination Ordinance. 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 two years
imprisonment.
The law of Mauritius sanctions certain violations of the anti-discrimination
rules with a criminal or administrative fine11. The same is true for the
respective acts of Israel12, the Philippines13, Zambia14and Zimbabwe 15
2.1.2. Constitutional Law
Several countries have constitutional anti-discrimination provisions that

explicitly cover disability. These are Austria16, Brazil17, Canada18, Finland18*,
Fiji19, Gambia20, Ghana21, Germany22, Malawi23, New Zealand24, South
9
See Sec. 454- 457 Criminal Code as modified in 1997
10
See Disability Discrimination Act 1992, Sec.42 and 43
11
See The Training and Employment of Disabled Persons Act, 1996, Sec. 18).
12
See Equal Rights for Persons with Disabilities Law, Sec.15 and 19( d).
13
See Magna Carta for Disabled Persons, 1992 Title IV Sec.46. 20 The Persons with
Disabilities Act, 1996, Sec. 32
14
See Draft of a Constitution for the Second Republic of Gambia of 1996 (Sec.31). It is not
certain that the Constitution has been adopted yet. The draft was released for publication in
1997. 28 Constitution as of 1992 (Art.29)).
15
See Persons with Disabilities Act, 1992, Sec. IO(c)
16
See Federal Constitutional Law as amended in 1997 (Art.7)
17
See Constitution of the Federative Republic of Brazil, as of 1993 (Art.7).
18
See Charter of Human Rights of Freedoms, Constitution Act 1982.
18*
Constitution as amended in 1995 and in 2000 (Sec.6).
19
See Constitution as of 1997
22
Africa25, Switzerland26 and Uganda27. These clauses generally prohibit

(negative) discrimination of persons with disabilities without defining what
exactly constitutes discrimination. Some equality clauses mention direct and
indirect forms of discrimination28. Exceptionally broad is the equality clause
of Fiji's constitution, which covers unfair direct and indirect discrimination
and in addition states: 'Every person has the right of access, without
discrimination on a prohibited ground [such as disability] to shops, hotels,
lodging-houses, public restaurants, places of public entertainment, public
transport services, taxis and public places.'
The constitutions of Austria, Brazil, Canada, Germany, Ghana, Malawi,
South Africa, Switzerland and Uganda also enable or entrust the legislature
to take affirmative action to combat disability discrimination. Affirmative
action means preferential treatment in the form of quotas or other means of
positive discrimination. Affirmative action thus targets structural
discrimination, which is one of the major obstacles to the equalization of
opportunities for persons with disabilities.
In the employment area, many states have introduced quotas for
advancement of persons with disabilities. Employers have the duty to hire a
certain percentage of disabled workers in many countries. Initially, these
employment quotas, when introduced into disability policy after World War
II, were classical welfare measures. They were founded on the idea that
people with disabilities cannot compete in the real world.
With the rise of civil rights movements in the context of race and gender,
quota policies became a new equality related meaning. This in turn has
influenced quota schemes in the disability field. In this respect, it is
interesting to note that some of the constitutions referred to above
(Constitution of Brazil, Art.37 with respect to public employment) provide
for quota schemes in the field of employment, whereas others provide for
quotas in the area of political representation. For example, the constitution of
Malawi provides that the Senate, which is a legislative body, shall include
20
See Draft of a Constitution for the Second Republic of Gambia (1996)
21
22
See Basic Law of the Federal Republic of Germany as amended in 1994
23
See Republic of Malawi (Constitution) Act 1994
24
See Human Rights Act 1993
25
26
27
28
See Fiji: Sec. 38(2), South Africa: Sec. 9( 3,4), Gambia: Sec. 33, New Zealand: Sec. 65
23
representatives of various interest groups, among them disability groups

(Sec. 68 (2))
Similarly, the constitution of Uganda requires that the parliament shall
consist of a certain number of representatives of persons with disabilities
(Art.78 (1) (v)). Meanwhile, the Ugandan Parliament has five seats reserved
for representatives from the disabled community, and the first Minister for
disability (and women and the elderly), Mrs. Florence Nayiga Sekabiro is a
person with disability.
Based on the affirmative action clause of the Constitution, Uganda's
legislators passed several acts to increase the representation of people with
disabilities in the public sector. An example is the Local Government Act of
1997, according to which a certain number of seats in elected political bodies
at all levels are allocated to people with disabilities. As a result, more than
2,000 elected officials have disabilities 29 of any kind, from the parish to the
district level.
Another interesting feature of those constitutions that have been amended to
include disability in the prohibition of discrimination is that they recognize
the right to use sign language. Finland (Sec.17), South Africa (Sec.6) and
Canada (Sec.14 entails the right to an interpreter to any deaf party or witness
in legal proceedings) have such provisions in their constitutions.
Constitutional anti-discrimination clauses seem to have more effect than
criminal anti-discrimination clauses in transforming society. Since in most
countries the constitution is the highest law of the state, constitutional
amendments receive more public attention and may render lower law
unconstitutional and void. Constitutional amendments also have to be
followed by the judiciary and thus may lead to reform in disability case law.
Yet, there are several reasons why Constitutional disability discrimination
laws have limited effects. First, depending on the legal system, some
constitutions give no substantive rights to citizens, which means that a
person with disability may not invoke the anti-discrimination clause in court.
Second, constitutional rights are applicable only in public or so-called
vertical law. Constitutional provisions protect persons with disabilities
against discrimination by state entities, not by private employers or private
providers of goods and services. Finally, constitutional provisions tend to be
broad and vague. Neither disability nor discrimination is defined in any of
the constitutional provisions except for the constitutional law of New
29
These numbers were given by Nayiga Sekabiro at the international human rights seminar
for young disabled women in New York, 1-7 June 2000
24
Zealand. This leaves vast discretion to the courts. Court rulings are very
much determined by the 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 a decision of the Federal Constitutional Court in 1996. In
a case filed by a girl, a wheelchair user, who was denied access to a regular
school, the Court decided that the constitutional anti-discrimination clause
was not violated by the school authorities. The reasoning of the German
Federal Constitutional Court is reminiscent of a case that was decided more
than 150 years ago by the US Supreme Court and upheld racial segregation
in schools.
Like in the court case Plessy v Ferguson30 from 1896, the German Court
reasoned that educational segregation of children with disabilities is not
discriminatory because it is separate but equal. The separate but equal clause
of Plessy was struck down in the US in 1954 with the groundbreaking
decision of Brown v. Board of Education of Topeka 31 in which the Supreme
Court finally acknowledged that separate educational facilities in the context
of race are inherently unequal.
The German Federal Constitutional Court, however, was very reluctant to
consider the exclusion from education in the context of discrimination.
While it acknowledged that it would be discriminatory if a student with
disability who did not need any accommodations or special services was
denied admission, the Court was unwilling to include students with
disabilities who need ramps, lifts, sign language interpreters, alternative
reading formats or any kind of special education services. Thus, the medical
model of disability was reinforced by this first decision on the new German
anti-discrimination clause for persons with disabilities.
While these shortcomings of constitutional anti-discrimination provisions
might lead to a conclusion that constitutional amendments are useless, the
example of Ireland proves the opposite. Because the equality clause in the
Irish Constitution of 1937 is exceptionally weak, the Irish Supreme Court
struck down two pieces of discrimination legislation in 1997, which, among
others, also covered disability. The court found that the statutory
requirement to engage in reasonable accommodations violated the property
30
See: 163 U.S. 537 (1896).
31
See: Brown v. Board of Education of Topeka, 349 U.S. 294 (1955).
25
rights of employers32. The laws had to be redrafted and modified with

respect to disability. Thus, constitutional amendments might serve as an
important foundation for statutory anti-discrimination laws.
Finally, a positive example of how to interpret rather vague constitutional
equality clauses was given by a 1997 decision of the Supreme Court of
Canada. In Eldridge v. British Columbia33, the plaintiffs brought their case
before the British Columbian Supreme Court because the province (the local
community) 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 Charter, 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 the equality
clause violated. By interpreting the equality clause in a way which
recognizes that certain groups may need some accommodation in order to
enjoy equality, Eldridge at least opens the possibility provided in Sec. 15 of
the Canadian Charter which 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 open the issue of
positive obligations under the equality clause34.
32
In the matter 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. See G Quinn, From Charity to Rights -The
Evolution of the Rights-Based Approach to Disability: International and Irish Perspectives,
CPI Handbook of Services (Dublin, 2000), available at:
http://www.enableireland.ie/accesswest/intros/essayindex.html
33
See: Eldridge v. British Columbia (Attorney General) (1997) 151 D.L.R. (41&) 577
(S.C.C.).
34
Vriend v. Alberta [1998] 1 S.C.R.493. For more comprehensive analysis see: B Porter,
Substantive Equality and Positive Obligations After Eldridge and Vriend, (1998) 9/3 Forum
Constitutional 71-82; DM Lepofsky, The Charter's Guarantee of Equality to People with
Disabilities- How well is it working?, (1998) 16 Windsor Yearbook of Access to Justice 155-
214; M Jackman, Giving real effect to equality: Eldridge v. British Columbia (Attorney
General) and Vriend v. Alberta, (1998) 4/2 Rev of Constitutional Studies 352-71.
26
2.1.3. Civil Rights 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, among which Austria, Germany, Netherlands, Portugal and
Switzerland are about to follow this path. Countries with civil rights oriented
disability discrimination laws are Australia (Disability Discrimination Act,1992)
, Belgium35, Canada36, Chile37, Costa Rica38, Ethiopia39, Finland40, Ghana41,
Guatemala42, Hong Kong (Disability Discrimination Ordinace,1990),
Hungary43, India44, Ireland45, Israel (Equal Rights for People with Disabilities
Law,5758-1998), Korea46, Madagascar47, Mauritius48, Namibia49,
50 51
Netherlands , Nigeria , the Philippines ( Magna Carta for Disabled Persons,
1993), South Africa52, Spain53, Sri Lanka54, Sweden55, the UK56, the USA
(Americans with Disabilities Act, 1990 which needs to be read together with other
disability discrimination laws enacted earlier), Zambia (The Persons with
35
See Act to Combat Discrimination and to Amend the Act of 15 February 1993 to Establish
a Centre for Equal Opportunity and to Combat Racism
36
See Canadian Human Rights Act, R.S.C. 1985, c. H-6
37
See Act No 19.284 of 1994).
38
See Law 7600 for Equalization of Opportunities for Persons with Disabilities,1996
39
See The Rights of Disabled Persons to Employment, Proclamation No 101/1994
40
See Chapter. 2 Sect.1 Employment Contracts Act (55/2001)
41
See The Persons with Disabilities Act of 1993
42
See Act for the Protection of Persons with Disabilities, Decree No.135-96, 1996
43
See 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)
44
See The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995
45
See Employment Equality Act of 1998, Equal Status Act of 2000 and National Disability
Authority Act (2000)
46
See Act Relating to the Employment Promotion, etc of the Handicapped, Law No,4219
(1990) and The Special Education Promotion Law,1994
47
See Labour Code as of2 9 September 1994
48
See The Training and Employment of Disabled Persons Act (Act No.9 of 1996)).
49
See Labour Act as amended in 1992
50
See Act of 3 April 2003 to establish the Act on the Equal Treatment on grounds of
Disability or Chronic Illness
51
See Nigerians with Disability Decree, 1993
52
See Employment Equity Bill 1998 and Skills Development Bill of 1998
53
See Statute of Workers' Rights (Royal Legislative Decree 1/1995 24th March)
54
See Protection of the Rights of Persons with Disabilities Act, No.28 of 1996
55
See Prohibition of Discrimination Against Persons With Disabilities in Employment Act,
SFS No: 1999- 132, 1999
56
See Disability Discrimination Act 1995 and Disability Rights Commission Act 1999
27
disabilities Act,1996 Act.No.33 of 1996) and Zimbabwe (Disabled Persons

Act,1992).
With exception of the law of Chile, all of these statutes cover employment
related discrimination of persons with disabilities. Some laws are labour
laws and thus only cover employment discrimination (Canada, Ethiopia,
Ireland, Korea, Madagascar, Mauritius, Namibia, Spain, South Africa and
Sweden). With respect to other areas, the laws differ to a great extent.
The most comprehensive disability discrimination laws are from Australia,
Canada, Hong Kong, the Philippines, the UK and the USA. Unlike countries
with an Anglo-Saxon legal system, countries with a continental legal system
have no applicative experience in this area. In that context, the efforts of
disability rights organisations to lobby for enactment of a Systemic Law (lex
generalis) for the rights of people with disabilities in the Republic of
Macedonia is a significant initial impulse for improving the situation on a
global level.
The Australian Disability Discrimination Act of 1992 prohibits
discrimination in the areas of work, housing, education, access to premises,
clubs and sports and other facilities, land possession and the provision of
goods and services (Sec. 3, 15, 22-30). 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, the
provision of commercial premises or housing (Sec. 5-11).
The 1995 Disability Discrimination Ordinance of Hong Kong covers the
areas of employment, education, premises, goods and services, facilities for
the public, barrister chambers, clubs and sports, and government activities
(Sec. 11-20, 24, 25-29, 33-37). The 1992 Magna Carta for Persons with
disabilities of the Philippines prohibits disability-based discrimination in the
fields of employment, transportation, public accommodation and goods and
services (Title III, chapter I-III). 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 area of education
and public transportation (Sec. 4, 19, 22, 29, 30, 32-39, 40-47).
Finally, the American with Disabilities Act of 1990 prohibits discrimination
in the areas of employment, state and local government activities (including
education, transportation, social services, etc) public accommodations
(goods and services) and telecommunication (Title I-IV).
28
The civil laws of the other countries are also broad in scope in that the
legislation covers a wide range of every day life areas, but not all of these
areas are covered by the anti-discrimination provisions of the law. For
instance, the 1996 Act on Equal Opportunities for Persons with Disabilities
of Costa Rica covers 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 (Art. 24, 31 and 55).
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 provides for
quotas in various areas instead. Non-discrimination provisions cover
transportation, roads, built environment and government employment,
excluding the hiring process (Chapter VIII, Sec. 44, 45, 46 and 47). Duties to
enable access for persons with disabilities apply only 'within the limits
of...economic capacity and development and thus are rather easy to evade.
A three percent quota scheme relates to government employment,
government aided educational institutions and poverty alleviation schemes
(Chapter VI, Sec. 33-40). The government quota system for employment
reserves one percent to persons with certain types of impairments, notably
visual, hearing and physical impairment (Chapter VI, Sec. 33 (1)-(3)). Of
interest is that any vacancy under the three percent quota scheme in
government employment is to be carried forward to the following year
(Chapter VI, Sec. 36). Theoretically, this might lead to a situation where a
government agency can only hire or promote employees who have
disabilities.
Many other foreign laws have quota provisions, particularly in the public
employment field. As the short excursion into comparative European
disability law showed, 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 discrimination legislation is more detailed regarding the scope of
the law. Most of the laws also provide a definition of what constitutes
discriminatory practice or equality. In addition, all civil disability
discrimination laws have provisions on enforcement mechanisms.
29
2.1.4. Social Welfare Laws and Disability
Finally, some states choose to approach the issue of disability discrimination

in traditional social welfare laws for persons with disabilities. These states
are: Bolivia57, China58, Costa Rica59, Germany60, Korea61, Nicaragua62,
Panama63 and Spain64. The Republic of Macedonia, albeit partially, has
adopted the traditional approach model. All stated above leads to the
conclusion that countries with continental legal systems very often are
inclined to this approach regarding regulation of issues related to disability.
In these laws, anti-discrimination provisions are found next to the more
traditional provisions on 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, the focus of these laws is social services and integration
principles rather than rights based anti-discrimination provisions.
Non-discrimination provisions in social welfare legislation tend to be vague
and are limited to one area, such as public employment or public education.
For instance, the Spanish Act on the Social Integration of the Disabled
(1982) deals with prevention of disability, diagnosis and assessment, the
system of benefits in cash and kind, medical and vocational rehabilitation,
and community services and integration at work. The only anti-
discrimination provision in the act states that any disability-based
discriminatory provision in labour regulations, collective agreements,
individual contracts or unilateral decisions shall be annulled and voided.
(Title VII, Sec. 38(2)).
The Chinese Law of the People's Republic of China of 1990 contains a
general prohibition clause (Chapter I, Art. 3) but does not specify what that
means for the organization of the society. A textual analysis of the law gives
57
See Act No.1678 on the Person with Disability, 1985
58
See Law of the People's Republic of China on the Protection of Disabled Persons, 1990).
59
See Decree No. 119101-S-MEP- TSS- PLAN of 1989
60
See Social Law Code (SGB) Ninth Book (IX) -Rehabilitation and Participation of People
with Disabilities).
61
See The Welfare Law for Persons with Disabilities, Law No.4179 (1989) and The Special
Education Promotion Law as of 1994
62
See Act No.202 Regulations and Politics Regarding Disabled in Nicaragua/Act for the
Prevention, Rehabilitation and Equalization of Opportunities for Persons with Disabilities in
Nicaragua, 1995).
63
See Family Law Code, Act No. 3 as amended in 1994
64
See Law on the Social Integration of the Disabled, 1982).
30
an impression that the traditional medical model of disability -

institutionalization and segregation - is the framework of the Act. For
instance, Article 29 stipulates as one guiding principle the rule of
concentrated employment for persons with disabilities. This means that
employment opportunities are provided in special welfare enterprises and
institutions. Within these special institutions, discrimination against persons
with disabilities regarding recruitment, employment, promotion, determining
professional or technical titles, payment, welfare and other aspects is
prohibited (Art. 34).
Given that this is the only detailed anti-discrimination provision in the whole
Act, it seems that the law conveys a rather peculiar concept of equality. The
medical model approach of the law is also displayed by some provisions
concerning obligations of persons with disabilities. According to Article 10,
Chinese persons with disabilities 'should display an optimistic and
enterprising spirit,' which implies the notion that disability results in
negative attitudes and depression.
Some countries, such as the Philippines, have laws that could be
characterized as both social welfare and civil rights laws. The Magna Carta
of the Philippines, however, entails a clear statement that manifests the
legislature's intent to move from the medical model to the human rights
model of disability. Title I Chapter I Section 2(b) states that “… the rights of
persons with disabilities must never be perceived as welfare services by the
Government.”
The history of the US disability discrimination law shows that often states
start with anti-discrimination provisions for persons with disabilities in
social welfare legislation. This is the legal area in which disability law tends
to be developed. The US first prohibited certain forms of discrimination
against persons with disabilities in the 1973 Rehabilitation Act. 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' person with a disability. The 1988
amendment on the Fair Housing Act, which prohibits discrimination in
housing matters, was the first step towards including disability in general
civil rights legislation in the US. The final step was taken with the adoption
of the Americans with Disabilities Act (ADA).
Similarly, Costa Rica and Spain have disability discrimination provisions
within social welfare legislation as well as in civil laws.
31
In conclusion, discrimination provisions 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 kind of legislation.
Chapter II
Legal Remedies for Protection Against Rights Violations
Every state has the primary responsibility within its territory to ensure
respect of human rights to all its citizens. By signing and ratifying the
international legal instruments, States commit to avoid, both nationally and
regionally, any actions that may lead to violation of human rights.
Furthermore, most of the obligations envisaged in the international legal
instruments provide that countries will take relevant steps to adopt
affirmative actions for protection of human rights. They may also state the
need for adoption of relevant legislation and undertaking of other measures
(legal, judicial, administrative) to ensure respect of human rights.
Most States create their systems of protection of human rights, which may
entail Committees that would review any findings dealing with alleged
violation of human rights, as well as separate judicial bodies that would
render judgement in individual cases. Regular courts in civil or criminal
proceedings, or an ad hoc may also review these appeals or a permanent
Committee may be established to monitor and report on relevant issues.
There are various mechanisms at a national, regional or international level
used to ensure respect of human rights. On an international level, control
mechanisms entail: regular submission of reports, individual petitions and
petitions “state vs. state”65. In some instances, these mechanisms draw its
legitimacy from the constitutional and national laws of a country, avail
themselves of concrete and enforceable legal remedies that take precedence
over the use of international legal remedies.
1. Due Process of Law
The concept of due process of law refers to a procedure in which all rights
are implemented by the State. Formal protection of due process of law is
largely associated with equality before the court.
65
See bellow for more details: Section II.
32
Article 14 of the International Covenant on Civil and Political Rights

provides that “... all persons are entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law ... every
person charged with a criminal offence shall have in full equality the right ...
f) to have free assistance of an interpreter if he/she cannot understand or
speak the language used in court”. This provision, as far as disability is
concerned, is important for the three following reasons: first in the context of
civil obligations; second in the context of criminal proceedings against
persons with disability; and, third, because of the possibility for the court to
secure protection of other rights during the proceedings.
International law provides for minimum standards of due process of law for
persons in judicial proceedings. Article 10 of the Universal Declaration of
Human Rights provides that “everyone is entitled in full equality to a fair
and public hearing by an independent and impartial tribunal, in the
determination of his rights and obligations and of any criminal charge
against him”.
2. Locus Standi
Most of the proceedings brought before international institutions provide for
prima facie personal involvement of the petitioner in the case. The claim
that, the individual is a victim of violation of a right is a condition stipulated
by most of the international human rights instruments. However, the Human
Rights Committee, established under the International Covenant on Civil and
Political Rights, believes that in addition to the individual alleging that
his/her rights have been violated, locus standi is also enjoyed by the person
authorized to represent the petitioner or some other person, if it is obvious
that the victim is unable to file the petition him/herself, or grant the power of
attorney to the person representing the victim.
Under article 34 of the European Convention for Protection of Human
Rights and Fundamental Freedoms: “The Court may receive applications
from any person, non-governmental organisation66 or group of individuals
claiming to be the victim of a violation by one of the High Contracting
Parties of the rights set forth in the Convention or the protocols
thereto.”Concerning the condition victim, we should point out that in
principle, the individual may not submit actio popularis and complain
66
Non-governmental organisations have to be private organizations. Municipalities, for
example, are not considered as such. See: Austrian municipalities vs. Austria, Yearbook 17
(1974), p. 338 (352).
33
against the right of some High Contracting Party in abstracto. However,

jurisprudence has shown that under given circumstances and in consideration
of the principle of effectiveness
(l’effet utile) of the system, the individual may claim that he/she is a victim,
on the grounds of existence of legislation in one of the High Contracting
Parties to the European Convention for Protection of Human Rights and
Fundamental Freedoms67. With reference to potential victim, see: Malone
case (Report of 17 December 1982, Application 82 (1984), p.52) and
Marckx case (Judgment of 13 June 1979, Application 31 (1979), p.12-14).
In cases where an alleged future judgement may be predicted, as in the
Kirkwood68 case, the Committee believes that the individual petitioner may
be considered a victim, but when this alleged future judgement may not be
predicted at all, then the Committee pronounces the petition inadmissible.
As to the institute indirect victim, the Committee has introduced a principle
which makes it possible for the victim to file a petition in special cases for
violation of an article of the European Convention for Protection of Human
Rights and Fundamental Freedoms against a third party, though he/she has
not directly suffered any violation of human rights and freedoms. In this
case, the applicant has to have a close contact with the direct victim which
suffered violations under an article from the European Convention for
Protection of Human Rights and Fundamental Freedoms, in order to be
considered a victim her/himself, i.e., that he/she has suffered a personal
violation69.
When the victim is unable to take any action (person in detention, mental
institution patient or a very young person), then a close relative, a guardian,
a custodian or a third party may act on his/her behalf and in his/her interest70.
The Inter American Convention on Human Rights explicitly accepts actio
popularis in article 44, which states “any person or group of persons, or any
67
See: Klass vs. Federal Rebublic of Germany case, Series A, No.28, Application 5029/71,
Yearbook 17 (1974), p.178 (208); Open Door and Dublin Well Woman case, Series A,
No.246; Yasa case, Judgment of 2 September 1998; Norris case, Series A, No.142; De Jong,
Baljet and van den Brink case, Series A, No.77.
68
See: Kirkwood vs. United Kingdom case, Application 10479/83, D&R 37 (1984), p. 158
(182).
69
See: Becker vs. Denmark case, Application 7011/75, Yearbook 19 (1976), p. 416 (450),
where a German journalist challenge the decision of the Danish Government to repatriate 199
Vietnamese children, on the grounds of being contrary to article 3 of ECHR.
70
See: X vs. Federal Republic of Germany case, Application 155/56, Yearbook 1 (1955-
1957), p. 163.
34
nongovernmental entity legally recognized in one or more member states of

the Organization, may lodge petitions with the Commission containing
denunciations or complaints of violation of this Convention by a State
Party”.
This means that the individuals whose rights have been violated are victims
and therefore, they are entitled to a protection of their rights before the court
and other relevant judicial institutions. However, some persons with
disability are unable to protect their rights effectively. The rule of locus
standi may be extensively interpreted in such way as to allow access to the
courts to those individuals who are unable to appear in court on account of
poverty, social or physical disability. This may be made possible if
conditions are created where individuals or non-governmental organisations
dealing with the subject area of disability can take actions on behalf and in
the interest of persons with disability whose rights have been violated.
3. Legal Assistance before National Courts

There are instances where persons with disability cannot afford legal counsel
in court proceedings. The Declaration on Rights of Persons with Disabilities,
article 11, provides that persons with disabilities have the right to “avail
themselves of qualified legal assistance when such assistance proves
indispensable for the protection of their persons and property”. The state is
obligated to secure free legal assistance to persons with disabilities, as well
as to other vulnerable groups in society. One of the solutions is the
assembling of legal services and obligations on the part of legal counsellors
to take cases of social nature, receiving a symbolic fee for their services.
The same right is articulated in article 14 paragraph 3 (d) which provides
that everyone charged with a criminal offence has the full right “...to attend
the hearing and defend him/herself in person, or to have legal assistance of
their own choosing; if he/she does not have legal assistance, he/she should
be informed of the rights to have one, and in all cases, when in the interest of
justice, an attorney should be appointed by the court if the defendant cannot
afford one”.
Article 6 paragraph 3 (c) of the European Convention for Protection of
Human Rights and Fundamental Freedoms stipulates that everyone is
entitled “... to defend himself in person or through legal assistance of his
own choosing or, if he has not sufficient means to pay for legal assistance, to
be given it free when the interests of justice so require”.
35
Many non-governmental organizations, including several outside European

countries, refer to the cases of violation of human rights tried by the Human
Rights Court, such as for example the case Airey vs. Ireland71. In the
judgement delivered in this case, the Court found that the obligation of the
states to make the justice system accessible and efficient includes the right to
free legal assistance in civil procedures when the procedure is complex and
legal assistance is indispensable for securing access to the court. This
precedent and the ensuing solutions brought about an extensive reform of
national legal systems aimed at protecting access to courts of poor people in
civil proceedings.
Controversial disability matters, such as sterilization of mentally disabled
children should fall within the jurisdiction of special family courts. Such
courts should solve family law cases in an informal and quick manner, with
participation of family courts’ advisory personnel.
4. Regular National Courts
Human rights should primarily be exercised before regular domestic courts.
There are two reasons for that: first, while most of the international human
rights instruments provide for regular submission of reports and individual
petitions, very few States, the exception being Council of Europe member
countries, have adopted the optional clause and protocols that pertain to the
right of individuals to file petitions with designated bodies; and second,
though some member states have recognized the jurisdiction of these bodies,
still, the role of national courts remains crucial, as under the generally
accepted principles of international law, these bodies may review cases only
after all domestic legal remedies have been exhausted.
Under article 35 of the European Convention for Protection of Human
Rights and Fundamental Freedoms, the first criterion of admissibility
provides that “... the Court may only deal with the matter after all domestic
remedies have been exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on which
the final decision was taken”. When we speak about legal remedies, we do
not mean by that only judicial legal remedy, but also all domestic
proceedings available to the applicant.
71
See in more details: Airey vs. Ireland, judgement date September 11, 1979, Series A no. 32.
36
Failure to exhaust domestic legal remedies is the core of the case Spencer vs.
Great Britain72. In this case, the Committee referred to the opinion expressed
in the Viner case, which stated that failure to initiate a procedure on
violation of trust does not constitute failure to exhaust all domestic legal
remedies in the country. Under such circumstances, the Committee found
that the complaint filed by the applicant in pursuance of article 8 of the
Convention is inadmissible under the old article 27 paragraph 3 of the
Convention on account of failure on the part of the applicants to exhaust all
legal remedies before the domestic instances in accordance with the old
article 36 of the Convention (new article 35).
Where there are domestic legal remedies which are theoretically available,
though there is unreasonable delay by the national authorities, then the
applicant should not receive punishment on the grounds that his complaint
has been stricken out as inadmissible due to failure to exhaust domestic legal
remedies made available by the authorities. One generally accepted case,
where the applicant is under no obligation to bring any action before
domestic courts is when customary law does not lead one to conclude that
the case has no chances of success whatsoever. Problems arise when
domestic law fails to provide a conclusive answer to this question. So, in the
Campbell and Fell case73, the applicant was successful in proving that the
legal remedy made available was not sufficiently express.
However, in other cases where the law is ambiguous, such as the Retimag
case74, the applicant is expected to bring an action to clarify his position. The
question raised is: who carries the burden of proof of this condition of
admissibility of the application before the Commission? Whilst in the past
this condition was proved only by the applicant, nowadays the burden of
proof is shared. Firstly, the plaintiff state has to prove that there are efficient
and adequate legal remedies available in its system, whilst on the other hand,
the applicant has to prove that the said legal remedies have been exhausted
or are inadequate and insufficient.
Most countries have some kind of law dealing with protection of legal
remedies. The states which are signatory to regional and international
instruments pertaining to human rights are bound by the provisions of those
72
See: Spenser vs. United Kingdom case, Application 28851/95 and 28852/95, Decision of
the Committee dated January 16, 1998, 92-A Decision and Reports of the European
Committee on human rights 56-75 (March 1998).
73
See: Campbell and Fell case, Series A, No. 80, para.61.
74
See: Retimag case, Application 712/60, Yearbook 4 (1961), p. 384.
37
instruments. Sometimes national laws expressly refer to the legal guarantees

provided in these international human rights instruments. Most States create
their own systems of protection of human rights, which may comprise of
Commissions responsible for reviewing the findings of alleged violation of
human rights, as well as separate judicial bodies that render judgement in
individual cases.
The type of mechanisms and procedures vary form one state to another. For
example, in some countries there are Commissions, in others this issue is
resolved by the Constitutional Courts, and there are countries with
administrative bodies that monitor human rights violation and file
complaints with regional and international instances.
As to the issue of disability, domestic courts may act as promoters and
protectors of the rights of disabled persons. Each person, just like any other,
may lodge a complaint for alleged violation of his/her rights and seek just
satisfaction. The courts may within the extent of their jurisdiction stimulate
various interest groups to take actions on certain issues.
National human rights systems are important for two reasons: they are more
easily accessible to large number of persons with disabilities, and interest
groups in different countries; and, when a higher instance court (for
example, Appellate court or Supreme court) has the jurisdiction to review a
complaint on violation of rights of disabled persons and the decision is in
favour of the disabled person, it creates a rule which may be invoked by
other persons with disability whose rights have been violated in the same
manner.
International and regional instruments of human rights can be used in
relevant national mechanisms in several ways, including:
- Basing the claim on provisions of international and regional human
rights instruments incorporated in the national legal system;
- Using the international human rights law in interpretation of domestic
law provisions, as judges in many countries have been guided by the
international law in their interpretation of specific legal provisions;
- Reminding the State that by ratifying the international treaties, the
national bodies are bound to interpret domestic law in such way as to
ensure that any collisions with the obligations assumed by the State
under a give international treaty are avoided; and
- Using international human rights law as a minimum standard of
protection, which the national law should attain. Those in favour of
38
legal reforms may advocate alignment of the national law with the
international standards pertaining to protection of rights of disabled
persons.
State laws and mechanisms can be used to improve the protection of
disability rights by examining:
- Which provisions of the Constitution and the Law protect disability
rights and which provisions and legislation are important for persons
with disability;
- Whether there are separate constitutional and legal provisions covering
the right to prohibition of discrimination and/or the right to equality;
- Which international human rights instruments have been ratified by
the State and when they have come into force in the respective
country;
- Whether international human rights instruments automatically become
part of the national legal system, or whether additional ratification is
required;
- Which direct mechanisms of protection of human rights are alive:
Constitutional Courts, Civil Rights Offices, Human Rights
Commissions, Ombudsman, and whether some of these bodies is
focussed on disability rights; and,
- Whether cases of violation of international human rights law have
been brought before the national courts?
In some countries, like Chile, a number of court precedents show that
Chilean courts have a tendency to base their decisions on international law.
There are also important cases where automatic incorporation of customary
international law has been recognised and applied by the courts.
In Germany, the international law the sources of which are not international
treaties has been introduced in the national legal system via article 25 of the
Constitution of the Federal Republic of Germany, which contains the
following clause: “general rules of international law are an integral part of
the federal legal system. They enjoy priority over national laws and create
express rights and obligations for the citizens on the territory of Federal
Republic of Germany.” This means that no additional ratification procedure
is required.
39
On the other hand, in Japan, ratification of international legal instruments is

needed, though Japanese legislation does state that international treaties
enjoy priority over national laws. Though Japan has ratified only a small
number of international instruments pertaining to human rights, it is
nevertheless necessary to mention that over the past 15 year, the Japanese
Parliament has ratified the most important international instruments and
harmonized the legislation with the provisions set forth in those instruments.
However, national systems for protection of human rights have several
constraints, such as:
- Dependency on the political environment, as no efficient national
mechanism of protection of human rights can exist in a country in
which the state apparatus violates the rights of its citizens;
- In a state where national laws are discriminatory, national mechanisms
fail to offer a method of protection of human rights against violation;
and,
- In a state where courts and other state bodies do not function properly,
are corrupted, civil servants are disinterested in human rights, the
situation of violation of human rights on a national level cannot be
improved.
Chapter III
Obligations and Responsibilities of States

1. Responsibilities of States
The International Court of Justice, in the Barcelona Traction Case

highlighted the idea that the fundamental human rights create erga omnes
obligations. After the judgement in this case was delivered, there has been
notably growing acceptance in the international comparative law of the
principle of legitimate interest and the rights of states to protest against
deterioration of human rights, regardless of where such deteriorations occur.
One can say that violation of human rights, condemned by the UN Security
Council, represents an international criminal act. Some international criminal
treaties expressly state what actions constitute violation of human rights,
including genocide, torture, hostage taking, apartheid, disappearance of
individuals, slavery and servitude and certain forms of terrorism.
40
Often, there is a human dimension in international criminal acts. The

European Court of Human Rights in the case A and B v. the Netherlands75
held the Netherlands responsible for the lack of legal instruments for
effective protection of Ms. B, which is to say that the two provisions of the
Criminal Code relevant for this case –article 248 and 239 (2) did not provide
practical and effective protection due to the legal void they created.
Apart from creating a forum to address the issue of human rights violation,
states should play an active role in preventing such rights violations, as well
as enforcing protective measures on behalf of persons with disabilities.
The implementation of laws depends to a large extent on the political will of
States to comply with international standards. The effective implementation
of international norms and standards is to a great extent reliant on the
network of governmental, non-governmental and international support.
There are several measures that can help improve the status of persons with
disabilities, such as:
- Collection of Statistics;
- Raising Awareness in the Society;
- Policy-making and planning;
- Personnel training at all levels.
Of significant assistance to improvement of the status of persons with
disabilities is the work of the Ombudsman, the National Coordinative
Committees, Non-governmental organizations and Special Rapporteurs.
1.1. Collection of Statistics
Collection of information and data on persons with disabilities is vital to

understand the situation of disabled persons in each country. Analysis of
these data will allow policy makers and legislature to obtain a realistic
picture of the status of disabled persons that will help them formulate an
effective policy to address this issue.
In Rule 13 of the Standard Rules on the Equalization of Opportunities for
Persons with Disabilities it is stated that States bear the ultimate
responsibility to collect and disseminate information on the living conditions
75
See below for more details: Part III (Chapter VI- Right to respect of private and family life).
41
of persons with disabilities. This information should be collected at regular

intervals as part of the official statistical system of states. The data collected
may be included in the materials pertinent to the national census, giving
possibilities for its correlation with data on income, level of education and
other relevant criteria76. This information may also be collected through
household surveys undertaken in cooperation with universities, research
institutions and organizations of persons with disabilities.
The Statistics Division of the United Nations Secretariat works towards the
development of a realistic and practical system of data collection in states
and the preparation of technical manuals and documents for collection of
such statistics. The UN Statistical Commission decided to include disability
as a basis in the Principles and Recommendations for Population and
Housing Censuses. However, the Secretary-General, in his 2000 report under
the title “World Population and Housing Census Programme”, states that
conducting a specialized survey of persons with disabilities is more
appropriate.
Furthermore, of great benefit for states could be the establishment of a
database on disability which would include information on associated
services and programmes, as well as statistics on different groups of persons
with disabilities. The UN disability statistics database is a framework that
states can use in preparation of their own national statistical databases. The
UN disability statistics database is the primary source of information when it
comes to monitoring the progress made on international level concerning the
status of persons with disabilities.
1.2. Raising Awareness in Society
In Rule 1 of the Standard Rules on the Equalization of Opportunities for

Persons with Disabilities it is stated that “States should take action to raise
awareness in society about persons with disabilities, their rights, their needs,
their potential and their contribution”. States should also distribute
information on avalable services and programmes, which would be of
benefit to persons with disabilities and the general public. This information
should be available in forms understandable for persons with communication
limitations.
76
It is interesting to mention that on January 8 2001, when the Law on Census of population
and households in the Republic of Macedonia was enacted, Polio Plus-Organization of
persons with disability proposed item 16 to be included in the survey questionnaire to cover
data on individual’s health status.
42
States should also initiate information campaigns and public education

programmes concerning disability issues, putting accent on the message that
persons with disabilities have the same rights and obligations as others. An
important component in raising awareness in society is focusing on
campaigns about education of children as a way to build a positive attitude
of the future generations towards persons with disabilities.
Furthermore, under rule 1, states are responsible for raising the awareness of
persons with disabilities concerning their rights and potential, which would
assist them to take advantage of the opportunities available to them.
The World Programme of Action Concerning Disabled Persons, paragraph
154, stipulates that persons with disabilities and their organizations should
be given equal access, resources and adequate training with regard to public
information so they may freely present their views to the general public
through the media.
1.3. Policy-making and Planning
When policymakers and the legislature have all relevant information of the
status of persons with disability they create in a much easier fashion national
policies concerning disabled persons. Rule 14 of the Standard Rules on the
Equalization of Opportunities for Persons with Disabilities provides for
inclusion of disabled persons in all relevant policy planning and making.
Though states plan policies for persons with disability at a national level,
actions should nevertheless be supported at a regional and local level. The
needs of persons with disabilities should also be incorporated into a general
development plan, and not be treated separately.
National long-term programmes on achieving the objectives of the World
Programme of Action concerning Persons with Disability should be an
integral part of the State’s general policy for socio-economic development.
In addition, encouragement of local communities to create programmes and
measures for disabled persons should be stimulated by the state.
Organizations of persons with disabilities should be involved in all decision-
making relating to plans and programmes concerning persons with
disabilities or affecting their economic and social status. According to rule
18 in The Standard Rules on the Equalization of Opportunities for Persons
with Disabilities, States should “...recognize the right of the organizations of
persons with disabilities to represent persons with disabilities at national,
regional and local levels. Member states should recognize the advisory role
43
of organizations of persons with disabilities and establish direct contacts

with them. This way the organizations can influence Government policies
and solutions in areas that concern them.
At the Consultative Expert Meeting on Law and Disability Policies, held in
Berkley (USA), 8-12 December, 1998, were elaborated goals which may
assist interested states better to plan, design and implement actions
concerning persons with disability in at least three key areas, which are:
- Improvement of the formulation of the legislative framework
that would promote application of relevant international norms
and standards concerning the rights of persons with disability;
- Increased awareness and understanding of the situation of
persons with disability that could affect the solutions made by
policy makers and programme planners to incorporate
international norms and standards concerning disabled persons
in legislative texts and state practice; and,
- Strengthening of civil society so that it can participate
effectively in discourses on law and policy matters concerning
persons with disabilities.
1.4. Personnel Training
Ensuring of adequate training of personnel, at all levels, involved in planning

and creation of programmes and services concerning disabled persons is
stipulated in rule 19 of the Standard Rules on the Equalization of
Opportunities for Persons with Disabilities. States should see to it that all
authorities providing services in the area of disability have adequately
trained personnel. Furthermore, when designing training programmes, states
should have regular consultations with organizations of persons with
disability and if attainable, to have disabled persons participate as trainers or
consultants.
Training of volunteers who work for the benefit of the community
(community workers) includes development of appropriate values and
competencies. The state should ensure that these individuals, in addition to
specialized knowledge and skills, also receive comprehensive information on
the social, nutritional, educational and vocational needs of persons with
disabilities. Community workers can take care to meet the needs of persons
with disability if adequately trained, which can be positive in overcoming
the personnel shortages in all agencies that provide services for persons with
disability. States should expand the knowledge and responsibility of
44
individuals working in related spheres who provide other services, such as

teachers, social care workers, administrators and community leaders.
2. Bodies that help on improvement of the status of

persons with disability
Law enforcement is commonly the task carried out by public administration

bodies and the courts. Generally, legislation that aims to transform a certain
sphere of society, such as human rights or anti-discrimination laws,
establishes some kind of special enforcement bodies. That can be the
Ombudsman, National Committees, Non-governmental Organizations,
Special Rapporteurs and National Councils or Agencies. Among the laws on
disability reviewed above, only civil and social laws contain some provisions
on enforcement or monitoring of implementation of laws.
2.1. Ombudsman
The Swedish idea of a high official vested with jurisdiction to inquire into
claims of alleged administrative violations and human rights infringement
has been adopted in many parts of the world. Through informal enquiry, the
ombudsman can inquire and ascertain the facts of a complaint much more
expeditiously then a court. The reports of the Ombudsman, which are
published, are of great importance for the state and the governments feel
obliged to act upon them. The Ombudsman can carry out various types of
administrative enquiries which courts are reluctant to undertake. Therefore,
the role of the ombudsman77 is crucial in the investigation of claims made by
2.2. National Co-ordinating Committees
Disability is a multi dimensional issue that concerns many different actors in

society; therefore there is a need for coordination and cooperation among all
of them. The World Programme of Action concerning Persons with
Disabilities and rule 17 of the Standard Rules on the Equalization of
Opportunities for Persons with Disabilities, put emphasis on the need and
77
For details on the EU Ombudsman, see: http://www.euro-ombudsman.eu.int
45
responsibility of states to establish and strengthen their national coordinating

committees or similar bodies with view to become the focal point for
discussion on issues concerning persons with disabilities.
At the International Meeting on the Roles and Functions of National
Coordinating Committees on Disability in Developing Countries, held in
Beijing on November 5-11 1990, the Guidelines for the Establishment and
Development of National Coordinating Committees on Disability or Similar
Bodies was adopted. It elaborates in detail the role and the function of
national coordinating committees. The objectives of these Guidelines are
related to the development of national policies and legislation on disability
matters and stimulation of effective measure for prevention of disability,
rehabilitation and active and full participation of persons with disability in
social life and development. These committees have an important role in the
monitoring of the aforementioned national policies, legislations and
measures.
National coordinating committees and similar bodies should function on a
permanent basis and be legally established and supported by relevant
administrative regulations. The functions of such committees are to review,
co-ordinate and advise all agencies and non-governmental organizations that
work for the well being of persons with disability with respect to activities
planned. On issues affecting the well being of disabled persons, these
committees act in the capacity of professional advisors to governments and
policy makers. Therefore, national coordinating committees should be
autonomous and have resources to fulfil their responsibilities and tasks.
Further, these committees should be composed of representatives from
different spheres of society, that is, government representatives responsible
for the matters of social and health welfare, employment, housing, transport,
education and culture, representatives from non-governmental organizations
and in particular representatives from organizations of persons with
disability, who should have considerable influence on these committees in
order to ensure that issues of their concern are adequately addressed78.
The Australian Law Against Discrimination of Persons with Disabilities
provides for the establishment of national committees (section 67 and 113).
The Canadian Law on Human Rights is enforced through the National
Commission and the National Tribunal (section 26 and 48). In Israel, the
78
In Republic of Macedonia, in 2000, governmental (national) coordinating body was set up
responsible for the implementation of the UN Standard rules. It is chaired by a visually
impaired person.
46
Law on Equal Rights of Persons with Disabilities is enforced by various

ministries and the National Commission (section 20-25). In Great Britain,
the Disability Rights Commission79 is the watchdog against discrimination
of persons with disability.
2.3. Non-governmental Organizations
One of the most important roles of Non-Governmental Organizations is the

monitoring of human rights protection both in their own and in other
countries, as well as advocacy and support for protection of these rights
within national and international institutes. The role of non-governmental
organizations is essential for an effective protection of human rights at both
national and international levels, as it is them who raise public awareness on
human rights, and confront the states for violation of these rights.
Advocacy and support generally includes the following:
- Identification of an issue or problem that citizen action has
played a role in its resolving;
- Investigation of the nature of the problem, definition of the
position and the desired outcome (that is, articulation of desired
rights and policy and law proposals);
- Strategy planning (goals and measures to be undertaken);
- Building alliances for achieving the goals; and,
- Education of the public and lobbying for achieving the changes
needed.
At the Global Meeting of Experts held in Stockholm in 1987, the participants
agreed on the importance of encouraging non-governmental organizations,
as they often act as initial points of development and at the same time can
effectively influence certain decisions made by governments in different
spheres of society. Non-governmental organizations are not limited only to
protection of human rights; on the contrary, they undertake other activities,
such as promotion of equal opportunities through professional training.
79
The Disability Rights Commission was set up under the 1999 Disability Rights
Commission Act. This new body replaced the National Disability Council established under
the Disability Discrimination Act (DDA), though it proved to be much weaker. S. Minti,
Introducing UK Disability Rights Commission, see:
www.disabilityworld.org/June-July2000/Governance/UKDisabilityRights.htm
47
The United States Agency for International Development- (USAID)’s

