ILO 2015 -- Decent Work Report(Third Edition)

1 International legal instruments and policy initiatives concerning the right to work of persons with disabilities

1.1 Introduction

This chapter reviews the principal legal instruments and policy initiatives concerning the right to work of persons with disabilities from the ILO, the United Nations (UN), the Council of Europe and the European Union, as well as the Organization of American States. It includes the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in 1993, and the Copenhagen Declaration and Programme of Action, adopted by the World Summit for Social Development in 1995.

1.2 Early ILO measures

The ILO, founded in 1919, is the oldest of the specialized technical agencies of the UN system. It is tripartite in structure, with representatives of employers’ and workers’ organizations having an equal voice with those of governments of its 186 member States in shaping ILO policies and programmes, through participation in the annual International Labour Conference (ILC) and membership on the ILO Governing Body. The primary goal of the ILO is to promote opportunities for women and men to obtain decent and productive work, in conditions of freedom, equity, security and human dignity. The ILO has four principal strategic objectives:

• to promote and realize standards, and fundamental principles and rights at work;
• to create greater opportunities for women and men to secure decent employment;
• to enhance the coverage and effectiveness of social protection for all;
• to strengthen tripartism and social dialogue.

These objectives are realized through:

• the formulation of international policies and programmes to promote basic human rights, improve working conditions, and enhance employment opportunities;
• the creation of international labour standards, through the formulation and adoption of Conventions and Recommendations, backed by a system to supervise their application, as well as Codes of Practice, which serve as guidelines for national authorities in putting standards into action. Conventions prescribe international labour standards and are binding on ratifying States; Recommendations provide non-binding guidelines for members of the ILO on how to apply Conventions or can be autonomous, not linked to a specific Convention; Codes of Practice are agreed, non-binding rules and procedures that set out practical guidelines;
• an extensive programme of international technical cooperation, formulated and implemented in partnership with ILO constituents and development partners;
• training, education, research and publishing activities.

The first international instrument containing provisions relating to the vocational rehabilitation of workers with a disability was adopted by the International Labour Conference (ILC) in 1925, just a few years after the establishment of the ILO. The Workmen’s Compensation (Minimum Scale) Recommendation, 1925 (No.22) set out principles which should be taken into account in determining compensation payment for industrial accidents. It also recommended that “the vocational re-education of injured workmen should be provided by such means as the national laws or regulations deem most suitable”, and urged governments to promote institutions which would provide such “re-education”.

Interest in vocational rehabilitation and employment opportunities for persons with disabilities re-surfaced during the Second World War, largely because of the number of people disabled during the war and the need to find trained workers to fill jobs left vacant by mobilized workers. In May 1944, the ILC adopted a comprehensive Recommendation (No. 71) dealing with the organization of full employment in the period of transition from war to peace and thereafter, which emphasized the central role of employment services, including labour market information, vocational guidance and vocational training. One of the groups specifically covered by the Recommendation was disabled workers who, “whatever the origin of their disability, should be provided with full opportunities for rehabilitation, specialized vocational guidance, training and retraining, and employment on useful work”. Paragraphs 39 to 44 of the

Box 1 Employment (Transition from War to Peace) Recommendation, 1944 (No. 71)

Recommendation provide early examples of a number of concepts such as mainstreaming, equality of opportunity and affirmative action.³

Although Recommendation No. 71 did not specifically refer to gender differences in the provisions concerning workers with disabilities, it did emphasize more than once ‘complete equality of opportunity’ for men and women in respect, for example, of recruitment on the basis of their individual merit, skill and experience, wage rates based on job content, irrespective of sex, and access to further education and training.

The specific concern of the ILO for workers with disabilities continues to run like a thread through its Conventions and Recommendations. In 1946, the Medical Examination of Young Persons (Industry) Convention, 1946 (No. 77); Medical Examination of Young Persons (Non-Industrial Occupations) Convention, 1946 (No. 78); and Medical Examination of Young Persons Recommendation, 1946 (No. 79) concerning medical examination of young people for fitness for employment, call for appropriate measures to be taken by the competent authority for vocational guidance and vocational rehabilitation in respect of young persons with disabilities. The Employment Service Convention (No. 88) and Recommendation (No. 83), adopted in 1948, concerning the organization of employment services, called for special measures to meet the needs of workers with disabilities and recommended “conditions or special studies” on such questions as the placement of disabled workers. Included also was a recommendation that employment services should not, in referring workers to employment, itself discriminate against applicants on grounds of race, colour, sex or belief.⁴

1.3 Universal Declaration of Human Rights

On 10 December 1948, the UN General Assembly adopted the Universal Declaration of Human Rights. There has been some criticism of the fact that the Declaration ignores persons with disabilities; that disabled persons were not included as a distinct group vulnerable to human rights violations, that disability is not mentioned as a protected category.⁵

The UN General Assembly does, however, at the outset, proclaim the Declaration “as a common standard of achievement for all peoples . . .”; Article 1 states that “All human beings are born free and equal in dignity and rights . . .”; Article 2 states that “Everyone is entitled to all the rights and freedoms set out in (the) Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (emphasis added). There can be little doubt that disabled people are covered by the Declaration, even though not specifically mentioned.