Europe and Eurasia bureau in June 2004 published The 2003 NGO
Sustainability Index80, with two highlights on the Polio Plus campaigns
(non-governmental organization for the rights of persons with disability in
the Republic of Macedonia) aimed at increasing the awareness within
society, though this organization has never worked on the USAID project.
Monitoring of actions undertaken by states and adoption of obligations
arising from ratified international instruments, as well as the implementation
of international standards on human rights carried out by non-governmental
organizations is one of the most important mechanisms in the protection of
human rights. This is performed in the following manner:
a) Channelling of independent information to members of
international organizations as states’ reports cannot be examined
without referring to other sources of information;
b) Promoting knowledge and understanding of the reporting
process. Non-governmental organizations play the most
important role in encouraging individuals and groups in
submission of information on violation of their rights by states
and in channelling them to body members of international
organizations; and,
v) Non-governmental organizations are also crucial to the
effectiveness of the reporting process, as without their lobbying
and public information campaigns, there is a danger that
recommendations of the bodies of international organisations are
either not implemented or implemented in an inadequate
manner.
Non-governmental organizations may take part in different stages of the
reporting process: before submission of a report, during examination of
submitted reports by bodies of international organizations; and in the process
of implementation of recommendations.
A large number of states entrust the monitoring of laws to organizations of
persons with disability. For example, the Law of the People’s Republic of
China on protection of disabled persons provides for the establishment of a
80
For details, see : United States Agency for International Development, Bureau for Europe
and Eurasia, Office of Democracy, Governance and Social Transition, The 2003 NGO
Sustainability Index for Central and Eastern Europe and Eurasia, Seventh Edition, June
2004, available on internet: http://www.usaid.gov/
48
Federation of persons with disability from China, which has the

responsibility to represent and protect the rights and interests of persons with
disability in China (article 8).
2.4. Special Rapporteurs
The office of the Special Rapporteur on Disability (World Programme of

Action Concerning Disabled Persons) of the UN Commission for Social
Development was set up in 1994 in accordance with the Standard Rules on
the Equalization of Opportunities for Persons with Disabilities.
The last, fourth chapter of the Standard Rules describes the mechanism of
control designed to facilitate the effective implementation of the rules.
Paragraph 2 provides that the monitoring of the rules will be performed
under the Social Development Commission.
The work of the Special Rapporteur consists of monitoring the
implementation of the Standard Rules through direct communication with
states and non-governmental organizations and generally improvement of
the status of persons with disability. The Special Rapporteur works with a
panel of experts on disability issues. The Special Rapporteur, with assistance
of the Secretariat, produces reports to be submitted to the Social
Development Commission (paragraph 8) and provides counselling services
on enforcement and control of the Rules (paragraph 6).
The first Special Rapporteur, Bengt Lindqvist (Sweden), was appointed in
1994. His mandate was renewed twice, in 1997 and 2000, by resolutions of
the Economic and Social Council. For the period 2003-2005, the UN
Secretary-General appointed Ms. Hessa Al-Thani (Qatar) as the Special
Rapporteur on Disability.
2.5. National Councils or Agencies
The Hungarian Law Against Discrimination provides for the establishment

of a National Council on Disability issues where organizations of persons
with disabilities should be represented (section 24). The Indian law provides
for the establishment of a mechanism of multi-sector planning and
monitoring. There is a Central Co-ordinating Committee with a main officer
for disabled persons. They are responsible for disability issues at a national
49
level81. The law requires that a given number of positions in each of those
committees are filled by persons with disabilities (section 3, 9, and13).
The Nigerian Law Against Discrimination provides for the establishment of
a National Commission for Disabled Persons. The president of the
Commission should be a disabled person, and all major groups of persons
with disability should be represented (section 14). Similarly, the Ghana’s
Law on Disabled Persons provides for the establishment of a National
Council of Disabled Persons. Six seats are reserved for representatives of
organizations of disabled persons.
The Law of Zimbabwe provides for the establishment of a Disability Board
in which half of the seats are reserved for representatives from organizations
of persons with disability (section 4, 5 and 7). The same applies to the
Agency of Persons with Disability from Zambia, a body responsible for the
enforcement of the Zambian Law Against Discrimination (section 6 and 25).
The functions of such monitoring bodies are various and range from
advisory and data collection for governments, through raising awareness, to
investigation and filing of complaints. The Zimbabwean Disability Board
and the Zambian Disability Agency have authority to issue “a regulatory
order” and request concrete action from owners whose facilities or services
are inaccessible for disabled persons.
81
The movement against disability in India is highly disappointed with the slow
implementation of the said provisions. A.Mohit, Governance & Legislation: Initiatives of the
Government of India to Advance Asia & Pacific Decade of Disabled Persons, available on
their web page on the Internet: www.disabilityworld.org/May2000/Governance/India.htm
50
The most silent words bring about a storm.

The thoughts coming at a soundless
step rule the world.
- Nietzsche
51
52
PART TWO
SYSTEMS OF PROTECTION
Introduction
This part provides an extensive analysis at a universal level on the
international norms and standards concerning persons with disabilities,
adopted under the auspice of the United Nations system, and the other
regional systems, like in Europe and America, Africa, Asia and the Pacific,
as well as the Middle East. This part also gives certain practical information
that would approximate the efforts of the international, national and local
communities towards the goals of the international standards for human
rights that address persons with disabilities, and provides identification of
barriers in the implementation of these rights and in the development of an
agenda for “strengthening” the position of persons with disabilities.
Part Two is divided in two Chapters. Chapter IV refers to the universal
system of protection of human rights within the UN with emphasis on the
specific international norms on disability rights. Chapter V is dedicated to
the regional systems of human rights protection. First, the European regional
system is elaborated, within both the Council of Europe and the European
Union. This part is of significant interest to us because the Republic of
Macedonia is a member of the Council of Europe, and ad momentum, the
process of application for full membership to the European Union has
started. In addition, the human rights protection systems in America, Africa,
Asia and the Pacific, as well as in the Middle East are elaborated in order to
obtain a comparative picture of human rights protective mechanisms across
the world.
53
Systems of Protection
Chapter IV
Universal System of Human Rights Protection - UN
The United Nations, from its very inception, has been concerned with the
status and rights of persons with disabilities, and has always accepted that
discrimination against persons with disabilities directly affects the economic
and social development of the entire community. The UN based the
promotion of disability rights on its very founding principles, which address
the fundamental freedoms and equality of all human beings. In addition to
the general international norms, specific norms on disabled people’s rights
have been enacted, of which the enactment of the Standard Rules on the
Equalization of Opportunities for Persons with Disabilities is the most
important. The Rules offer some kind of an instrument in the hands of
persons with disabilities and their organizations to draft legislation and
undertake activities, and provide a basis for technical cooperation between
countries, the UN and other international and non-governmental
organizations. However, an enactment of a Convention on the Rights of
Persons with Disabilities within the UN system would finally resolve all the
dilemmas related to disability issues.
1. General International Norms on the Rights of Persons with

Disabilities
The Charter of the United Nations obliges the member States to respect
human rights without any discrimination based on race, sex, language or
religion, thereby forming the nucleus of disabled persons’ rights protection.
Certain Articles of the Charter provide for the foundation on which disability
rights are starting to be built. These Articles are as follows:
Article 1(3) provides that the objectives of the UN are “…To achieve
international co-operation in solving international problems of an economic,
social, cultural, or humanitarian character, and in promoting and
encouraging respect for human rights and for fundamental freedoms for all
without distinction as to race, sex, language, or religion.”
54
Article 13 (1) (b) states that the General Assembly encourages studies and
makes recommendations for the purpose of “…promoting international
cooperation in the economic, social, cultural, educational, and health fields,
and assisting in the realization of human rights and fundamental freedoms
for all without distinction as to race, sex, language, or religion.”
In Article 55 are defined the areas of special interest to achieving the UN
objectives. In that sense, the UN shall promote (a) “higher standards of
living, full employment, and conditions of economic and social progress and
development”. Furthermore, the UN shall promote (c) “universal respect for,
and observance of, human rights and fundamental freedoms for all without
discrimination as to race, sex, language, or religion.”
In the political atmosphere that preceded the Cold War, which at that period
took a more rigid form, the General Assembly at the session in 1948, after an
enduring discussion and amending process82, on 10th December 1948
adopted the Universal Declaration of Human Rights with 48 votes in favour,
none against and 8 abstaining83. The Universal Declaration of Human Rights
is the first extensive international document on human rights, a fundamental
basis of the international law on human rights and an articulation of the
philosophy for their international protection. The following Articles of the
Declaration have established the fundamental normative basis of the
standards and objectives for future action on which international norms and
standards concerning persons with disabilities have started to evolve.
Articles 1 and 2 identify the basic principles on which the Declaration of
Human Rights is founded. Article 1 proclaims the philosophy of the
Declaration, providing that “all human beings are born free and equal in
dignity and rights ...” The principles of freedom and equality are the basic
assumptions of human rights realization. This means that the right to
freedom and equality is an innate and unalienable right of every human
82
The Third Committee of the General Assembly (responsible for social and humanitarian
issues) dedicated 81 meetings to reviewing the 168 amendments submitted and delivered the
appropriately revised text for adoption. 58 member Sates voted 1400 times for each word or
clause in the text of the Declaration. Numerous debates reflected the traditional division
between the countries in relation to human rights. Islamic countries, for example, were against
the rights related to gender equality (equal right to marriage for both men and women) and the
right to change religion. Western countries were against including economic and social rights
(for more detail see: A.H. Robertson, Human Rights in the World, 1996, pg. 28; Human
Rights Today, a United Nations Priority, 1998).
83
The Soviet Union along with four Eastern-European countries and the Soviet Republics
with the right to vote, South Africa and Saudi Arabia were abstaining (for more detail see:
H.J. Steiner, P. Alston, International Human Rights in Context, 1996, pg.120.
55
being. The principle of freedom should be interpreted in an individualistic

sense, in accordance with western liberal thought84. The incorporation of the
principles of freedom and of equality in the Declaration in a universal
context represents a historical event without precedent in the development of
civilization.
The principle of equality is additionally elaborated in Article 2, in which it is
stipulated that, “…everyone is entitled to all the rights and freedoms set forth
in this Declaration, without distinction of any kind, such as race, colour, sex,
language, religion … or other status”. This is the first anti-discrimination
clause in the international law on human rights85.
Articles from 3 to 6 proclaim that “everyone has the right to life, liberty,
security...” without any limitations. The rights pertaining to individual’s
integrity (right to life, freedom and security, as well as the rights derived
from them freedom from torture, freedom from slavery, freedom from
arbitrary arrest or detention) are, by definition, absolute rights and cannot be
derogated unlike other rights, which can be limited in accordance to moral
values, public order and general welfare in a democratic society.
The principle of equality and exercise of human rights and basic freedoms
(prohibition of discrimination) should be interpreted together with Article 7,
which proclaims 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.”
This Article proclaims the principles of equality before the law, equal
protection of the law and equality in law implementation (the latter is
particularly significant, and expresses the essence of the prohibition of
discrimination or elimination of discrimination, with the aim the principle of
equality from a formal one to become a factual one). Such interpretation of
the principle of equality implies an active role of the states, measures of
84
“In this context at least three of the various meanings of the term freedom can be identified:
to have a wide range of significant options and opportunities; to be independent of the others
in deciding upon the option or the opportunity; to be free in setting one’s own values and
priorities and to live in accordance with them.” A. Eide, The Historical Significance of the
Universal Declaration, International Social Science Journal, 158, 1998.
85
“The universal basis of human rights expressed through these principles implies that:
human beings are equal because they share the common essence of human dignity, and the
human rights are universal not because of the states or international organizations’ will, but
because of the fact that they belong to humanity.” Human Rights Today, a United Nations
Priority, 1998.
56
affirmative action, which is clearly proclaimed later on in the international

agreements that follow.
Further, Article 25 (1) of the Declaration stipulates that everyone “… is
entitled to the right to security in the event of unemployment, sickness,
disability … or other lack of livelihood in circumstances beyond his
control.”
The significance of the Universal Declaration could be articulated by using
professor Sohn’s statement, who defines the legal nature of the Declaration
as “… authentic interpretation of the UN Charter, which in details
communicates the meaning of the phrase human rights and fundamental
freedoms that states, by the Charter, have agreed to respect and promote. The
UDHR has joined the Charter, as part of the constitutional structure of the
world community. The Declaration, as an authentic list of human rights, has
become a fundamental component of the international common law, which
binds all states, not just the UN members”86.
Apart from the Universal Declaration of Human Rights, there are six other
Conventions on human rights enacted in the UN system, on which, though
being general, people with disabilities can invoke. The International
Covenant on Civil and Political Rights- ICCPR and The International
Covenant on Economic, Social and Cultural Rights- ICESCR adopted in
1966 along with the Facultative Protocol for the International Covenant on
Civil and Political Rights are the two basic international treaties on human
rights, which together with the Universal Declaration constitute the
fundamental corps of international documents on human rights or the
International Bill of Rights. The other four basic Conventions of the UN,
which along with the two Covenants constitute the core of 6 fundamental
international UN treaties in this area are: The Convention on the Elimination
of All Forms of Racial Discrimination- CERD, 1965; The Convention on the
Elimination of All Forms of Discrimination Against Women- CEDAW, 1979;
The Convention Against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment- CAT, 1984; and The Convention on the Rights of
the Child- CRC, 1989.
The International Covenant on Civil and Political Rights is a legally binding
instrument, adopted in 1966, which entered into force in 1976 after
86
See: Sohn, The New International Law: Protection of the Rights of Individuals rather then
States, AUL Rev. 1982.
57
depositing the 35-th instrument of its ratification.87 Several articles of it are

especially significant for persons with disabilities.
Article 2 (1) states that “…States Parties to this Covenant undertake to
respect and to ensure to all individuals within their territory and subject to
their jurisdiction the rights recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex, language, religion, … or
other status.” This article, in addition to states’ obligations, proclaims the
principle of equality. The proclaimed matter is far from the anti-
discrimination clause in which the principle of equality shall be established
into a right not to be discriminated against. It is stipulated within the context
of obligations of the state party to the agreement, by which it is limited to
only the state’s obligations. The second conclusion, which logically results
from such limited elaboration, is that the principle of equality refers to the
equal (non-discrimination) respect and ensuring of solely the rights provided
by the Covenant, but not of the rights provided by other legal acts.88
In addition, important for persons with disabilities is the third part of the
International Covenant on Civil and Political Rights. Of special relevance
are Article 6 (the right to life), Article 7 (freedom from torture and other
cruel, inhuman and degrading treatment and punishment), Articles 14 and 15
(equality to access to courts and tribunals, including free assistance of an
interpreter, if the person does not understand or speak the language in which
the dispute is conducted).
The text of the UN Universal Declaration is used in Article 7 of the UN
International Covenant on Civil and Political Rights, which reads: “…No
one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment. In particular, no one shall be subjected without his free
consent to medical or scientific experimentation.” However, as we can see,
Article 7 of the International Covenant on Civil and Political Rights contains
a second sentence (which is missing in Article 3 of the UDHR –see below),
87
The Republic of Macedonia, though being a State Party to this Covenant, has not yet
provided a declaration regarding Article 41. The only country in the region that has made a
declaration with regard to Article 41 of the Covenant is Bulgaria.
88
The principle of non-discrimination, after a lengthy drafting, has been articulated into a
right not to be discriminated against in November 2000 by having adopted the Protocol 12 of
the European Convention on Human Rights, which has not entered into force yet. For more
detail see: Z. Stojkova, A Prohibition of Maltreatment and Torture in a System based on the
UDHR, MA paper, St Cyril and Methodius University, Faculty of Law, Skopje, 2003, pg.13
58
that refers to the criterion of free consent of the individual in case of medical
or scientific experimentation89.
One of the most important articles of the International Covenant on Civil and
Political Rights concerning the rights of persons with disabilities is Article
25. It states that “… every citizen shall have the right and the opportunity,
without any of the distinctions mentioned in article 2 and without
unreasonable restrictions (a) to take part in the conduct of public affairs…
(b) to vote and to be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot… and (c) to
have access, on general terms of equality, to public service in his country.”
A crucial step forward of the Universal Declaration of Human Rights is the
inclusion of economic, social and cultural rights, by which the idea of
universality, integrity and interdependence of human rights has been
formalized. Still, such formal consensus has not reconciled the deep
disagreements in relation to the real status of these rights.90 The dilemmas
and disagreements with reference to the nature of economic, social and
cultural rights as rights have determined the drafting process and have
contributed to making the final decision instead of one, to prepare two
international covenants on both categories of rights (civil and political, and
economic, social and cultural). The essence of the decision on two separate
international agreements resulted from the interpretation of the level of
direct applicability of both different categories of rights.91 This is legally
89
In this report, the Expert Committee while drafting the European Convention on Human
Rights and Fundamental Freedoms, using travaux préparatoires, concluded that the meaning
of this article does not have the purpose to forbid the experiments for general medical needs
or tests such as chlorination of drinking water.
90
“One extreme viewpoint is that these rights are superior to civil and political rights, both in
sense of appropriate value hierarchy and in terms of chronological order. The other extreme
viewpoint is that the economic and social rights do not represent rights (rightly understood) at
all, and their treatment as rights will unavoidably threaten the enjoyment of individual
freedom, justifying a high level of state interventionism and providing an excuse to decrease
the importance of civil and political rights.” For more detail see: H.J. Steiner, P. Alston,
International Human Rights in Context, 1996, pg.255.
91
“Those who stood for drafting of two separate covenants claimed that civil and political
rights may be exercised or are justified, or are of “absolute” character, while economic, social
and cultural rights are not, or could not be exercised; that the former are directly implemental,
while the latter should be gradually implemented; and generally speaking, the former are
individual rights against the state, i.e. against illegal and unjust action of the state, while the
latter are rights about which the state would like to take positive action and promote them.”
For more detail see: Lj. D. Frchkoski, International Law on Human Rights, Magor, Skopje,
2001, pg. 105
59
articulated in the International Covenant on Economic, Social and Cultural

Rights provision on states’ obligations.
Article 2 (1) clearly provides for the programme related character of the
obligations of the States Parties to this Covenant. Unlike the rights provided
under the International Covenant on Civil and Political Rights, which are
openly formulated as individual’s entitled rights, the normative provisions of
the International Covenant on Economic, Social and Cultural Rights are
clearly directed towards States Parties to the Covenant, and not to
individuals as bearers of these rights. Such approach confirms the treatment
of civil and political rights as “legalistic” rights (for implementation of
which their presence in the law is sufficient), and the economic, social and
cultural rights as “programme related” rights (for implementation of which
in addition to being provided by law, continuous promotional action by the
state is necessary, as well as adequate resources).92 Of significant relevance
for persons with disabilities is Article 2 (2), where similarly to Article 2 (1)
of the International Covenant on Civil and Political Rights is articulated the
principle of equality. Article 2 (2) reads that “...the States Parties to the
present Covenant undertake to guarantee that the rights enunciated in the
present Covenant will be exercised without discrimination of any kind as to
race, colour, sex, language, religion ... or other status.” The difference is in
the scope of its applicability, whereby in Article 2 (2) the precise
formulation “...to all individuals within its territory and subject to its
jurisdiction ...” has obviously been left out, and its application has been
additionally limited by the possibility of a lower extent of guaranteed
economic rights to non-nationals (Article 2 (3)).
According to General Comment No 3 of the Committee on Economic, Social
and Cultural Rights, states must take steps that are concrete and targeted, and
they must be taken within a reasonable period after the Covenant enters into
force in the particular State Party. In the General Comment No 3, it is also
emphasised that “...even in times of severe resource constraints … the
vulnerable members of society can and indeed must be protected by the
adoption of relatively low-cost targeted programmes”.
General Comment No 5 is a detailed analysis of the States Parties
obligations, in accordance to the International Covenant on Economic,
Social and Cultural Rights that relate to the disability. It recognizes that:
“...Through neglect, ignorance, prejudice and false assumptions, as well as
through exclusion, distinction or separation, persons with disabilities have
92
For more detail see: Buergenthal T., International Human Rights, 1988, pg.45
60
very often been prevented from exercising their economic, social or cultural
rights on an equal basis with persons without disabilities. The effects of
disability-based discrimination have been particularly severe in the fields of
education, employment, housing, transport, cultural life, and access to public
places and services.” (Paragraph 15). In addition, obligations of the states are
regulated in the following way “...in the absence of Government intervention
there will always be instances in which the operation of the free market will
produce unsatisfactory results for persons with disabilities, either
individually or as a group, and in such circumstances it is incumbent on
Governments to step in and take appropriate measures to compensate for, or
override the results produced by market forces.” (Paragraph 12).
States Parties to this Covenant are encouraged to take affirmative action in
order to “... reduce structural disadvantages and to give appropriate
preferential treatment to people with disabilities in order to achieve the
objectives of full participation and equality within society” (Paragraph 9).
Additionally, states “... are required to take appropriate measures, to enable
such persons to seek to overcome any disadvantages, in terms of the
enjoyment of the rights specified in the Covenant, flowing from their
disability.” (Paragraph 5). General Comment No 5 stipulates “...it is also
necessary to ensure that support services, including assistive devices are
available for persons with disabilities, to assist them to increase their level of
independence in their daily living and to exercise their rights” (Paragraph
33).
The Convention against Torture or any Other Cruel, Inhuman or Degrading
Treatment or Punishment of 198493 is an international treaty, in which the
subject matter of protection is one of the fundamental rights that relate to
individual integrity (the right not to be subjected to torture, or freedom from
torture). It is a legal follow up to the previously adopted Declaration on
Protection of All Persons from being subjected to Torture, Other Cruel,
Inhuman or Degrading Treatment or Punishment of 1975. This Convention
is of special importance for the persons with disabilities in the area of
preventing disability because of torture or another cruel, inhuman or
degrading treatment or punishment. Thus, Article 2 is of particular
relevance. Article 2 (1) determines the obligations of the states “... to take
93
By the status of 1999, 144 countries have ratified this Convention, and 42 countries have
given a declaration with regard to Articles 21 and 22 (accepting the competency of the
Committee against Torture to receive and consider petitions “State versus state” and
individual petitions). The Republic of Macedonia, as a state party to the Convention, has
given a declaration regarding its Articles 21 and 22.
61
effective legislative, administrative, judicial or other measures to prevent

acts of torture in any territory under its jurisdiction.” The measures implied
by this general provision are specified in other provisions of the Convention.
In Articles 2 (2) and (3) are stipulated the two essential principles94 that
emphasize the basic nature of the right not to be subjected to torture. These
articles read as follows: “No exceptional circumstances whatsoever, whether
a state of war or a threat of war, internal political instability or any other
public emergency, may be invoked as a justification of torture.” and “An
order from a superior officer or a public authority may not be invoked as a
justification of torture”. These principles do not permit derogation of the
obligations undertaken by the states to prevent torture during emergencies or
justification of an act of torture executed under order. Herewith the
absoluteness of the right not to be subjected to torture is clearly emphasized.
The 197995 Convention on Elimination of All Forms of Discrimination
Against Women represents international lex specialis, which in a wide-
ranging manner elaborates the key issues on eliminating discrimination
against women. Its significance is additionally emphasized by the controlling
mechanisms provided for implementation of the undertaken obligations
(regular reporting). Since the Facultative Protocol on the Convention entered
into force in 2000, by which the jurisdiction of the Committee on
Elimination of Discrimination Against Women has been expanded to
accepting and examining individual petitions, the controlling mechanism of
the Convention has been significantly strengthened. This Convention
protects all women, without distinction as to being disabled or not. Women
with disabilities face discrimination at several levels, partly because of their
gender, partly due to their disability. Moreover, certain cultures and
traditional practices in the world cause further inconvenience to women with
disabilities.96
The 1989 Convention on the Rights of the Child is a lex specialis based on
the fact that certain human rights have specific application with regard to
94
For more detail see: Buergenthal T., International Human Rights, 1988, pg.59.
95
By the status of 1999, 163 countries have ratified this Convention. The Republic of
Macedonia is a State Party to it, too. This Convention is an international agreement in the area
of human rights with most reservations expressed by the States Parties, i.e. 66 states have put
their reservations in respect to some of the provisions in the Convention, and 10 states have
officially reacted to the incompatibility of certain reservations with the goals of the
Convention.
96
For more detail see: Z. Stojkova, Prohibition of Maltreatment and Torture in a System
based on the UDHR, MA paper, St. Cyril and Methodius University, Faculty of Law, Skopje,
2003, pg.43-47
62
children. Such application must reflect the children’s need for special
protection and attention, their vulnerability, as well as the distinction
between the world of children and the world of adults. This Convention is an
evolving follow up to the Declaration of Children’s Rights from 1959 and
expresses international readiness to reaffirm, strengthen and implement
children’s rights. The Convention on the Rights of the Child97 is the most
universally accepted international instrument in the area of international
legal protection of human rights.
Unlike other Conventions on human rights, the Convention on the Rights of
the Child in Article 23 focuses directly on children with disabilities. Even
though no direct obligations have been placed on States Parties to undertake
measures to ensure that children with disabilities enjoy a life of dignity in
dignified conditions, to encourage their self-reliance and active participation
in the community, in Article 23 (1-4) is recognised the importance of
participation in education, training, health care, rehabilitation, employment
preparation and recreation opportunities98 for children with disabilities. The
Committee on the Rights of the Child clarifies that, though Article 23 is
dedicated to children with disabilities, still rights of children with disabilities
are not confined only to this article.
The International Convention on the Elimination of All Forms of Racial
Discrimination from1965 is the first international treaty within international
law on human rights, which provides a special and wide-ranging
implementation mechanism (Committee against Racial Discrimination). The
experience gained from its operation has determined the creation and
functioning of similar controlling mechanisms (treaty bodies), provided in
the five fundamental UN conventions introduced above. This Convention
does not provide for ensuring of certain rights, it only requires adherence and
enjoyment of the rights protected against racial discrimination99. Like the
Convention on the Elimination of All Forms of Discrimination Against
Women, the aim of this Convention is protection against double
discrimination. Persons with disabilities of particular minority groups suffer
97
By the status of 1999, 191 countries have ratified this Convention. The Republic of
Macedonia is a State Party to it. USA is one of the several countries that have not ratified this
Convention.
98
For more detail see: Human Rights-Fundamental Documents: 50-th Anniversary of the
Universal Declaraton of Human Rights: 1948-1998, Ministry of Justice, Skopje, 1998,
pg.132.
99
See: Vasak K., The International Dimensions of Human Rights, T.C. van Boven, Survey of
International Law of Human Rights, pg.95.
63
from multiple discriminations, because they are subject to discrimination in

terms of both their disability and their minority status. As noted by the
General Recommendation XXV of the Committee on the Elimination of All
Forms of Racial Discrimination, this Convention encompasses gender
related racial discrimination, and by analogy, an inference can be drawn that
it covers persons with disabilities of different ethnic groups.
2. Specific International Norms Pertaining to Rights of Persons

with Disabilities
In the past few decades, the UN has given considerable attention to the rights
of the persons with disabilities. Increased crisis situations such as hunger,
wars and ecological disasters that afflicted many countries around the world,
have increased the numbers of persons with disabilities. Apart from the
Conventions referring to general human rights, the UN has created an
extensive policy on issues of disability. In 1971, the UN General Assembly
signed the Declaration on the Rights of Mentally Retarded Persons. Article
1 of this Declaration proclaims that mentally retarded persons have the same
rights as all other human beings. In addition, Article 2 determines that “...the
mentally retarded persons have the right to proper medical care and physical
therapy and to such education, training, rehabilitation and guidance as will
enable him to develop his ability and maximum potential”. Furthermore,
they are entitled to economic security and a decent standard of living
(Article 3), as well as to protection from exploitation, abuse and degrading
treatment (Article 6). In addition, the General Assembly when passing the
Declaration declared that there should be legal mechanisms to protect
mentally retarded people from abuse.
Article 1 of the Declaration on the Rights of Disabled Persons, adopted in
1975, defines a person with disabilities as “... any person unable to ensure by
himself or herself, wholly or partly, the necessities of a normal individual
and/or social life, as a result of deficiency, either congenital or not, in his or
her physical or mental capabilities.” In the Preamble of the Declaration, the
General Assembly called for “... national and international action to ensure
that it will be used as a common basis and frame of reference for the
protection of the rights contained in the Declaration”. Article 4 ensures
broad social and economic rights to persons with disabilities and decisively
specifies that persons with disabilities have the same civil and political rights
as other human beings. Article 5 provides that “Disabled persons are entitled
64
to the measures designed to enable them to become as self-reliant as

possible.”
Further on, Article 6 determines that disabled persons “...have the right to
health care and medical treatment, …, to medical and social rehabilitation,
education, vocational training, aid, counselling, … which will enable them to
develop their capabilities and skills to the maximum and will hasten the
processes of their social integration or reintegration.” In continuation it is
specified that persons with disabilities have the right to economic and social
security and a decent standard of living (Article 7), as well as the right to
have their special needs taken into consideration at all stages of economic
and social planning (Article 8). Also, Article 9 specifies that disabled
persons have the right “… to live with their families or with foster parents
and to participate in all social, creative or recreational activities”.
The Declaration forbids discrimination. For example, Article 10 provides
that “disabled persons shall be protected against all exploitation, all
regulations and all treatment of a discriminatory, abusive or degrading
nature”. The Declaration further requires that disabled persons “… shall be
able to avail themselves of qualified legal aid when such aid proves
indispensable for the protection of their persons and property” (Article 11).
Finally, we would conclude with Article 13 of the Declaration, which
provides that disabled persons and their families have the right to receive
information on the rights contained in this Declaration.
The UN activity in the field of disability rights that began in 1970 continued
through the next decade at an accelerated pace. The General Assembly
Resolution 31/123 of 16 December 1976 declared the year 1981 an
International Year of Disabled Persons. In connection with the International
Year of Disabled Persons, the UN established a Fund for disabled persons by
the General Assembly Resolution 32/133. Later on, the same Fund was
renamed the Voluntary Fund for the United Nations Decade of Disabled
Persons (1983-1992). The theme of the activities undertaken during this
decade was Full Participation and Equality, defined as the right of persons
with disabilities to participate actively in society, to enjoy equal conditions
of living and to have an equal share in improving conditions. The Resolution
proclaimed that 1981 would be devoted to the full integration of persons
with disabilities in society; the encouragement of academic research projects
to facilitate participation of persons with disabilities in daily life; the
education of the public in regard to rights of persons with disabilities;
understanding and accepting of persons with disabilities; and encouragement
65
of persons with disabilities to form organizations through which they would

articulate their views.
The greatest outcome of the International Year of Disabled Persons, 1981,
was the World Programme of Action Concerning Disabled Persons, adopted
by the General Assembly Resolution 37/52, on 3rd December 1982. In so
doing, persons with disabilities were recognized the right to equal
opportunities as other human beings, the right to equal participation in
improving living conditions, and for the first time disability was defined as a
function of interaction between disabled persons and their environment. The
World Programme represents the first international long-term policy with
regard to people with disabilities. The Programme proposes three types of
actions:
1. Prevention of mental, physical and sensory impairment;
2. Rehabilitation that would assist persons with disabilities to achieve
their optimum mental, physical and social abilities; and
3. Equalisation of opportunities for persons with disabilities in areas of
housing, transportation, education, social and health care and
recreation.
The aim of the World Programme is promotion of efficient measures on
disability prevention, rehabilitation and realization of the goal for “full
participation” of disabled persons in social life and development of “equal
opportunities” to achieve that. The human right dimension has also been
added to the Programme through articulation of “equalization of
opportunities” as an important goal in accomplishing full participation of
persons with disabilities in all areas of livelihood. Paragraph 12 of the World
Programme defines “equalization of opportunities” as “… a 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.” The year following the
adoption of the World Programme, the General Assembly passed a
Resolution on Implementation of the World Programme of Action
Concerning Disabled Persons.
In 1987 in Stockholm, the Implementation of the World Programme of
Action Concerning Disabled Persons was reviewed again, with a
recommendation to draft a convention on human rights of persons with
disabilities. However, this opportunity to reach a consensus on passing a
Convention of this type was missed out. Most of the states’ representatives
66
reasoned that existing documents on human rights guaranteed the same

rights to persons with disabilities as to all other human beings. Then, in
1989, the General Assembly adopted the Tallinn Guidelines for Action on
Human Resources Development in the Field of Disability. The Guidelines
provide a framework for the education and employment of disabled persons
within government ministries on all levels. The aim of the Tallinn
Guidelines is to promote human resources development in the field of
disability. Guideline 6 specifies that human resources development “... is a
process centred on the human person that seeks to realize the full potential
and capabilities of human beings ...” Guideline 9 provides that “… the
abilities of disabled persons and their families should be strengthened
through community-based supplementary services provided by governments
and non-governmental organizations.” The Guidelines provide a series of
strategies to promote human resource development in the field of disability,
including education, training and employment of disabled persons, as well as
raising public awareness. More precisely, Guideline 23 provides that “ …
education at the primary, secondary and higher levels should be available to
disabled persons within the regular educational system and in regular school
settings, as well as in vocational training programmes.” In addition,
Guideline 33 provides that “…disabled persons have the right to be trained
for and to work on equal terms in the regular labour force”. Then, “...in
addition to being offered formal skills training and education, disabled
persons should be offered training … to prepare them for independent
living” (Guideline 28). The spirit of the Tallinn Guidelines is expressed in
Guideline 8, which provides that “persons with disabilities are agents of their
own destiny rather than objects of care…”.
In 1991, the UN General Assembly adopted the Principles for the Protection
of Persons with Mental Illness for the Improvement of Mental Health Care.
The Principles define the basic rights and fundamental freedoms of persons
with disabilities and are considered a new development in the field of mental
health treatment. Further, these principles represent the minimum UN
standard for protecting the basic rights and freedoms of persons with mental
illnesses. They are intended to be used by governments, special agencies,
national and regional organizations, international organizations and non-
governmental organizations as a guide.
Principle 1 (2) specifies that “...all persons with a mental illness, or who are
being treated as such persons, shall be treated with humanity and respect for
the inherent dignity of the human person”. The other Principles refer to
adherence of rights, such as juvenile protection, determination of mental
67
illness, medical examinations, confidentiality of information, consent to

treatment and rights and conditions in mental health facilities. Principle 23
points out that states shall undertake to implement these principles through
appropriate legislation, administrative, educational and other measures.
According to Principle 24, these principles apply to all persons who are
admitted to a mental health facility.
The major outcomes of the UN Decade of the Persons with disabilities
(1983-1992) are the designation of 3rd December as the International Day of
Disabled Persons by the General Assembly Resolution 48/98 of 20
December 1993 and the adoption of the Standard Rules on the Equalization
of Opportunities for Persons with Disabilities. In 1990, the General
Assembly established an ad hoc working group to elaborate the Standard
Rules on the Equalization of opportunities for Persons with Disabilities.
After a few consequent debates, at the 32nd session of the Commission on
Social Development, the initiative to develop the Standard Rules received
support from a number of representatives and the discussions led to
accepting the Resolution 32/2 by the General Assembly on 20th February
1991. The Standard Rules have been developed based on experiences gained
in the course of the UN Decade of Disabled Persons (1983-1992), the
International Charter on Human Rights and the World Programme of Action
Concerning Disabled Persons, which are the political basis of the rights. The
Standard Rules consist of four major sections:
1) Preconditions for Equal Participation;
2) Target Areas for Equal Participation;
3) Implementation Measures; and
4) Monitoring Mechanism.
The Standard Rules summarize the message of the World Programme of
Action Concerning Disabled Persons and are designed to represent policy
guidelines that will help the states to incorporate them in their national
legislation. The Long-term Strategy drafts a framework for collaborative
actions at the national, regional and international levels to achieve the goals
expressed by the General Assembly in the Resolution 48/99 of a “society for
all” by the year 2010. Although the Standard Rules are not legally binding,
they have been adopted by a large number of States and eo ipso imply moral
and political commitment on behalf of states to take measures with regard to
the goals articulated in them. In fact, they represent the first universal
instrument to refer specifically to persons with disabilities, an instrument
that extensively comprehends the rights to equal opportunities.
68
Chapter I of the Standard Rules, Preconditions for Equal Participation,

consists of four preconditions: awareness raising (Rule 1), medical care
(Rule 2), rehabilitation (Rule 3) and support services (Rule 4).
Rule 1 states that “...States should take action to raise awareness in society
about persons with disabilities, their rights, their needs, their potential and
their contribution.” An important component of awareness raising is the
focus on the education campaign on children as a means of shaping a
positive attitude towards persons with disabilities among future generations
(Rule 1 (9). Rule 2 reads “States should ensure the provision of effective
medical care to persons with disabilities”. Rule 3 provides that in order to
assist disabled persons, “...to reach and sustain their optimum level of
independence and functioning” the state should provide rehabilitation
services for disabled people. In addition, “States should ensure the
development and supply of support services, including assistive devices for
persons with disabilities, to assist them to increase their level of
independence in their daily living and to exercise their rights” (Rule 4). The
aim of the two latter articles is to enable persons with disabilities to reach
their level of functioning that would allow them to participate in society.
Chapter II of the Standard Rules covers Target Areas for Equal
Participation (Rules 5-12). The selected target areas encompass:
accessibility, education, employment, income maintenance and social
security, family life and personal integrity, culture, recreation and sports, and
religion.
Accessibility means creating physical environment that is appropriate for
persons with disabilities. Article 5 specifies that,”... states should: (a)
introduce programmes of action to make the physical environment
accessible; and (b) undertake measures to provide access to information and
communication.” Article 6 of the Standard Rules stipulates that states should
“...recognize the principle of equal primary, secondary and tertiary
educational opportunities for children, youth and adults with disabilities, in
integrated settings. They should ensure that the education of persons with
disabilities is an integral part of the educational system”. Article 6 (8)
provides that in countries where the regular school system “...does not yet
adequately meet the needs of all persons with disabilities, special education
may be considered.”
In order to preserve their independence, it is inevitably necessary for persons
with disabilities to have adequate employment. Therefore, Rule 7 proclaims
that “... states should ensure that disabled persons exercise their rights,
69
particularly in the field of employment”. One of the key aspects in social

policy reforms in the recent years has been the acceptance of the fact that
disabled persons have been excluded from employment in the public and
private sector for reasons unrelated to their ability to perform the work tasks.
Rule 7 (1) provides that the Employment Law “...must not discriminate
against persons with disabilities and must not raise obstacles to their
employment.” The Standard Rules also encourage the state to provide public
support to disabled persons’ employment (7 (2)); to design and adapt
workplaces and premises to make them accessible to disabled persons (7 (3)
(a)); to support the use of new technologies and production of assistive
devices, tools and equipment (7 (3) (b)); and to provide appropriate
training…and ongoing support such as personal assistance and interpreter
services (7 (3) (c)).
Rule 8 refers to income and social security. The Preamble to this Rule
provides that states are responsible to provide social security and income to
persons with disabilities. Rule 8 (3) encourages states also to provide social
security and assistance in income maintenance to persons that look after
disabled people. However, according to Rule 8 (4) and (5), the social
security system should include incentives for restoring the independent
earning-capacity of persons with disabilities, and incentives that would help
such persons to find employment. Considering those, social protection
programmes should be structured to encourage persons to seek employment,
rather than be just a substitute for unemployment.
Rule 9 specifies that states should promote full participation of disabled
persons in family life. More precisely, “...States should promote their right to
personal integrity and ensure that laws do not discriminate against persons
with disabilities with respect to sexual relationships, marriage and
parenthood”. Rules 10-12 provide that states should ensure equal
opportunities to persons with disabilities to participate in cultural activities,
sports, recreation and religious life.
Chapter III of the Standard Rules identifies the Implementation Measures
that should be followed by the states. States are responsible for:
- Collecting and disseminating information on the living conditions of
the persons with disabilities (Rule 13);
- Ensuring inclusion of disabled persons in planning and policy-
making (Rule 14);
- Creating the legal bases for measures to achieve the objectives of
full participation and equality for persons with disabilities (Rule 15);
70
- Financing national programmes and measures to create equal

opportunities (Rule 16);
- Establishing and strengthening national co-ordinating committees or
similar bodies that would serve as focal points to discuss disability
issues (Rule 17);
- Recognizing the right of the organizations of persons with
disabilities to represent persons with disabilities at national, regional
and local levels (Rule 18);
- Ensuring adequate training of personnel involved in planning and
programme and service designing concerning persons with
disabilities (Rule 19);
- Continually monitoring and evaluating the implementation of
national programmes and services with respect to the equalization of
opportunities for persons with disabilities (Rule 20);
- Co-operate in and take measures for the improvement of the living
conditions of persons with disabilities in the developing countries
(Rule 21); and
- Participate actively in international cooperation concerning
equalization of opportunities for disabled persons (Rule 22).
The last Chapter IV of the Standard Rules describes the monitoring
mechanism designed to support the effective implementation of the Rules.
Paragraph 2 provides that the monitoring of the Rules should be performed
within the Commission for Social Development. In addition, a Special
Rapporteur shall be appointed to monitor the implementation of the Rules.
The Special Rapporteur, assisted by the Secretariat shall prepare reports for
submission to the Commission for Social Development (Para. 8) and shall
provide advisory services on the implementation and monitoring of the
Rules (Para. 6).
We would conclude that articulated in this manner, the Rules offer a kind of
an instrument in the hands of persons with disabilities and their
organizations to draft legislation and undertake activities. They set forth the
basis for technical cooperation among the states, the UN and other
international organizations and non-governmental organizations.
Apart from the UN Resolutions on disabilities rights, two major studies have
had great influence on these rights in the last two decades. The first one was
the report entitled Principles, Guidelines and Guarantees for the Protection
71
of Persons Detained on Grounds of Mental Ill- Health or Suffering from

Mental Disorder of 1986, prepared by Erica- Irene A. Daes, who was
appointed Special Rapporteur by the Subcommittee for Prevention from
Discrimination and Protection of Minorities. In 1993, Leonardo Despouy,
Special Rapporteur appointed by the Subcommittee, developed the second
major study, entitled Human Rights and Disabled Persons. This Report
examines human rights abuses in the area of disability and certain abuses of
human rights as a cause of disability.
Within the UN Secretariat, a number of divisions also participate in the co-
ordination of national and international initiatives in the field of disability.
Some of them are the following: The Division of Human Rights- DHR), The
Department of International Economic and Social Affairs- DESA),
Department of Public Information-DPI, The Davison of Narcotic Drugs-
DND, and The United Nations Conference on Trade and Development –
UNCTD.
Within the UN, there are organizations and programmes that have adopted
approaches related to development and are of great significance to the World
Programme of Action Concerning Disabled Persons, inter alia:
- The United Nations Children’s Fund- UNICEF, and its efforts to
strengthen community resources in order to assist children with
disabilities in their environment;
- The Office of the United Nations High Commissioner for Refugees-
UNHCR, and its work for disabled refugees;
- The Office of the United Nations Disaster Relief Co-ordinator-
UNDRC has developed specific measures for disasters preparedness
and protection of persons with disabilities, as well as protection from
permanent disability as a result of injuries or treatment received at
the time of disaster;
- The United Nations Centre for Human Settlements- HABITAT works
on removing physical barriers and on general accessibility in the
physical environment.
Specialized UN agencies involved in promotion, support and fieldwork play
an important advisory role. The operation of these specialized agencies
covers presentation, nutrition, hygiene, education of children and adults,
vocational training and seeking employment opportunities.100. United
100
For more detail see: http://www.un.org
72
Nations Economic Commission for Europe101 is involved in the monitoring

of disabled persons’ rights implementation. This Commission has published
the “European Handbook for Persons with Disabilities” and it is involved in
rehabilitation and housing projects for persons with disabilities.
Chapter V
Regional Systems of Human Rights Protection
1. Europe
The European law on human rights ensures not only the most important
content of precedent law about the essence of the international law on human
rights, but also represents one of the most encouraging and most interesting
examples of an emerging efficient international legal system. Certainly, the
emerging system of the European law on human rights is not a “supreme
authority” in Europe, nor its institutions are part of a kind of a supranational
system of supreme authority that fits in the narrow Austin’s positivist
definition of “law”102. This fact makes the European law on human rights a
good model.
1.1. Council of Europe

The Council of Europe, established in 1949 by signing the Statute of the
European Council on initiative of the ten founding states, nowadays
comprises 46 member states103. It is one of the main creators of the modern
European system for human rights protection. The basic motive for its
establishment, as identified by its Statute is “… to achieve a greater unity of
its member states in order to provide and realize the ideals and principles
that are their shared heritage and in order to facilitate their economic and
101
For more detail see: http://www.unece.org
102
In the 19-th century, the leading English legal positivist John Austin, who was especially
interested in the relation between the rules and their implementation, claimed that real “law”
entails existence of supreme authority that will implement that law, and that, therefore,
without an international supreme authority, the international law by definition, is not “law”,
but a form of morality.
103
For more detail see: http://www.coe.int
73
social progress”. This objective is realized through its bodies104, with

discussions concerning issues of mutual interest, as well as through
agreements of the member states on shared action in the area of economic,
social, cultural, scientific, legal and administrative issues, and in the
maintenance and further realization of human rights and fundamental
freedoms. Its Statutory principles are “pluralist democracy, observance of
human rights and the rule of law”, and according to Article 3 of its Statute,
“…every member state must accept the rule of law principles and enjoyment
of individual human rights and fundamental freedoms under its jurisdiction”.
Ever since the second half of the 20-th century, the Council of Europe has
established a unique international judicial system to monitor observance of
human rights and fundamental freedoms. This system is based on its 1950
European Convention on Protection of Human Rights and Fundamental
Freedoms. The 1961 European Social Charter and the other 155 Conventions
are considered the largest network that connects the European states and
societies into one same legal, cultural, social and political unity. So far, the
Council of Europe has not adopted a specific instrument concerning the
rights of persons with disabilities.
1.1.1. The Council of Europe Instruments for Human Rights

Protection
A) European Convention on Human Rights and Fundamental

Freedoms (ECHR)
On 4 November 1950, member states of the Council of Europe signed the

European Convention on Human Rights and Fundamental Freedoms, which
entered into force on 3 September 1953, when the 8 necessary ratifications
were deposited105.
104
The internal structure of the Council of Europe is constituted by: The Committee of
Ministers, a decision-making and executive body of the organization; The Parliamentary
Assembly, a consultative body of the organization with no legislative authorities, in whose
work parliamentary delegations of member states participate; The Congress og Local and
Regional Authorities of Europe, a half-parliamentary body where delegations of local and
regional authorities of Europe participate; The Secretariat of the Organization and the
Secretary General.
105
The first country that ratified ECHR was Great Britain in March, 1951. In 1952, ECHR
was ratified by Norway, Sweden and the Federal Republic of Germany, followed by
Denmark, Iceland, Ireland and Luxembourg. Sweden was the first country to have accepted
the right to individual petitions in February 1952, followed by Ireland and Denmark and the
74
Drafted and accepted by the governments of the European countries with

“common heritage of political traditions, ideals, freedoms and the rule of
law”, as stated in the Preamble, ECHR has evolved under the challenges of
the new time, incorporating new rights and freedoms in its additional
Protocols.
The ECHR consists of the Preamble and two Parts. Part I titled “Rights and
Freedoms”, encompasses Articles 2-18 and referrers to the rights and
freedoms undertaken and guaranteed by the state. Part II, titled “European
Court of Human Rights” contains Articles 19-59 and explains the structure
of the new European Court on Human Rights. 13 Additional Protocols
accompany the ECHR. Part I covers the following rights and freedoms:
• Right to life (Article 2);
• Prohibition of torture or inhuman or degrading treatment or
punishment (Article 3);
• Prohibition of slavery or forced or compulsory labour (Article 4);
• Right to liberty and security of person (Article 5);
• Right to a fair trial (Article 6);
• No criminal offence, no punishment without law (Nullum crimen,
nulla poena sine lege)-(Article 7);
• Right to respect for one’s private and family life, home and
correspondence (Article 8);
• Freedom of religion (Article 9);
• Freedom of expression (Article 10);
• Freedom of assembly and association (Article 11);
• Right to marry and found a family (Article 12);
• Right to effective national protection of rights and freedoms (Article
13);
following 1953, by Iceland as well. Germany and Belgium followed in 1955. The acceptance
of judicial jurisdiction of the European Court was initiated by Ireland and Denmark in 1953,
followed by the Netherlands in 1954. By September, 1958 the eight ratifications were
deposited, necessary for the inauguration of the European Court of Human Rights in January,
1959.
75
• Prohibition of discrimination against the protected rights (Article

14);
In the context of civil and political rights, the International Covenant on
Civil and Political Rights protects the rights that are not protected by ECHR.
13 Additional Protocols are joined to ECHR, which represent separate
international agreements open for signing, i.e. accession of the states to
ECHR.
Two Articles of ECHR are of particular interest for persons with disabilities.
The first one is Article 5 according to which “...Everyone has the right to
liberty and security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by law: ...
(e) the lawful detention of ... persons of unsound mind ...”. That means the
right to liberty and security may be constrained because of mental disability!
The second one refers to the prohibition of discrimination articulated in
Article 14: “...The enjoyment of rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground such as
sex, race, colour, language, religion,... or other status”. Persons with
disabilities are not explicitly mentioned, but they can be contained in the
formulation “other status” at the end of Article 14.
B) European Social Charter
The European Social Charter106 is a complementary instrument to the

ECHR, as it guarantees the social and economic human rights and represents
a “natural corresponding part” to the civil and political rights guaranteed by
ECHR. The Charter stipulates the following rights and freedoms: the right to
work (Article 1); the right to just conditions of work (Article 2); the right to
protection at work (Article 3); the right to a fair remuneration (Article 4); the
right to organize (Article 5); the right to bargain collectively (Article 6); the
right of children and young persons to protection (Article 7); the right of
employed women to protection (Article 8); the right to vocational guidance
(Article 9); the right to vocational training (Article 10); the right to
protection of health (Article 11); the right to social security (Article 12); the
right to social and medical assistance (Article 13); the right to benefit from
106
The Social Charter was enacted in 1961, and later on it was complemented by three
Protocols, enacted in 1988, 1991 and 1995. In 1996, the Charter was revised by adapting its
basic provisions in accordance with the basic social changes. The Revised Social Charter
came into force on 1 July, 1999.
76
social welfare services (Article 14); the right of physically or mentally

disabled persons to vocational training, rehabilitation and social resettlement
(Article 15); the right of the family to social, legal and economic protection
(Article 16); the right of mothers and children to social and economic
protection (Article 17); the right to engage in a gainful occupation in the
territory of other Contracting Parties (Article 18); and the right of migrant
workers and their families to protection and assistance (Article 19)107.
Article 20 stipulates the two fundamental obligations that every state must
undertake as it becomes a Contracting Party to the Charter. First, it must
undertake that it shall consider the first part of the Charter a Declaration of
Goals, which it shall follow by all appropriate means. In other words, the
referred goals relate to ‘realization of conditions’ in which the 19 specified
rights can be efficiently realized. Unlike this obligation, the second one is of
a strictly legal character, which consists of accepting at least 10 of the 19
Articles of the second part of the Charter. From this point on, the parallel
between the Charter and the ECHR breaks off: namely, while the observance
of the obligations undertaken under the ECHR was within the power of all
member states, the fulfilment of a large corpus of economic and social rights
requires a “positive government intervention”, which depends on the
economic resources available.
Regarding the issues of disability rights, three Articles of the Charter are of
significant importance for persons with disabilities: Article 11 (the right to
protection of health), Article 13 (the right to social and medical assistance)
and Article 15 (the right of physically or mentally disabled persons to
vocational training, rehabilitation and social resettlement). Articles 11 and
13 are applicable to all human beings and are of particular concern to
persons with disabilities. Article 11 provides that “...with a view to ensuring
107
The 1988 Protocol introduced the following social and economic rights: right to equal
opportunities and equal treatment in matters of employment and occupation without
discrimination on the grounds of sex (Article 1); right to information and consultation of
workers (Article 2); right to take part in the determination and improvement of the working
conditions and working environment (Article 3); and right of elderly persons to social
protection (Article 4). In addition to the amendments of the that time existing rights, by the
Revised Social Charter the following new rights were introduced: the right to protection in
cases of termination of employment (Article 24); the right of workers to the protection of their
claims in the event of the insolvency of their employer (Article 25); the right to dignity at
work (Article 26); the right to information and consultation in collective redundancy
procedures (Article 29); the right to protection against poverty and social exclusion (Article
30); and the right to housing (Article 31). For more detail see: Human Rights- Fundamental
Documents: 50-th Anniversary of the Universal Declaration of Human Rights: 1948-1998.
Ministry of Justice, Skopje, 1998, pg. 233-275
77
the effective exercise of the right to protection of health, the Contracting

Parties undertake, either directly or in co-operation with public or private
organisations, to take appropriate measures designed inter alia: 1. to remove
as far as possible the causes of ill-health; 2. to provide advisory and
educational facilities for the promotion of health and the encouragement of
individual responsibility in matters of health; 3. to prevent as far as possible
epidemic, endemic and other diseases.”
Further on, Article 13 states that “...with a view to ensuring the effective
exercise of the right to social and medical assistance, the Contracting Parties
undertake: 1.to ensure that any person who is without adequate resources
and who is unable to secure such resources either by his own efforts or from
other sources, in particular by benefits under a social security scheme, be
granted adequate assistance, and, in case of sickness, the care necessitated by
his condition; 2. to ensure that persons receiving such assistance shall not,
for that reason, suffer from a diminution of their political or social rights; 3.
to provide that everyone may receive by appropriate public or private
services such advice and personal help as may be required to prevent, to
remove, or to alleviate personal or family want; 4. to apply the provisions
referred to in paragraphs 1, 2 and 3 of this article on an equal footing with
their nationals to nationals of other Contracting Parties lawfully within their
territories, in accordance with their obligations under the European
Convention on Social and Medical Assistance, signed at Paris on 11
December 1953.”
Pursuant to Article 15, the Contracting Parties with a view to ensuring the
effective exercise of the right to benefit from social welfare services
undertake “1. ... to take adequate measures for the provision of training
facilities, including, where necessary, specialised institutions, public or
private; 2. … for the placing of disabled persons in employment, such as
specialised placing services, facilities for sheltered employment and
measures to encourage employers to admit disabled persons to
employment.”
As can be seen from the above-mentioned Articles of the Charter, the
concept of human rights and disability is based on the traditional institutional
approach to disability. In order to update and adapt to the fundamental social
changes, which have occurred since the adoption of the Charter, parts of the
Charter were revised. The new Article 15 of the Revised European Social
Charter adopted by the Council of Europe on 3 May 1996 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
78
independence, social integration and participation in the life of the

community, the Parties undertake, in particular:
1. to take the necessary measures to provide persons with disabilities
with guidance, education and vocational training in the framework of general
schemes wherever possible or, where this is not possible, through specialised
bodies, public or private;
2. to promote their access to employment through all measures
tending to encourage employers to hire and keep in employment persons
with disabilities in the ordinary working environment and to adjust the
working conditions to the needs of the disabled or, where this is not possible
by reason of the disability, by arranging for or creating sheltered
employment according to the level of disability. In certain cases, such
measures may require recourse to specialised placement and support
services;
3. to promote their full social integration and participation in the life
of the community in particular through measures, including technical aids,
aiming to overcome barriers to communication and mobility and enabling
access to transport, housing, cultural activities and leisure.”
This version of Article 15 is more comprehensive than the previous one and
is based more on a human rights approach. It shall enter into force after
“…three member States of the Council of Europe have expressed their
consent to be bound by this Charter.” (Article K)
C) Other Legal Acts of the Council of Europe
Besides the above-mentioned legal acts, there are several other instruments
of the Council of Europe that concern persons with disabilities more
specifically, including the following:
• Recommendation on the Situation of the Mentally Ill- EC
Recommendation No.818;
• Recommendation on Rehabilitation Policies for the Disabled- EC
Recommendation No.1185;
• Recommendation on a Coherent Policy for the Rehabilitation of
People with Disabilities- EC Recommendation No. (92) 6;
79
• Recommendation Towards full social inclusion of people with

disabilities- Recommendation 1592 (2003);
• Recommendation Towards concerted efforts for treating and curing
spinal cord injury- Parliamentary Assembly Recommendation 1560
(2002);
• Towards full citizenship of persons with disabilities through
inclusive new technologies Resolution, ResAP (2001) 3;
• Resolution on a Charter on the Vocational Assessment of People
with Disabilities- AP (95) 3.
The Recommendation on 1992 Coherent Policy for Rehabilitation of People
with Disabilities adheres to the principle of independent living and full
integration into society. This Recommendation is progressive in the idea it
promotes, which is it recognises the right of persons with disabilities to “be
different”. It is the first international / regional instrument which applies the
right to “be different” to persons with disabilities, with respect to the
rehabilitation process.
1.1.2. Mechanisms for Protection of Human Rights in the

Council of Europe
A) A System based on the European Convention on Protection

of Human Rights and Fundamental Freedoms with
headquarters in Strasbourg
The international legal system established by the ECHR, in which the formal
legal structures, i.e. the European Court of Human Rights and, until its
merging with the Court in 1999, the European Commission of Human Rights
exercises genuine judicial power. Their proved efficiency is incomparable at
an international level, except maybe with other European legal institutions
such as the Court of Justice of the European Union and the Court of First
Instance in Luxembourg.
But, why is that so?? Generally speaking, because the High Contracting
Parties agreed to co-operate with the bodies established under the ECHRS on
one hand, and were willing to ensure effective human rights protection in
their territories, on the other.
Up until 1999, the Court existed in parallel to the European Commission of
Human Rights, wherein both institutions were set up under Article 19 of the
80
Convention with the aim “...to ensure the observance of the engagements
undertaken by the High Contracting Parties in the present Convention”.
The third element within the system, in addition to the Commission and the
Court, constitutes the Committee of Ministers of the Council of Europe.
Since November 1998, the Court has been significantly reorganized
according to the terms of Protocol No. 11, by which the European
Commission on Human Rights has merged with the Court, and the
Convention enforcement mechanisms have been transformed. Thereby, in
Article 5 of the Protocol a series of transitional solutions have been set forth,
which will assist in the transition process.
I. Organizational Setup of the System
a) European Commission of Human Rights
Ever since its beginning, the European Commission of Human Rights has
been at the same time blessed and punished by its “mediatory position” in
the system of the European Law on Human Rights. On one hand, the
Commission was supposed to protect the Court from possible overburdening
with individual complaints, a function that also protected the traditional
sovereignty of the High Contracting Parties. On the other hand, the
Commission had to serve as an international institution to which individuals
could have access, which presented a radical deviation from the traditional
legal process turned towards the states. Created to act in a compromising
manner, the Commission acted as a mediator not just between individuals
and governments, but also between individuals and the Strasbourg Court108.
The European Commission of Human Rights has four functions: first, to
determine admissibility of a complaint; second, to identify facts of a specific
case; third, to assist parties to reach a friendly settlement; and fourth, to
formulate its conclusions. Since 1999, the three main functions of the
Commission have been fully taken over by the reformed European Court of
Human Rights.
108
Sir Humphrey Waldock in 1960, who appeared before the Court on behalf of the
Commission, in his first case Lolles stated: “...The Commission participates in the
proceedings and takes a mediatory position between the government and the individual. Its
function is not to initiate procedures- it is an administrative one. Our function is not to defend
before the Court either the individual’s case as such, or our own opinion, simply as such. Our
function, according to our belief, is to put forth before you all the elements of the case that are
relevant to its resolution by the Court.”
81
b) European Court of Human Rights
In order for the European Court of Human Rights to be set up 109, eight states
needed to ratify it and in 1950, “there was grounded suspicion that it would
happen at all”. However, by 1958, eight countries accepted the jurisdiction
of the Court110, which, on 3 September the same year, became officially
competent to hear cases.
Article 20 of the ECHR imposes the number of judges in the European Court
of Human Rights to be equal to the number of High Contracting Parties to
the Convention. The Court has a Registry and legal advisors (i.e. court
officials) available.
The Court as a whole is called “Plenary Court”, which elects its President,
two Vice-Presidents, Secretary and one or more Secretary’s assistants.
The Court sits as a committee of three judges with the task to determine the
admissibility of the complaints lodged by individuals. It also sits as a seven-
judge Chamber, the usual Court Jury, and as a Grand Chamber111 of 17
judges and special Court Juries for more important cases. Article 30 provides
that the Court Chamber should relinquish jurisdiction in favour of the Grand
Chamber “...where a case raises a serious question of interpretation of the
Convention or its Protocols, or where the solution to some question before
109
The Court was set up in 1958 and only one complaint was determined admissible by the
Commission on 2 June, 1956 (submitted by Greece versus Great Britain and in relation to
Cyprus). In the 1950-es, 5 complaints were determined admissible. The Court did not hear
either case. In the 1960-es, the number of complaints admitted by the Commission reached
54, and the Court reached its first 10 judgements. In the 1970-es, of 168 complaints that the
Commission declared admissible, the Court reached 26 judgements. In the 1980-es of 455
admitted complaints, 169 judgements were reached by the Court. In the 1990-es there was a
total of 3,491 complaints, and the Court pronounced 818 rulings.
110
According to the old Article 46 “...Any of the High Contracting Parties may at any time
declare that it recognizes as compulsory ipso facto and without special agreement the
jurisdiction of the Court in all matters concerning the interpretation and application of the
present Convention.”
111
The Grand Chamber consists of 17 judges and 3 deputy judges (Article 27 (1) and Rule 24
(1)) during a period of three years. It consists of the Court President and his two Vice-
Presidents, the Section President along with the judge/judges of the interested states, and the
other judges are elected by the principle of rotation every 9 months, divided in two groups
(Rule 24 (3)).
82
the Chamber may lead to contradiction of the decision that the Court had
previously reached.”
Sometimes, cases that have not yet been considered by the Court appear,
where the applicant is under serious threat and his urgent protection is
necessary. In such cases, interim measures112 need to be taken.
Unfortunately, the Convention does not prescribe such competencies for the
Court. Nevertheless, this issue is covered by Rule 39 (1), enabling the
Chamber to pronounce interim measures. For every interim measure
pronounced the Committee of Ministers should be notified (Rule 39 (2)).
The Chamber may request information from the parties regarding the
implementation of each interim measure (Rule 39 (3)). Although the interim
measures pronounced are observed by the states, still they have solely a
status of recommendations and because of that are not technically binding113.
c) Committee of Ministers
The Committee of Ministers was founded by the Statute of the Council of

Europe in May, 1949. By introducing Protocol No 11, i.e. by reforming
ECHR, the functions of the Committee of Ministers have been significantly
reduced.
As a political body, consisting of the foreign affairs ministers of the High
Contracting Parties, represented by permanent delegates in Strasbourg, the
Committee of Ministers performs three types of functions: the first,
administrative function; the second, judicial or quasi-judicial function (the
old Article 32 of ECHR); and the third, supervisory function (the old Article
54 of ECHR).
Characteristic about the issue what criteria the Commission applies when it
relinquishes a case in favour of the Court, rather than the Committee of
Ministers, is that this issue is neither addressed in the ECHR nor in the
Procedural Rules of the Commission. However, taking into account the to-
date practice of the Commission, it should be pointed out that the nature of
the case is one of the factors that play an important role with regard to the
judgement’s inclination, whether towards the Court, or towards the
Committee of Ministers. Knowing that the European Court of Human Rights
is a judicial “arm” of the ECHR, it should not come as a surprise that the
112
Interim measures are such measures that have the role of protecting the applicant
temporarily, until his case is heard before the Court.
113
The consequences of the non-binding character of the recommendations on the pronounced
interim measures may be seen in Cruz Varas case, Series A, No.201.
83
Court decides on those cases where the issue of interpretation of the articles
in the ECHR arises. Another factor is the level of division of opinions that a
case causes within the Commission. No matter how much the law is clear,
still its application of facts in a specific case may cause a different
interpretation, so the Court is the most competent to make a judgement if
such situation occurs. And, in the end, the third factor would be the
important political implication that a case might have. These cases are
relinquished in favour of the Committee of Ministers. An illustration of the
above stated would be the fact that only one interstate case 114 was lodged
with the Court for decision.
II. Procedure within the System
The right to lodge a complaint, according to the ECHR, is a right to take

initiative to start proceedings allowed for by the Convention, on the basis of
any alleged breach of the provisions of the ECHR by any of the High
Contracting Parties. The Convention makes a distinction between two
procedures: the first, a procedure upon individual petitions; and the second, a
procedure initiated by any Contracting Party.
a) Individual petitions
Pursuant to Article 34 of the ECHR “the Court may receive petitions from
individuals, non-governmental organizations115 or a group of individuals
claiming to be the victims of a violation by one of the High Contracting
Parties of the rights set forth in this Convention or its Protocols. High
Contracting Parties undertake not to hinder in any way the effective exercise
of this right116”.
Regarding the term victim, it has to be pointed out that in principle the
individual may not submit actio popularis and complain about any
Contracting Party’s right in abstracto. But court practice has shown that
under certain circumstances, taking into account the principle of
114
See: Irish case, Yearbook 19 (1976) 512 and Judgment in 1978, Series A, No. 25, which
was submitted to the Court by the Irish Government.
115
Non-governmental organizations must be private organizations. Municipalities, for
example, are not considered as such. See: Austrian municipalities v. Austria, Yearbook 17
(1974), p.338 (352)
116
See: European Charter concerning persons who participate in proceedings before the
European Court of Human Rights- text in the Council of Europe, Human Rights Information
Sheet No.38 (Strasbourg, 1996), p.176.
84
effectiveness (l’effeto utile) of the system, the individual may claim being
the victim, because of the existence of some legislation in one of the High
Parties-Signatories of the ECHR117. As regards the potential victims see:
Malone case, Report of 17 December 1982, Application 82 (1984), p.52 and
Marckx case, Judgment of 13 June 1979, Application 31 (1979), p.12-14.
In cases when an alleged future judgement may be predicted, as in the
Kirkwood case118, then the Commission reckons that the individual petitioner
may be considered a victim; however, if this future judgement cannot be
predicted at all, then the Commission declares the petition inadmissible.
With reference to the institute indirect victim, the Commission has
established a principle that enables the individual, in a special case, to bring
a petition about a violation of any article of the ECHR against another
individual, although he/she has not directly suffered a violation of his/her
rights and freedoms. In that case, the applicant has to have close contact with
the direct victim that has suffered a violation of any article of the ECHR, in
order to be considered a victim, i.e. to have suffered a personal violation.119.
When the victim alone is not in the condition to take any action (a detained
person, a patient in a mental institution or a very young person), then a close
relative, a custodian, a curator or a third person may take action on his behalf
and in his interest120.
For the admissibility of an individual petition it is not necessary for the
applicant to prove that he/she is the victim of the alleged ECHR article/s
breach, but only to claim that he is a victim of an alleged ECHR article/s
breach (“qui se pretend victime”).
117
See: Klass v. Federal Republic of Germany case, Series A, No.28, Application 5029/71,
Yearbook 17 (1974), p.178 (208); Open Door and Dublin Well Woman case, Series A,
No.246; Yasa case, Judgment of 2 September 1998; Norris case, Series A, No.142; De Jong,
Baljet and van den Brink case, Series A, No.77.
118
See: Kirkwood v. United Kingdom case, Application 10479/83, D&R 37 (1984), p. 158
(182). The applicant states that his extradition from the United Kingdom to California will
contribute to inhumane and degrading treatment, because if he is extradited to California, he
will be trailed for two murders and one attempted murder and sentenced a death penalty there.
The appealing procedure and “death row” in general are usually prolonged for several years,
which will affect the applicant and will certainly cause inhumane and degrading treatment in
contradiction to Art.3 of the ECHR.
119
See: Becker v. Denmark case, Application 7011/75, Yearbook 19 (1976), p. 416 (450),
whereby a German journalist challenged the decision of the Danish Government on
repatriation of 199 Vietnamese children, as contradictory to Art. 3 of the ECHR
120
See: X v. Federal Republic of Germany case, Application 155/56, Yearbook 1 (1955-
1957), p. 163.
85
The selection of the petition is made according to admissibility assessment

criteria (Article 35 of ECHR).
As regards individual petitions, Article 28 of the Convention provides a
Committee of three court members to be able by a unanimous decision to
assess that a certain claim is inadmissible or to take off its list of cases a
complaint that has been submitted on the grounds of Art.34, whereby such a
decision may be made without further consideration. The decision shall be
considered final. If no decision is reached by the Committee, that the private
complaint is inadmissible; for example, if the Committee consisting of three
judges prefers to accept the individual petition or cannot reach a unanimous
agreement on the inadmissibility, then the decision on the admissibility is
reached by the Grand Chamber composed of seven judges. This Chamber
may also decide upon the grounding of the individual petition, which is
usually done by a later decision.
b) Interstate cases121
Pursuant to the new Art. 33 of the ECHR “each Contracting Party may bring
before the Court any alleged breach of the Convention provisions or its
Protocols by another Contracting Party”.
The State may lodge a complaint for rights violation, not only of its citizens,
but also of persons who are not citizens of any of the High Contracting
Parties, or are expatriates, and even on behalf of persons who are citizens of
the State against which the proceedings have been initiated before the Court.
In the event of interstate disputes, the Contracting Party filing the lawsuit
may deny the legislation or the administrative practice of another
Contracting
Party that violates the law122, without thereby stating the specific examples
of such a violation, i.e. applications in abstracto123.The objective character
of the interstate cases lies in the fact that the aim is additional and objective
human rights protection. Therefore, even when the applicant does not show
interest in pursuing the proceedings, this still does not deprive the
121
The Commission, which in 1953 became competent to consider interstate disputes (on the
basis of the old Art.24), for the first time heard such cases in 1955. See: Greece v. United
Kingdom (over Cyprus), Yearbook 2 (1958-59).
122
Unlike the right of individuals to complain, which is restricted only to violation of rights
defined by the ECHR, with interstate cases, the complaint may refer to all the provisions of
the ECHR and its Protocols.
123
See: Irish case, Yearbook 19 (1976) 512 and Judgment in 1978, Series A, No. 25.
86
Commission of the right to continue with the proceedings for the purpose of
public interest.124.
The procedure is based on the system of a collective guarantee of human
rights, so it is not by accident that some High Contracting Parties file
applications against other Contracting Parties in the name of public
interest125. The idea contained in the Preamble, which has been additionally
mentioned in the Pfunder case, i.e. the collective rights protection noted in
the ECHR by the Contracting Parties, has proved insufficiently efficient for
several reasons. The High Contracting Parties have shown no will to file
complaints against other Contracting Parties, if their interest has not been
involved. On the other hand, if a Contracting Party shows any interest in
resolving an interstate case, that may produce a negative effect, i.e. using
Pollac’s words, who is a member of the European Commission of Human
Rights, ”raising an interstate application acts like a weapon that oftentimes
does not contribute to the resolution of the political dispute in question”.
In conclusion, compared to interstate cases, individual petitions have the
advantage of not being able to play an important role in the general political
connotation.
According to the Commission, for the interstate applications, even prima
facie evidence is not necessary in the admissibility assessment stage. The
examination of the merit of the interstate applications is fully reserved for
the post-admissibility stage. On the admissibility of interstate cases decides
the Grand Chamber of seven judges rather than the Committee of three
judges.
In the entire history of the European Commission of Human Rights, i.e. up
until its merger with the Court into the new European Court of Human
Rights (November, 1998), it received only 13 interstate applications.
If the Court concludes that there is violation of the Convention or its
Protocols, and if the internal law of the said High Contracting Party allows
for the provision of only partial reparation, the Court, if necessary, shall
afford just satisfaction to the injured party. Following the judgement on the
grounding of the claim, the Court sometimes delays the decision on just
satisfaction, allowing the State in question to resolve the compensation
124
See: Gericke v. Federal Republic of Germany, Application 2294/64, Yearbook 8 (1965).
125
See: Denmark, Norway, Sweden v. Greece, Application 4448/70, Yearbook 13 (1970); and
Denmark, Norway, Sweden and the Netherlands v. Greece, Application 3321-3323 and
3344/67, Yearbook 11 (1968).
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provision or another type of compensation by reaching a settlement with the

private petitioner.
The first and maybe the most significant issue, when financial compensation
is allocated to the applicant being the victim of the ECHR violation, is the
distinction between the monetary and non-monetary loss. With monetary
losses126, one should prove that first, the loss has occurred, and second, that
it has occurred as a consequence of the ECHR violation.
With non-monetary losses or moral damages, as some people call them, an
important issue arises. Should the ECHR violation detection be rewarded
with compensation, or is the ECHR violation detection a sufficient
satisfaction in itself, and can the financial compensation be reserved only for
special cases? Practice127 has shown that the second view is most often
accepted.
Final judgements of the Court are binding for the states parties in the
dispute. Final Judgements of the Court are submitted to the Committee of
Ministers, which overviews their enforcement. Generally speaking, States
voluntarily observe the judgements of the Court. Such observance may
involve compensation to the injured party128, as well as amending the
national law.129.
126
See: Campbell and Cosans case, Series A, No.60; and Albert and Le Compte case, Series
A, No.63.
127
See: Minelli case, Series A, No.62; Pakelli case, Series A, No.64; and Zimmerman and
Steiner case, Series A, No.66.
128
For example, between 1959 and 1989, the Court made a ruling of ‘just satisfaction’ in 85
cases. The amounts of monetary compensations moved from 100 Dutch Guldens in the
Enghel case (about $40) to 1,150,000 Swedish Crowns in the Sperong and Lonurot v.Sweden
case.
129
Examples of states that took action on the Court judgements: Austria has amended the Law
on in-mates in mental hospitals treatment and provided urgent funds for social protection of
alien residents; Belgium has amended the Law on homeless people and adopted measures by
which any discrimination against illegal children has been eliminated; Bulgaria has repealed
the right of the prosecutors to order detention of suspects pending court proceedings;
Denmark has amended the Law related to detention before trial; Finland has changed the Law
on Children’s Custody and Visitation Right; France, Spain and the UK have enacted laws
against tapping and intersection of telephone calls; Greece has amended the laws on detaining
persons pending trials; Italy has adopted rules by which the defence attorneys are bound to
appear before the Cassation Court; the Netherlands has changed the Law on Detaining
Patients with Mental Diseases; Portugal has reformed the system of administrative courts and
increased the number of judges; Romania has extended the right to complain against the
Prosecutor’s decisions with regard to property rights; Sweden has amended the Law on
Compulsory Religious Tuition; Switzerland has reviewed the system of criminal courts and
criminal procedure; Turkey has reduced the maximum duration of police detention; and the
United Kingdom has forbidden corporal punishment at schools.
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The system based on the European Convention on Human Rights and

Fundamental Freedoms with its headquarters in Strasbourg (ECHRS) can be
described in the following way: there are first instance rules, particularly the
basic norms of human rights in the ECHR, and second instance rules,
including the Convention rules by which the international system of the
Strasbourg Court and the Commission has been established, following the
enactment of the Protocol No 11, the new European Court of Human Rights,
for the purpose of enforcement, whose task is to apply, interpret and reach
court adjudications in accordance with the first instance rules with regard to
the High Contracting Parties. We would conclude that what makes ECHRS a
more thorough international legal system than the one of the UN is the fact
that it shows a much more stable and acceptable system of second instance
rules and institutions.
B) Controlling the Implementation of the European Social Charter
The controlling machinery of the implementation of the Charter was subject

to thorough revision as part of revitalization of the Charter itself by the
Protocol of 1991. In that sense, the Protocol of 1995 is of particular
importance, which has introduced the system of collective complaints.
Generally, this system of control has no judicial character and does not
involve the right to individual petition, as provided by the ECHR.
Namely, the whole system of control is based on national reports130 by the
States Contracting Parties to the Charter. These reports are first of all,
examined by the Committee of independent experts, established upon Article
21 of the Charter, which then adopts appropriate conclusions. The reports
along with the conclusions of the above mentioned Committee, in
compliance with Art. 27 (1) of the Charter, are submitted for revision to a
separate Sub-Committee of the intergovernmental Social Committee of the
Council of Europe. This revision ends up by drafting a separate report,
which is submitted to the Committee of Ministers that according to Art. 29
130
Pursuant to Article 21, States Contracting Parties shall submit a report in respect to the
application of those provisions in Part II of the Charter that they have accepted (the so called
“reports on accepted provisions”), and pursuant to Art. 22, at a request of the Committee of
Ministers of the Council of Europe, within appropriate time intervals, States-Contracting
Parties shall submit reports with regard to application of other provisions that have not been
accepted on their part (the so called “reports on non-accepted provisions”). For detail see: LJ.
D. Frckoski, International law on human rights, Magor, Skopje, 2001, p.215
89
of the Charter, adopts non-binding recommendations addressed to the

specific State-Contracting Party.
The system of collective complaints introduced by the Protocol of 1995 was
aimed at increasing the efficiency of the monitoring machinery. Pursuant to
Article 1 of the Protocol, a complaint can be submitted by international
organizations of employers and trade unions that may participate in the work
of the above mentioned Governmental Committee; other international non-
governmental organizations which have consultative status with the Council
of Europe and have been put on a list established for this purpose by the
Governmental Committee; and representative national organisations of
employers and trade unions within the State against which they have lodged a
complaint.
The collective complaint is considered by the Committee of Independent
Experts, which first of all, reaches a decision regarding the admissibility of
the complaint131. Following the consideration of the arguments with respect
to the grounding of the admitted application, the Committee of Independent
Experts has to draw up a report in which it shall present its conclusions with
regard to the application of the Charter in that specific case. This report is
transmitted to the Committee of Ministers, which based on the report acts
within its jurisdiction established by Article 9 of the Protocol. If the report
identifies “unsatisfactory application of the Charter”, then it passes a
recommendation with which the procedureis completed. Not every
recommendation is legally binding, but the Contracting Parties in their next
national report related to Art. 21 of the Charter shall “provide information on
the measures they have taken to give effect to the Committee of Ministers'
recommendation”.
We would conclude that, taking into account the political will necessary for
functioning of the reviewed arrangements, the prospects with respect to
efficient application of the Social Charter nowadays are significantly broader
than at the time period of just a few years prior to initiating the process of its
“revitalization”.
The System of the Council of Europe also includes the European Committee
on Equality between Men and Women, the Documentation Centre of Human
Rights and the Initiative Committee of Human Rights (with three expert
committees, which work on further development of human rights norms,
improvement of procedures and promotion, education and information). In
131
These criteria are not formally prescribed; they shoud be developed by the Committee
itself through its practice.
90
the nineties, the System was added the European Commission of Democracy
through Laws (Venice Commission), the European Commission against
Racism and Intolerance, and the ad hoc Committee on the National
Minorities Protection. Also, there are well developed procedures on non-
governmental organizations participation.
1.2. European Union

The European Community (EC) is an organization in which by gradual
integration of certain areas the transmission of certain state functions to
mutual bodies of supranational power comes in place. In that manner, the
Community has gradually grown into a real union, which has been
confirmed by the Maastricht Agreement (1991), in which it has been
renamed into the European Union (EU). Starting with the initial six founding
members, today the EU has 25 member states, and by the Lome Convention
of 1979, 69 states from Africa, Asia, the Caribbean and the Pacific (mainly,
former colonies of the member states) have a special relation to the EU
(stronger than the associative one, which has been confirmed by the
Maastricht Agreement). The main institutional structure of the EU consists
of the European Parliament, the European Council, the Council of Ministers,
the Commission, the European Court of Justice, the Court of Auditors, the
Economic and Social Committee, and the Committee of Regions.
The human rights protection is one of the underlying principles of the Union
and a necessary precondition for its legitimacy. The first Paragraph of
Article 6 (former Article F) of the Agreement of the EU reads “... the Union
is based on the principles of freedom, democracy, observance of human
rights and fundamental freedoms, and the rule of law, which are common to
the member states”, and the second Paragraph of that Article states that “...
the Union shall observe basic rights guaranteed by the European Convention
on Human Rights and Fundamental freedoms of 1950, as well as those rights
deriving from the common constitutional traditions of the member states and
general law principles of the Community”.
In this respect, the Amsterdam Agreement, which came into force on 1 May,
1999, has established a series of provisions related to several aspects on
human rights protection within the legal set up of the Union; the horizontal
clause regarding gender equality, the clauses of non-discrimination, fight
against racism, personal data protection, cultural diversity, religion and
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confession regime, social rights with a strict reference to the European

Social Charter and the EU Luxembourg Court of Justice jurisdiction.
The economic integration within the last years has been followed by efforts
to harmonize social policy. This has oftentimes positively influenced the
economic and social rights because the policies have mainly been
harmonized not according to the smallest common denominator, but on the
basis of average practice. The European Union has also included the issues
in connection with human rights in its foreign affairs132. Weak provisions on
human rights have been included in the Lome Conventions, which since the
seventies have been providing foreign assistance to more than fifty countries
that had been former colonies of the member states of the Community. In
November, 1991, the EC decided to include human rights conditions for all
future allocations of assistance.
In that manner, gradually, the issue related to human rights has become
conditio sine qua non for every development of the economic and political
relations with the Union. In this respect, the process of EU enlargement is
appropriate proof of the fact that the issue regarding democratic institutions,
human rights and lawful state in the states candidates for the EU remains a
fundamental precondition for their accession to the Union, which must be
fulfilled in a satisfactory manner.
When it comes to issues related to disability, most of them are resolved
within social policy, by putting the emphasis, above all, on employment. The
Council Resolution on promoting the employment and social integration of
people with disabilities of 15 July 2003133, “... promotes the full integration
and participation of people with disabilities in all aspects of society,
recognizing that they have equal rights with other citizens”. Further on, it
strictly stipulates the inclusion of disability issues when designing the future
national plans of member states in relation to social issues and poverty, as
well as paying special attention to issues referring to women with
disabilities.
One of the most significant legal acts of the Union is the Council Directive
2000/78/EC on establishing a general framework for equal treatment in
employment and occupation of 27, November 2000. This Directive calls on
the Employment Guidelines for 2000, European Council, Helsinki on 10 and
132
For example, the social agreement between Greece and EEC was suspended from 1967 to
1974, which was costly for Greece, as a protest against military administration.
133
For more detail on the said Resolutions, Recommendations, Communications and
Decisions passed within EU see: http://europa.eu.int/eur-lex/en/lif/reg/en_register_1640.html
92
11, December 1999, which emphasize the need for creating a labour market
that would encourage social integration by formulating a coherent policy on
combating discrimination against groups of people such as disabled persons.
Then, the Directive also specifies the Recommendation 86/379/EES on the
employment of disabled people in the Community of 24 July 1986 and the
Resolution on equal employment opportunities for people with disabilities of
17 June 1999, which promote the importance of paying attention inter alia to
training and education of persons with disabilities. Article 1 of the Directive
specifies that the Directive’s purpose is “... to lay down a general framework
for combating discrimination on the grounds of … disability, …as regards
employment and occupation”. Article 5 in particular, refers to the disabled
persons and reads: “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 disability to have access to, participate in, or advance in employment,
or to undergo a training, unless such measures would impose a
disproportionate burden on the employer ...”. The significance of the
Directive is articulated in Article 9, i.e. it specifies that Member States shall
ensure that judicial and/or administrative procedures are available to all
persons who consider themselves aggrieved by failure to apply the principle
of equal treatment to them, even when the situation of discrimination has
already ended.
When it comes to employing of persons with disabilities, it is inevitably
necessary to mention the Joint Declaration on the employment of people
with disability, at a meeting of the Social Dialogue Committee on 19 May
1999134, in which the solutions to the challenges imposed both to the
employers and employees regarding professional integration of disabled
persons are identified. It specifies that “…discrimination based on reasons
irrelevant to work task performance is socially unacceptable and
economically inappropriate”.
Further on, it promotes the principle of putting the stress on selection criteria
for employment based on abilities, rather than disabilities of persons, and
espouses for enabling equal career advancement opportunities to both
disabled persons and other employees. Social partners also stand for creating
134
See : http://europa.eu.int/comm/employment_social/soc-
dial/social/news/declaration_en.htm
93
mechanisms and providing support to employees who have become disabled

or offering them the opportunity to keep their job or to be trained for another
position that would match their experience and abilities.
The Resolution of the Council and the Representatives of the Governments
of the Member States meeting within the Council of 20 December 1996 on
equality of opportunities for people with disabilities and the Council
Resolution (1999/ C 186/02) of 17 June 1999 on equal employment
opportunities for people with disabilities, reaffirm the fundamental right of
disabled persons to equal access to social and economic opportunities.
Further on, point 7 of this Resolution specifies the areas in which appropriate
assistance is provided, like “...workplace accommodation, such as technical
equipment including access to new information technologies; access to the
place of work; qualifications and skills required at work; and access to
vocational guidance and placement services.”
The Community Charter on the fundamental social rights of workers of 9
December 1989, in its point 26 provides that “... all persons with disabilities,
regardless of the origin and nature of their disability, shall be entitled to
additional specific measures for the purpose of improving their social and
professional integration. These measures refer, above all, to vocational
training, accessibility, mobility, means of transport and housing”.
The Council Recommendation (86/379/EEC) on the employment of disabled
people in the Community of 24 July 1986, calls on the Council Resolution on
social action programme of 21 January 1974, Council Resolution of 27 June
1974 by which an action programme of the Community for vocational
rehabilitation of people with disabilities has been developed, and the
Resolution of the Council and of the Representatives of the Governments of
the Member States meeting within the Council of 21 December 1981 on the
social integration of handicapped people. This Recommendation covers all
the aspects regarding employment of disabled persons: creation of work
places; special employment, vocational rehabilitation and training;
employment and assessment; and organizations of employees and
employers.
The European Council, the Commission and the Council of Ministers have
adopted various resolutions on adequate policy for disabled people
rehabilitation, whereby member states have been called to take preventative
actions for elimination of damages and disability, to implement meaningful
and coordinating policy of rehabilitation, and to encourage full participation
of persons with disabilities in the process of rehabilitation and social life.
94
In addition to employment, the Union has enacted legal acts in the area of
education. The 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, points out that member states have agreed to intensify, where
necessary, their efforts in relation to integration or promoting integration of
children and young people with disabilities, in all appropriate cases in the
mainstreaming system of education. Also, it is specified that the operation of
special schools and centres for children and young people with disabilities
should be complementary to the operation of the mainstreaming system of
education.
By this Resolution it is concluded that there is an inevitable necessity for
collaboration between the education and other services, such as health care
and social work, in the preparation and promotion of continuous integration
programme for disabled persons. In addition, the Council Resolution on
equal opportunities for pupils and students with disabilities in education and
training of 5 May 2003, calling upon the Rule 6 of the UN Standard Rules
provides “... taking appropriate measures to increase the access to life-long
learning for disabled persons, and in this context, special attention is paid to
the use of new multi-media technologies and the Internet … (e-learning)”.
By this Resolution, exchange of information and experience on these issues
at the European level is encouraged, involving the European Organizations
and networks with appropriate experience in this field.
Then, the Union works on improving the accessibility of the infrastructure
and activities in the area of culture for persons with disabilities. To that aim,
the Council passed the Resolution on 6 May 2003, which calls upon Rule 10
of the UN Standard Rules, encourages the member states and the
Commission within their competencies “... to examine ways to integrate
people with disabilities into the arts and cultural sectors and to support
equality of opportunities in the promotion of their work”, “to improve access
to cultural events and exhibitions” and “to provide information via modern
information technology”.
The Council Resolution of 6 February 2003 “e-Accessibility”- improving the
access of people with disabilities to the knowledge based society was passed
recalling the Resolution of the Council and of the Representatives of the
Governments of the Member States meeting within the Council of 17
December 1999 on the employment and social dimension of the information
society, “e-Europe 2002 Action Plan”- Feira European Council of 19 and
20 June 2000 on knowledge-based participation of all in the economy, the
95
Council Resolution on “e-Inclusion”- exploiting the opportunities of the

Information Society for social inclusion, and the Council Resolution on the
accessibility of public web sites and their content of 20 March 2002. This
Resolution provides taking measures in the field of “... 1. standard technical
instruments; 2. encouraging instruments and/or legal measures; and 3.
education and information instruments”.
The Commission communication “Towards a barrier-free Europe for people
with disabilities”, 10 May 2000, articulates the issue of developing an
integration strategy for resolving the social and physical barriers that prevent
the access of people with disabilities. As regards the same issue, the
European Parliament has adopted a similar resolution.
Instigated by the European Conference of Ministers o f Transport Resolution
of 22 April 1997, which encourages reciprocal recognition of parking cards
of persons with disabilities, and taking into account that disabled persons
should be enabled to park their vehicles as close as possible to their
destinations, the Council passed a Recommendation (98/376/EC) on a
parking card for people with disabilities of 4 June 1998. In the Annex to this
Recommendation, one can find the provisions that explain in detail the
model of the parking card of the Community of Disabled Persons.
The European Parliament adopted another important resolution in April
1993, incited by the increase in violence against disabled persons (Official
Journal of the EC No. C 150/270).
The Union has also achieved quite a lot in the field of prohibiting
discrimination against disabled persons. Article 13 of the Amsterdam Treaty
specifies that “... in compliance with the other provisions of this agreement
and within its powers delegated by the Community, the Council
unanimously, acting at a proposal of the Commission and after consulting
the European Parliament, may take appropriate measures for combating
discrimination on the grounds of sex, race or ethnic origin, language,
religion or belief, disability, age or sexual orientation.”
The anti-discrimination clause is articulated in Article 21, Paragraph 1 of the
EU Charter on fundamental rights, formally adopted at the Nice EU
Summit135, which reads “...any discrimination based on any ground such as
135
The Charter is the strongest expression of indivisibility of rights, because it ceases the to-
date distinction that has been made in the European and international documents between the
civil and political rights on one hand, and economic, social and cultural rights on the other,
listing all the rights around several main principles: human dignity, fundamental freedoms,
equality, solidarity, citizenship (i.e. citizens’ rights) and justice.
96
sex, race, colour, ethnic or social origin, genetic features, language, religion
or belief, political or any other opinion, membership of a national minority,
property, birth, disability, age or sexual orientation, shall be prohibited.” The
progressiveness of the Union when it comes to the disabled people’s rights
refers to the strict identification of disability as one on the grounds of which
the discrimination may be based (see above quoted Article 21 of the Charter
and Article 13 of the Amsterdam Treaty). In addition, another step forward
has been made by introducing Article 26 of the EU Charter of Fundamental
Rights, which provides that “the Union recognises and respects the right of
persons with disabilities to benefit from measures designed to ensure their
independence, social and occupational integration and participation in the
life of the community.”
As regards the scope of the guaranteed rights by the Charter, the Charter
itself states that the recognized rights that are grounded on the Community
agreements or the EU Agreement, shall be exercised in accordance with the
conditions and within the limitations defined in those agreements, and in
relation to the significance of the scope of those rights of the Charter, which
correspond to the guaranteed rights under the ECHR. The Charter strictly
stipulates that they shall be completely the same with those determined by
the ECHR, but it does not prevent the Union to provide the right that ensures
greater protection (Art. 52 of the Charter). At the same time, the Charter
shall not be interpreted as restricting for already existing recognized rights in
the EU, nor for those that have already been recognized by the international
law or international agreements (including the ECHR), whereby the Union,
the Community, or all Member States appear as contracting parties, and the
same counts for the rights defined by the constitutions of the member states
of the Union (Art.53 of the Charter).
In addition to the above stated Articles of the Amsterdam Treaty and the
Charter of Fundamental Rights, the European institutions, and the Council of
Ministers and the European Parliament in particular, have passed several
recommendations, resolutions, and decisions that refer to the prohibition of
discrimination against people with disabilities in different areas such as
education, employment, and access to information technologies. One of
them is the Council Decision 2000/750/EC establishing a Community Action
Programme to Combat Discrimination (2001 to 2006) of 27 November 2000,
in which it is stated that “… the different forms of discrimination cannot be
ranked: all are equally intolerable”. A Committee shall be established
(Article 6), which shall be informed by the Commission on the other action
programmes of the Community that might help in combating discrimination.
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In the Annex to this Decision, the areas in which the programme is

implemented are specified as follows: public administration, media,
transport, housing, culture, sports and recreation…
More important resolutions enacted by the European Parliament are the
following:
- Resolution on the rights of Disabled People;
- Resolution on the human rights of disabled people.
At a proposal of the Commission and upon the opinion given by the
European Parliament, the Economic and Social Committee and the
Committee of Regions, the Council passed a Decision (2001/903/EC) of 3
December 2001136 to designate the year 2003 as the European Year of
People with Disabilities (Art.1). The objectives of the European Year of
People with Disabilities are specified in Art.2, in which it is particularly
pointed out “... to raise awareness of the rights of people with disabilities to
protection against discrimination and to full and equal enjoyment of their
rights (a); ... to raise awareness of the heterogeneity of people with
disabilities and of the various kinds of disability (f); ... to raise awareness of
the multiple discrimination facing people with disabilities (g)”. Article 5
provides that “... each Member State shall be responsible for coordination
and implementation at a national level of the measures provided for in this
Decision” (Art.5).
Within the European Union, in accordance with the UN Standard Rules, the
Commission developed and adopted the European Union Disability
Strategy137, which later on was implemented in the Resolution of the Council
of Ministers of 20 December 1996. Reflecting the idea articulated in the UN
Standard Rules, this Strategy emphasizes the need for a new approach,
which shall focus on identification and removal of various obstacles that
prevent the realization of equal opportunities and full participation of
disabled persons in all aspects of social life. The strategy is based on the
following three tasks: strengthening the collaboration both between the
member states themselves and between the Union and its member states;
increasing the participation of people with disabilities; and articulating
disability in the political and economic mainstreams of the Union.
136
For detail see: Council Decision (2001/903/EC) on the European Year of People with
Disability 2003 of 3 December 2001
137
For detail see: http://europa.eu.int/comm/employment_social/soc-
prot/disable/strategy_en.htm
98
The Commission stands for exchange of “good experiences”, enhancement

of collection and utilization of comparative information regarding the issues
of disability and identification of effective political solutions in the
realization of the first above-mentioned task. To that aim, the Commission
has set up the High Level Group of Member States’ Representatives on
Disability, which shall consider governmental policies and priorities relating
to persons with disabilities, collect information and counsel on the methods
of reporting on the general situation of disability in Europe in the future.
This Group shall pay special attention to the implementation of the
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 opportunities for people with disabilities in the member states.
All strategic reflections on the social changes should incorporate disabled
people’s experience. For those reasons, bearing in mind the second task of
the strategy, to increase disabled people’s participation, the EU is taking
steps through which the organizations of persons with disabilities are
enabled better access to information and bigger space in using the resources
of the EU Funds. Also, the Union supports the European Disability Forum,
which unifies the organizations of persons with disabilities from all member
states, which represent the majority of interests of such persons in the EU.
In the implementation of the third task, the Commission is dedicated to
reviewing its socio-economic policies, programmes and projects with the
aim to see in what manner disabled persons’ needs and rights are treated, as
well as to develop consisting parts of its socio-economic policies,
programmes and projects that will address disability. In order to achieve this
objective, the Commission has taken steps to strengthen its internal
organization and to involve all relevant Directorates into an Inter Service
Disability Group. The goal of this Group is to raise awareness of disability
issues and to encourage better inter-sector cooperation within the
Commission itself regarding the above-stated issues.
2. North and South America
By the Charter of the Organisation of American States, the Organisation of
American States- OAS has been established, whose Statutory objectives and
principles encompass “reinforcing peace and stability, peaceful dispute
resolution, taking collective measures in the event of aggression and
promoting economic, social and cultural development”. It also proclaims
fundamental individual rights without distinction as to race, ethnicity,
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confession or sex. It was within the framework of the Organization of

American States that the Inter-American Commission of Human Rights was
established and that the 1948 American Declaration of Human Rights and
the 1969 American Convention on Human Rights were elaborated.
There is no reference in the Charter of the Organization of American States
that relates to the rights of disabled persons; however, some Articles that
refer to all human beings’ rights are of particular importance for persons
with disabilities as well. Pursuant to Article 2, “The Organization of
American States, in order to put into practice the principles on which it is
founded and to fulfil its regional obligations under the Charter of the United
Nations, proclaims the following essential purposes: ... (f) to promote, by co-
operative action, their economic, social, and cultural development”.
Furthermore, Article 31 provides that “... in order to accelerate their
economic and social development, the Member States agree to devote their
utmost efforts to accomplishing the following basic goals: ... (g) Fair wages,
employment opportunities, and acceptable working conditions for all; (h)
Rapid eradication of illiteracy and expansion of educational opportunities for
all; (i) Protection of man's potential through the extension and application of
modern medical science; (k) Adequate housing for all sectors of the
population; (l) Urban conditions that offer the opportunity for a healthful,
productive, and full life”.
2.1. Instruments for Protection of Human Rights in North and
South America
A) American Declaration on the Rights and Duties of Man, 1948
Two articles of the 1948 American Declaration of the Rights and Duties of
Man that refer to the rights of all human beings are important for persons
with disabilities. Article I reads: “Every human being has the right to life,
liberty and the security of his person”. Further on, Article II provides that
“All persons are equal before the law and have the rights and duties
established in this Declaration, without distinction as to race, sex, language,
creed or any other factor”. Two other Articles of the American Declaration
on the Rights and Duties of Man are also relevant. Article XI provides that
“…every person has the right to the preservation of his health through
sanitary and social measures relating to food, clothing, housing and medical
care, to the extent permitted by public and community resources”. In
addition, Article XVI provides the right of every person to enjoy protection
of the state from the consequences of “... unemployment, old age, and any
100
disabilities arising from causes beyond his control that make it physically or
mentally impossible for him to earn a living”.
B) Inter-American Convention on Human Rights, 1969
The 1969 Inter-American Convention on Human Rights does not explicitly

mention the rights of persons with disabilities. However, it includes the
general guarantees of human rights, which according to Article 27 (2)
“forbids suspension of guarantees of the absolutely protected human rights
(non-derogating ones), among which the right to life is included (Article 4
Systems
(1)”. of Protection
Article 18 of the Additional Protocol to the American Convention on Human
Rights in the Area of Economic, Social and Cultural Rights (“Protocol of
San Salvador”) specifically refers to the rights of disabled persons. It states
that persons with disabilities are entitled to special attention that shall help
them achieve the greatest possible development of their personality. In
accordance with Article 18, Member States agree to develop programmes
with the aim to provide disabled persons with resources that shall support
them to attain their personal development. In addition, Member States agree
to provide special training for the families of persons with disabilities.
C) Inter-American Convention on the Elimination of all Forms

of Discrimination against Persons with Disabilities
The Inter-American Convention on the Elimination of all forms of

Discrimination against Persons with Disabilities was adopted by the General
Assembly of the Organization of American States in 1999 and came into
force in 2001. The Convention consists of four parts:
1. The objectives are to prevent and eliminate discrimination against
persons with disabilities and to promote their integration into society;
2. The obligations of the Member states;
3. Definitions of discrimination and disability; and
4. Implementation mechanisms.
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2.2. Mechanisms on Human Rights Protection in North and

South America
The Inter-American regime on human rights protection consists of two parts:

Inter-American Court of Human Rights and Inter-American Commission on
Human Rights.
A) Inter-American Commission on Human Rights
The real heart of the regime is the seven-member Inter-American

Commission on Human Rights (IACHR). It was established in 1959 as part
of the Organization of American States. Its mandate is based on the Charter
of the Organization of American States, rather than a separate agreement on
human rights (though there is the 1948 American Declaration on Human
Rights and the 1969 American Convention on Human Rights). As is the case
with the Commission on Human Rights within the UN, all the countries that
are members of the organization may, in principle, become subject to
consideration. According to Article 41 of the Convention, the powers of the
Commission comprise: promoting and developing the awareness of human
rights, drafting recommendations to the governments of the member states,
designing studies and reports, considering individual petitions and carrying
out on the spot investigations across the Western Hemisphere.
In 1965, the Commission was strictly authorised to examine complaints or
petitions regarding individual cases of human rights violation. Up until 1997,
the Commission received thousands of cases, of which insofar 12,000 cases
have been processed, or are currently being processed. Nevertheless, the
individual petitions regulated by the American Convention on Human Rights
of 1969 (Articles 44-51) are not central in the work of the Commission.
Although it receives several hundreds of complaints and notifications on an
annual basis, and is authorized to find information about them, its decisions
are rarely implemented.
Also, though Article 44 allows for “each person or group of persons, or a
non-governmental institution ... to submit a petition to the Commission”, still
the Commission “... shall not accept a petition against any member state that
has not submitted its declaration (by which it accepts the competency of the
Commission to receive and consider individual petitions against the alleged
member state)” (Article 45 (2)). Taking into account the fact that most of the
states on the American continent were led by dictatorship governments, it
does not come as a surprise that the findings of the Commission regarding
individual cases are usually ignored.
102
Facing systematic violations, the biggest influence of the Inter-American

Commission comes through studies and reports138 on the human rights
situation in more than twenty countries on the American continent. The
Commission’s reports, which usually call upon individual cases and visits on
the spot with the aim to document breaches, are oftentimes an important part
of the international efforts to publicize the violations139.
B) Inter-American Court of Human Rights
The second part of the Inter-American regime on human rights protection is

the Inter-American Court of Human Rights. The Ninth International
Conference of American States held in Bogota, in its Resolution XXXI
entitled “Inter-American Court of Human Rights”, considered that the
protection of these rights “... should be guaranteed by a judicial organ, in as
much as no right is genuinely assured unless it is safeguarded by a
competent court” and “... where internationally recognized rights are
concerned, the effective judicial protection should arise from an international
organ”. The General assembly of the Organization of American States in
1979 approved the Statute of the Court by the Resolution 448. Article 1 of
the Statute defines the Court as “an autonomous judicial institution whose
purpose is application and interpretation of the American Convention on
Human Rights”. Chapter VIII of the American Convention (Articles 52-69)
regulates the work of the Inter-American Court of Human Rights, which sits
in San Jose, Costa Rica. According to Article 61, only the member states and
the Commission have the right to submit cases to be considered before the
Court, and it can consider the cases and rule just compensation, or, in
extreme cases, interim measures with regard to the parties that recognize its
jurisdiction. However, since it started its operation in 1980, the Court has
resolved only a small number of cases.
138
The principle drawn from the Velasquez-Rodriguez case imposes on the governments of the
member states a positive legal obligation to investigate, prosecute and punish persons that
violate human rights (including persons who are not civil servants) within their national
judicial system.
139
For details see about the strengths and weaknesses of this process, which are illustrated by
the response of the Inter-American Commission to the military dictatorship in Chile in: Jack
Donnelly, International Human Rights, West view Press, 1998, p.71-73.
103
3. Africa, Asia and the Near East

In addition to the European and American regional system on human rights
protection, there is a third one, within the Organization of African Unity-
OAU, which was founded by the African [Banjul] Charter on Human and
Peoples' Rights, adopted 27 June 1981140 or the Banjul Charter, as it is often
called after the place of its adoption (Banjul, Gambia). The Banjul Charter
especially emphasizes the collective or peoples’ rights and individual
obligations. The international agreements on human rights recognize
peoples’ right to self-determination. Nevertheless, the Banjul Charter does
not add the rights to development and peace. Peoples’ rights concentrate on
the collective dimension of human rights and the relation between collective
goods and peace and development of the more traditional individual human
rights.
The African Charter suffers from harmful drawbacks, such as the extensive
“withdrawing” clauses. For example, Article 6 recognizes the right to
freedom and security of person, but further on reads, “No one may be
deprived of his freedom except for reasons and conditions previously laid
down by law.” Since there are no restrictions to such reasons and conditions,
this enables the states to have full freedom only if they make efforts to enact
laws that will suspend or repeal these rights141.
Finally, the implementation measures of the Banjul Charter are unusually
weak. The eleven-member African Commission on Human and Peoples’
Rights set up within the Organization of African Unity (Art. 30), in addition
to reviewing reports, within its competencies may also consider complaints.
However, only situations, and not individual cases may be discussed. And, in
order to carry out an in-depth study of the situation, an approval of the
Assembly of Heads of States and Governments of the Organization of
African Unity is necessary. This procedure (Articles 46-59) is much more
politicized than all the other multilateral procedures. Nevertheless, it seems
that the African Commission takes its work seriously and with energy. It not
just allowed, but also encouraged non-governmental participation. Taking
into account that African civil societies are usually weak and that there is
lack of tradition of independent NGO-s on human rights, this may prove to
be a significant contribution.
140
For details see: http://www1.umn.edu/humanrts/instree/z1afchar.htm
141
For more detail see: Jack Donnelly, International Human Rights, West view Press, 1998,
p.75
104
Whatever the final destiny of the African regional regime of human rights
may be, it is still much more advanced than those in the Arab world, Asia
and the Pacific. Asia and the Pacific make up a large and diverse area, which
is not a region either in social or in political sense. Therefore, the lack of a
regional regime of human rights is not surprising. However, the relatively
low level of Asian ratifications of international agreements on human rights
(the lowest percentage of any other geographic region) suggests that not only
the size and diversity are the factors that impede the sub-regional regimes of
human rights in Asia. The international NGO-s are the driving force of the
initiative of human rights in Asia, so even in the extremely repressive
countries, Human Rights Watch Asia are diligently working in order that
human rights violations are not ignored by the international community.
The Permanent Arab Commission on Human Rights, established by the Arab
League in 1968, has been evidently inactive, except for some occasional
efforts to publicize human rights violations in the territories occupied by
Israel. There are not even any authoritative regional norms. In the Near East,
the NGOs’ initiatives are also trying to compensate for the lack of a
functional regional regime. For example, the Arab Organization for Human
Rights-AOHR142, set up in 1983, issues annual reports on the human rights
situation in the countries of the Arab world. In 1989, through a mutual
initiative of the Arab Union of Lawyers, AOHR and the Tunisia League of
Human Rights supported by the UN Centre of Human Rights, the Arab
institute of Human Rights was established based in Tunisia, whose purpose
was to provide information on the human rights situation and equal amount
of training to both governmental and non-governmental personnel. Also,
there have been efforts on the part of individual Muslims and NGOs to
formulate Islamic norms on human rights.
142
For detail see: http://www.aohr.org
105
106
In a multicultural society every citizen strives towards

“equality”, but not “uniformity”.
- Albert V. Dice
107
108
PART THREE
INDIVIDUAL RIGHTS AND FREEDOMS
Introduction
There are numerous theoretical discussions related to the definition of

human beings and precisely what stands behind the essence of human rights.
The Universalists and Cultural Relativists have different opinions regarding
this matter and are conflicted in the domain of human rights. However, it is
evident that by itself, the respect for human beings does not entail respect for
their culture, because the latter can display disrespect for human beings.
When initiating any issue, the basis, in other words the frame which we will
refer to, are the standards in the international human rights system, even
more than the cultural norms of majority. It is the only way in which we can
move towards the right direction; otherwise, we will experience cultural
hegemony within the state borders and imperialism outside those borders.
However, this objective can be achieved by on the one hand considering the
protection of human rights, but also by maintaining a level of sensitivity and
respect for the identity and the dignity for all human beings on the other.
Taking into consideration the plan for “Grand Design” devised by professor
Max Sørensen and having in mind that the work aimed at improving the
situation with human rights globally will never cease, we ought to mention
occasionally that in order to know where we are headed, we have to know
where we currently stand. Thus, this section, which is divided in two
chapters, will be extensively dedicated to the individual human rights and
freedoms of human beings. Chapter VI talks about the individual civil and
political rights and freedoms, which are of particular interest for disabled
persons, and Chapter VII will concentrate on individual economic, social
and cultural rights and freedoms, which again are of special interest to
disabled persons.
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Individual Rights and Freedom
Chapter VI
Civil and Political Rights and Freedoms
1. Right to Freedom and Security
The rights of the individual for his or her physical freedom and security are
innate in the centre of every state system that declares respect for rule of law.
In Magna Carta Libertatum dated 1215, the famous chapter 39 declares that
“not one free man can be captured or imprisoned…only by a legally binding
decision made by his master or the law of the state” (Nullus liber homo
capiatur, vel imprisonetur … nisi per legale judicium parium suorum vel per
legem terrae).
The right to “life, freedom and security” given to every man is entailed in
Article 3 of the Universal Declaration of Human Rights, where Article 9
forbids “arbitrary arrest, detention or exile”. These articles are of great
importance to disabled persons, who find themselves subject to illegal
custody. Moreover, with Articles 9 and 10 from the International Covenant
on Civil and Political Rights, the basis for the right to freedom and
protection from arbitrary arrest is developed “...with an exception and in
accordance with such procedures as are established by law”.
Article 9 from the Convention on the Rights of the Child prohibits the
separation of children from their parents, except when the latter is absolutely
necessary and it is in the child’s interest1. Furthermore, disabled children
should not be separated from their parents and taken to a specialised
institution, if the latter is not absolutely necessary. Article 20 stipulates that
family environment is the most optimal frame for the freedom and security
of all children, including those who need special care, in other words,
disabled children.
Article 4 from the Declaration on the Rights of Mentally Handicapped
Persons provides for securing a regular family life for mentally disabled
persons, in which they can remain in the frame of their family surroundings.
Article 9 from the same Declaration provides for the right to living
conditions in family surroundings, “…with the exception of cases where
disabled persons have special health related needs”.
Regionally, the right to freedom and security is articulated in Article 5 of the
European Convention for the Protection of Human Rights and Fundamental
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Freedoms. In accordance with Article 5 (1) (e), “…everyone has the right to
liberty and security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by law:
…e) in circumstances of lawful detention of … persons of unsound
mind…”. The principles applied in cases such as Van Drugenberg1, Wicks1,
Tin, Wilson and Gannel1, are also relevant to the procedures applicable to
mentally ill persons which are sensitive to the risk of deprivation of their
freedom for a longer period of time.
The principle of “legally arresting psychologically restrained persons” was
developed in the case of Winterverp vs. the Netherrlands”1, where Mr.
Winterverp was forcefully deprived of his liberty during a longer time period
between 1968 and 1978, primarily by request from his wife, based on the
Mentally Ill Persons Act in 1884. In its judgement regarding this case, the
Strasbourg Court outlined three conditions which have to be fulfilled as a
minimum, in order to obtain “legal arrest of mentally ill persons”, in
accordance with Article 5 (1) (e): except in cases of emergency, appropriate
documentation has to be presented in order to prove that the individual in
question is mentally ill, in other words, the detected mental illness has to be
proven as such before the authorities, based on objective medical expertise;
the extent of the mental illness as such that forced arrest can be justified;
moreover, the importance of extended custody depends on the persistence of
the illness. In addition, according to the same article, the following cases
have also been conducted: X vs. Great Britain1 and Johnson vs. Great
Britain1.
Furthermore, the same right is considered as the basis for Article 7 from the
American Convention on Human Rights and Article 6 from the African
Charter on Human and Peoples’ Rights. As we previously outlined,1 Article
6 from the African Charter recognised the right to a person’s liberty and
security, but nonetheless, it outlines: “…not one person can be deprived of
his freedom, with the exception of conditions previously outlined in the
laws”. Since there aren’t any restrictions to those conditions or exceptions,
this enables states complete freedom, to suspend or restrict these rights, by
endorsing the relevant laws.
2. Prohibition of Torture
The idea that the state can misuse its own power by implementing
unjustified torture is well known. The injuries suffered during deliberate
punishment and other similar treatments are just some of the reasons for the
disability. These actions are part of those types of practices, which are
111
identified as serious violation of international law, including human rights.

The following practices are in the domain of serious human rights violations:
amputation as a form of punishment, institutional abuse, forced sterilisation,
castration or female genital circumcision1 and forcefully blinding persons in
custody.
None of the determined cultural principles or practices can justify this type
of behaviour. The latter is against all fundamental human rights and rights to
equal value and dignity for all human beings, as well as the integrity of the
body. Therefore, the measures for punishment which are implemented in
order to disable the individual are in breach of the international human rights
law and humanitarian law as well.
The available instruments for human rights protection, particularly the
prohibition of torture, inhuman and degrading treatment or punishment on
universal level, aside from the Bill of Rights dated from 16891 and the
American Constitution1, Article 5 of the Universal Declaration of Human
Rights is also of special interest, in which the following is stated: “…No one
shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment”.
The contents of the Declaration are used in Article 7 of the International
Covenant on Civil and Political Rights, which contains the second sentence,
applying to the criteria for the individual’s voluntary compliance in case of a
medical or scientific experiment. It ought to be mentioned that the
International Covenant on Civil and Political Rights goes further than the
Universal Declaration because the articles of the Declaration are formulated
as prohibitions, while the Covenant imposes positive obligations for the
states-signatories, at least in terms of the persons that have been deprived of
their liberty. The latter is evident from Article 10 (1), which states: “…all
persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person”.
Furthermore, the UN Convention against Torture and Other Cruel, Inhuman
and Degrading Treatment or Punishment, particularly Article 1 is of great
interest, because the article defines the term “torture”. Article 1 states that:
“…1. For the purposes of this Convention, the term “torture” means any act
by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him
or a third person information or a confession, punishing him for an act he or
a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at
112
the instigation of or with the consent or acquiescence of a public official or

other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions; 2.
This Article is without prejudice to any international instrument or national
legislation which does or may contain provisions of wider application”. We
need to pay attention particularly to the condition contained in the definition
of Article 1 of the UN Convention, namely that the term “torture” is
intentionally inflicted.
As previously mentioned, on regional (European) level, when we speak of
instruments for the protection of human rights, particularly the prohibition of
torture, inhuman or degrading treatment or punishment, it is crucial that we
refer to article 3 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms (ECHR), and the European Convention
on the Prohibition of Torture, Inhuman or Degrading Treatment or
Punishment, which represents an important additional structure for the
system stipulated in the ECHR1.
Article 3 of the (ECHR) is the central idea behind the European Convention
on the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment, which was ready to be signed on the 26th of November 1987
and was enforced on the 1st of February 19891. With this Convention, which
is considered as the legal basis for introducing the European Committee for
the Prevention of Torture, Inhuman and Degrading Treatment and
Punishment (CPT), a non-judiciary mechanism is provided for the protection
of human rights on European soil. The purpose of the Convention is to create
a procedure for supervision for the treatment of persons deprived of their
freedom, as well as strengthening, if necessary the protection for those
persons from torture and other forms of appalling behaviour. Therefore, the
Committee, through its special delegations, visits prisons, police stations and
psychiatric hospitals and facilities, with the aim to determine the manner of
treatment of persons deprived of their liberty1.
The prohibition of torture, inhuman or degrading treatment or punishment is
entailed in Article 5 of the American Convention on Human Rights, Article
5 of the African Charter on Human and Peoples’ Rights, and Articles 16 and
17 of the African Children’s Charter.
Other articles related to the prohibition of torture, inhuman or degrading
treatment or punishment include Article 4 of the Universal Declaration for
human rights and Article 8 of the International Covenant on Civil and
Political Rights, by which the acts of slavery or servitude and every form of
113
slave trade are prohibited, as well as enforced or compulsory labour.

Additional protocols to the American and European Convention on Human
Rights, as well as to the International Covenant on Civil and Political Rights
prohibit the death penalty (The Protocol to the American Convention on
Human Rights to Abolish the Death Penalty was adopted on the 8th of June
1990 ((OAS Treaty Series No. 73 (1990), Protocol 6 of the ECHR endorsed
in 1982 by which the death penalty is abolished during peaceful times, and
Protocol 13, by which the death penalty is abolished by all accounts, and the
second Facultative Protocol of the International Covenant on Civil and
Political Rights, which entered into force on 11th of July 1991). All of these
legal texts are closely related to the issues of disability.
3. Right to Freedom of Expression
The freedom of expression of personal opinion is perhaps the most

universally acknowledged1 human right. Numerous versions of this
particular human right have been revealed in the initial contemporary
constitutions, including several constitutions of American states during the
19th century, Article 11 from the French Declaration on Human and Civil
Rights, as well as the First Amendment of the US Constitution.
Everyone has the right to freedom of opinion and expression. The latter
includes freedom to hold opinions without interference and to seek, receive
and impart information and ideas through any media and regardless of
frontiers. Furthermore, the freedom of expression includes the freedom of
thought, conscience and religious background. The freedom of expression
entails the freedom of thought, conscience and religion, as well as freedom
to have or to adopt a religion or belief of his choice, and freedom, either
individually or in community with others and in public or private, to
manifest his religion or belief in worship, observance, practice and teaching.
People with disability enjoy the same right to freedom of expression, equally
with other members of society.
Article 19 of the Universal Declaration of Human Rights provides for the
right to freedom of opinion and expression, and the freedom to hold opinions
without interference.
The right to freedom of expression is articulated in Article 19 of the
International Covenant on Civil and Political Rights. Regardless of existing
borders, this right entails the freedom to seek, receive and impart
information and ideas in any form, either orally, in writing or in print, in the
form of art, or through any other media of his choice. Furthermore, the
114
exercise of these rights carries with it special duties and responsibilities. It

may therefore be subject to certain restrictions, but these shall only be such
as are provided by law and are necessary: respect of the rights or reputations
of others and protection of national security or of public order (ordre public),
or of public health or morals.
Moreover, Article 20 provides for a restriction of the freedom of speech, and
every member-state prohibits every form of propaganda for war activities
and every form of advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence, by law. The
element of disability is not included as basis for instigating national, racial
or religious hatred; however, the prohibition of discrimination can be
applied to the issue as well.
Rule 1 from the Standard Rules on the Equalisation of Opportunities for
Persons with Disabilities is stipulating that: “… States should initiate and
support information campaigns concerning persons with disabilities and
disability policies”. It stipulates that persons with disabilities are citizens
with equal status as all other citizens, with rights and responsibilities. Rule
12 declares that States should encourage measures for equal participation by
persons with disabilities in the religious life of their communities. In
addition, any form of discrimination based on physical elements, preventing
a person from joining the church as a priest, in any religion is prohibited.
Article 14 (1) of the Convention on the Rights of the Child, stipulates the
rights of the child’s freedom of thought, conscience and religion. In addition,
Article 14 (2) is related to the rights and responsibilities of the parents, and
where applicable, the legal guardians to provide direction for the child to
exercise his or her rights, in a manner consistent with the development of the
child’s capacity.
Article 12 of the American Convention on Human Rights is related to the
right of freedom of conscience and religion. It stipulates the same right as it
is stated in the Universal Declaration, only on a regional level. Restrictions
on this right are not allowed, with the exception of legally endorsed
restrictions, which in a democratic society, represent or are necessary for
protection of the public safety, order, health, or morals, or the rights or
freedoms of others.
A similar provision is included in the ECHR. Article 10 protects expression
in a general sense, a term for which perhaps there was an opinion that it has
general interpretation to justify the omission by the media, an aspect which
is included in the Universal Declaration on Human Rights. The European
115
Court on Human Rights has insisted that the opinion related to the freedom
of expression “…represents a part of the fundamental roots for a democratic
society and one of the basic conditions for its development and for self-
fulfilment of every individual”. The nature of “expression” which is
protected by this article is not always explicit. Problems can arise
particularly when defining expression by activity related to the expression of
a particular viewpoint.
The Court rigorously dedicated itself to the issue in terms of when it is
appropriate to allow public authorities to intervene in the freedom of
expression, in accordance with Article 10. The Article outlines a long list of
possible restrictions of freedom of expression, namely: “…the exercise of
these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests
of national security, territorial integrity or public safety, for the prevention of
disorder or crime, for the protection of health or morals, for the protection of
the reputation or the rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the authority and
impartiality of the judiciary”. In terms of the boundaries of the restrictions of
the right stipulated in Article 10, the following judgements of the European
Court on Human Rights can be reviewed as additional material, namely the
case of Spykatcher (Observer and Guardian vs. Great Britain) and the case
of Sunday Times1.
Article 9 of the African Charter for Human and Peoples’ Rights, outlines the
right for every individual to receive information and present his or her
opinion, within the framework of the law.
4. Freedom of Peaceful Assembly and Association
The right to freedom of expression is closely related to the right to freedom

of peaceful assembly and association, in other words they act as lex gene-
ralis and lex specialis.
Every individual has the right to freedom of assembly and association, and
no individual can be forced to become a member of an association. Another
aspect of this right is the participation in the state apparatus, directly or by
elected representatives.
This freedom is articulated in Article 20 of the Universal Declaration of
Human Rights, which states: “everyone has the right to freedom of peaceful
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assembly and association; and 2. no one may be compelled to belong to an

association”.
acknowledges the right to peaceful assembly, however it additionally
outlines that exercising this right can be the subject of restrictions, in
conformity with the law and which are necessary in a democratic society in
the interests of national security or public safety, public order (ordre public),
the protection of public health or morals or the protection of the rights and
freedoms of others. Article 22 provides for the right to the freedom of
association, including the right to establishing of trade unions and
membership in such trade unions. Emphasis is given to the role of trade
unions for the protection of the workers’ interest. If we interpret this article
extensively, it can also be applied to the protection of all kinds of disability,
which can arise from inadequate working conditions.
Article 15 from the Convention on the Rights of the Child obligates the
member-states to ensure the child’s rights to freedom of expression of his or
her viewpoints. The latter is particularly important for children with mental
disability because of their mental maturity. Moreover, this article provides
for the obligation by member-states to recognise the right of the child’s
freedom of association and the freedom of peaceful assembly, without any
imposed restrictions of exercise of these rights, with the exception of those
provided for by the law.
On a regional level, Article 11 of the ECHR provides for the right to
peaceful assembly and association. However, the article does not explicitly
entail the right to equal approach towards state services. The European
Court, within its jurisdiction, reviews the freedom of association towards
political parties (the case of the United Communist Party vs. Turkey), other
types of association (the case of Sidiropulos vs. Greece) and it even extended
to the protection of traditional voluntary groups (the case of Sasanue vs.
France).
Article 11 only deals with one form of association – trade unions. It was
deliberated in several cases for requests, that, in accordance with Article 11,
the states were obligated to collaborate with the syndicates and refrain from
procedures by which membership in the syndicates or membership in
syndicate activities will be the subject to punishment. The European Court
did not allow for such broad interpretation of the right to association. In the
case of the National Belgian Police Syndicate vs. Belgium, the European
Court concluded that, albeit Article 11 in fact entails the right to membership
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and establishing of syndicates, it does not provide for the right for special
practice by the state1.
Article 15 of the American Convention of Human Rights provides for the
right of freedom of peaceful assembly, restricted only by legal measures.
Furthermore, Article 16 is a continuation of the previous article and provides
for the freedom of association for ideological, religious, political, economic,
labour, social, cultural, sports, or other purposes, again restricted only by
legal measures.
The right to assembly is regulated by Article 11 from the African Charter for
Human and Peoples’ Rights, and it provides for ethics in the list of
restrictions, which is a significant step towards recognising the rights of
persons with disability.
5. Right to Respect Private and Family Life
The protection of privacy and family life reflects the devastating experience
from the world of fascism in the 1930s and 1940s, in other words the prying
practices of the fascist state in the internal family decisions, including the
racially restrictive Nazi laws regarding marriage and politics in totalitarian
governments of separating children from their families due to political
indoctrination.
Article 16 of the Universal Declaration of Human Rights, provides for the
right of men and women of full age, without any limitation due to race,
nationality or religion, to marry and to found a family. They are entitled to
equal rights as to marriage, during marriage and at its dissolution. The
family is regarded as a “natural and fundamental group unit of society” and
is entitled to protection by society and the State. In addition, Article 16 (2)
outlines that marriage can be entered into only with the free and full consent
of the intending spouses. Article 23 from the International Covenant on Civil
and Political Rights reaffirms the latter, adding that “in the case of
dissolution of the marriage, provision shall be made for the necessary
protection of any children”.
This right is also provided in Article 16 from the Convention on the Rights
of the Child. Furthermore, with articles 6, 8, 9, 10, 22, and 37, this
Convention elaborates on the rights to family life and family contact for the
children.
In Rule 9 of the Standard Rules on the Equalisation of opportunities for
persons with disabilities, it is declared that the state shall promote the
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complete participation of persons with disabilities into family life. In

Principle 7 from the Principles for the Protection of Persons with Mental
Disability and Improving Health Care, the role of the community is
underlined, stating that every patient has the right to treatment, if possible
within the community of residence.
Article 8 from the ECHR is related to the previously mentioned right.
Although the European Court has never accepted a broad definition, it has
recognised this right as freedom of personal choice of lifestyle, particularly
with regard to sexual orientation. Paragraph 2 of the same Article stipulates
that public authorities cannot be involved in the exercise of this right, only in
circumstances where their involvement is legally approved or necessary, or
by the principles of democratic society. Nonetheless, in some circumstances,
the court has evaluated that the respect for a person’s private life might
demand a great deal of formal and public procedures. In the case of Geskin
vs. Great Britain, the court ruled that Article 8 has been violated by an
agency that refused to disclose the contents of classified information related
to the childhood of the damaged party, at the time that he was under care of a
state institution.
For persons with disability, the case of A and B vs. the Netherlands is also
significant, where person B, daughter of Mr. A, is mentally challenged, and
since 1970, she had been cared for by a private institution for mentally
challenged children. Mr. A forced the child to engage in sexual intercourse,
resulting in severe traumatic consequences for the child, and serious mental
deprivation. Due to the lack of legal instruments to provide effective
protection for Miss B (both provisions from the Criminal Code of the
Netherlands which are relevant for this particular case – Articles 248 and
239 (2) did not provide for a practical and effective protection of the victim
because of the void in the legal instruments), taking into consideration the
nature of the criminal act, the court concluded that the child is a victim of
injury, in accordance with Article 8 of the Convention. Article 12 provides
for the right to marriage, which is considered as universal and cannot be
restricted to persons on account of their disability. In relation to the
jurisprudence resulting from this article, the judgements by the European
Court for Human Rights for the cases of Irie vs. Ireland and the Johnston
case can be additionally reviewed.
In terms of other regional systems for the protection of human rights, Article
17 of the American Convention on Human Rights declares the same right,
adding that this right is accepted only if they meet the conditions required by
domestic laws, insofar as such conditions do not affect the principle of non-
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.discrimination established in the Convention. Moreover, Article 11 (2)

states that: “no one may be the object of arbitrary or abusive interference
with his private life, his family, his home, or his correspondence or of
unlawful attacks on his honour or reputation”.
Article 18 of the African Charter for Human and Peoples’ Rights also
provides for the same right, outlining that “... the state will ensure
elimination of discrimination against women and children” (Article 18 (3)).
6. Right to Equal Protection before the Law
Article 6 of the Universal Declaration for Human Rights outlines that

“everyone has the right to recognition everywhere as a person before the
law”. Therefore, the article focuses on the legal subjectivity of the person
and underlines that every person enjoys this right, including persons with
disability, even if they are not explicitly outlined. Furthermore, Article 7
strengthens the previously mentioned provision, stating 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”.
The International Covenant on Civil and Political Rights, in Article 16,
recognises the legal subjectivity of every person everywhere, and Article 26
provides for “… the law shall prohibit any discrimination and guarantee to
all persons equal and effective protection against discrimination on any
ground such as … other status”. Even though disability as a basis for
discrimination is not explicitly outlined in the formulation of Article 26, it
can nonetheless be included under other status, outlined at the end of this
article.
The principle of equality before the law and equal protection without
discrimination is articulated in Article 24 of the American Convention on
Human Rights.
In the European system for the protection of human rights, Article 14 of the
ECHR provides for availability of the rights and freedoms recognised by the
Convention, without any form of discrimination.
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7. Access to the Judicial System
It is considered that the right to legal assistance is the basis on which other
human rights are produced. The right to legal assistance is an integral
element of the right to a fair trial. Although treaties in general do not have an
explicit provision for human rights in terms of access to the judicial system
as a principle of international law for human rights, this concept is included
in the statement declaring that: “…all persons are equal before the courts and
tribunals”, which can be found in most of the treaties concerning human
rights.
In Article 14 (3) of the International Covenant on Civil and Political Rights,
it is outlined that “…everyone shall be entitled to the following minimum
guarantees, in full equality: ... d) to be tried in his presence, and to defend
himself in person or through legal assistance of his own choosing; to be
informed, if he does not have legal assistance, of this right; and to have legal
assistance assigned to him, in any case where the interests of justice so
require, and without payment by him in any such case if he does not have
sufficient means to pay for it”.
In addition, the UN was particularly active in international treaties for
human rights and the work of international criminal tribunes, in terms of
enforcing comprehensive standards in the field of criminal activities,
primarily through the activities of the United Nations Crime Prevention and
Criminal Justice Program.
8. Freedom of Religious Orientation (Religion)
The right to freedom of religious orientation is outlined in the Universal

Declaration of Human Rights. Article 18 projects that “… everyone has the
right to freedom of religion; this right includes freedom to change his
religion or belief, and freedom, either alone or in community with others and
in public or private, to manifest his religion or belief …”. The right is also
included in Article 18 of the International Covenant on Civil and Political
Rights. This right includes freedom to have or to adopt a religion or belief of
his choice, and freedom, either individually or in community with others and
in public or private, to manifest his religion or belief in worship, observance,
practice and teaching.
Article 14 of the Convention on the Rights of the Child provides for the right
of children to choose their own religious orientation. As with other
conventions, the freedom of religious orientation or conviction can be the
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subject to those restrictions which are regulated by law and which are
necessary for public protection and security, public order, health and moral,
or for the protection of fundamental rights and freedoms of other persons.
Paragraph 48 of the UN Rules for Protection of Juveniles Deprived of Their
Liberty, outlines that every juvenile ought to be allowed to satisfy his or her
own religious needs.
Rule 12 of the Standard Rules on the Equalisation of Opportunities for
Persons with Disabilities declares that states ought to ensure equal
opportunities for participation in religious life for all persons with disability,
within their community.
Paragraph 136 of the World Program for Activities for Persons with
Disability imposes an obligation to the states to ensure equal opportunity for
persons with disability, and free and complete participation in religious life
within their community.
On a regional level, this right is articulated in Article 12 of the American
Convention for Human Rights, as well as Article 8 of the African Charter for
Human and Peoples’ Rights, and Article 9 of the European Convention for
the Protection of Human Rights and Fundamental Freedoms.1
9. Availability of Information
The Universal Declaration of Human Rights, with Article 19, projects that
every person has the right to freedom of opinion and expression, as well as
the freedom to receive and impart information. This right is important for
persons with disability, because those persons, in their everyday lives, have a
continuous problem with access to information produced by the media.
Article 19 of the International Covenant on Civil and Political Rights adds
that exercising of these freedoms entails special obligations and
responsibilities.
This right is also projected by Article 13 of the Convention on the Rights of
the Child, related to the right to freedom of opinion and expression.
Principle 13 of the Principles for the Protection of Persons with Mental
Illness and Improvement of Mental Health Care, which prescribes the rights
and conditions of mental health institutions, provides for the right of patients
to purchase or receive recreational and communication services and objects.
The principle includes communication as a basic need for persons with
mental illness. Furthermore, principle 11 provides for the freedom of
receiving treatment for persons with mental illness. The patient has to be
informed of his or her condition and subsequently grant his or her approval
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for further treatment. The approval is given voluntarily, without any

pressure, subsequent to an explanation, which the patient is given regarding
his or her condition, in a manner comprehensive for the patient. The Vienna
Declaration and Programme of Action calls upon all governments, to adopt
or harmonise where necessary legislation in order to provide persons with
mental illness with their rights. Persons with mental illness ought to have
access to all relevant institutions and programs as well as all the relevant
information.
Article 13 of the American Convention on Human Rights also provides for
this right, and Article 13 (2) prohibits censorship. Moreover, it prohibits
“…methods or means, such as the abuse of government or private controls
over newsprint, radio broadcasting frequencies, or equipment used in the
dissemination of information”. The emphasis is on the prohibition of
restricting communication and circulation of ideas and opinions. Thus, this
article enables all persons, including persons with disability to have equal
access to information.
10. Freedom of Movement
Every person has the right to free movement and is free to choose the
residence/domicile within the territory of the person’s country, as well as the
right to leave and return to any country, including his own, and the right to
request asylum from persecution from any other country. The originators of
the International Covenant on Civil and Political Rights have restricted this
provision subsequent to numerous complaints from a large number of
countries related to this provision. Therefore, Article 12 of the Covenant
restricts the right to movement and residence of the person “…lawfully
within the territory of a State”, and introduces restrictions on the previously
mentioned rights that are “…provided by law and are necessary to protect
national security, public order (ordre public), public health or morals or the
rights and freedoms of others... ”.
The Universal Declaration of Human Rights, in Article 3, includes the right
of freedom of movement for every person, in general circumstances.
The Convention on the Rights of the Child, in Article 10, stipulates that the
requests submitted by children or their parents to enter into a member
country or leave for the purpose of family reunification, the member states
will act upon the requests in a positive, humane and expeditious manner. In
addition, the emphasis is placed on the right of the child to maintain personal
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and direct contacts with both parents if they reside in different countries, on
a continuous basis, with the exception of extraordinary circumstances. The
right to leave any country is subject to those restrictions which are legally
prescribed and which are necessary to maintain the national security, public
order, (ordre public), public health and moral and the rights and freedoms of
others.
One of the rights that are of special interest for persons with disability is the
right to accessibility, which results from the right to freedom of movement.
“The right to freedom of movement”, for persons with physical disability is
entirely determined by the conditions set by the state, in other words, by the
accessibility of the physical environment. Rule 5 of the Standard Rules on
the Equalisation of Opportunities for Persons with Disabilities outlines that
“States should (a) introduce programmes of action to make the physical
environment accessible; and (b) undertake measures to provide access to
information and communication”. Moreover, on a regional level, the
European Union is actively working to increase the level of accessibility to
infrastructure and activities in the field of culture for persons with
disabilities. Therefore, the Council passed a Resolution on 6th of May 2003,
encouraging member-states and the Commission, within the framework of
their authority to “… introduce ways to integrate persons with disability into
the fields of arts and culture and to promote equal possibility for displaying
their work”, “increasing the accessibility to cultural events and exhibitions”
and “disseminating information via modern information technology”.
11. Prohibition of Discrimination
Prohibition of discrimination is one of the most basic principles of human

rights, which emerge from equal value and dignity for all human beings.
This principle is articulated in all international and regional instruments
related to human rights. Article 1 of the Universal Declaration of Human
Rights states: “… all human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and should act towards
one another in a spirit of brotherhood”. Moreover, Article 2 provides that
“…everyone is entitled to all the rights and freedoms set forth in the
Declaration, without distinction of any kind…”. This is primarily
strengthened by Article 7, which declares that “all persons 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”.
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In addition, Article 16 enables any men and women of full age, without any
limitation due to race, nationality or religion, have the right to marry and to
found a family. Article 23 (2) states that: “… everyone, without any
discrimination, has the right to equal pay for equal work”. Article 25 is of
special interest for persons with disability, particularly women with
disability: “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”. In
addition, two other articles of the Universal Declaration of human rights
separately prescribes that everyone has the right to education (article 26),
and everyone has the right to freely participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement and its
benefits (article 27).
Article 14 of the ECHR outlines the following: “...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”.
Article 1 of the American Convention on Human Rights, outlines the
following elements, which can act as a basis for prohibited discrimination:
race, colour, sex, language, religion, political or other opinion, national or
social origin, economic status, birth, or any other social condition. Article 1
(2) explains that the term “person” applies to every human being.
Article 2 of the African Charter on Human and Peoples’ Rights prohibits any
form of distinction based on race, ethnic origin, skin colour, gender,
language, religion, political or any other opinion, material status, birth origin
or any other status. Furthermore, in accordance with Article 28, “…every
person has the obligation to respect others without discrimination and
maintain mutual relations with the aim to promote, safeguard and initiate
mutual trust and tolerance”.
Another provision similar to the previously mentioned regional instruments
for the protection of human rights is articulated in Article 2 of the
International Covenant for Economic, Social and Cultural Rights. Even
though the condition of disability is not mentioned in any of the provisions
explicitly, it nonetheless can be included under “any other status”.
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The Convention on the Rights of the Child is the only international

instrument for human rights where discrimination based on disability is
explicitly outlined in Article 2 (1), which states: “member-states of this
Convention will respect and secure the rights of this Convention for every
child, without discrimination and regardless of race, skin colour, gender,
language, religion, political or any other conviction, nationality, ethnic or
social background, disability, origin of birth or any other status of the child
or his parent or legal guardian”.
There are numerous other international instruments related to the prohibition
of discrimination, particularly if the discrimination is based on disability, for
example in the work place. The Convention concerning Vocational
Rehabilitation and Employment of Disabled Persons implies that persons
with disability cannot be the subject of discrimination in employment.
Article 4 of the Convention outlines that “... vocational rehabilitation and
employment policy ought to be based on the principle of equal opportunity
between workers with disability and workers in general … special positive
measures which are implemented in order to attain effective equal
opportunity between workers with disability and workers in general, will not
be considered as discrimination against other workers”.
The International Labour Organisation-ILO, has also adopted a Convention
for Protection against Discrimination in terms of Employment and Vocation,
related to discrimination against persons with disability in employment.
Article 1 (1) of this Convention contains the definition of discrimination.
Article 1 (5) also contains an anti-discriminatory clause related to
Convention concerning Vocational Guidance and Vocational Training in the
Development of Human Resources. Other obligatory legal act endorsed in
the frame of the ILO is the Recommendation related to Vocational
Rehabilitation and Employment of Persons with Disability. Paragraph 7 of
this instrument outlines that “persons with disability can enjoy equal
opportunity in the access and progress at the workplace which, wherever
possible, corresponds with their choice, and takes account of individual
capabilities for such employment”. Furthermore, Paragraph 4 declares that
“… measures for vocational rehabilitation ought to be available for persons
with disability of all categories”. Paragraph 2 of the Declaration on the
Rights of Disabled Persons, outlines that disabled persons can enjoy the right
projected by this Declaration related to employment “... without exception or
discrimination … will be exercised by the disabled person or his family”.
Paragraph 10, outlines the positive obligation of member states to accept the
necessary measures for the protection of disabled persons against
“exploitation, degradation or discrimination”.
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Furthermore, the Standard Rules on the Equalisation of Opportunities for

Persons with Disabilities represent an important guide for prohibiting
discrimination of disabled persons in the field of employment. Rule 7 (1)
states that the Law on employment “… should not be discriminatory or
create any obstacles in the employment of disabled persons.”
Paragraph 63 of the Vienna Declaration and Programme of Action confirms
that all human rights and basic freedoms are universal and “... every person
is born equal and has the same rights to life and welfare, education and
work, living independently and active participation in all aspects of society.
Any direct discrimination or other negative discriminatory treatment of a
disabled person is therefore a violation of his or her rights. The World
Conference on Human Rights calls on Governments, where necessary, to
adopt or adjust legislation to assure access to these and other rights for
disabled persons”. Additionally, the Declaration refers to the Standard Rules
on the Equalisation of Opportunities for Persons with Disabilities and
outlines that “… persons with disabilities should be guaranteed equal
opportunity through the elimination of all socially determined barriers, be
they physical, financial, social or psychological, which exclude or restrict
full participation in society.”
12. Participation in Political Life
Article 21 of the Universal Declaration on Human Rights states that “... 1.

Everyone has the right to take part in the government of his country, directly
or through freely chosen representatives; 2. Everyone has the right of equal
access to public service in his country; and, 3. The will of the people shall
be the basis of the authority of government; this will shall be expressed in
periodic and genuine elections which shall be by universal and equal
suffrage and shall be held by secret vote or by equivalent free voting
procedures”. In addition, polling stations should be entirely accessible
to disabled persons.
outlines that every citizen has the right and opportunity, without any form of
discrimination and unjustified restrictions, to take part in the conduct of
public affairs, directly or through freely chosen representatives; to vote and
to be elected at genuine periodic elections which shall be by universal and
equal suffrage and shall be held by secret ballot, guaranteeing the free
127
expression of the will of the electors; and, to have access, on general terms
of equality, to public service in his country.
Article 16 of the ECHR provides for the protection of foreigners from
imposed restrictions on their political activities.
Article 23 of the American Convention for Human Rights predicts the right
to participation in the political life by every citizen. In addition, paragraph 2
projects the legal regulation of the conditions for exercising this right related
to age, nationality, language, education, civil and mental capacity. In terms
of persons with disability, in accordance with this Convention, their
participation in political life may not be subject to any restrictions.
However, general practice shows inconsistencies regarding this issue, and eo
ipso on one hand, it imposes the question of the participation by disabled
persons in political life, and the depraving of their civil capacity based on
mental disability, on the other hand. The dilemma is the point where the line
can be drawn and thereby avoiding violation of the rights enjoyed by a
particular group of people? Thus far, the practical experience has yet to
provide an answer.Article 13 of the African Charter for Human and Peoples’
Rights, provides for the right to free participation in political life for every
citizen in their country.
13. Right to Possession
The right to possession, which is related to all persons equally, including

persons with disability, is projected in all regional instruments regarding
human rights.
On a European level, the latter is achieved by Protocol 1 to the European
Convention for Protection of Human Rights and Fundamental Freedoms,
where Article 1 (1) outlines that: “... every natural or legal person is entitled
to the peaceful enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the conditions
provided for by law and by the general principles of international law.”
Article 21 of the American Convention on Human Rights stipulates that “...
everyone has the right to the use and enjoyment of his property. The law
may subordinate such use and enjoyment to the interest of society”.
Article 14 of the African Charter on Human and Peoples’ Rights outlines
that “... the right to property is guaranteed. It may only be encroached upon
in the interest of public need or in the general interest of the community and
in accordance with the provisions of appropriate laws”.
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Frequently, the difference between the spirit of the provisions incorporated

in international instruments for human rights and their practical
implementation is quite distressing. For example, in the Republic of
Macedonia, the right to personal possession in institutions that care for
disabled persons does not exist. These persons do not possess even their own
clothes (i.e. the right to retain their clothes after they have been washed). An
interesting situation occurred when the Polio Plus- Movement Against
Disability activists decided to purchase a bike for Ali Turkjan, a resident of
the Special Institution of Demir Kapija; the bike was intended as an award
for his efforts in the Creative Workshop within the Institution, with funds
generated from the sale of Ali’s own work. It took two years to “persuade”
the employees of the Institution that the bike was in fact owned by Ali, and
not by the Institution.
14. Right to Seek Asylum
Article 14 of the Universal Declaration of Human Rights outlines that

“...everyone has the right to seek and to enjoy in other countries asylum from
persecution. This right may not be invoked in the case of prosecutions
genuinely arising from non-political crimes or from acts contrary to the
purposes and principles of the United Nations”. Prosecution based on
disability is not permitted. However, this instrument does not regulate the
issue of granting asylum; it only provides for the possibility for persons to
seek asylum.
Article 22 (7) of the American Convention on Human Rights, regulates the
right for every person to seek and be granted asylum in a foreign territory “...
in accordance with the legislation of the state and international conventions,
in the event he is being pursued for political offences or related common
crimes”.
The Convention Relating to the Status of Refugees of the United Nations
adopted in 19511 with Article 33 (1) outlines that member states cannot
expel or return (“refouler”) the refugee on the territory of the country where
his life and freedom would be endangered.
Article 23 of the Vienna Declaration and Programme of Action reiterates
that “... everyone, without distinction of any kind, is entitled to the right to
seek and to enjoy in other countries asylum from persecution, as well as the
right to return to one's own country”. It ought to be mentioned that
threatening or violation of human rights during conflicts is one of the
reasons for disability.
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Chapter VII
Economic, Social and Cultural Rights and Freedoms
1. Right to Work
1.1. General Provisions for the Right to Work
Many persons with disabilities are unemployed, or are given menial or

poorly remunerated jobs. This is true, even though it can be demonstrated
that with proper assistance, training and placement, the great majority of
persons with disabilities can perform a large range of tasks, in accordance
with the prevailing work norms. In times of unemployment and economic
slump, persons with disability are usually the first ones to be fired or the last
ones to be employed. Therefore, certain measures ought to be implemented
to ensure equal opportunities for persons with disability for productive
employment in the free labour market.
Article 6 of the International Covenant on Economic, Social and Cultural
Rights outlines that “…states-signatories to the Accord recognise the right to
work, including the right for every person to have equal opportunity to
provide for his livelihood through employment which he has chosen or
accepted freely”.
The right to work is also included in regional instruments. Article 1 of the
European Social Charter explains that “…every person will have an
opportunity to work for his livelihood by employment chosen by his free
will”.
Article 6, Additional Protocol to the American Convention on Human Rights
in the Area of Economic, Social and Cultural Rights, outlines that “every
person has the right to work”.
Article 15 of the African Charter on Human and Peoples’ Rights declares
that “every person has the right to work” is a fundamental element.
Specifically, in terms of persons with disability, the Declaration on the
Rights of Disabled Persons in its 3rd paragraph states that persons with
disability “…have the right to be productive in any employment post be
employed in any profession which will realise their productive capacity”.
Similarly, paragraph 7 of the Declaration on the Rights of Disabled Persons
130
includes “…the right to secure productive and useful employment or

professional engagement, in view of their capacity and capability”.
Rule 7 of the Standard Rules on the Equalisation of Opportunities for
Persons with Disabilities, under the title Employment, prescribes that
member states “…should recognise the principle that persons with disability
ought to be entitled to exercise their human rights, particularly in the field of
employment”. This statement explains that disabled persons have the
fundamental right to employment. Rule 7 also emphasises that “…disabled
persons also must have equal rights in rural and urban areas, in terms of
productive employment in the labour market”.
On a regional level, one of the most significant legal acts of the European
Union is the Directive of the Council 2000/78/EC, passed on the 27th of
November 2000, regarding the implementation of a general frame for equal
procedures in employment and vocation; Article 5 of the Directive is
particularly directed towards disabled persons, emphasising that “…the
employer ought to take the necessary measures, in order to enable disabled
persons full access, participation and progress at their employment posts or
training, with the exception in circumstances when such measures would
represent disproportional cost for the employer…”1.
The revised Disability Discrimination Act of 1995, which was enforced on
the 1st of October 2004, the right to employment provided for by declaration,
was transformed into practice. The right to employment projects that all
service utilities should adjust their vicinities in order to be easily accessible
for disabled persons. Furthermore, all undertakings, regardless of their size
or capacity should devise concrete action plans and measures, which should
be implemented in a timely framework. They can be exempted from this rule
only in circumstances when those actions or measures could endanger the
welfare and security of the disabled persons in case of, for example,
evacuation due to fire. In addition, during the process of employment,
promotion or dismissal, discrimination by the employer towards disabled
persons is explicitly forbidden.
.
2. Right to Develop Work Skills
The right to developing work skills is extremely important for disabled

persons, because the improvement of their work skills increases their
capacity for independence and builds their self-respect. It is quite
superfluous to point out that the development of skills through professional
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training increases the possibilities for disabled persons, which leads to higher
competitiveness on the labour market.
Paragraph 132 of the World Program of Action for Disabled Persons
contains a list of services that have to be provided for disabled persons, in
order to improve and secure equal opportunity for more productive and
effective employment. These services should include vocational assistance
and direction, vocational training, acquiring and maintaining posts.
Paragraph 33 of the Tallinn Guidelines for Action on Human Resources
Development in the Field of Disability projects that “…disabled persons
have the right to receive vocational training and work in equal conditions as
the rest of the labour force”.
Paragraph 6 of the Declaration on the Rights of Disabled Persons states that
“…disabled persons have the right to…education, vocational training and
rehabilitation…that will enable then to develop their skills and ability to
their utmost capacity and will accelerate the process of their integration into
society”.
In accordance with Article 1 (5) of the ILO Convention No. 142, states are
expected to implement the programs and policies for “…encouraging and
enabling all persons, on an equal basis and without any form of
discrimination, to develop and use their work skills…’. Specifically, the
Convention outlines that states will “…adopt and develop broad and
coordinated policies and programs for vocational direction and expert
training” (Article 1). Article 3 (1) is specifically related to disabled persons,
outlining that “…every member will gradually broaden their systems for
vocational direction, including producing continuous information regarding
employment opportunities, aiming to secure the most detailed information
and the most specific direction available to…disabled persons.”
The Recommendation concerning Vocational Rehabilitation of the Disabled
Persons- ILO Recommendation No.99, underlines the different existing
principles and methods for vocational direction, expert training and
employment for disabled persons. Paragraph 2 projects that professional
rehabilitation services should be available to all disabled persons. Paragraph
3 states that “…all necessary and applicable measures should be considered
and implemented, in order to utilize and develop a specialised service for
vocational direction for disabled persons who need assistance in choosing or
changing their profession.” Paragraph 5 states that the principles for expert
training, which are generally implemented during training programs for
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persons without disability, should also be available for persons with

disability, if physical and educational conditions allow it.
The Recommendation concerning Vocational Rehabilitation and
Employment of Disabled Persons aims to encourage members to improve
vocational rehabilitation and assistance for the employment of disabled
persons. Article 15 and Articles 31 to 37 emphasise the importance of
employers’ organisations and employees’ organisations, and society itself in
terms of the vocational rehabilitation and assistance during employment.
Article 20 provides for the necessity of special efforts in order to secure
availability of the services for vocational rehabilitation to disabled persons in
rural areas and more isolated societies, at the same level and in the same
manner as in urban areas. Part VII is related to contribution by disabled
persons and their organisations towards the development of the services for
vocational rehabilitation. Article 38 emphasises the requirement for taking
measures in order to include disabled persons and their organisations in the
development of vocational rehabilitation services.
Rule 19 (3) of Standard Rules on the Equalisation of Opportunities for
Persons with Disabilities, provides for “…the states’ responsibility to
develop training programs in collaboration with associations for disabled
persons, and that disabled persons should be included as instructors, tutors or
advisors in the training programs for personnel.”
Paragraph 4 (1) ILO Recommendation No. 150, projects that “…members
should adopt and develop comparative and coordinated policies and
programs for professional direction and training, which are closely related to
employment, particularly in public services for employment.” Furthermore,
paragraph 5 (1) outlines that member states should implement and develop
open, flexible and complementary systems for general, technical and expert
education, regardless of whether these activities will take place in the
framework of the formal educational system or outside of it. Paragraph 5 (2)
determines that every person has access to professional direction and
professional training. In addition, paragraph 7 (1) projects that members
ought to be inclined towards providing adequate programs for all disabled
persons. Chapter VII is particularly concerned with disabled persons: “If
proven as useful, disabled persons should always have access to programs
for vocational direction and vocational training, which are available for the
general public. Otherwise, disabled persons should have access to specially
adjusted programs”.
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Articles 9, 10, and 15 of the European Social Charter project the right for
vocational direction and training. Article 9 outlines that states ought to
“…provide or promote, subject to requirement, services which will enable
all persons, including disabled persons, to resolve any problems related to
vocation and promotion, while recognising the individual characteristics and
their consideration regarding possible professions…”. This type of assistance
should be free of charge for youth, including students and adults. Article 10
outlines that “…all parties subject to the contract are obligated to…secure or
promote, where necessary, technical and professional training for all
persons, including disabled persons, by contract with employers’
organisations, as well as guarantee a facilitated approach to a more advanced
technical and higher education, based solely on individual capacity”. Article
15 emphasises the right to vocational training, rehabilitation and social
adjustment for persons with physical or mental disability.
1.3. Equitable Recruitment Measures and Policies
The policies for just employment must include equal representation for
disabled persons. Employment of disabled persons requires that these
persons work on a level acceptable to their capacity and concentration,
which in turn will enable their (re)integration into the labour force. The latter
should include measures that will secure access to employment opportunities
by direct representation and secure large number of employees with
disabilities on the labour market.
In order to secure fair policies for representation of disabled persons, those
policies must provide positive encouragement for the employment of
disabled persons. In fact, policies for affirmative action are considered as
necessary measures, directed towards providing equal opportunity for
disabled persons and their competitiveness in the labour market on the same
level as persons without disability.
The definition for discrimination, outlined in Article 1 of the Convention
concerning Discrimination in Respect of Employment and Occupation - ILO
Convention No. 111, does not include disability as basis for discrimination.
However, Article 1 (2) outlines that the term discrimination includes “…all
other forms of differentiation, exclusion or preference that results in the
annulment or inequality of opportunity or treatment during employment or
vocation, which can be applied by the concerned party, subsequent to
consultation with the representative of the employees’ organisation or
employers’ organisation…”. Thus discrimination on the basis of disability
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can be detected between the provision of this Convention, if the latter is

determined by the member itself.
Article 5 of the Convention emphasises the necessity for special measures
for the protection of disabled persons during employment. Thus, “…any
member state subsequent to consultations with employers’ and employees’
organisations, where available, can provide special measures created to fulfil
the requirements by persons due to special needs, such as…disability…or
because they have need for special protection or assistance, which will not
be considered as discrimination”.
ILO Convention No. 159, underlines the rule for adequate training and
employment of disabled persons, not only in specialised institutions and
workshops, but also in training centres and the free labour market, along
with persons without disability (Article 3). The Convention stipulates that
the employers’ and employees’ organisations, along with governments and
organisations for disabled persons, take full responsibility for enabling these
persons to exercise their rights. Article 7 states that “...the authorities should
take measures aiming to secure and develop adequate services for the
employment of disabled persons, maintaining and promoting them in their
employment posts....”. Article 4 clarifies that all positive measures aimed at
equalising opportunities for disabled workers cannot be regarded as
discrimination against workers without disability. Articles 2 and 5 provide
for consultations with employers’ and employees’ organisations during
implementation of national policies for vocational rehabilitation and
employment of disabled persons. Article 8 outlines that all necessary
measures will be taken for the promotion and development of services for
vocational rehabilitation in rural areas and other isolated communities. This
Convention also contains a description regarding policies for representation.
Moreover, the Recommendation regarding vocational rehabilitation and
employment of disabled persons prescribes the responsibility for all states to
support the full approach towards the labour market via policies for
representation (paragraph 11 (a)). In addition, the Recommendation
recognises that the latter isn’t always possible and includes “…solid and
continuous support by the government for incorporating different types of
special employment posts for disabled persons, for which the free approach
to employment is not always applicable (paragraph 11 (b)).
Article 15 (2) of the European Social Charter outlines that the states-
signatories should secure “…adequate measures for the employment of
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disabled persons, for example specialised services for employment and

measures for encouraging employers to employ disabled persons”.
The Recommendation relating to the vocational rehabilitation of disabled
persons outlines different methods for extending the possibilities for
employment and special employment of disabled persons. Paragraph 28
outlines that “…certain measures should be implemented, in close
collaboration with employers’ and employees’ organisation, in order to
promote the utmost possibilities for the employment of disabled persons as
well as maintaining their employment post”. Paragraph 29 states that the
measures should be based on the following principles: “...disabled persons
should be offered employment opportunities for a post according to their
qualifications, equal to those for persons without disability”; disabled
persons should have the opportunity for adequate employment by their
choice; the emphasis should be on the capacity and skills of disabled
persons, as opposed to their disability.” Paragraph 30 specifies that the
measures that will be implemented should include research designed for
future analysis and demonstration of the working capacities of disabled
persons as well as increasing and maintaining awareness of the matter.
Paragraphs 32 and 35 are specifically related to special employment.
Development in the Field of Disability provides for the fact that employment
opportunities “…can be initially promoted by measures relating to the
standards for employment and salaries, which are applicable for all
employees, and as a subsequent element, by measures intended for special
support and stimulation. As an additional element to formal employment, the
possibilities should be extended towards self-employment and cooperatives
and other group schemes which result in revenue”. The Paragraph continues
with the following, “…in areas where national employment campaigns have
begun intended for youth and the unemployed, persons with disabilities
should also be included. They should be actively represented, and in cases
where both persons with and without disability are equally qualified, the
candidate with the disability should be chosen for the position.”
The World Program for Action for disabled persons states in its 128th
Paragraph that member states should “…apply policies and create a structure
supported by the support services, which will enable disabled persons,
particularly those from rural and urban areas equal opportunity for
productive employment on the free labour market”. Moreover, Paragraph
129 outlines the proposed methods by which states can support the
integration of disabled persons in the free labour market. Paragraph 131 is
related to the collaboration on a central and local level between governments
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and employers’ and employees’ organisations, “…aiming to develop a

common strategy and common action plan for providing numerous and
improved employment opportunities for disabled persons. And, …the central
and local authorities, when they are the employers, should promote the
employment of disabled persons in the public sector. The legislation and
regulation should not produce obstacles for the employment of disabled
persons”. (Paragraph 133).
The Standard Rules on the Equalisation of opportunities for persons with
disabilities obligate the states and other organisations to support the
fulfilment of the policies directed at the representation of disabled persons.
Moreover, paragraph 7 (2) projects that states should actively support the
integration of disabled persons in free employment, and outlines the manner
in which the state should pursue this objective. Rule 7 (6) outlines that
“…state, employers’ and employees’ organisations should collaborate in
order to secure equal representation and promotional policies…”. Rule 7 (7)
summarises that “…the objective should be employment for disabled
persons, and the smaller units for specialised and approved employment
should be an alternative. It is important to achieve recognition of the quality
of the programs by their level of relevance and usefulness”. Rule 7 (8) also
adds that “…measures should be implemented for the inclusion of disabled
persons in training and programs for employment possibilities in the private
and informal sectors.”
1.4. Fair and Equitable Employment Conditions
In order to attain equal rights for disabled persons, particularly in the area of
employment, it is necessary to implement international norms related to
those conditions and fair salaries. Equal employment conditions include
special measures by which disabled persons receive guarantees for equal
opportunity and equal conditions, in which they will carry out their
professional tasks, effectively and safely.
Paragraph 7 of the Recommendation relating to the vocational rehabilitation
and employment for disabled persons states that “…disabled persons should
enjoy equal treatment and opportunity in terms of employment, and for the
maintenance of their position, as well as promotion”. Moreover, Paragraph
10 declares “…measures should be implemented for the promotion of
employment opportunities for disabled persons, which satisfy the
employment and salary standards, and which are applicable for employees in
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general”. Paragraph 11 projects a broad scope for possible measures that

should be applied.
The International Covenant for Economic, Social and Cultural rights, in
Article 7, asserts that states will recognise that every person has the
opportunity to exercise the right for just and favourable working conditions.
The latter includes 4 central components: financial compensation; safe and
healthy working conditions; equal opportunity to be promoted to an
appropriate higher level; rest; and calculated and reasonable restriction of
working hours, as well as paid holiday and compensation for national
holidays.
The protection of working conditions is provided for by the European Social
Charter, in Articles 2 and 3, as well as in Article 7 of the Protocol of San
Salvador.
Paragraph 25 of the Recommendation related to the vocational rehabilitation
for disabled persons, states that disabled persons should not be subject to
discrimination in terms of salaries and other employment conditions, if their
work-related responsibilities and tasks are equal to those carried out by
persons without disability.
Rule 7 of the Standard Rules on the Equalisation of opportunities for persons
with disabilities provides several different measures that should be
implemented in order to attain and secure fair and equal opportunities and
employment conditions. Rule 7 (3) provides that states’ action programs
should include “…measures for creating and adapting to work places, so that
disabled persons can have easier access towards them; support for the use of
new technologies, and development and production of support tools and
equipment for disabled persons, which will enable them to gain and maintain
employment; providing applicable training, employment and ongoing
support, for example: personal assistants and interpreter services”.
The World Program for Action for disabled persons connects the recruitment
policies with “…measures to improve the working environment” (Paragraph
131). In several paragraphs, the Program describes the measures which
ought to be implemented in order to secure protection at the work place, as
well as to avoid any work-related injuries or illnesses. Paragraph 95 of the
Program states that “…technology for the prevention and control of most
disabilities is available and is being completed, however it is never fully
utilised. Member states should take certain measures in order to prevent
disability as well as to raise awareness in terms of relevant information and
technology”.
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The report titled Disability prevention and rehabilitation - Outcome of the

WHO Expert Committee on Disability Prevention and Rehabilitation, WHO,
Geneva 1981, offers a review of the services for rehabilitation technology
and the issues related to the attainment of similar tasks, such as
organisational personnel, and those of an administrative nature.
2. Right to Education
Disabled persons are often excluded from mainstream education. Since

education is essential for employment in many spheres, and a prerequisite to
economic independence, the right to education is of special significance for
the disabled. Education is also an important part of the rehabilitation process
as disabled persons develop their capacities to become more independent
and integrated into mainstream society.
The most important step for integrating disabled persons into the mainstream
life is education. The legal foundation of the general entitlement to education
is of little importance if no additional positive measures are introduced to
ensure the access to high-quality primary, secondary and higher education
for children, youth and adults with various types and degrees of disability. It
is essential that there are no obstacles – legal, physical, or psychological, that
would impede the access for disabled persons to education, as it is important
to provide such persons with special education when needed and, if possible,
to enable them to obtain education in an integrated environment. It is
necessary to take into account the special educational needs of disabled
persons and the socio-political reality of each state.
Also, it is important to highlight the meaning of education, not only as a part
of rehabilitation, but also as a part of prevention. A high percentage of
disabilities are a direct result of lack of information, poverty and poor health
conditions, which may be prevented by means of adequate education.
2.1. Access to Education
Access to education is the most fundamental aspect of the right to education.

This is why it is essential to ensure the removal of all legal and technical
obstacles and to undertake positive measures to facilitate access to education
for all disabled persons. Several international instruments appeal for a
uniform approach to education for disabled persons. General provisions
related to the above may be found in Article 1 of the Convention against
Discrimination in Education, paragraph 2 of the Salamanca Statement,
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article 1 of the Sundberg Declaration, and the pledge in the Copenhagen

Declaration and Programme of Action. The goal of this obligation for a
universal approach to education is the eradication of poverty, promotion of
full and productive employment, and the fostering of social integration.
The Convention against Discrimination in Education confers a whole range
of duties on states, for the purpose of eliminating and preventing
discrimination in education. Although disability – as grounds against which
discrimination is forbidden – is not explicitly mentioned in Article 1, it may
still be deemed to be one of the factors determining the social origin of an
individual, and differentiation on the basis of social origin is explicitly
forbidden in this article. Article 3 binds signatory states to prevent and
eliminate discrimination in education. Article 4 requires that Member States
promote equality in educational opportunities.
Some international instruments provide more specific guidelines and areas of
interest related to access to education. The Universal Declaration on Human
Rights (Article 26) calls for free and mandatory education ”... at least in the
basic and fundamental stages, ”, whereas Article 13 of the International
Covenant on Economic, Social and Cultural Rights adds that “… secondary
education, in its various types, including both technical and vocational
education, should be both general and accessible for all through appropriate
measures and especially through gradual introduction of free education.” In
Article 23, the Convention on the Rights of the Child also points to the need
for “…free services-whenever possible-and taking into account the income
of the parents or guardians of the child.”
Rights in the Area of Economic, Social and Cultural Rights confers a general
right to education, including free and mandatory primary education.
Furthermore, Article 13 (3) requires that the signatory states secure funds for
special education programs, which are adapted to the special needs of
Article 17 of the African Charter on Human and People’s Rights advises that
each individual should be entitled to education.
Rule 6 of the Standard Rules on Equalization of Opportunities for Persons
with Disabilities emphasizes that states are to pay particular attention to
certain vulnerable groups of disabled persons, such as very young children,
girls, women and persons with the most serious disabilities.
Article 3 (1) of The World Declaration on Education for all-Meeting Basic
Learning Needs outlines the principle that basic education should be
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provided to all children, youth and adults. In particular, article 3 (5) states
that the learning needs of disabled persons require special attention and that
steps need to be taken to ensure equal access to education for all categories
of disabled persons as an integral part of the education system.
his special attention for the various groups of disabled persons implies that
equal opportunities should be accessible to them throughout all levels of
education, such as: pre-school education, primary and secondary schools,
universities, and adult education programmes. This is one of the problems
tackled by the World Programme of Action concerning Disabled Persons.
The Word Programme of Action also calls for special attention to disabled
persons in rural areas and highlights problems caused by travelling distances.
The right to education of children has been underlined by the International
Conference on Children’s Rights In Education- Convened by the Danish
Ministry of Education (Denmark 26-30-April 1998), which was based on the
Convention on the Rights of the Child. The convention elaborated on the
following issues that particularly refer to children with disabilities:
• Education is a right, not a privilege;
• The inclusion of children and their complete development must be
supported by all educational goals, setting and practises.
• The existing barriers to implementation of the rights of children to
education may be overcome and
• Education must respect individual, contextual and cultural
differences.
The Sundberg Declaration refers to education of disabled persons Article 1
states that “…every disabled person must be provided with the right to
exercise his own fundamental right to full access to education, training,
culture, and information.” Article 2 provides that the states, national and
international organisations must take efficient actions to ensure the highest
possible inclusion of disabled persons. Furthermore, Article 5 states that
disabled persons ought to have access to educational programmes adjusted to
their own special needs. In accordance with Article 11, disabled persons
have to be provided with institutions and equipment necessary for education
and training.
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2.2 Quality of Education
Quality of education of disabled persons should be of the same quality of the

education of persons without disabilities. Similarly, the quality of education
should be equal regardless of gender, age, or degree of disability.
The international instruments underline the need to guarantee high standards
of education for all. This is guaranteed in the Universal Declaration on
Human Rights (Article 26(2)) and the International Covenant on Economic,
Social and Cultural Rights (article 13(1)), which states that: “…education
will be directed towards complete development of the human personality”.
In this sense, the Sundberg Declaration says that education should pronounce
self-fulfilment of all disabled persons and their full participation in social
life.
Article 23 (3) of the Convention on the Rights of the Child states that:
“…disabled children shall have effective access and shall receive
education…in a manner conducive to the child’s fullest possible social
integration and individual development, including his or her cultural and
spiritual development”. Article 6 of the Convention Against Discrimination
in Education describes the goals of education, which include full
development of the human personality, strengthening of the respect for
human rights and promotion of understanding tolerance and friendship
among all nations. The Salamanca statement envisages that Member States
“…shall give the highest policy and budgetary priority to the improvement
of their education systems…” (point 3).
The content of educational programs should be harmonized with the high
standards and needs of the individuals, for the purpose of enabling them to
fully take part in the development of society.
Rule 6 of the Standard Rules on the Equalization of Opportunities for
Persons with Disabilities states that “…quality of education should reflect
the same standards as general education and should be closely linked to it”.
Paragraph 122 of the World Programme for Action Concerning Disabled
Persons says that educational services for disabled children and adults
should be universal, individualized i.e. leading towards the projected goals,
which are regularly examined and revised, and should offer a spectrum of
choices comparable to the spectrum of specific needs in any one
community.Paragraph 2 of the Declaration on Rights of Persons with
Mentally Retarded Persons confers the right of persons with mental
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disability to receive such education as will enable them to develop their

abilities and their maximum potential.
Articles 27 and 28 of the Tallinn Guidelines for Action on Human Resources
Development in the Field of Disability state that the quality and content of
education should prepare student with disabilities for an independent life and
for inclusion into the economic mainstream.
2.3. Integrated Education
Integrated education means that disabled persons are entitled to be educated

in the same schools and to follow the same curriculum as non-disabled
students. Integrated education may include special education, provided that
this education takes place in special departments in regular schools or as
additional support in regular classes. Integrated education is the key to equal
educational opportunities for disabled persons. It maximises the
opportunities for disabled persons to participate in society and it eases the
transition from schools to workplaces.
Many international instruments are focusing on the integrative function of
education. According to the Sundberg Declaration (article 6), “…
educational, cultural and informative programmes and training programmes
must aim at integrating disabled persons into the ordinary living and working
environment”. The Convention on the Rights of the Child also supports the
inclusion of children with disabilities into the regular education systems and
social surroundings.
The World Programme of Action Concerning Disabled Persons includes
paragraph 120, which calls on Member States to adopt policies ”… that
acknowledge the right of disabled persons to educational opportunities equal
to the opportunities of other persons”. More explicitly, it says that
“…education of disabled persons should- as much as possible- be carried out
within the regular school system”.
The Salamanca Statement on education of individuals with special needs
calls for inclusion of children with disabilities into the regular education
system, which should be a norm in the education of all children with
disabilities. Pursuant to the Framework of Action report, all children,
regardless of their physical, intellectual, social, emotional or other
conditions, should attend regular schools. Furthermore, the Statement adds
“… regular schools where this inclusive orientation is included are the most
effective means of combating discriminatory views for creating accepting
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communities, for developing inclusive societies and for achieving education

for all. Moreover, these schools ensure effective education for the majority
of children and improve the efficiency and, ultimately, economics of the
entire educational system”.
The United Nations Children’s Fund estimates that 90% of children with
disabilities may join the regular educational programmes, provided that
certain preconditions are met. Regular schools are expected to educate
children with minor disabilities who need little support, but it is better if all
children could have access to the regular school system. This certainly calls
for special measures, in order to satisfy the needs of students with
disabilities.
First of all, as emphasized in Rule 6 of The Standard Rules on the
Equalization of Opportunities for Persons with Disabilities, Member States
must have a clear policy that will be comprehended and accepted at the level
of schools and the broader community. These policies and financial
arrangements should encourage and facilitate the development of inclusive
schools and the removal of barriers, which impede the transition from
special to regular schools. The curricula should take into account the
individual discrepancies and circumstances and should place special
attention on children and youth with severe and multiple disabilities.
In accordance with the Salamanca statement and its Action Programme, it is
required that changes are introduced in school management. Local
administrators and school principals should be given the necessary authority
and appropriate training, so that they have a decisive role. They should
develop more flexible management procedures, engage resources, develop
various learning options, mobilise “child-to-child” assistance, offer support
for children with difficulties and establish close connections with the parents
and the community. Principals should be primarily responsible for
promoting positive attitudes throughout the school community as well as for
implementing efficient cooperation between teachers and supporting staff.
In addition, international instruments underline the need of curriculum
flexibility, addition and adaptation. Curriculums should be adjusted to the
needs of children, in accordance with the principal that all children should be
provided with equal education, such that will meet their various individual
needs.
Support services are necessary in order to enable children with disabilities to
obtain the same education as non-disabled children in regular schools. The
facilities and equipment necessary for meeting the needs of disabled students
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are described in international instruments. The Standard Rules on the

Equalization of Opportunities for Persons with Disabilities also mention the
obligation to provide interpretation services.
The Salamanca Statement and its Framework of Action show the need of
special materials and support teachers. Schools should have programs for
support and, wherever necessary, assistance by expert teachers and external
supporting staff. Adequate and accessible technology should be used when it
is necessary to achieve higher grades, improve communication, mobility and
learning. Training institutions and special schools are also very useful in the
facilitation of providing this support. They may ensure access to new,
innovative methods, as well as to special aids that are not provided in regular
schools. Article 11 of the Sundberg Declaration-regarding the equipment
required- stresses the importance of enabling developing countries to
manufacture such equipment.
2.4. Special Education
Nevertheless, not all disabled persons can follow education in mainstream

schools. This is why they need a special form of education. This special
education may be provided in special boarding schools or in special day
schools and may be divided into different categories, according to the
specific needs of disabled persons with various disabilities.
The goal of special education is to allow for “…all disabled persons,
especially those with communication problems” to have access to
educational programmes adjusted to their specific needs, “…with the aim of
using their maximum capacity for serving society” (Article 5 of the
Sundberg Declaration).
However, special education should be directed only towards students with
serious and multiple disabilities and should be aimed at preparing them for
obtaining education in the regular school system by integrating special
educational services into mainstream education (Rule 6 (8) of The Standard
Rules of Equalization of Opportunities for Persons with Disabilities).
Pursuant to standard rules for equal opportunities for persons with disability,
Rule 6(9) states that special education may be appropriate especially for deaf
and/or blind people, due to their special communication needs. This
education may be provided in special schools or special departments within
the regular schools. In any case, special education should not prevent
individuals from following the regular curricula, although it is important to
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pay attention at the early stages on the instruction given “… that will result
in effective communication skills”.
The United Nations Rules for the Protection of Juveniles Deprived of their
Liberty guarantee that each youth-at the age at which they should attend
special education-is entitled to education appropriate to his/her needs and
abilities and that is designed to prepare him/her for reintegration in society.
Of course, practise tells a different story.
2.5. Teacher Training
Teacher training is especially necessary in order to enable children and youth

with disabilities to fully enjoy the advantages of the regular educational
system. The Salamanca Statement requires from the Member States the
provision of programs for training of teachers, which will focus on the
provision of education for special needs in the inclusive schools. The
Sundberg Declaration - in Article 9 - states that educators and other
professionals responsible for the education programmes must be qualified to
cope with the specific situations and needs of disabled persons. ”Their
training must, consequently, bear in mind this request and be brought up on a
regular basis”. Regarding the same issue, The Standard Rules of
Equalization of Opportunities for Persons with Disabilities (rule 6 (6) (c))
appeals to the member states to provide continuous training and support for
teachers, for the purpose of ensuring that education of disabled persons is an
integral part of the educational system.
Also, the Tallinn Guiding Principals for Action on Human Resources
Development in the Field of Disability states in paragraph 29 that the overall
teacher training programme should include a course for learning skills of
teaching children and youth with disabilities in the regular schools.
Furthermore, paragraph 30 requires that the Member States develop national
plans for training and employing an appropriate number of staff, including
disabled persons.
The various training programmes provide all students and teachers with an
orientation on disability. The required knowledge in schools includes:
assessment of special needs, adjustment of the curricula, use of assistive
technology, individualisation of teaching procedures, etc; not forgetting that
the priority is to meet the needs of the students. Specialised training for
education for special needs should include all types of disabilities, prior to
further specialisation in one or more specific area of disability.
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Universities should play a significant role regarding research, assessment,

preparation of teacher-trainers, and development of training programmes and
other types of materials. The development of textbooks and the organisation
of seminars for local administrators, supervisors, principals and senior
teachers is unavoidably necessary, so that they may develop their capacities,
be leaders in these fields, and provide support and training for the less
experienced teaching staff. Also, cooperation needs to be established among
the teachers, specialists, and parents, and disabled persons need to be
included in the research and trainings. In addition, what is important in the
educational systems is the existence of educational personnel with
disabilities, which will set examples for the disabled persons of how to
overcome their disabilities.
2.6. Vocational Training
In order to ensure equal access to vocational training for disabled persons,
there is a need to have laws in place. The transition from school to the
workplace is most successful when it is already incorporated in the
educational program. In this sense, the right to education may be looked
upon as the first step to the right to employment.
The norms and standards for vocational training in the field of employing
disabled persons are explained above1. The following are specific
instruments in this area: the Convention Concerning Vocational
Rehabilitation and Employment (Disabled Persons), and the
Recommendation Concerning Vocational Guidance and Vocational Training
in the Development of Human Resources.
3. Right to Health Care
Legislation should be aimed at providing effective exercise of the right to

health care, without any discrimination. All individuals should have health
insurance and the necessary assistance at hand, without any financial
barriers.
In their national health care systems, governments should give priority to the
special needs of the disabled. The responsibility of creating policy must be
accepted at all levels, for the priorities in the overall national development to
take into account these needs and to strengthen the aspects of life that are
preconditions for health. Prior to commencing the reforms of their national
health protection systems, Member States should define the types of
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financing of health care to be used, in order to enhance the resources

allocated to the health care sector.
There is a need for public and private financing schemes. The national health
care system should encourage the participation of public agencies and
private and non-governmental organizations in the planning and monitoring
of its implementation and utilization.
The system of primary health care should ensure a wide spectrum of health
services, rehabilitation, and other support in the realization of the basic
health needs of the population, as well as to pay special attention to the
vulnerable groups, such as disabled persons.
Article 25 of the Universal Declaration on Human Rights states that
everyone has ”…the right to … security in the event of …sickness”. Article
10 of the American Convention on Human Rights in the Field of Economic,
Social, and Cultural Rights urges Member States to meet the health care
needs of the groups with highest risks and those whose poverty makes them
most vulnerable.
Article 18 (4) of the African Charter on Human and People’s Rights states
that the disabled shall have the right to special measures of protection in
keeping with their physical needs.
Article 13 of the European Social Charter affirms the need of having
Member States provide appropriate assistance and necessary care in case of
illness to everyone without adequate financial means and ability to obtain
such means.
Article 12 of the International Covenant on Economic, Social, and Cultural
Rights acknowledges the right of each individual to the best possible
physical and mental health achievable. This creates an obligation of
Members States to create conditions that will provide medical services and
care for everyone in the event of sickness.
Article 23 (3) of the Children’s Rights Convention envisages that, whenever
possible, disabled children should be provided with free health services.
Article 7 of the Convention concerning Employment Promotion and
Protection against Unemployment says that Member States shall provide
compensation in cases requiring medical care of a preventive or curative
nature. According to Article 10, the benefits include:
(a) primary health care;
(b) specialist care at hospitals;
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(c) medicine required; and

(d) hospitalization.
Furthermore, Article 13 imposes an obligation on Member States to provide

benefits for individuals in case of illness. According to Article 16, the
benefits shall be in the form of periodical payments.
Article 5 (4) of the Convention encourages Member States to ensure the
provision of medical care to persons in receipt of unemployment benefit and
their dependants. Article 23 notes that each Member whose legislation
provides for the right to medical care and makes it directly or indirectly
conditional upon occupational activity shall endeavour to ensure the
provision of medical care to persons in receipt of unemployment benefit and
to their dependants.
Article 7 of the Convention concerning Medical Care and Sickness Benefits,
states that the contingencies provided for in the Convention should include:
(a) need for medical care of a curative and preventive nature; and
(b) inability to work as a result of illness and including suspension
for earnings, as defined in the national legislation.
Furthermore, Article 8 states that the medical care shall include:
a) primary health care;
b) specialist care in hospitals;
c) medicine required;
d) hospitalisation; and
e) medical rehabilitation.
Article 18 foresees that the benefit in case of illness shall be periodical.
“Illness” shall mean any unhealthy condition, regardless of the cause thereof.
Article 22 and 23 say that the periodical payment shall be such that it will
reach at least 60% of the total previous income of the beneficiary, or 60% of
the wage of an average adult worker. Article 29 states that the benefit seeker
shall retain the right to lodge a complaint in case his/her request is denied, as
well as the right to lodge a complaint on the quality and quantity of the
benefit.
Paragraph I of the Declaration of Alma-Ata provides that health, which is a
condition of a complete physical, mental, and social welfare, is a
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fundamental human right. Paragraph II refers to the existing “…

considerable inequalities in the health status…” of people, both between
developed and developing countries and in the developed countries
themselves. Article V states that governments are accountable for the health
of their people, which may be achieved through the provision of appropriate
health and social measures. The key social goal is to ensure a level of health
for all individuals, which will enable them to live a socially and
economically productive life. Article VII (6) states that “ … those in need
should have priority in health care”, whereas Article VII foresees the
formulation of national policies, strategies, and plans for actions by
governments aimed at commencing and supporting the primary health care,
in coordination with the other sectors. The Declaration is significant for
disabled persons, as the promotion of primary health care shall result in the
prevention of disabilities and improvement of rehabilitation services for
those individuals.
Article 10 (d) of the Declaration on Social Progress and Development
foresees that social progress and development shall aim at attaining the
highest health standards and providing health care for the entire population.
In addition, Article 19 notes that free medical services and adequate
preventive and curative alleviations are a means of achieving the above-
stated goals.
Paragraph 118 of the World Program of Action concerning Disabled Persons
encourages the establishment and development of a public system of social
care and health protection. Paragraph 96 requires that Member States
coordinate their programs for disability prevention, which include systems of
primary health protection covering all segments of the population, as well as
public health activities that would help individuals to achieve a lifestyle that
will ensure maximum defence against the causes of impairment.
4. Right to Social Security and Social Services
4.1. Right to Social Security
The social security system of a country is the primary method of

administering economic benefits. Social insurance programmes such as
worker’s compensation, disability insurance and unemployment insurance
are envisaged to create a social security network for the disabled who are
unable to cater for themselves. Public funds should be made available to
cover the additional expenses incurred for specially designed housing, for
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transport, medical and health care, food, and other benefits needed by
disabled people in order to enjoy a normal life of work and recreation.
Social security systems should not discriminate against disabled people, but
on the contrary, they should provide services for dealing with the special
needs of the disabled, especially in the labor market, in order for equal
employment policy to be supported.
Article 9 (1) of the Additional Protocol to the American Convention on
Human Rights in the Area of Economic, Social, and Cultural Rights advises
that “…everyone is entitled to social insurance which protects against
consequences…..of disability preventing him, both physically and mentally,
from securing the means for a dignified and decent life”.
Rights provides that “…everyone is entitled to social security, including
social insurance”.
Article 26 (1) of the Convention on the Rights of Children stipulates the
right of every child to social insurance.
Chapter II, Basic Principles, paragraph 1, of the Vancouver Declaration on
Human Settlements, specifies that the improvement of the quality of life
begins with meeting the basic needs, including social insurance without
discrimination.
Paragraph 118 of the World Programme of Action concerning Disabled
Persons provides that social insurance for population in general should not
exclude or discriminate against disabled people. The same statement is
contained in rule 8 (2) of The Standard Rules on the Equalization of
Opportunities for Persons with Disabilities. Article 6 of the Convention
Concerning Employment Promotion and Protection against Unemployment
urges states to ensure equal treatment of all when it comes to social benefits
payments, free of any discrimination on the grounds of disability. The
aforementioned should not impede the adoption of special measures aimed at
satisfying the special needs of people facing problems in the labour market,
in particular persons with disability.
Paragraph 29, Commitment 2 (d) of the Copenhagen Declaration and
Programme of Action recommends policy implementation that ensures
adequate economic and social care during disability.
Paragraph 23 of the Recommendation Concerning Vocational Rehabilitation
of the Disabled provides that”…disabled persons should be provided with all
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rehabilitation services without losing other social care benefits that are not
related to their participation in such services”.
Paragraph 7 of the Declaration on the Rights of Disabled People specifies
that disabled persons are entitled to economic and social security.
4.2. Social Security and Insurance Related to Employment
There should be a strong commitment to the enactment of legislation which
equalizes employment opportunities for disabled people. The adoption of the
legislation providing employment opportunities will pay off in the long run,
since the disabled shall become independent. The provisions for restoring the
income earning capacity of disabled people are included in rule 8 of The
Standard Rules on the Equalization of Opportunities for Persons with
Disabilities, which reads “…states are responsible for the provision of social
security and income maintenance for persons with disabilities”. Furthermore,
rule 8 (4) specifies that “…social insurance systems should include
incentives to restore the income earning capacities of persons with
disabilities”. In addition, rule 8 (5) notes that “…Social security programmes
should also provide incentives for persons with disabilities to seek
employment in order to establish or re-establish their income-earning
capacity”.
States should encourage the implementation of measures and programmes
that provide entitlements for persons with disabilities equal to the
entitlements enjoyed by others. Such measures should include worker’s
compensation, disability insurance and unemployment benefits.
It is important to ensure that the social security systems provide assistance
for employment and economic assistance for those who are unemployed
against their will. Unemployment is widely spread among disabled people.
Insurance, in case of unemployment, will help disabled people to find a job
through special programmes adjusted to their special problems and ensuring
economic support.
Other special measures designed for the purpose of meeting the special
needs of disabled persons facing a special problem on the labour market,
should cover the following:
a) long-term financial benefits for compensation of loss owing to
disability;
b) income support granted as supplemental income in case of low
income owing to disability;
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c) income maintenance granted during rehabilitation period; and

d) additional and special benefits, financial or other types of
allowances, for refunding the additional expenses during disability.
If the injury or damage is caused by a work-related accident or
illness, , the compensation is paid out of:
1) private insurance;
2) social insurance;
3) civil liability or tort law.
The disabled persons may be compensated on any, or all of the stated
grounds. However, workers’ compensation is the easiest and the most
inexpensive way in which a disabled person can acquire benefits. Legislation
that will be enacted in the future should cover several issues, for ex.:
calculation of the rate of contribution in the funds earmarked for
compensation of workers and ,methods of distribution of benefits.
Disability insurance provides economic and social care during recovery.
Legislation has to determine which types of services will be covered by the
insurance, i.e. medical treatments, rehabilitation, and restoring income
earning capacity.
The Universal Declaration of Human Rights, under article 25, specifies that
everyone is entitled to security in case of events beyond one’s control
affecting his earning. Article XVI of the American Declaration on the Rights
and Duties of Man proclaims the right to state protection for all.
Article 19 of the Additional Protocol to the American Convention for
Human Rights in the Field of Economics, Social, and Cultural Rights,
provides that workers’ right to social security covers medical treatment and
allowance, or pension benefits in case of injury suffered at work, or
occupational disease.
Article 11, of the Convention on Elimination of all Forms of Discrimination
against Women, specifies that states undertake all the appropriate measures
for the purpose of eliminating discrimination against women in the area of
employment. Furthermore, article 11 (1) (d) says that states shall take
measures to ensure “…the right to social security in cases of…and other
incapacity to work”.
Article 31 of the Convention concerning Minimum Standards of Social
Security requires that states secure employment insurance benefits to
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employees. In compliance with Article 34, benefits should involve general

and specialized care, nursing care, medical and pharmaceutical supplies, and
hospital care. Article 35 provides that the institutions or Government
departments administering the medical care shall co-operate, wherever
appropriate, with the general vocational rehabilitation services, with a view
to the re-establishment of handicapped persons in suitable work.
Article 4 of the Convention Concerning Benefits in the Case of Employment
Injury provides that national legislation referring to benefits in case of
employment injury protects all employees in the public and private sector.
Article 6 specifies the contingencies covered in case of employment injury,
as follows:
a) a morbid condition;
b incapacity for work resulting from such a condition and involving
suspension of earnings, as defined by national legislation;
c) total loss of earning capacity or partial loss thereof in excess of a
prescribed degree, likely to be permanent, or corresponding loss of faculty;
and
d) the loss of support suffered as the result of the death of the
breadwinner by prescribed categories of beneficiaries.
Furthermore, articles 7 and 8 determine that countries should define the
concept “industrial accident” and should draft a list of commuting accidents
considered to be industrial accidents under their legislation. In addition,
Article 9 stipulates that countries shall provide the following to the persons
protected:
a) medical care and allied benefits in respect of a morbid condition;
and
b) cash benefits in respect of the contingencies specified in Article 6
(b), (c), and (d).
Article 9 also states that the entitlements to benefits may not depend on
working experience, length of insurance, or contribution payment, and that
benefits will be approved in any event. Articles 13 and 14 stipulate that
financial benefits or periodic payments will be paid in case of temporary loss
of earning capacity, or initial loss of earning, with a probability of becoming
permanent. Additionally, article 16 provides that increments in periodical
payments or other supplementary or special benefits, as prescribed, shall be
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provided for disabled persons requiring the constant help or attendance of

another person.
Articles 19 and 20 provide that “…in the case of a periodical payment, the
rate of the benefit, increased by the amount of any family allowances
payable during the contingency, shall be such as to attain, in respect of the
contingency in question, for the standard beneficiary, at least the percentage
indicated therein of the total of the previous earnings of the beneficiary or
his breadwinner and of the amount of any family allowances payable to a
person protected with the same family responsibilities as the standard
beneficiary”. Article 23 (1) provides that”… Every claimant shall have a
right of appeal in the case of refusal of the benefit or complaint as to its
quality or quantity”.
The Convention Concerning Employment Promotion and Protection from
Unemployment acknowledges the important role of the social security
system in providing assistance for employment and economic support for
those who are unemployed against their will. Article 2 requires that each
Member shall take appropriate steps to co-ordinate its system of protection
against unemployment and its employment policy. To this end, it shall seek
to ensure that its system of protection against unemployment, and in
particular the methods of providing unemployment benefits, contribute to the
promotion of full, productive and freely chosen employment, and are not
such as to discourage employers from offering and workers from seeking
productive employment.
Article 7 encourages states to declare as a priority objective a policy
designed to promote full, productive and freely chosen employment by all
appropriate means, including social security. Such means should include,
inter alia, employment services, vocational training and vocational guidance.
Article 8 adds that countries shall establish, subject to national law and
practice, special programmes to promote additional job opportunities and
employment assistance and encourage freely chosen and productive
employment for identified categories of disadvantaged persons having or
liable to have difficulties in finding lasting employment such as women,
young workers, disabled persons, older workers, the long-term unemployed,
migrant workers lawful residents in the country and workers affected by
structural change. In addition, article 24 stipulates that states shall endeavour
to guarantee to persons in receipt of unemployment benefit, under prescribed
conditions, that the periods during which benefits are paid will be taken into
consideration.
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Article 27 provides that “…In the event of refusal, withdrawal, suspension or

reduction of benefit or dispute as to its amount, claimants shall have the right
to present a complaint to the body administering the benefit scheme and to
appeal thereafter to an independent body. They shall be informed in writing
of the procedures available, which shall be simple and rapid”. The appeal
procedure shall enable the claimant to be represented or assisted by a
qualified person of the claimant's choice or by a delegate of a representative
workers' organisation or by a delegate of an organisation representative of
protected persons.
Article 21 (b) of the Recommendation concerning Professional
Rehabilitation of Disabled specifies that financial assistance is an
appropriate measure which would ensure that disabled persons fully use all
specialized rehabilitation services. In addition, paragraph 22 (1) stipulates
that financial assistance should be provided in order that the preparation for,
and maintenance of the respective employment be facilitated.
Article 11 (a) of the Declaration on Social Progress and Development
specifies that “…Social progress and development shall aim equally at the
progressive attainment of the provision of comprehensive social security
schemes and social welfare services; the establishment and improvement of
social security and insurance schemes for all persons who, because of illness,
disability or old age, are temporarily or permanently unable to earn a living”.
Rule 8 (1) of the Standard Rules for Equalization of the Opportunities for
Persons with Disability provides that income support should be maintained
as long as the disabling conditions remain in a manner that does not
discourage persons with disabilities from seeking employment. It should
only be reduced or terminated when persons with disabilities achieve
adequate and secure income.
Paragraph 131 of the World Programme of Action for disabled persons
encourages collaboration at the central and local level between governments
and employers’ organizations, in order that measures are developed for
rehabilitation of the employees who have suffered injury at the workplace.
4.3. Social Welfare Services
The issue concerning the organization of social welfare services for disabled
persons on municipal and state level is important. The state has the principal
responsibility for the provision of social welfare services, but it can also
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encourage municipalities to do the same, especially through financial

assistance.
Strengthening the municipal programmes for disabled persons should be a
national priority, because working through the municipalities helps disabled
persons to integrate into society, and the community to understand the
difficult position in which disabled persons find themselves. It is important
to ensure active participation of local governments and municipal
organizations, like association of citizens, commercial associations,
women’s associations, consumers’ associations, religious bodies, political
parties, and associations of parents, in the affirmation and strengthening of
the rights of the disabled people.
Paragraph 17 of the Recommendation Concerning Professional
Rehabilitation and Employment, requires that municipalities collaborate with
governmental representatives in the process of identifying the needs of
disabled in the community, and, if possible, in the involvement of disabled in
the activities and services which are generally accessible. In compliance with
paragraph 18, “…vocational rehabilitation and employment services for the
disabled should be involved in the mainstreams of the community
development, and, where appropriate, be financially…supported”.
Some parts of the World Programme of Action Concerning Disabled Persons
concern the activity of municipalities. Countries are encouraged to provide
financial support for local municipalities for the purposes of developing
programmes helping disabled persons, and encouraging the collaboration
between local communities in order that the exchange of information be
facilitated. Furthermore, the importance of the involvement in the active
participation of municipal organizations is acknowledged.
Paragraph 41 of the Tallinn Guidelines for Action on Human Resource
Development reads: “…specific strategies for preventing disability should be
involved in the municipal programmes for raising awareness”. Also, the state
efforts directed towards early detection, intervention, and prevention, should
be strengthened by raising public awareness concerning disability.
The state services are of essential importance, in addition to those organized
in the municipalities. States should provide services which shall mitigate the
effects of disability of disabled persons, and will help them to function in the
best possible way. Furthermore, they must affirm the essential role of the
local governments in the process of service provision and motivation of
people to work for common economic development and social welfare of
their municipalities, and the role of the international collaboration between
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local governments. Countries should introduce appropriate measures for

implementation of equal opportunities policy, and for preventing situations
which might lead to disability.
5. Right to an Adequate Standard of Living
Treatment of disabled persons according to the medical or charity model

makes them dependent on certain (not disabled) people, and separates them
from others in society. The model for independent living expresses the real
nature of disability: the problem is not in the individual, but in her/his
disability. The disability problem is based in the way in which society
responds (reacts) concerning disability of individuals, and the way in which
physical and social environments do that. The social model, therefore, might
be a useful instrument, for the disabled and their partners, for the
introduction of positive changes in their lives, and for the non-disabled to
better understand disability1.
Therefore, this right is given a great importance and it is articulated under
article 25 of the Universal Declaration on Human Rights, article 11 of the
International Covenant on Economic, Social, and Cultural Rights, and article
27 of the Convention on the Rights of the Child. The right to a proper
standard of living involves, among the rest, right to food, clothes, and
housing. It is closely related to the right to social protection and social
welfare services.
5.1. Housing
Proper housing is an important component of economic and social rights.

Inadequate or poor dwelling contributes to health deterioration, loss of safety
and dignity. States develop policies and directions, and provide services that
ensure appropriate living conditions for the disabled.
Rights states that “…everyone is entitled to an appropriate standard of
living, sufficient for himself and for his family…to include housing. The
member states shall undertake measures in order to ensure that this right can
be exercised…”
Article 27 (3) of the Declaration on Social Progress and Development
encourages states to provide assistance programmes, such as housing for
parents and guardians. Furthermore, article 18 (d) sets out the
implementation of the programmes for inexpensive homes in rural and urban
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areas, as appropriate tools in the effort to accomplish the goals towards

social progress and development.
General Principle I, paragraph 1 of the Recommendation concerning
Workers’ Housing, states that the recommendation refers to workers’
housing, including housing for the disabled. In addition, General Principle II,
paragraphs 1-5 provide that the states shall promote, in the context of the
general housing policy, construction of homes and similar facilities in order
to provide appropriate and decent housing and suitable living environments
for all workers and their families. Priority is given to those whose needs are
most urgent, to maintenance, improvement and modernisation of the existing
housing and similar facilities, which shall not cost more that a reasonable
part of a worker’s income, regardless of whether it be for rent, an instalment
for the purchase of the said lodging; and, to implement housing programmes
that provide adequate scope for private, mixed-ownership, and public
construction enterprises.
General Principle III, paragraph 8 encourages states to establish a central
body that shall integrate all public services that are related to housing. The
responsibilities of the said body should involve study and assessment of the
needs for workers’ housing and for similar facilities, and designing
programmes for workers’ housing. General Principle V, paragraphs 13-17,
address the funding methods. The states are required to provide access to the
private and public facilities through loans with fair interest rates, and in
addition to the former, other appropriate methods for direct and indirect
financial assistance. This should include subsidies, tax concessions, tax
reduction for certain private, mixed-ownership, and public proprietors of the
housing facilities, in order that the mixed-ownership and the similar non-
profit housing associations are encouraged.
The states are also required to: provide access to private and public facilities
through loans under fair terms for workers intending to own or build their
own homes; undertake other steps which shall promote the purchase of
homes; establish a national mortgaging system, or public guarantee for
private mortgages, as tools for promoting the construction of homes for the
workers; and stimulate saving and encourage investments. Paragraphs 19 to
25 of the Suggestions Concerning Methods of Application highlight other
funding schemes, like encouraging provident funds and social insurance
services to use their available reserves for long-term investments.
Furthermore, the schemes include provision of incentives on the housing
loans for workers, and granting special financial assistance to the workers
who are unable to keep the appropriate housing due to low incomes.
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Part III, paragraph 24 of the Habitat Agenda acknowledges the obligation for
countries to ensure that people safeguard their dwellings, and to protect
homes and neighbourhoods. Paragraph 25 requires the states to provide
consistency and coordination of macroeconomic and housing policy, as a
social priority in the frames of the national programmes for development and
urban policies. Furthermore, to promote broad, non-discriminative access to
open, successful, efficient, and appropriate funding for all people including
mobilization of innovative financial and other resources – public and private
– for development of municipalities. Increase of the available housing
facility through appropriate regulatory measures and stimulations on the
market (P.44), and the promotion of shelters and services for disabled
persons are also an obligation for states in accordance with paragraph 25 of
the Habitat Agenda.
Paragraph 30 stipulates that countries should strengthen existing financing
mechanisms in order to fund homes and neighbourhoods. Paragraph 31 (d)
provides that “…states shall promote access to the market for those who are
less organized and informed, or otherwise excluded from the participation,
by providing support, where appropriate, and by promoting lending
mechanisms and other instruments related to their needs”. Paragraph 44 (b)
requires from countries to create and promote market-oriented incentives for
encouraging the private sector to meet the needs for accessible rented and
privately owned housing. Paragraph 49 (e) encourages states to use their
public policies, like consumption, tax, monetary, and planning policy, in
order to stimulate the sustainable housing markets.
Paragraph 51 provides that states should adopt policies that will ensure
access to new public housing facilities or buildings, and public lodgings for
disabled persons. Moreover, during renovations of existing housing
facilities, it is expected that similar measures be adopted. Financial housing
institutions serve the conventional market, but they do not always
appropriately meet the different needs of a larger segment of the population,
especially of those belonging to the disadvantaged and vulnerable groups,
like the disabled.
In order that the existing financing systems for housing be improved,
paragraph 61 requires that the countries should:
1) adopt policies which shall increase mobility of housing funding
and shall extend loans to more people living in poverty, maintaining the
lending systems solvency;
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2) establish a comprehensive and detailed body of law regulating the

right to ownership
3) encourage the private sector to mobilize the resources for meeting
the diverse living requirements, including rental, maintenance, and
rehabilitation of apartments; and
4) decentralize the lending operations of mortgage markets and
encourage the private sector to do the same, in order to provide greater
access to loans.
Paragraph 68 states that by improving quality and decreasing construction
costs, housing buildings and other structures shall last longer, be better
protected from disasters, and be accessible for the disabled, thus a better
living environment shall be created.
Paragraph 8 of the Vancouver Declaration on Human Settlements provides
that “… adequate shelter and services are a basic human right which imposes
an obligation on governments to ensure that it is enjoyed by everyone,
starting from direct assistance for those most disadvantaged through guided
programmes for self-help and community action” (Part III, Guidelines for
Action).
Global Strategy for Shelter to the year 2000, Annex 1, sets the leading
directions, which the states should take into account when drafting national
shelter strategies. A brief description of the said direction is given below:
1. The national strategy for shelter should set clear, operative goals for
development of shelter conditions, regarding both the construction of
new shelters, and extensions and maintenance of existing shelters,
infrastructure, and services.
2. The adequate standard aimed at should be identified on the basis of an
analysis conducted on the standard and on the possibilities available to
the target population.
3. The goals of the shelter policy should be related to the goals of the
economic policy in general.
4. The direct governmental support should be mainly directed towards those
5. The public sector is responsible for the development and implementation
of measures arising from the national policies for shelter, and for the
adoption of measures stimulating the activity in other sectors as well.
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6. Development of administrative, institutional, and legislative tasks, for

which the government is directly responsible, for example, registration
of land, and construction regulation.
7. The analysis of the access shall provide criteria for defining the real
priorities and the appropriate approach for engaging the public sector.
8. Mechanisms for coordinating activities between the agencies and the
internal activities of the agencies should be developed. Also, it is necessary
to develop solutions for permanent monitoring, review, and revision of the
strategy.
5.2. Food
National legislation should contain provisions which would facilitate

increases in production and improved food distribution. Countries can
increase access to food through approximating primary health care. Hunger
is one of the key factors responsible for the increased number of disabled
persons, and the increased access to food through measures like subsidies in
rural environments for increased production, trade, fair prices, and other
measures, shall assist in terms of prevention of physical disability.
Attainment of sufficient food provision involves eradication of hunger faced
at present by hundreds of millions of people, and reduction of the risks from
hunger spreading in the future. Every kind of effort is to be undertaken
which shall address the symptoms and the causes for hunger.
The assistance in food is essential for saving and maintaining life. However,
the direct food transfer must be followed with activities directed towards
post-crisis rehabilitation of the affected households. Greater attention should
be paid to establishing improved mechanisms for facing future disasters and
on appropriate investments for the purpose of reducing vulnerability in
crises.
Lack of food must be overcome by efforts in areas like nutrition, health,
education, improvement, reproductive health, acquisition of property, and
income generation, i.e. by investment in people. Aid in food may provide
direct help for the people having no purchasing power, and may strengthen
trade through building transport infrastructure, or may increase market
systems through local marketing and local food procurement.
The Universal Declaration on Human Rights, under article 25, asserts the
right to food.
Rights in the Area of Economic, Social, and Cultural Rights, states that
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“…everyone has a right to appropriate food, which ensures the possibility

for enjoyment on the highest level of physical, emotional, and intellectual
development”. In addition, article 12 underlines the obligation for the
countries to improve food distribution.
Rights, states that everyone is entitled to appropriate food and to be free
from hunger: “…countries shall pass, individually or through international
collaboration, measures needed for protecting the said right including the
specific programmes”. The measures involve specific programmes for
improving production methods, conservation and distribution of food,
through full utilization of the technical and scientific inventions,
dissemination of the educational principles concerning food, and through
development or reform of the agricultural systems, in a way which would
provide the best development and utilization of natural treasures possible.
Article 27 (3) of the Convention on the Rights of the Child provides material
aid and programmes for support granted by the government, especially in
terms of food, in order to help parents and other persons responsible for
children.
Article 10 (b) of the Declaration on Social Progress and Development
determines eradication of hunger and malnutrition as one of the goals for
social progress and development.
Paragraph 4 of the Universal Declaration on Eradication of Hunger and
Malnutrition provides that each country should eradicate the impediments
for food production and should provide adequate incentives for farmers. It is
necessary to implement effective measures, such as reforms in agriculture,
taxation, credits, and investment policy. Moreover, paragraph 11 requires
that countries adjust their agricultural policies and give priority to food
production.
The World Food Summit of Africa-WFS, which resulted as a conclusion
from the Regional Conference for Africa of the UN Food and Agriculture
Organization- FAO1 in 1996, through its Political Statements urges all
countries to state their commitment to the policies which shall provide
access and permanence in procurement of appropriate food, as well as access
to adequate food for all. The Action Plan of this Summit underlines the need
for each country to choose the strategy for maintaining food supplies,
because of the diverse individual circumstances. However, in any case, the
goals to be achieved are as follows:
a) Creating a political and economic environment for food security;
b) Improving access to food for poor and vulnerable groups;
c) Accelerating agricultural and rural development;
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d) Providing adequate and timely aid in food and help in urgent

situations.
e) Increasing the capacity for domestic food supply; and
f) Increasing the capacity for export in order to meet import needs
The World Summit of Europe held in 1996 in Tel Aviv underlines several
goals including the following:
a) Creation of a political and economic environment for food
security;
b) Provision of sustainable security networks and social support
systems for lack of food;
c) Ensuring access to appropriate food provisions; and
d) Strengthening the role of Europe in improving global food
security.
5.3. Transportation
Mobility is one of the most important factors in the rehabilitation of disabled

persons. It contributes to their having a decent standard. It is related to
general access to the environment. There should be no discrimination against
disabled persons in the provision of services regarding public transportation;
there should indeed be special measures which would enable all disabled
persons free movement and access to their work place and to other public
places.
States should adopt legislation that provides access to transportation services
for disabled persons. These governmental initiatives are vital for the
integration of these individuals into mainstream society and for the right to
work.
Governments can provide these services in different ways, for example: by
rendering public transportation more accessible, by remodelling the
pedestrian paths with the objective of making them more accessible for
disabled persons, specifically for those who are using wheelchairs or for
individuals with a visual impairment, by designing parking lots which give
priority to disabled persons or by providing support for employers and
municipal organizations to provide transportation.
Other measures such as: financial subsidies, improvement of existing public
transportation systems, specially adapted cars and transfer of new
transportation technologies are also important for enabling integration of
disabled persons in mainstream society.
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Article 18 (d) of the Declaration on Social Progress and Development

encourages the development and expansion of transportation systems,
specifically in developing countries.
Paragraph 11 (h) of the Recommendation concerning Vocational
Rehabilitation and Employment (Disabled Persons) stipulates that disabled
persons should be provided with adequate transportation means to and from
the place of rehabilitation and work.
Paragraph 104 (a) from the Housing Agenda stipulates that states should
support (the access to) the policy of integrated transportation which
researches the entire field of technical and management possibilities and
pays adequate attention to the needs of all population groups/categories,
specifically to those whose mobility is reduced as a result of a physical
disability, old age, poverty or some other reason.
Paragraph 114 of the World Program of Activities for disabled persons
encourages the states in their efforts to ensure access to all new public
transportation systems for disabled persons . In addition, it is recommended
that states adopt measures that would encourage access to the existing public
transportation systems for disabled persons.
On a regional level, the EU has adopted several legal documents related to
this issue, i.e. on June 4, 1998 the Council passed a Recommendation
(98/37b/EK) for a parking map for disabled persons encouraged by the
Resolution passed at the European Conference of the Ministers of
Transportation from April 22, 1997 which, for its part, encourages the
reciprocal recognition of parking maps for disabled persons, taking into
consideration the need to provide disabled persons with the opportunity to
park closest to their destination.
In addition, on May 10, 2000 the Commission passed an Announcement
entitled “Towards Europe Free of Obstacles for Disabled Persons ” which
raises the issue of developing an integrated strategy for the elimination of the
social and physical obstacles which render access impossible to disabled
persons . The European Parliament adopted a similar resolution regarding
the same issue.
It can be concluded that the stipulated right to adequate living standards sets
the frame which may include different contents, depending on social
assumptions. One of the most recent and most revolutionary principles is the
principle of universal design, i.e. “design for all”. The comprehensive social
order which takes into consideration the different possibilities and needs of
individuals lies in the very essence of the principle of universal design. In
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addition, its consistent practical application will result in elimination of the

obstacles and creation of the prerequisites needed for complete and equal
realization of the rights of all.
The European Institute for Design and Physical Disability, a specialized
European institution which set the basis for the concept of universal design,
was founded in April, 1993 in Dublin, Ireland. After the adoption of the
Declaration at the International Conference for Universal Design in 2002 in
Yokohama, Japan on a universal level, in 2003, on a regional level, the
Council of Ministers of the EU has adopted the Resolution for the
Introduction of the Principle of Universal Design in the Programs for All
Professions which Deal with Urban and Physical Planning which enabled the
students of these faculties to understand the principle of universal design in
its real context.1.
6. Right to Social Integration
The overall objective of disability policy is to promote the social integration

of disabled persons. Therefore, the principle of social integration, together
with the objective itself – creation of equal opportunities for all – is
incorporated in all major instruments related to the issues of physical
disability.
Paragraph 9 of the Declaration on the Rights of Disabled Persons stipulates
that these individuals have the right to live with their families or with their
guardians and to participate in all social activities. Article 23 from the
Convention on the Rights of the Child requires the member states to provide
disabled children with conditions that facilitate their active participation in
the community.
According to Commitment 4 from the Copenhagen Declaration and
Programme of Action, states are obliged to promote social integration. In
addition, according to paragraph 1, the states are obliged to enable the
physically enabled access to the social environment.
Paragraphs 22 and 63 from the Vienna Declaration and Programme of
Action stipulate the following “... states ensure the active participation of
disabled persons in all spheres of social life”.
The overall objective of the Standard Rules on the Equalization of
Opportunities for Persons with Disabilities is the social integration of
disabled persons through creation of equal opportunities in all social spheres.
At the same time, the main objective of the World Program of Action
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concerning Disabled Persons is the creation of equal opportunities for

persons with disabilities and thus integrate them into society.
7. Right to Participate in Cultural Activities
The right to participate in cultural activities should be guaranteed to all,

including disabled persons. In reality, however, these individuals are often
deprived of the possibility to fully participate in the cultural life of the
community to which they belong. This deprivation is expressed through the
physical and social barriers that are a result of a lack of information,
indifference and fear.
Article 27 of the Universal Declaration for Human Rights stipulates the
following: “...everyone has the right to freely participate in the cultural life
of the community.... Article 15 (1) (a) from the International Covenant for
Economic, Social and Cultural Rights recognizes the right of each individual
to participate in cultural life. This right is violated, for example, in cases
when disabled persons are denied access to the facilities/locations where
cultural activities are hosted (such as cinemas, theatres, libraries, sport
stadiums, museums, etc) as well as in cases when disabled persons are
excluded from activities as a result of prejudices against their ability to
participate.
The right to participate in cultural life is embedded also in the regional
instruments for protection of human rights. Thus, Article 14 of the
Additional Protocol to the American Convention on Human Rights in the
Area of Economic, Social and Cultural Rights underlines the right of each
individual to participate in the cultural and artistic life of the community.
Furthermore, Article 17 (2) of the African Charter on Human and Peoples’
Rights guarantees the right of each individual to participate in the cultural
life of his community.
Rule 10 of the Standard Rules on the Equalization of Opportunities for
Persons with Disabilities stipulates that states must provide disabled persons
with the opportunity to be included and to participate in the cultural
activities under the same conditions as everyone else.
Paragraph 135 of the World Program of Action Concerning Disabled
Persons stipulates that states should provide disabled persons with the
opportunities to put their creative, artistic and intellectual potential into use,
not only for their own benefit, but also for the purpose of enriching the
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community. Therefore, they should be provided with access to cultural

activities.
8. Right to Accessible Physical and Information
Environment
For people with disabilities, the majority of human rights, including the
freedom to receive information, the freedom of movement, the right to work
or the right to social integration are greatly dependant on accessibility.
Many disabled persons are excluded from active participation in society due
to the fact that entrance doors are not sufficiently wide enough for
wheelchairs; the stairs and steps they cannot climb give access to buildings,
buses, trains and aircrafts; telephones and electric switches cannot be
reached, or the sanitary facilities cannot be used. Similarly, certain other
types of barriers also fail to take into account disabled persons, such as oral
communication, which ignores the needs of the aurally and visually
impaired. These barriers are a result of ignorance and lack of consideration,
and exist despite the fact that the majority of them can be avoided by careful
planning without incurring any major costs.
Although some countries have adopted legislation and launched campaigns
for public education with the purpose of eliminating these obstacles, the
problem still remains a crucial one. Legislation which would set standards
for access to information technology and public places is needed, standards
which would take into consideration the needs of disabled persons.
8.1. Information on Standards of Accessibility
The majority of the aforementioned information and sources are based on the
experiences of industrialized countries. As member states adopt initiatives to
implement the UN’s priority issue of accessibility, as set forth in the
Standard Rules, along with other documents, there is an evident need for
expansion of the traditional definitions of accessibility solutions and the
development of effective and realistic opportunities for accessibility policy
in developing countries. Based on our research, we believe that a virtual path
must be traced which would facilitate the exchange of information among
policy makers, the community of disabled persons, and the construction
industry when it comes to accessibility issues for the purpose of researching
special demands to create environments without limitations every step of the
way.
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8.2. Access to Public Places
At the same time, legislation that would set standards to regulate the needs
of disabled persons is needed for the construction of both private and public
buildings. Physical barriers often represent an obstacle for the complete
integration of disabled persons in public life.
Part B 2b (1) of the Copenhagen Declaration and Programme of Action
specifies that states should make an effort to render the physical environment
accessible to disabled persons . This Declaration underlines the following:
a) Accessibility rules, such as architectural accessibility rules;
b) Public housing, such as shelters for the homeless; and,
c) Public transportation, such as travelling with the physically
disabled.
Moreover, the guide entitled “Designing with Care: A Guide to Adaptation

to the Built Environment for Disabled People” (International UN year
dedicated to disabled persons (IYDP), 1981) provides technical and
architectural guidelines for construction in both the private and public
sectors, with special attention to disabled persons .
Paragraph 11 (g) of the Recommendation concerning Vocational
Rehabilitation and Employment specifies that all barriers and obstacles
affecting transportation of disabled persons and access to and free movement
in working premises during their training and working hours should be
eliminated.
Paragraph 17 of the Habitat Agenda states that one of the Agenda objectives
is to increase the access of disabled persons to housing facilities through
improvement of their quality of living. Part III states that accessibility
standards should be in compliance with the Standard Rules on the
Equalization of Opportunities for Persons with Disabilities.
Paragraph 23 of the World Programme of Action Concerning Disabled
Persons specifies the following: “... each individual which is, in any form, in
charge of an enterprise, should render that enterprise accessible for disabled
persons”. This also includes public agencies, nongovernmental
organizations, private companies and individuals. In addition, paragraph 113
asserts that states should adopt a policy that would enable research of the
accessibility aspects in the planning of homes, including the rural regions of
developing countries.
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9. International Co-operation
Funds are needed for the implementation of economic, social and cultural
rights. Funds are in fact also needed for the implementation of civil and
political rights because those rights require, for example, the establishment
of a functioning legal system or the provision of accessible information for
disabled persons. Article 2 of the International Covenant on Economic,
Social and Cultural Rights stipulates that “... each member state is obliged to
take steps, both individually and through international assistance and
cooperation, especially on an economic and technical level and using to the
highest possible extent all available sources, to achieve gradual and complete
realization of the rights recognized in this pact with every measure
appropriate, including especially the adoption of legal measures”.
The Convention on the Rights of the Child also appeals for cooperation in
the implementation of specific positive results, as for example Article 4
which concerns the implementation of economic, social and cultural rights,
or Article 23 which concerns the dissemination of information relating to
health care, rehabilitation, educational and technical services for children
with disabilities.
An agreement was reached at the World Summit on Social Development,
according to which the Copenhagen Declaration and the Programme of
Action would be implemented with the assistance of the 20/20 Initiative, by
which 20% of national budgets and 20% of assistance for development will
be allocated to the basic social services.
Cooperation is crucial for achieving progress in every part of the
world. Cooperation should exist on all levels, including:
a) Cooperation and coordination between states;
b) Agencies for multilateral and bilateral assistance;
c) International financial institutions, such as the World Bank and
the regional banks for development;
d) International organizations and different specialized agencies
and bodies of the United Nations system;
e) Including South-South, North-South and South-North
exchanges of best practices; and,
f) Continuous development of political instruments, planning and
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management.
Bilateral and multilateral donors should put aside adequate funds for the
physical disability component in their financial aid. At the same time, the
donors might associate their aid with projects for disabled persons. However,
the experiences from the donors that invest in the improvement of the overall
situation of physical disability in developing countries are opposite to the
abovementioned information. Often, there is a discrepancy between “the
declarative” and “the real” which leads us to conclude that there are double
standards according to which numerous donors operate, both in developed
and developing countries.
The donor-agencies must establish business relations with disabled persons
and/or their organizations. The staff in these agencies should be sensitive to
their problems. One method to do this would be to organize joint workshops
which would facilitate the implementation of policy directions which would
adequately take into consideration the problems of disabled persons.
Paragraph 12 of the Vienna Declaration and Programme of Action
encourages the international community to help in the reduction of debt in
the developing countries, with the objective of assisting these countries in
providing their own people with complete realization of economic, social
and cultural rights.
Article 23 of the Declaration on Social Progress and Development specifies
that the realization of the objectives of social progress and development
requires implementation of the provisions for technical, financial and
material aid, both bilaterally and multilaterally, on the largest scale possible
and under favourable conditions, as well as improved coordination for
realization of the social objectives implemented in the national development
plans. Paragraph 7 of the Universal Declaration on the Eradication of
Hunger and Malnutrition specifies that in order to encourage food
production in the developing countries, international action should be
undertaken aimed at providing continuous technical and financial aid. In
addition, all donor states should implement the concept of planning ahead
the aid in food products and furthermore put all the efforts to provide
products and/or financial aid.
Paragraphs 147 and 148 from the Habitat Agenda specify that the
international community should support the states in promoting:
a) Coordination of macro-economic policies on all levels for the
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establishment of an international financial system which leads to

economic and social development, as a component of sustainable
development;
b) An environment that attracts foreign direct investment
and encourages savings as well as domestic investment;
c) Capacity building in all developing countries;
d) Financial assistance for developing countries to accelerate
sustainable development; and,
e) Facilitated access to the international financial resources for all
developing countries – they would draw great benefit from the
growing international financial markets in order to promote
sustainable development.
Paragraph 179 of the World Programme of Action concerning Disabled
Persons states that donor-states should have an understanding of the requests
for assistance in the sphere of physical disability. They are urged to include
assistance for disabled persons in their bilateral and multilateral assistance
programs. Furthermore, paragraph 174 specifies that international
organizations or multilateral financial institutions that cooperate with the
member states in the financial risks should give advantage to the programs
that assist disabled persons. The multilateral and bilateral assistance agencies
in their programs should include measures that ensure allocation of increased
resources and periodic expansion of the services related to prevention,
rehabilitation and equality of opportunities.
Development in the Field of Disability specifies that international
development programs should include the participation of disabled persons
in these schemes. In conclusion, we would underline the fact that financial
assistance on the part of bilateral and multilateral donors is not sufficient for
the improvement of the status of disabled persons. On the contrary, a
universal standard among the industrial countries and developing countries
is indispensable. In addition, the donor should approach the situation with
disabled persons in developing countries and give “an assessment” of the
activities of the organizations dealing with disabled persons, with certain
sensitivity. Otherwise, we would witness an “elephant in a China-shop”
effect.
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The respect of an individual and love towards

your neighbor should be a constructive
force, not a philanthropic weakness.
- Komt
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PART FOUR
MULTIPLE DISCRIMINATIONS
- RIGHTS OF SPECIAL GROUPS
Introduction
The voices of protest against oppression have been heard throughout all
historical epochs and every historical stadium surpassed its own visions for
man’s freedom. Progressing through history to modern times, these voices
and visions gradually developed into society programmes for action.
The minimum universal values, on which we have legitimate right to insist,
are general in its nature and have to be interpreted in respect to the local
conditions, that is, within the context of the moral and cultural structure of
the concerned societies. However, this sensitivity for societal conditions
should not generate circumstances for multiple discriminations. And the
dynamic way of living not always prevents that. For that matter, the fourth
part of this comparative analysis reviews the situation of the vulnerable
groups, especially those who suffer from discrimination on various bases,
among which is disability.
This part is divided into three chapters.
Chapter VIII refers to individual civil, political, economic, social and
cultural rights of women, with special emphases on women with multiple
disabilities who encounter discrimination on various bases, by virtue of their
sex, as well as their disability.
In Chapter IX are elaborated the individual civil, political, economic, social
and cultural rights of children with disabilities who suffer from multiple
discrimination.
Chapter X reviews the rights of adolescents, elderly persons, poor,
indigenous people, refugees and ethnic minorities who face discrimination
on multiple levels.
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Multiple Discriminations – Rights of Special Groups
Chapter VIII
Rights of Women with Disabilities
1. Situation
Women suffer from double discrimination by virtue of their sex, as well as

their disability. This results in many women and young girls being denied
their basic human rights. The combination of male preference in many
cultures and the universal devaluation of disability can be deadly for
disabled females. Selective abortion is a related reproductive rights issue of
great concern to women with disabilities. Today, in both industrialized and
developing nations with access to reproductive technology, it is becoming
easier to utilize selective abortion if a foetus is considered "imperfect" by
medical profession's or society's standards. Legislation which permits
sterilization of people with disabilities, threatens both the rights of disabled
women to procreate and the very existence of children born with disabilities.
Certain countries have laws which mandate the forced sterilization of
persons with genetic defects1.
In developing countries, women are too often denied access to education,
rehabilitation, labour protection, and health care because of cultural
preferences for males. It is seen as a waste of resources to help disabled
women become productive members of society. Consequently, women with
disabilities are the last priority in these countries, and are condemned to live
their lives knowing that they will not improve. Disabled women's lack of
access to health care will aggravate their disability and make it difficult for
them to be rehabilitated quickly.
Violence perpetrated against women is one of the major causes of disability
among women in developing countries. Moreover, women who are already
disabled are even more vulnerable to violence. Rape of women and girls in
situations of armed conflict, whether civil or international, constitutes by
definition a grave breach of international human rights and humanitarian
law. Article 27 of the Fourth Geneva Convention states that "…women shall
be especially protected against any attack on their honour, in particular
against rape, enforced prostitution, or any form of indecent assault." Article
147 includes in the list of acts constituting grave breaches of the Convention
"…wilfully causing great suffering of serious injury to body or health."These
violations of the rights of women with disabilities have led to mobilisation
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for their cause. For the first time, hundreds of women with disabilities joined
non-disabled women in Beijing, China for the UN Fourth World Conference
on Women and specifically addressed issues of particular concern to women
with disabilities. Two hundred women with disabilities and their allies from
over thirty nations attended the First International Symposium on Issues of
Women with Disabilities outside of Beijing the day before the opening
ceremony for the NGO Forum. This meeting marked the largest international
gathering of women with disabilities anywhere, ever. Armed with a
commitment to the ideals of inclusion, freedom and independence for
women with disabilities, activists worked to translate into action workable
strategies for change. In the wake of the NGO forum, international groups
such as Women's International Linkage on Disability (WILD) were formed
to work on local and international disability rights issues affecting women.
International instruments have also been adopted, and one of the main
challenges has been to agree on a common definition of discrimination
against women through these instruments, as States do not all agree on what
constitutes discrimination. Roles may be assigned to women that vary from
culture to culture, and these different cultural roles may or may not be
discriminatory from one culture to the next.
2. International Instruments Concerning Women Rights
Rule 9(3) of The Standard Rules on the Equalization of Opportunities for

Persons with Disabilities provides that States "…should promote measure to
change negative attitudes towards marriage, sexuality and parenthood of
persons with disabilities, especially of girls and women with disabilities,
which still prevail in society."
Article 45 of the World Programme of Action concerning Disabled Persons
speaks of the special situation of women with disabilities. It speaks of social,
cultural and economic obstacles that affect the health of women. Disabled
women have a lack of access to health care, vocational training and
employment.
More general human rights instruments or instruments pertaining to women
are also applicable to women with disabilities.
The second paragraph of the Charter of the United Nations provides that the
people of the United Nations are determined "…to reaffirm their faith in
fundamental human rights in the dignity and worth of the person (and in) the
equal rights of men and women…." In addition, Article 1 (3) sets out one of
the main purposes of the United Nations as: "…promoting and encouraging
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respect for human rights and fundamental freedoms for all without
discrimination as to (…) sex…” Article 13 calls for the General Assembly to
initiate studies and to make recommendations for the purpose of "…assisting
in the realisation of human rights and fundamental freedoms for all without
distinction as to (…) sex…"
Article 55 (c) provides that the United Nations shall promote "…universal
respect for and observance of, human rights and fundamental freedoms for
all without distinction as to (…) sex…” Furthermore, article 56 states that
"…all members pledge themselves to take joint and separate action in co-
operation with the Organisation for the achievement of the purposes set forth
in Article 55." As recognized since the 1970 Declaration on Principles of
International Law, this creates a Charter-based duty to respect and to observe
human rights.
The Preamble of the Convention on the Elimination of All Forms of
Discrimination against Women states that "…discrimination against women
violates the principles of equality of rights and respect for human dignity, is
an obstacle to the participation of women, on equal terms with men, in the
political, social, economic, and cultural life of their countries, hampers the
growth of the prosperity of society and the family and makes more difficult
the full development of the potentialities of women in the service of their
countries and of humanity."
The Convention is also concerned that women in poverty have the least
access to food, health, education, training, and opportunities for employment
and other needs. Article 1 gives a definition of discrimination against
women: "the term "discrimination against women" shall mean any
distinction, exclusion or restriction made on the basis of sex which has the
effect or purpose of impairing or nullifying the recognition, enjoyment or
exercise by women, irrespective of their marital status, on a basis of equality
of men and women, of human rights and fundamental freedoms in the
political, economic, social, cultural, civil or any other field".
Obligations of the States Parties are stipulated in Article 2 (a). The provision
provides that States Parties should undertake appropriate measures to
promote the principle of gender equality in exercising of rights. Besides the
obligation to decry discrimination against women, Article 2 (b) states that
states inter alia are duty-bound to “…embody the principle of equality of
men and women in their national constitutions or other appropriate
legislation” and to undertake other measures (legislative, judicial and
administrative). Ratio legis of the provision implies that it is not sufficient
to incorporate appropriate principles into a legal frame, but it will be
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necessary to undertake additional measures “...including sanctions where

appropriate, in prohibiting all discrimination against women." and securing
legal protection before competent bodies in order to de facto achieve
equality. Different areas are covered in the convention: education (Article
10), employment (article 11), access to health care (article 12), and civil
rights (article 15).
The International Covenant on Civil and Political Rights in its provisions
guarantees rights to be applied equally to men and women, and prohibits all
discrimination based on sex. Article 2 states that the rights recognised in the
Covenant are to be recognised "…without distinction of any kind, such as …
sex… or other status". Although disability based discrimination is not
explicitly stated in this provision, the term other status may apply to persons
with disabilities. In addition, Article 3 speaks that states undertake to ensure
the equal right of men and women to the enjoyment of all rights set forth in
the present Covenant Furthermore, Article 26 states that all persons are
entitled "…to equal protection of the law regardless of (…) sex (…) or other
status."
In Part II, article 2 (2) of the International Covenant on Economic, Social
and Cultural Rights the principle of equality is articulated, which requires
that"… States Parties of this Covenant undertake to guarantee that the rights
enunciated in the present Covenant will be exercised without discrimination
of any kind as to race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status". In Article
3 of Part II, as well as in the International Covenant on Civil and Political
rights, it is stated that the Parties undertake to "…ensure the equal right of
men and women to the enjoyment of all rights set forth in the present
Covenant." Part III, Article 7 of the ICESCR states: "…equal remuneration
for work of equal value without distinction of any kind, in particular women
being guaranteed conditions of work not inferior to those enjoyed by men,
with equal pay for equal work." Article 10 states that special protection
should be given to mothers during childbirth.
The Preamble of the Declaration on the Elimination of Violence Against
Women states "…that some groups of women, such as women belonging to
minority groups, indigenous women, refugee women, migrant women,
women living in rural or remote communities, destitute women, women in
institutions or in detention, female children, women with disabilities, elderly
women and women in situations of armed conflict, are especially vulnerable
to violence." Article 4 provides that States should condemn violence against
women. Violence against women, as defined in Article 1, is "…any act of
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gender based violence that results in, or is likely to result in physical, sexual
or physical harm or suffering to women, including threats of such acts,
coercion or arbitrary deprivation of liberty, whether occurring in public or
private life."
The Beijing Declaration promotes fundamental human rights for women.
Article 9 provides that the Parties are committed to: "…ensure the full
implementation of the human rights of women and of the girl child as an
alienable, integral and indivisible part of all human rights and fundamental
freedoms." While Article 13 speaks of the full participation of women in all
spheres of society, Article 14 provides that women's rights are human rights.
Article 17 is of significant importance in that it recognises a woman's right
to control all aspects of her health.
Article 26 addresses the problem of women and poverty. It states that the
State Parties are determined to "…eradicate the persistent and increasing
burden of poverty on women…” Article 29 focuses on preventing and
eliminating all forms of violence against women and girls. Article 32
provides that State Parties commit to "…intensifying efforts to ensure equal
enjoyment of all human rights and fundamental freedoms for all women and
girls who face multiple barriers to their empowerment and advancement
because of factors such as (… ) Disability."
Article 2 of the Beijing Platform for Action states that: "…the human rights
of women and of the girl child are an inalienable, integral and indivisible
part of universal rights (…) the Platform seeks to promote and protect the
full enjoyment of all human rights and the fundamental freedoms of all
women throughout their life cycle." In Chapter IV, Article 46 recognises that
women "…face barriers to full equality and advancement because of factors
such as their (…) disability."
In Paragraph 5 of the Vienna Declaration and Programme of Action is stated
that human rights are universal, indivisible and independent. Paragraph 18
provides for the elimination of gender-based violence and all forms of sexual
harassment and exploitation. In addition, it calls for the eradication of all
forms of discrimination on grounds of sex.
In The Copenhagen Declaration and Programme of Action, pursuant to
Commitment 5, States Parties commit themselves to achieving equality and
equity between men and women. At the national level, States will
"…promote changes in attitudes, structures, policies, laws and practices in
order to eliminate all obstacles to human dignity, equality and equity in the
family and in society, and promote full and equal participation of urban and
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rural women and women with disabilities in social, economic, and political
life, including in the formulation, implementation and follow-up of public
policies and programmes…". Commitment 6 provides that States Parties
commit themselves to ensure full and equal access to education for girls and
women in order to obtain social equality.
3. Regional Instruments Pertaining to Women Rights
Regional human rights conventions have been applied less often to issues
regarding women's rights. However, there are certain advantages available at
the regional level, which cannot be attained at the international level, such as
geographical proximity, cultural similarity and economic interdependence.
Regional systems may have certain organs in place to deal with women's
rights, such as the Council of Europe's Steering Committee for Equality
between Women and Men and the Organisation of American States'
Commission on Women.
The European Social Charter obliges States Parties in Article 4 to recognise
equal remuneration for women and men for equal work. Article 8 deals with
the right of employed women to protection. Article 17 provides that State
Parties are to take measures for the social and economic protection of
mothers. Furthermore, Article 1 of the Additional Protocol to the European
Social Charter prohibits discrimination in employment matters on the
grounds of sex.
Article 1 of the American Convention on Human Rights and article 3 of the
Additional Protocol to the American Convention on Human Rights in the
Area of Economic, Social, and Cultural Rights (Protocol of San Salvador)
provide that the parties to the Convention undertake to ensure the rights in
these conventions, "without any discrimination for reasons of (…) sex…”
Article 17 of the American Convention on Human Rights deals with the
rights of the family and states that the "…right of men and women of
marriageable age to raise a family shall be recognised." and that "…no
marriage shall be entered into without the free and full consent of the
intending spouses." Article 6 of the Additional Protocol to the American
Convention on Human Rights in the Field of Economic, Social, and Cultural
Rights provides that States Parties are to "undertake to implement and
strengthen programs that help to ensure suitable family care, so that women
may enjoy a real opportunity to exercise the right to work". Article 9
provides for maternity leave. In Article 15 (3) (a) it is stated that States
Parties should provide special care and assistance to mothers during a
reasonable period before and after childbirth.
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Article 18 (3) of the African Charter on Human and People's Rights contains
an anti-discrimination clause with regard to women. It provides that "…the
State shall ensure the elimination of any discrimination against women and
also ensure the protection of the rights of the woman and the child as
stipulated in international declarations and conventions."
Chapter IX
Rights of the Child

One of the most vulnerable groups among persons with disabilities are
children. They are more vulnerable to wars, exploitation, malnutrition,
physical and psychological ill treatment, trafficking etc., and rely on adults
for the enforcement of their human rights mechanisms.
1. International Instruments Pertaining to the Rights of

the Child
The Convention on the Rights of the Child (CRC), the most complete
statement of children's rights, is lex specialis and is the first to give these
rights the force of international law. The term child, as defined in the
Convention, is related to a person under the age of 18, unless national laws
mandate an earlier age of majority.
Article 2 provides that States Parties must respect and ensure the rights in the
Convention "…without discrimination of any kind, irrespective of …
disability …” Furthermore, Article 19 (1) states that the child shall be
protected from "…all forms of physical or mental violence, injury or abuse,
neglect or negligent treatment, maltreatment or exploitation, including
sexual abuse…."
Although there is no direct obligation for the State Parties to undertake
measures to provide for children with disabilities to enjoy a full and decent
life, in conditions which ensure dignity, promote self-reliance and facilitate
the child's active participation in the community, Article 23 (1-4) identifies
the importance for children with disabilities to have effective access to and
receive education, training, health care services, rehabilitation services,
preparation for employment and recreation opportunities. Child’s Rights
Committee clarifies that although Article 23 refers to children with
disabilities their rights are not restricted to only this article.
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The Convention on the Rights of the Child (CRC) is supplemented by two

protocols: The Optional protocol on the involvement of children in armed
conflict and the Optional protocol on the sale of children, child prostitution
and child pornography of 2000.
Other international instrument, in which the rights of the child are included,
is the Universal Declaration of Human Rights. Its Article 25 (2) clearly
states that "…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."
The International Covenant on Civil and Political Rights state in Article 24
(1) that, "Every child shall have, without any discrimination as to race,
colour, sex, language, religion, national or social origin, property or birth,
the right to such measures of protection as are required by his status as a
minor, on the part of his family, society and the State…". The Article 10 of
the International Covenant on Economic, Social and Cultural Rights states
that "…special protection should be accorded to mothers during a reasonable
period before and after childbirth… Special measures of protection and
assistance should be taken on behalf of all children and young persons
without any discrimination for reasons of parentage or other conditions."
Children and young persons should be protected from economic and social
exploitation. Their employment in work harmful to their morals or health or
dangerous to life or likely to hamper their normal development should be
punishable by law. States should also set age limits below which the paid
employment of child labour should be prohibited and punishable by law."
The Section II paragraph 21 of the Vienna Declaration and Programme of
Action welcomes the early ratification of the Convention on the Rights of
the Child by a large number of States and urges universal ratification of the
Convention by 1995 and its effective implementation by States parties
through the adoption of all the necessary legislative, administrative and other
measures and the allocation to the maximum extent of the available
resources.
In addition, it is stated that all actions concerning children, non-
discrimination and the best interests of the child should be of primary
considerations.
The Protocol II Additional to the Geneva Conventions of August 12, 1949,
and Relating to the Protection of Victims of Non-International Armed
Conflicts states in Part II, Article 4 (3) (a) that children "…shall receive an
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education, including religious and moral education, in keeping with the

wishes of their parents, or in the absence of parents, of those responsible for
their care." Article 4 (3) (b) states that all appropriate steps shall be taken to
facilitate the reunion of families temporarily separated. Article 4 (3) (c)
provides that "…children who have not attained the age of fifteen years shall
neither be recruited in the armed forces or groups nor allowed to take part in
hostilities. Furthermore, Article 4 (3) (d) states: "…measures shall be taken,
if necessary, and whenever possible with the consent of their parents or
persons who by law or custom are primarily responsible for their care, to
remove children temporarily from the area in which hostilities are taking
place to a safer area within the country and ensure that they are accompanied
by persons responsible for their safety and well-being."
Other international instruments concerning the rights of the child include:
• the World Declaration on the Survival, Protection and Development
of Children and its Plan of Action adopted at the 1990 World
Summit for Children,
• The outcome document of the UN General Assembly Special
Session on Children ("A World Fit for Children".)
• follow-up meeting to the World Summit for Children,
• the 1990 United Nations Guidelines for Prevention of Juvenile
Delinquency ("Riyadh Guidelines"),
• the 1985 United Nations Standard Minimum Rules for the
Administration of Juvenile Justice ("Beijing Rules"),
• the 1990 United Nations Rules for Protection of Juveniles Deprived
of their Liberty,
• International Convention for the Suppression of Traffic in Women
and Children (1921),
• and ILO conventions
o on minimum age (Industry, No.5, 1919 and No.59, 1937),
(Sea, No.7, 1920 and No.58, 1936), (Agriculture, No.10,
1921), (Trimmers and Stokers, No.15, 1921), (Non-
industrial Employment, No.33, 1932 and No.60, 1937),
(Fishermen, No.112, 1959), (Underground Work, No.123,
1965), (Minimum Age, No.138, 1973)
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o on night work of young persons (Industry, No.6, 1919 and

No.79, 1946), (Non-industrial employment, No.90, 1948),
o on medical examination of young persons (Non-industrial
Occupations, No.79, 1946), (Underground Work, No.124,
1956),y
o and the ILO Convention on the Worst Forms of Child
Labour (No.182, 1999).
2. Regional Instruments Pertaining to the Rights of the

Child
The European Social Charter in its Article 7 states that, “right of children
and young persons to protection. “With a view to ensuring the effective
exercise of the right of children and young persons to protection, the
contracting parties undertake,” the following:
1. To provide that the minimum age of admission to employment shall
be 15 years, subject to exceptions for children employed in
prescribed light work without harm to their health, morals and
education;
2. To provide that a higher minimum age of admission to employment
shall be fixed with respect to prescribed occupations regarded as
dangerous or unhealthy;
3. To provide that persons who are still subject to compulsory
education shall not be employed in such work as would deprive
them of the full benefit of their education;
4. To provide that the working hours of persons under 16 years of age
shall be limited in accordance with the needs of their development,
and particularly with their need for vocational training;
(...)
9. To provide that persons under 18 years of age employed in
occupations prescribed by national laws or regulations shall be
subject to regular medical control
10. To ensure special protection against physical and moral dangers to
which children and young persons are exposed, and particularly
against those resulting directly or indirectly from their work."
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Article 17 obliges the States Parties to take measures to provide economic

and social protection for children, that is "… with a view to ensuring the
effective exercise of the right of mothers and children to social and
economic protection, the Contracting Parties will take all appropriate and
necessary measures to that end, including the establishment or maintenance
of appropriate institutions or services."
Though there were no fundamental changes in the Revised Form of the
European Social Charter, in article 7 the age limit goes up from 16 to 18
years of age and states that “… with a view to ensuring the effective exercise
of the right of children and young persons to grow up in an environment
which encourages the full development of their personality and of their
physical and mental capacities, the Parties undertake, either directly or in
Cupertino with public and private organisations, to take all appropriate and
necessary measures designed:
1.
a. To ensure that children and young persons, taking account
of the rights and duties of their parents, have the care, the
assistance, the education and the training they need, in
particular by providing for the establishment or maintenance
of institutions and services sufficient and adequate for this
purpose;
b. To protect children and young persons against negligence,
violence or exploitation;
c. To provide protection and special aid from the state for
children and young persons temporarily or definitively
deprived of their family's support; and
2. To provide to children and young persons a free primary and
secondary education as well as to encourage regular attendance at
schools."
Article 19 of the American Convention on Human Rights provides that "…
every minor child has the right to measures of protection required by his
condition as a minor on the part of his family, society, and the state."
The Additional Protocol to the American Convention on Human Rights in
the Field of Economic, Social, and Cultural Rights proclaimed in Article 15
(3) (b) and (d), States undertake to guarantee adequate nutrition for children
and to help create an environment in which children receive and develop the
values of understanding, solidarity, respect and responsibility. Article 16
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outlines a comprehensive set of rights for children including the right to

special protection, the right for the young child, save in exceptional
circumstances, not to be separated from his mother, the right for children to
remain under the protection of their parents, and the right to free and
compulsory education.
Article 18 (3) of the African Charter on Human and Peoples' Rights
provides: "The State shall ensure the elimination of every discrimination
against women and also censure the protection of the rights of the woman
and the child as stipulated in international declarations and conventions...".
There are more specific instruments at the regional level pertaining to this
matter. The first one is the African Charter on the Rights and Welfare of the
Child is based on the Convention on the Rights of the Child (CRC), but
adapted to the regional context. The second instrument, the European
Convention on the Exercise of Children's Rights, focuses on procedural
aspects in the enforcement of existing rights of children.
Other instruments include inter alia the 1993 Hague Convention on the
Protection of Children and Co-operation in Respect of Inter-country
Adoption, the 1980 Convention on the Civil Aspects of Child Abduction, the
1975 European Convention on the Legal Status of Children Born out of
Wedlock and the 1980 European Convention on the Recognition and
Enforcement of Decisions Concerning Custody of Children and on the
Restoration of Custody of Children. However, most of these are private
international law treaties dealing with questions of jurisdiction, and not
substantive law.
3. International Instruments Specifically Relating to

Disabled Children
The Convention on the Rights of the Child (CRC) is the first international
treaty (legal act), which recognises the rights of disabled children. The most
important article for the protection of disabled children is article 23 (1)
which states that "States Parties recognise that a mentally or physically
disabled child should enjoy a full and decent life, in conditions which ensure
dignity, promote self-reliance and facilitate the child's active participation in
the community."
In addition, Article 23 (2) states that “States Parties recognise the right of
disabled children to special care and shall encourage and ensure the
extension, subject to available resources, to the eligible child and those
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responsible for his or her care, of assistance for which application is made
and which is appropriate to the child's condition, and to the circumstances of
the parents or others caring for the child."
Article 23 (3) states that "…taking into account the special needs of children
with disabilities, assistance, as defined in paragraph 2, shall be provided free
of charge, whenever possible, taking into account the financial resources of
the parents or others caring for the child. Assistance shall be designed to
ensure that the disabled child has effective access to and receives education,
training, health, care services, rehabilitation services, preparation for
employment and recreation opportunities in a manner conducive to the
child's achievement of the fullest possible social integration and individual
development, including his or her cultural and spiritual development."
Further on, as defined in paragraph 4 "States parties undertake to promote
and improve the international co-operation to gradually achieve full
realisation of the rights provided by this article. In this regard, particular
account shall be taken of the needs of developing countries".
Other articles in this convention are also of special relevance to the
protection of disabled children. These include: article 24 (the child is entitled
to the highest attainable standard of health), and article 19 (States shall
protect children from physical or mental harm and neglect, including sexual
abuse or exploitation).
Most importantly, the Convention's general principles: article 2 (non-
discrimination), article 3 (the best interests of the child), article 6 (life,
survival and development), and article 12 (respect for the views of the child)
are also crucial for the protection of the rights of children with disabilities.
The African Charter on the Rights and Welfare of the Child has a very
comprehensive approach regarding the protection of disabled children.
Indeed, in Article 13, which refers to children with disabilities, is stated that:
"…every child who is mentally or physically disabled shall have the right to
special measures of protection in keeping with his physical and moral needs
and under conditions which ensure his dignity, promote his / her self-
reliance and active participation in the community.
States Parties shall ensure, subject to available resources, to a disabled
child and to those responsible for his care, of assistance for which
application is made and which is appropriate to the child's condition
and in particular shall ensure that the disabled child has effective
access to training, preparation for employment and recreation
opportunities in a manner conducive to the child achieving the fullest
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possible social integration, individual development and his cultural

and moral development. The States Parties to the present Charter shall
use their available resources with a view to achieving progressively
the full convenience of the mentally and physically disabled person to
movement and access to public highway buildings and other places to
which the disabled may legitimately want to have access to.
Chapter X
Rights of Special Groups

1. Rights of Adolescents
In Article 15 (3) (c) of the Additional Protocol to the American Convention

on Human Rights in the Field of Economic, Social, and Cultural Rights
States undertake to adopt special measures for the protection of adolescents
in order to ensure the full development of their physical, intellectual and
moral capacities.
The goals mentioned in the United Nations Rules for the Protection of
Juveniles Deprived of their Liberty are protections provided specifically for
juveniles. Other related instruments that apply to youth are United Nations
Guidelines for Prevention of Juvenile Delinquency ("Riyadh Guidelines")
and the United Nations Standard Minimum Rules for the Administration of
Juvenile Justice ("Beijing Rules").
2. Rights of Elderly Persons
Article 4 of the Additional Protocol to the European Social Charter states

that “With a view to ensuring the effective exercise of the right of elderly
persons to social protection, the Parties undertake to adopt or encourage, either
directly or in co-operation with public or private organisations, appropriate
measures designed in particular:
1 To enable elderly persons to remain full members of society for as
long as possible, by means of:
a adequate resources enabling them to lead a decent life and play an
active part in public, social and cultural life;
b provision of information about services and facilities available for
elderly persons and their opportunities to make use of them;
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2 To enable elderly persons to choose their life-style freely and to lead

independent lives in their familiar surroundings for as long as they
wish and are able, by means of:
a. provision of housing suited to their needs and their state of health or
of adequate support for adapting their housing;
b. the health care and the services necessitated by their state;
3. To guarantee elderly persons living in institutions appropriate support,
while respecting their privacy, and participation in decisions
concerning living conditions in the institution.
Also, the Additional Protocol to the American Convention on Human Rights
in the Field of Economic, Social, and Cultural Rights confers in Article 17
the right to special protection for the elderly.
The Preamble of the Declaration on the Elimination of Violence against
Women states "…that some groups of women, such as women belonging to
minority groups, indigenous women, refugee women, migrant women,
women living in rural or remote communities, destitute women, women in
institutions or in detention, female children, women with disabilities, elderly
women and women in situations of armed conflict, are especially vulnerable
to violence".
3. Rights of the Poor
3.1. Disability and Poverty
Poverty can greatly increase the chance of a person becoming disabled, and a
person with disabilities has a greater chance of experiencing poverty. There
are many reasons why those who are living in poverty experience more
disabilities than those who are not poor. Among these are:
a. Poor people may not have adequate food;

b. They may live in unhealthy environments;
c. They may have low-paying or dangerous jobs, if any at all; they may
be victims of violence;
d. They have less access to medical treatment;
e. They are less educated and, therefore, may not learn about treatment.
f. Poor people lack access to information, influence and resources,
which may cause them to live in poor living conditions and without
proper medical care.
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3.2. United Nations instruments and measures for the eradication of

poverty
The whole United Nations system has a major role to play in the area of
eradicating poverty. Addressing poverty issues has been the major theme at
many United Nations International Conferences such as:
• The World Summit for Children (New York 1991)
• The Earth Summit (Rio de Janeiro, 1992)
• The World Conference on Human Rights (Vienna, 1993)
• The International Conference on Population and Development
(Cairo, 1994)
• The Social Summit (Copenhagen, 1995)
• The Fourth World Conference on Women (Beijing, 1995); and
• The United Nations Conference on Human Settlements (Habitat II)
(Istanbul, 1996)
The United Nations Development Programme (UNDP) supports
programmes that assist governments and organisations of civil society in
developing economic and social policies and programmes to address the
whole range of factors that contribute to poverty. These programmes seek to
increase food security, improve the availability and quality of shelter and
basic services, and generate opportunities and sustainable livelihoods.
UNDP assistance supports efforts to identify and prioritise poverty
eradication needs at the country level, targeting current gaps and weaknesses
in the capacity of government and civil society institutions to address
poverty issues.
In 1992, the General Assembly adopted a resolution proclaiming October 17
as the International Day for the Eradication of Poverty (General Assembly
resolution 50/176 of December 1992). The United Nations proclaimed the
year of 1996 as the International Year for the Eradication of Poverty
(General Assembly resolution 48/183 of December 1993). The General
Assembly recognised that "…poverty is a complex and multi-dimensional
problem with origins in both the national and international dimensions, and
that its eradication in all countries, in particular in developing countries, has
become one of the priority development objectives for the 1990's in order to
promote sustainable development."
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The United Nations then proclaimed the period from 1997 to 2006 as the
First United Nations International Decade for the Eradication of Poverty
(General Assembly resolution 50/107 of December 1995). The General
Assembly decided by resolution that in 1996 the theme would be the
eradication of poverty as an "…ethical, social, political and economic
imperative of humankind" (General Assembly resolution 51/178 of
December 1996). The resolution also declared Poverty, environment, and
development as the theme for 1997 and Poverty, human rights and
development as the theme for 1998.
The objective for the decade was to eradicate absolute poverty, and reduce
overall global poverty through decisive national action and international co-
operation in implementing fully and effectively all relevant agreements,
commitments and recommendations of major United Nations conferences
since 1990. The General Assembly recommended that the causes of poverty
should be addressed through action in the areas of environment, food
security, population, migration, health, shelter, human resources
development including clean water and sanitation, rural development and
productive development, and by addressing the needs of vulnerable groups.
In order to help eradicate this problem of poverty and its endless cycle,
Governments may turn to several instruments for assistance and guidance.
Commitment 2 of The Copenhagen Declaration and Programme of Action
provides that States commit themselves to eradicate poverty. In this context,
the States must take efforts to provide for the basic needs of all. Moreover,
pursuant to commitment 2, at the national level States must ensure that
people living in poverty have access to productive resources, including
credit, land, education and training, technology, knowledge and information,
as well as public services. At the international level, states must "…strive to
ensure that the international community and international organisations, in
particular, the multilateral financial institutions, assist developing countries
in need in their efforts to achieve our overall goal of eradicating poverty and
ensuring basic social protection."
Article 15 (h) states that "…one of the world's largest minorities, more than
one in 10, are people with disabilities, who are too often forced into poverty,
unemployment and social isolation." In the Declaration, the participating
governments commit to eradicate poverty. Paragraph 23 provides that
"…poverty has various causes, including structural ones. Poverty is a
complex multi-dimensional problem with origins in both the national and
international domains. No uniform solution can be found to tackle poverty
and international efforts supporting national efforts, as well as the parallel
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process of creating a supportive international environment, are crucial for a

solution to this problem (…). The eradication of poverty cannot be
accomplished through anti-poverty programmes alone, but will require
democratic participation and changes in economic structures in order to
ensure access for all to resources and opportunities."
In Paragraph 27 is stated "The international community, the United Nations,
the multilateral financial institutions, all regional organisations and local
authorities, and all actors of civil society need to positively contribute their
own share of efforts and resources in order to reduce inequalities among
people." Further on, Paragraph 82 states: "Nothing short of renewed and
massive political will at the national and international levels to invest in
people and their well-being will achieve the objectives of social
development."
In addition, Paragraph 96 talks about the need for inter-agency collaboration
and states that "The United Nations system, including technical and sector
agencies and the Bretton Woods institutions, should expand and improve
their co-operation in the field of social development to ensure that their
efforts are complementary and, where possible, should combine resources in
joint initiatives for social development…"
Articles 5-6 of the Beijing Declaration recognise that the unequal status of
men and women is due in large part to the increasing poverty that is
affecting the lives of the majority of the world's people, including women
and children. In addition, Article 26 focuses on measures to address poverty.
The United Nations Report of the World Social Situation 1997 sets forth
national strategies for dealing with the eradication of poverty:
1. Promoting the high and sustained rates of economic expansion and
employment creation through policies designed to create an enabling
environment for poverty reduction;
2. Increasing incomes and participation in the economy by the
unemployed and working poor through targeted measures to
improve their skills and training and upgrade their health status and
living conditions;
3. Expanding opportunities for the poor to engage in gainful economic
activity by widening their access to land, credit and other productive
factors;
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4. Targeting those localities and intervening in those areas where the

poor reside and where needs are greatest in terms of priorities for
poverty reduction;
5. Addressing the pressing economic and social problems of the aged,
the disabled, the infirm and those otherwise unable to engage in
productive activity through programmes of public assistance and
income maintenance.
6. Channelling the benefits from increased participation in the world
economy towards the poorest segments of the population through
policies promoting an expansion of labour-intensive exports and a
reduction of trade restriction on consumer goods.
Article 4 of the Basic Principles on the Role of Lawyers provides that
"…special attention should be given to assisting the poor so as to enable
them to assert their rights and where necessary call upon the assistance of
lawyers."
The United Nations Millennium Declaration gives guidelines for poverty
eradication and development, and sets concrete goals. To implement the
Declaration, the international community has agreed on Millennium
Development Goals, which include the eradication of extreme poverty and
hunger, achieving universal primary education, promoting gender equality
and empowering women, reducing child mortality, improving maternal
health, combating HIV/AIDS, malaria and other diseases, ensuring
environmental sustainability, developing a global partnership for
development.
In the combat for eradication of poverty on the domestic level, national
strategies for suppression of poverty and the coordinative bodies established
to create a programme of action and ensure its implementation play the key
roles. Persons with disabilities are directly involved in the work of the
coordinative bodies. While in some states it is just declarative (like in
Republic of Macedonia), in others it is substantial (like in Bosnia and
Herzegovina).
4. Rights of Indigenous People
The rate and risk of disability among indigenous people are higher because
of dangerous working conditions, lower standards of living, and the poor
quality of the preventive medical services available to them. Above all,
disabled persons belonging to such groups do not usually have access to
suitable rehabilitation services.
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The first instrument concerning indigenous populations was the 1957 ILO
Convention on the Protection and Integration of Indigenous and other Tribal
and Semi-Tribal populations in Independent Countries. However, it was
ratified by less than thirty countries.
The first International Conference of NGOs on Indigenous Issues was held
in Geneva in 1977, followed by a second conference, which took place in
1981. The decisive step was the establishment of the UN Working Group on
Indigenous Populations in 1988, under the auspices of the Sub-commission
on the Prevention of Discrimination and Protection of Minorities of the
UNHCR. The Working Group drafted a (Draft) Declaration on the Rights of
Indigenous Peoples in 1994. The International Decade of Indigenous People
(1995-2004) has led to the creation of the Permanent Forum on Indigenous
Issues, and in 2001, a Special Rapporteur was appointed to receive
information and communications on the situation of the human rights of
indigenous people.
The Vienna Declaration and Programme of Action as the final document of
the World Conference on Human Rights focuses on the rights of indigenous
populations, including persons with disabilities. Section II, paragraph 20
obliges States to “…recognize the inherent dignity and the unique
contribution of indigenous people to the development and plurality of
society and strongly reaffirms the commitment of the international
community to their economic, social and cultural well-being and their
enjoyment of the fruits of sustainable development. States should ensure the
full and free participation of indigenous people in all aspects of society, in
particular in matters of concern to them.” States should ensure respect for all
human rights and fundamental freedoms of indigenous peoples.
Additionally "...considering the importance of the promotion and protection
of the rights of indigenous people, and the contribution of such promotion
and protection to the political and social stability of the States in which such
people live, States should, in accordance with international law, take
concerted positive steps to ensure respect for all human rights and
fundamental freedoms of indigenous people, on the basis of equality and
non-discrimination, and recognize the value and diversity of their distinct
identities, cultures and social organization”. It also requires legislative
reform to "…assure access to these and other rights of disabled persons."
The Copenhagen Declaration and Programme of Action gives special
emphasis on disadvantaged groups, such as disabled persons and indigenous
peoples. Commitment 4 provides that in order to promote social integration,
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States should respect the rights of indigenous peoples to maintain and

develop their identity, culture and interests. Furthermore, States must ensure
that indigenous peoples are able to participate in the social, economic, and
political life of their country. Commitment 6 requires States to recognise the
right of indigenous people to education that is responsive to their specific
needs, aspirations and cultures. States must also ensure that indigenous
peoples have full access to health care.
5. Rights of Refugees
5.1. Rights of Refugees with Disabilities
Disabled persons who have to leave their countries find themselves in
particularly disadvantaged situations. Disabled refugees are an extremely
vulnerable group and are therefore in need of special attention. However,
there are no legal instruments at an international level, as such, to protect the
rights of disabled refugees. Disabled refugees can only refer to scattered
provisions of conventions, instruments and international humanitarian law.
According to the Convention relating to the Status of Refugees, the legal
definition for a refugee is "…a person who is outside his country of origin
and cannot return to it owing to a well-founded fear of persecution for
reasons of race, religion, nationality, or political opinion." Indeed, Article 1
states that “…"The term refugee shall apply to any person who: (...)
(2) as a result of events occurring before 1 January 1951 and owing to well-
founded fear of being persecuted for reasons of race, religion nationality,
membership of a particular social group or political opinion, is outside the
country of his nationality and is unable, or owing to such fear, is unwilling to
avail himself of the protection of that country; or is outside the country of his
former habitual residence and as a result of such events, is unable or, owing
to such fear is unwilling to return to it".
The 1951 dateline originated in the wish of governments, at the time the
Convention was adopted, to limit their obligations to refugee situations that
were known to exist at that time, or those which might subsequently arise
from the events that had already occurred. By accession to the 1967
Protocol, States undertake to apply the substantive provisions of the
Convention to refugees as defined in the Convention, but without the 1951
dateline.
The Refugee convention applies to all refugees, equally. Some of the basic
provisions are stated as below.
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a. Article 24 of the Convention relating to the Status of Refugees: "The

Contracting States shall accord to refugees lawfully staying in their
territory the same treatment as is accorded to nationals…"
b. Social security (legal provisions in respect to employment injury,
occupational diseases, maternity, sickness, disability, old age, death,
unemployment, family responsibilities and any other contingency
which, according to national laws or regulations, is covered by
social security scheme), subject to the following limitations:
o there may be appropriate arrangements for the maintenance
of acquired rights and rights in course of acquisition;
o national laws or regulations of the country of residence may
prescribe special arrangements concerning benefits or
portions of benefits which are payable wholly out of public
funds, and concerning allowances paid to persons who do
not fulfil the contribution conditions prescribed for the
award of a normal pension."
Other provisions to which disabled refugees will refer for their protection
are: Articles 3 (non-discrimination), 7 (exemption from reciprocity), 17
(wage-earning employment), 18 (self-employment), 19 (liberal professions),
31 (refugees unlawfully in the country of refuge).
Article 33 prohibits for states to expel or return a refugee, if that implies
returning to his/her country of origin, and cannot to, where his life or
freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion. (Principle of
non-refoulement).
The benefits provided in Article 33(2) may not, however, be claimed by a
refugee whom there are reasonable grounds for regarding as a danger to the
security of the country in which he is, or who, having been convicted by a
final judgement of a particularly serious crime, constitutes a danger to the
community of that country.
The Standard Rules on the Equalization of Opportunities for Persons with
Disabilities, in Rule 21, require that measures to achieve the equalisation of
opportunities of disabled refugees should be integrated into general
development programmes.
The Trust Fund for Handicapped Refugees was set up with funds originating
from the Nobel Peace Prize granted to the UNHCR in 1981. Before this,
little was known of disabled refugees, many of whom became disabled
197
through violent encounters. Since then, the UNHCR has helped many
disabled refugees by covering the costs of social, medical and rehabilitative
assistance when these were not provided by the home country of the refugee,
or when they were denied access to these services and facilities.
The Guidelines for Educational Assistance to Refugees emphasise that all
"…measures for disabled refugees are based on the concept of community-
level care and are incorporated into the overall Care and Maintenance
Programme."
5.2. Rights of Refugee Children
Article 22 (1) of the Convention on the Rights of the Child states: " State
Parties shall take appropriate measures to ensure that a child who is seeking
refugee status or who is considered a refugee in accordance with applicable
international or domestic law and procedures shall … receive appropriate
protection and humanitarian assistance in the enjoyment of applicable rights
set forth in the present Convention and in other international human rights or
humanitarian instruments to which the said States are Parties."
The 1951 Convention on the Status of Refugees does not mention children
specifically, though some of its provisions, such as that on education, are
especially important to refugee children. UNHCR has, however, made
children a policy priority, and has adopted several documents to guide its
work in that area.
The 1987 Conclusion on Refugee Children (Conclusion No. 47 (XXXVIII)
stresses that "… the need for internationally and nationally supported
programmes geared to preventive action, special assistance and rehabilitation
for disabled refugee children and encouraged States to participate in the
"Twenty or More" Plan providing for the resettlement of disabled refugee
children." The "Ten or More" plan created in 1973 and increased in 1984 to
the "Twenty or More" plan, together with other special programmes, gives
the highest priority to children who are disabled or victims of torture.
The 1997 Conclusion on Refugee Children and Adolescents (Conclusion
No.84) is concerned with the prevention of sexual violence, exploitation,
trafficking and abuse. It addresses the rights of child and adolescent victims
through provision and appropriate legal and rehabilitative remedies.
The UNHCR has also adopted Guidelines on Refugee Children in 1988,
which are incorporated into UNHCR Policy on Refugee Children.
198
5.3. Rights of Refugee Women
UNHCR, besides on matters related to rights of refugee children, works on

rights pertaining to refugee women. In that direction, UNHCR adopted a
Policy of Refugee Women in 1990 and Guidelines for the Protection of
Refugee Women in 1991. The Guidelines review refugee women's legal and
physical protection needs. They give concrete recommendations on how to
involve refugee women in decisions affecting their security and how to
identify particularly risky situations. Additionally, the Guidelines emphasize
safety and suggest mechanisms to improve the reporting of physical and
sexual protection problems and programmes for improved protection.
5.4. Regional Instruments Applicable to Refugees
Article 4 of the Convention Governing the Specific Aspects of Refugee

Problems in Africa states that "Member States undertake to apply the
provisions of this Convention to all refugees without discrimination as to
race, religion, nationality, membership of a particular social group or
political opinions."
The Addis Ababa Document on Refugees and Forced Population
Displacements in Africa states in recommendation 8 that " …the
international Community, the UN, the UNHCR and other relevant
organisations, should support and assist host Governments in fulfilling their
responsibilities towards refugees in a manner consistent with the principles
of refugee law on the one hand, and legitimate national security, social and
economic interests on the other hand. In particular, financial, material and
technical assistance should be made available to (…) provide food, water,
shelter, sanitation and medical services on a timely basis so that refugees and
local populations alike are not put in a life-endangering situation."
The Cartagena Declaration on Refugees calls for improved "protection
afforded to refugees, safeguarding their human rights and implementing
projects aimed at their self-sufficiency and integration into the host society".
In addition, it asks for a study on the "possibilities of integrating [persons
with disabilities] into the productive life of the country by allocating to the
creation or generation of employment the resources made available by the
international community through UNHCR, thus making it possible for
refugees to enjoy their economic, social and cultural rights.
199
6. Rights of Ethnic Minorities
Often, persons belonging to minority groups who are disabled are

discriminated on the basis of their race or ethnicity as well as their disability
In 1992, the United Nations General Assembly adopted the Declaration on
the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities, and in 1995, a Working Group on Minorities was
established.
Among other rights provided by the International Covenant on Civil and
Political Rights is the right of minorities stated in Article 27. Taking into
account that the majority of states were against the collective concept of
minority rights, that is, including minority rights into the international treaty
on individual rights, implicates that the rights provided in Article 27 are
individual per se, although it stipulates a possibility for their collective
enjoyment. Article 27 states that “…in those States in which ethnic, religious
or linguistic minorities exist, persons belonging to such minorities shall not
be denied the right1, in community with the other members of their group, to
enjoy their own culture, to profess and practise their own religion, or to use
their own language.” This article is very important as violation of the rights
provided in this article can be subject to individual petition before the
Human Rights Committee1.
The Vienna Declaration and Programme of Action, in section II, paragraph
19 reaffirms the obligation of States to ensure that persons belonging to
minorities may exercise fully and effectively all human rights and
fundamental freedoms without any discrimination and in full equality before
the law in accordance with the Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities.
The Commitment 4 of the Copenhagen Declaration and Programme of
Action provides that States undertake to promote and protect the rights of
persons belonging to ethnic minorities.
The International Convention on the Elimination of all forms of Racial
Discrimination provides protection for persons with disabilities against
discrimination based on their race. Racial discrimination is defined in the
Convention as "…any distinction, exclusion, restriction or preference based
on race, colour, descent, national or ethnic origin, which has the purpose of
nullifying or impairing the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms in the political,
economic, social, cultural or any other field of public life".
200
SELECTED
BIBLIOGRAPHY
1. PUBLICATIONS
1. Albrecht Gary L., Seelman Katherine D., Bury Michael: Handbook of
Disability Studies, Sage Publications, London, 2001;
2. Beddard R.: Human Rights and Europe, Grotius Publishers, 1993;
3. Brownlie Ian, Guy S. Goodwin-Gill: Basic Documents on Human Rights,
Oxford, OUP, 2002;
4. Buergenthal T.: International Human Rights, 1988;
5. Cassese A.: Human Rights in European Community, 3 vol. Baden-Baden,
Nomos Verlagsgesellschaft, 1991;
6. Council of Europe: A Coherent Policy for the Rehabilitation of People with
Disabilities, Council of Europe Publishing, Strasbourg, 1999;
7. Degener Theresia: Disability Discrimination Law: A Global Comparative
Approach, Paper presented at Disability Rights in Europe: From Theory to
Practice, 25-26 September 2003, University of Leeds;
8. Dictionary of Law, Oxford University Press,1997;
9. Donnelly Jack: International Human Rights, Westview Press, 1998;
10. Eide A.: The Historical Significance of the Universal Declaration,
International Social Science Journal, 158, 1998;
11. Frckoski Lj.D.: International Human Rights Law, Magor, Skopje, 2001;
12. Gaudron M.: Equal Rights and Anti-Discrimination Law, The Sir. Richard
Blackborn Memorial Lectures, 1992, Academy of Science, Canberra,
Australia;
13. Ghandhi P.R.: International Human Rights Documents (London, 1995) text
on European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment;
14. Gomien Dona, Davis Harris, Zwaak Leo: Law and Practice of European
Convention on Human Rights and the European Social Charter, Council of
Europe, 1996;
15. Graycar R., Morgan J.: The Hidden Gender of Law, Federation, 1990;
16. Ishej R. Mishelin: Human Rights- compendium of basic political essays,
speeches and documents from the Bible till today, MI-AN Skopje, 2002;
17. Harris A., Enfield S.: Disability, Equality and Human Rights, A Training
Manual for Development and Humanitarian Organizations, Oxfam GB,
Action on Disability and Development, 2003;
201
Annex
18. Jackman M.: Giving real effect to equality: Eldridge vs. British Columbia
(Attorney General) and Vriend vs. Alberta, (1998) 4/2 Rev of
Constitutional Studies 352-71;
19. Jacobs F.: The European Convention on Human Rights, Oxford, OUP,
1975;
20. Janis M.W., Kay R.S., Bradly A.W.: European Human Rights Law, Oxford
University Press, 2000;
21. Lepofsky D.M.: The Charter's Guarantee of Equality to People with
Disabilities- How well is it working?, (1998) 16 Windsor Yearbook of
Access to Justice 155-214;
22. Lucas Erika, Adjusting to disability rules, Professional Manager Magazine,
Volume 13, Issue 5, September 2004;
23. Merrills J.: The Development of International Law by the European Court
of Human Rights, New York, Manchester University Press, 1993; with
Robertson A.: Human Rights in the World, New York, Manchester
University Press, 1989;
24. Minority Rights Group International, 1993/95, Manchester Free Press, UK
12, 13, Asbjorn Eide;
25. Nussbaum C. Martha: Judging other culture: The case of Female Genital
Mutilation, Sex and Social Justice;
26. Polio Plus: Zbirka dokumenti na Sovetot na Evropa koi se
odnesuvaat na hendikepot, Jugoreklam, Skopje, 2002;
27. Porter B.: Substantive Equality and Positive Obligations After Eldridge and
Vriend, (1998) 9/3 Forum Constitutional;
28. Quinn G.: From Charity to Rights -The Evolution of the Rights-Based
Approach to Disability: International and Irish Perspectives, CPI
Handbook of Services (Dublin, 2000);
29. Robertson A.H.: Human Rights in the World, 1996, str.28; Human Rights
Today, a United Nations Priority, 1998;
30. Robertson A.H.: The Council of Europe, London, Stevens, 1961;
31. Save the Children, Children’s Rights: Reality or Rhetoric?, The UN
Convention on the Rights of the Child: the first ten Years;
32. Sheeny Elizabeth A.: Personal Autonomy and Criminal Law, CAC,
Toronto, 1987;
33. Shmeder Richard: What about FGC? And why understanding culture
matters in the first place?, Daedalus volume 129, number 4 (Fall 2000);
34. Sohn: The New International Law: Protection of the Rights of Individuals
rather then States, AUL Rev. 1982;
35. Steiner H.J., Alston P.: International Human Rights in Context, 1996;
36. Stojkova Z.: Prohibition of Torture in the frames of the Strasbourg System,
master thesis, University “Ss. Cyril & Methodius”, Law Faculty, Skopje,
2003;
37. The Center for Universal Design N.C. U.S.A. publication; Information
center for disabled people “Lotos”, Tuzla;
202
38. United States Agency for International Development, Bureau for Europe
and Eurasia, Office of Democracy, Governance and Social Transition, The
2003 NGO Sustainability Index for Central and Eastern Europe and
Eurasia, Seventh Edition, June 2004;
39. Van Dajk P., G. J. H. van Hoof: Theory and Practice of the European
Convention on Human Rights, 1990, Kluwer Law and Taxation Publishers;
40. Vasak K.: The International Dimensions of Human Rights, T.C. van Boven,
Survey of International Law of Human Rights;
41. Zwart Tom: The Admissibility of Human Rights Petitions, the case Law of
the European Commission on Human Rights and the Human Rights
Committee, Martinus Nijhoff Publishers, 1994;
42. Human Rights- basic document: 50 anniversary of the Universal
Declaration of Human Rights: 1948-1998, Ministry of Justice, Skopje,
1998;
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18. http://www.hrw.org/
203
Annex
2. LEGAL DOCUMENTS
1. Loi 90-602 de 12 Juliet 1990 (France);
2. Labour Act as amended in 1992(France);
3. Penal Code as of 1995 (Finland);
4. Constitution as of 1995 (2000)- (Finland);
5. Employment Contracts Act (55/2001)- (Finland);
6. Criminal Code (Organic Law 10/1995, 23rd November)- (Spain);
7. Statute of Workers' Rights (Royal Legislative Decree 1/1995 24th March)-
(Spain);
8. Law on the Social Integration of the Disabled, 1982 (Spain);
9. Criminal Code as modified in 1997 (Luxemburg);
10. Disability Discrimination Act 1992 (Australia);
11. The Training and Employment of Disabled Persons Act, 1996 (Mauritius);
12. Equal Rights for Persons with Disabilities Law, 1998 (Israel);
13. Magna Carta for Disabled Persons, 1992 (Philippines);
14. Draft of a Constitution for the Second Republic of Gambia of 1996, part 32
(Zambia);
15. Persons with Disabilities Act, 1992 (Zimbabwe);
16. Federal Constitutional Law as amended in 1997 (Austria);
17. Constitution of the Federative Republic of Brazil, as of 1993; Charter of
Human Rights and Freedoms as of 1982; Constitution as amended in 1995
and in 2000; Constitution as of 1997 (Brazil);
18. Charter of Human Rights of Freedoms, Constitution Act 1982 (Canada);
19. Canadian Human Rights Act, R.S.C. 1985;
20. Canadian Human Rights Act, R.S.C. 1985;
21. Constitution of Fiji as of 1997;
22. Draft of a Constitution for the Second Republic of Gambia (1996);
23. Constitution as of 1992 (Ghana);
24. The Persons with Disabilities Act of 1993 (Ghana).
25. Basic Law of the Federal Republic of Germany as amended in 1994;
26. Republic of Malawi (Constitution) Act 1994;
27. Human Rights Act 1993 (New Zealand);
28. Constitution as of 1996 (South Africa);
29. Employment Equity Bill 1998 and Skills Development Bill of 1998 (South
Africa);
30. Constitution as of 1999 (Switzerland);
31. Constitution as of 1995 (Uganda);
32. Local Government Act, 1997 (Switzerland);
33. Act to Combat Discrimination and to Amend the Act of 15 February 1993
to Establish a Centre for Equal Opportunity and to Combat Racism
(Belgium);
34. Act No 19.284 of 1994 (Chile);
204
35. Law 7600 for Equalization of Opportunities for Persons with

Disabilities,1996 (Costa Rica);
36. Decree No. 119101-S-MEP- TSS- PLAN of 1989 (Costa Rica);
37. The Rights of Disabled Persons to Employment, Proclamation No 101/1994
(Ethiopia).
38. Act for the Protection of Persons with Disabilities, Decree No.135-96, 1996
(Guatemala);
39. 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)- (Hungary);
40. The Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995 (India);
41. Employment Equality Act of 1998, Equal Status Act of 2000 and National
Disability Authority Act (2000);
42. Act Relating to Employment Promotion, etc of the Handicapped, Law
No,4219 (1990) and The Special Education Promotion Law, 1994 (Korea);
43. The Welfare Law for Persons with Disabilities, Law No.4179 (1989)-
(Korea);
44. Labour Code as of 29 September 1994 (Madagascar);
45. The Training and Employment of Disabled Persons Act (Act No.9 of 1996)-
(Mauritius);
46. Act of 3 April 2003 to establish the Act on the Equal Treatment on grounds
of Disability or Chronic Illness (Netherlands);
47. Labour Act as amended in 1992 (Namibia);
48. Nigerians with Disability Decree, 1993 (Nigeria);
49. Protection of the Rights of Persons with Disabilities Act, No.28 of 1996 (Sri
Lanka);
50. Prohibition of Discrimination Against Persons With Disabilities in
Employment Act, SFS No: 1999- 132, 1999 (Sweden);
51. Disability Discrimination Act 1995 and Disability Rights Commission Act
1999 (Great Britain);
52. Act No.1678 on the Person with Disability, 1985 (Bolivia);
53. Law of the People's Republic of China on the Protection of Disabled
Persons, 1990 (People Republic of China);
54. Social Law Code (Germany);
55. Act No.202 Regulations and Politics Regarding Disabled in Nicaragua/Act
for the Prevention, Rehabilitation and Equalization of Opportunities for
Persons with Disabilities in Nicaragua, 1995 (Nicaragua);
56. Family Law Code, Act No. 3 as amended in 1994 (Panama);
57. Hong Kong Discrimination Ordinance, 1995;
58. Americans with Disabilities Act- ADA (USA);
59. The Architectural Barrier Act of 1968;
60. The Rehabilitation Act of 1973;
61. The Individuals With Disabilities Education Act (IDEA)- (enacted under
another name “Education For All Handicapped Children Act” in 1975);
205
Annex
62. The Voter Accessibility Act as of 1984; the Fair Housing Act as amended in
1988.
3. STRASBOURG JURISPRUDENCE
1. Pfunders case i.e. Austria v. Italy, Application 788/60, Yearbook 4 (1961),
p.116 (138) and (140);
2. Cyprus v. Turkey, Application 6780/74 and 6950/75, Yearbook 18 (1975),
p.82 (118-120); Application 8007/77, Cyprus v. Turkey, D&R 13 (1979),
p.85 (148-149); Cyprus v. Turkey, Resolution DH (79) 1 of 20 January
1979, Yearbook 22 (1979),440;
3. Greece v. United Kingdom (over Cyprus), Application 176/56 and 299/57,
Yearbook 2 (1958-59), 174-8 and 186, and 178-80 and 196;
4. Cruz Varas case, (v. Sweden), Series A, No.201;
5. Austrian municipalities v. Austria, Yearbook 17 (1974), p. 338 (352);
6. Klass v. Federal Rebublic of Germany case, Series A, No.28, Application
5029/71, Yearbook 17 (1974), p.178 (208);
7. Open Door and Dublin Well Woman case, Series A, No.246;
8. Yasa case, Judgment of 2 September 1998;
9. Norris case, Series A, No. 421;
10. De Jong, Baljet and van den Brink case, (v. Sweden), Series A, No.77;
11. Malone case, Report of 17 December 1982, Application 82 (1984), p.52;
12. Marckx case, (v. Belgium), Judgment of 13 June 1979, Application 31
(1979), p.12-14;
13. Kirkwood v. United Kingdom case, Application 10479/83, D&R 37 (1984),
p. 158 (182);
14. Becker v. Denmark case, Application 7011/75, Yearbook 19 (1976), p. 416
(450);
15. X v. Federal Republic of Germany case, Application 155/56, Yearbook 1
(1955-1957), p.163;
16. Gericke v. Federal Republic of Germany, Application 2294/64, Yearbook 8
(1965), p.314 (320);
17. Denmark, Norway, Sweden v. Greece, Application 4448/70, Yearbook 13
(1970), p.108;
18. Denmark, Norway, Sweden and the Netherlands v. Greece, Application
3321-3323 and 3344/67, Yearbook 11 (1968), p.690;
19. Irish case, Yearbook 19 (1976) 512 and Judgment of 18 January 1978,
Series A, No. 25; Report of 25 January 1976, B.23/I (1976-1978) p.411;
20. France, Norway, Denmark, Sweden and the Netherlands v. Turkey case,
Application 9940/82-9944/82, D&R 35 (1984);
21. Spenser v. United Kingdom case, Application 28851/95 and 28852/95,
Commission Decision from 16 January 1998 year 92-A Decision and Reports
from the European Commission for Human Rights 56-75 (March 1998 year);
22. Campbell and Fell case, Series A, No. 80, para.61;
23. Retimag case, Application 712/60, Yearbook 4 (1961), p. 384;
206
24. Greek case (Vardikos case), Resolution DH (70)1 of the Committee of

Ministers of 15 April 1970, Yearbook 12 (1969), Part II, 54 (1-14); Report
of 5 November 1969, p.186;
25. Campbell and Cosans case, (v. United Kingdom), Series A, No. 48;
Judgment of 25 February 1982; Report of 16 May 1980, B.42 (1980-1983)
pp.43-44;
26. Albert and La Compte v. Belgium case, A 58 (1983);
27. Minelli case, Series A, No.62;
28. Pakelli case, Series A, No.64;
29. Zimmerman and Steiner case, Series A, No.66; Judgment of 10 february
1983, A.58 (1983), p.13;
30. Sunday times case, Judgment of 26 April 1979 (no. 30), 2 Report 245;
31. Airey v. Ireland, Judgment from 11 September 1979 year, Series A no. 32;
32. Van Drugenbrek v. Belgium, Judgment from 24 June 1982 year (No. 50), 4
Report 443;
33. Vicks v. Great Britain, Judgment from 2 March 1987 year (No. 114), 10
Report 293:
34. Tin, Wilson and Ganel v. Great Britain, Judgment from 25 October 1990
year (No. 190), 13 Report 666;
35. Vinterverp v. Netherlands, Judgment from 24 October 1979 year (No. 33),
2 Report 387;
36. X v. Greta Britain, Judgment from 24 October 1981 year (No. 46), 4 Report
188;
37. Johnson v. Great Britain, Judgment from 24 October 1997 year, Reports,
1997-VII 2391, 27 Report 296;
38. A and B v. Netherlands case, Judgment from 26 March 1985 year (No. 91),
8 Report 235;
39. Spycatcher (Observer and Guardian v. Great Britain);
40. United Communist Party v. Turky case;
41. Sidiropulos v. Greece case;
42. Shasanju and others v. France case;
43. National Police Union of Belgium v. Belgium case;
44. Geskin v. Great Britain case;
45. Ayri v. Irland case;
46. Griggs v. Duke Power Co. case, Supreme Court of the USA, 1971 year;
47. Plessy v Ferguson case, 163 U.S. 537 (1896);
48. Brown v. Board of Education of Topeka casa, 349 U.S. 294 (1955);
49. Eldridge v. British Columbia case, (Attorney General) (1997) 151 D.L.R.
(41&) 577 (S.C.C.);
50. Vriend v. Alberta case, [1998] 1 S.C.R.493;
51. Velasquez-Rodriguez case, Inter-American Commission for Human Rights
(IACHR);
52. Sandra Lovelace of 30 July 1982, Case No. 24/1977;
53. Kitok v. Sweden of 27 July 1988, Case No. 197/1985;
54. Ominayak v. Canada of 26 March 1990, Case No. 167/1990.
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Annex
GLOSSARIUM
Actio popularis
- an activity undertaken on behalf of the people with no direct involvement
of the party concerned
Ad hoc
- solely for now, solely for this case, solely for this purpose.
Advisory opinions
- advisory opinions of courts.
Affirmative actions
- (lat. affirmativus) individual, time-limited actions of the state in support of
opportunities for realization of certain prescribed rights of individuals or
groups that the latter are not able to exercise themselves due to various
social, physical or political handicaps; alt. positive or reverse discrimination,
social/special measures, benign discrimination, and transitional preferential
measures.
Conditio sine qua non

- a condition without which something is not imaginable or doable, i.e. an
unavoidable, necessary, needed, absolute condition.
“Death row”
- the time period spent since the passing of the final court ruling until the
execution of the death penalty.
De facto
- according to the facts, from a factual perspective; antonym de jure.
De jure
- according to the law, from a legal perspective; antonym de facto.
Due process of law

- legal procedure, equality before the courts.
Eo ipso
- in itself (on its own).
208
Erga omnes
- directed towards everyone; antonym inter partes.
Female circumcision
- circumcision of women. Appears in three forms: 1). Sunna or “traditional”
circumcision; 2). Excision or clitoridectomy; 3). Infibulations or Paranoiac
circumcision.
Human right dimension

- dimension of human rights and the rule of law.
In abstracto
- generally, observed individually; antonym in concreto.
Indigenous people
- native/autochthonous peoples.
Inter alia
- amongst oneself.
Just satisfaction
- impartial satisfaction.
L’effet utile
- principle of effectiveness.
Lex generalis
- (lat. lex, legis) systemic, general law.
Lex specialis
- (lat. lex, legis) special, individual law.
Locus Standi
- (lat. a place to stand) the right to bring an action or challenge some
decision. Questions of locus standi most often arise in proceedings for
judicial review.
Non-decisions
- not making decisions.
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Annex
Nullum crimen, nulla poena sine lege

- no criminal act, no penalty without a law.
Ordre public
- public order.
Obiter dictum
-(lat. A remark in passing) something said by a judge while giving
judgement that was not essential to the decision in the case. It does not form
part of the ratio decidendi of the case and therefore creates no binding
precedent, but may be cited as a persuasive authority in later cases.
Prima facie
- (lat. first appearance, on the face of things). Prima facie case is a case that
has been supported by sufficient evidence for it to be taken as proved in the
absence of adequate evidence to the contrary.
Princip na non-refoulment
- bans on states to deport refugees, should this result in returning them to
their country of origin, where their life or freedom would be jeopardized due
to their race, religion, nationality, membership in a certain social group, or
because of their political views.
Qui se pretend victim

- the party claiming to be a victim of an alleged insult.
Ratio legis
- legal – legal grounds, spirit and goal of laws.
210
CONTENTS
INTRODUCTION 9
PART ONE
BASIC CARACTERISTICS OF THE RIGHTS OF
PERSONS WITH DISABILITIES 17
Chapter I
The Legislative Process 18
1. Principles of Equal Protection Before the Law 18
1.1. Prohibition of Discrimination 19
1.2. Affirmative actions 20
2. Disability Discrimination Laws: A Global Comparative
Approach 20
2.1. A Wide Diversity of Different Legal Approaches 21
2.1.1. Criminal Law 21
2.1.2. Constitutional Law 22
2.1.3. Civil Rights Laws 27
2.1.4. Social Welfare Laws and Disability 30
Chapter II
Legal Remedies for Protection Against Rights Violations 32
1. Due Process of Law 32
2. Locus Standi 33
3. Legal Assistance before National Courts 35
4. Regular National Courts 36
Chapter III
Obligations and Responsibilities of States 40
1. Responsibilities of States 41
1.1. Collection of Statistics 41
1.2. Raising Awareness in Society 42
1.3. Policy-making and Planning 43
1.4. Personnel Training 44
2. Bodies that help on improvement of the status of persons with
disability 45
2.1. Ombudsman 45
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Annex
2.2. National Co-ordinating Committees 45
2.3. Non-governmental Organizations 47
2.4. Special Rapporteurs 49
2.5. National Councils or Agencies 49
PART TWO
SYSTEMS OF PROTECTION 53
Chapter IV
Universal System of Human Rights Protection - UN 54
1. General International Norms on the Rights of Persons with
Disabilities 54
2. Specific International Norms Pertaining to Rights of Persons
with Disabilities 64
Chapter V
Regional Systems of Human Rights Protection 73
1. Europe 73
1.1. Council of Europe 73
1.1.1. The Council of Europe Instruments for Human Rights
Protection 74
A) European Convention on Human Rights and
Fundamental Freedoms (ECHR) 74
B) European Social Charter 76
C) Other Legal Acts of the Council of Europe 79
1.1.2. Mechanisms for Protection of Human Rights in the
Council of Europe 80
A) A System based on the European Convention on
Protection of Human Rights and Fundamental Freedoms
with headquarters in Strasbourg 80
I. Organizational Setup of the System 81
a) European Commission of Human Rights 81
b) European Court of Human Rights 82
v) Committee of Ministers 83
II. Procedure within the System 84
a) Individual petitions 84
b) Interstate cases 86
B) Controlling the Implementation of the European Social

Charter 89
212
1.2. European Union 91

2. North and South America 99
2.1. Instruments for Protection of Human Rights in North and
South America 100
A) American Declaration on the Rights and Duties of Man,
1948 100
B) Inter-American Convention on Human Rights, 1969 101
C) Inter-American Convention on the Elimination of all
Forms of Discrimination against Persons with Disabilities 101
2.2. Mechanisms on Human Rights Protection in North and
South America 102
A) Inter-American Commission on Human Rights 102
B) Inter-American Court of Human Rights 103
3. Africa, Asia and the Near East 104
PART THREE
INDIVIDUAL RIGHTS AND FREEDOMS 109
Chapter VI
Civil and Political Rights and Freedoms 110
1. Right to Freedom and Security 110
2. Prohibition of Torture 111
3. Right to Freedom of Expression 114
4. Freedom of Peaceful Assembly and Association 116
5. Right to Respect Private and Family Life 118
6. Right to Equal Protection before the Law 120
7. Access to the Judicial System 121
8. Freedom of Religious Orientation (Religion) 121
9. Availability of Information 122
10. Freedom of Movement 123
11. Prohibition of Discrimination 124
12. Participation in Political Life 127
13. Right to Possession 128
14. Right to Seek Asylum 129
213
Annex
Chapter VII
Economic, Social and Cultural Rights and Freedoms 130
1. Right to Work 130
1.1. General Provisions for the Right to Work 130
1.2. Right to Develop Work Skills 121
1.3. Equitable Recruitment Measures and Policies 134
1.4. Fair and Equitable Employment Conditions 137
2. Right to Education 139
2.1. Access to Education 139
2.2. Quality of Education 142
2.3. Integrated Education 143
2.4. Special Education 145
2.5. Teacher Training 146
2.6. Vocational Training 147
3. Right to Health Care 147
4. Right to Social Security and Social Services 150
4.1. Right to Social Security 150
4.2. Social Security and Insurance Related to Employment 152
4.3. Social Welfare Services 156
5. Right to an Adequate Standard of Living 158
5.1. Housing 158
5.2. Food 162
5.3. Transportation 164
6. Right to Social Integration 166
7. Right to Participate in Cultural Activities 167
8. Right to Accessible Physical and Information Environment 168
8.1. Information on Standards of Accessibility 168
8.2. Access to Public Places 169
9. International Co-operation 170
PART FOUR
MULTIPLE DISCRIMINATIONS - RIGHTS OF 175
SPECIAL GROUPS
Chapter VIII
Rights of Women with Disabilities 176
1. Situation 176
2. International Instruments Concerning Women Rights 177
214
3. Regional Instruments Pertaining to Women Rights 181
Chapter IX
Rights of the Child 182
1. International Instruments Pertaining to the Rights of the Child 182

2. Regional Instruments Pertaining to the Rights of the Child 185
3. International Instruments Specifically Relating to Disabled 187
Children
Chapter X
Rights of Special Groups 189
1. Rights of Adolescents 189
2. Rights of Elderly Persons 189
3. Rights of the Poor 190
3.1. Disability and Poverty 190
3.2. United Nations instruments and measures for the
eradication of poverty 191
4. Rights of Indigenous People 194
5. Rights of Refugees 196
5.1. Rights of Refugees with Disabilities 198
5.2. Rights of Refugee Children 199
5.3. Rights of Refugee Women 199
5.4. Regional Instruments Applicable to Refugees 200
6. Rights of Ethnic Minorities 201
SELECTED BIBLIOGRAPHY 208
GLOSSARIUM 211
CONTENTS 209
215
CIP – Categorisation of publications
National and University Library St Kliment Ohridski , Skopje
364.65-056.26(094.2)
364.65-056.36(094.2)
STOJKOVA, Zaneta
International Norms and Standards for Persons with Disabilities: Comparative
Analysis / Zaneta Stojkova – Skopje: Polio Plus, 2004 – 261 pages : 23 cm
Endnotes – Bibliography: page 245-253

ISBN 9989-0-8
a) Persons with Disabilities- Standards – International Acts b) Persons with

Disabilities – Standards – Comparative Analysis
216

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Limited edition

International Norms And Standards For Persons With Disabilities

LLM. Zaneta Stojkova

For the publisher:

Translated in English by:

Computer graphic design:

Cover page designed by:

Traveller, there are no roads.

LLM Zaneta Stojkova

This book was translated with support by

Western civilization was behind them by almost a whole millennium, but

skin. Anyway, as it is, disability, realistically speaking, is a real challenge

In Republic of Macedonia, until it became independent, the socialist state

us to such a systemic solution, the necessity for serious comparative analysis

When I go to a country, I do not ask

1. Principles of Equal Protection Before the Law

rights. Prohibition of discrimination is the bottom line of the principle for

1.1. Prohibition of Discrimination

The legal definition of discrimination implies differentiation in treatment of

differently. This means that it is connected with inequalities and differences

1.2. Affirmative actions

2. Disability Discrimination Laws: A Global Comparative

On a national, domestic level, disability laws in many countries underwent

However, it is important to notice that disability discrimination law is truly a

2.1. A Wide Diversity of Different Legal Approaches

disability- based discrimination regarding recruitment or in the course of

Several countries have constitutional anti-discrimination provisions that

Africa25, Switzerland26 and Uganda27. These clauses generally prohibit

representatives of various interest groups, among them disability groups

rights of employers32. The laws had to be redrafted and modified with

2.1.3. Civil Rights Laws

A third approach is to enact civil anti-discrimination laws for persons with

disabilities Act,1996 Act.No.33 of 1996) and Zimbabwe (Disabled Persons

2.1.4. Social Welfare Laws and Disability

Finally, some states choose to approach the issue of disability discrimination

an impression that the traditional medical model of disability -

In conclusion, discrimination provisions in social welfare legislation tend to

1. Due Process of Law

Article 14 of the International Covenant on Civil and Political Rights

against the right of some High Contracting Party in abstracto. However,

nongovernmental entity legally recognized in one or more member states of

3. Legal Assistance before National Courts

Many non-governmental organizations, including several outside European

instruments. Sometimes national laws expressly refer to the legal guarantees

On the other hand, in Japan, ratification of international legal instruments is

Obligations and Responsibilities of States

The International Court of Justice, in the Barcelona Traction Case

Often, there is a human dimension in international criminal acts. The

1.1. Collection of Statistics

Collection of information and data on persons with disabilities is vital to

of persons with disabilities. This information should be collected at regular

1.2. Raising Awareness in Society

In Rule 1 of the Standard Rules on the Equalization of Opportunities for

States should also initiate information campaigns and public education

1.3. Policy-making and Planning

of organizations of persons with disabilities and establish direct contacts

Ensuring of adequate training of personnel, at all levels, involved in planning

individuals working in related spheres who provide other services, such as

2. Bodies that help on improvement of the status of

Law enforcement is commonly the task carried out by public administration

2.2. National Co-ordinating Committees

Disability is a multi dimensional issue that concerns many different actors in

responsibility of states to establish and strengthen their national coordinating