Several of the articles of the Declaration relate to employment – Article 22 on the right to social security; Article 23(1) on the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment; Article 23(2) on the right to equal pay for equal work; Article 23(3) on the right of everyone who works to just and favourable remuneration ensuring for self and family an existence worthy of human dignity and supplemented, if necessary, by other means of social protection; Article 25(1) on the right to a standard of living adequate for the health and well-being of self and 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 [or her] control; Article 26(1) on the right to education, including that technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

1.4 Council of Europe: European Convention on Human Rights

Founded in 1949 by ten Western European States, the Council of Europe – current membership 47 States – is primarily an organization of intergovernmental cooperation devoted to upholding parliamentary democracy, the rule of law, and the protection of human rights. The outcome of the work of the Council of Europe falls into three broad categories. First, there are international treaties – normally known as European conventions or agreements – which are binding on the States which ratify them. Secondly, the Committee of Ministers addresses Recommendations to governments regarding policies or legislation. Thirdly, there are reports or studies which may examine and discuss various approaches or opinions on certain issues.

The European Convention on Human Rights, adopted by the Council of Europe in 1950, might be regarded as the European equivalent to the International Covenant on Civil and Political Rights (ICCPR).⁶ From a disability perspective, it is open to criticism because the main non-discrimination provision (Art. 14) does not include disability among the grounds on which discrimination is prohibited, although it could be argued that it is implied in the phrase “or other status”.

1.5 ILO Social Security Standards

The ILO international social security standards include a number of Conventions and Recommendations, which guide the now 186 member States of the ILO in social security matters.

The Social Security (Minimum Standards) Convention, 1952 (No. 102) calls on the institutions or government departments administering medical care to cooperate with the general vocational rehabilitation services, with a view to the return to suitable work of disabled workers (Art. 35). It also provides that “national laws or regulations may authorize such institutions or departments to ensure provision for the vocational rehabilitation of handicapped persons”.

The Social Protection Floors Recommendation (No. 202), adopted in June 2012 provides guidance to member States in establishing and maintaining nationally defined social protection floors as a fundamental element of their national social security systems. These social protection floors should guarantee at least effective access to essential health care as well as a basic level of income security throughout the life course, as defined at the national level. Some of the principles set out in the Recommendation are of particular relevance for persons with disabilities, including the principles of non-discrimination, gender equality and responsiveness to special needs, as well as respect for the rights and dignity of people covered by the social security guarantees. The Recommendation calls on States to provide for basic income security, at least at a nationally defined minimum level, for persons in active age who are unable to earn sufficient income, in particular in cases of sickness, unemployment, maternity and disability (Paragraph 5(c)).

1.6 First ILO Recommendation devoted to vocational rehabilitation

What was to be one of the most important instruments in relation to persons with disabilities, the ILO Vocational Rehabilitation (Disabled) Recommendation (No. 99), was adopted in 1955. Until the adoption of Convention No. 159 and Recommendation No. 168 almost thirty years later, this international instrument served as the basis for all national legislation and practice concerning vocational guidance, vocational training and placement of disabled persons. While not linked to a Convention, the extent to which R.99 influenced national legislation and practice is confirmed the Director-General’s comment in his 1964 Report to the effect that while Conventions lay down obligations, it is possible, in certain areas, “that a standard which can be widely accepted may well be more effective in practice than obligations which are unlikely to be equally widely assumed” (ILO, 1998, p. 4).

Using a definition of “disabled person” which is substantively the same as that currently in use by the ILO (see Section 3.11.1), Recommendation No. 99 builds on key provisions of earlier instruments in relation, for example, to mainstreaming of vocational training, equality of opportunity, non-discrimination in wages or other conditions of employment for equal work, and promotion of research. Methods of widening employment opportunities for workers with disabilities, in close cooperation with employers’ and workers’ organizations, include quotas, reserved occupations, creation of cooperatives and the establishment of sheltered workshops. The role of the ILO in providing technical advisory assistance, organizing international exchanges of experience, and other forms of international cooperation including the training of rehabilitation staff, is spelled out. The Recommendation also includes special provisions for disabled children and young persons.

1.7 Further ILO measures 1958–68

The ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and its accompanying Recommendation (no. 111) provide for the adoption of a national equality policy, with a view to eliminating discrimination in employment and occupation. Given the ILO’s previous attention to persons with disabilities, it is somewhat surprising that disability was not specifically included in these particular instruments as a prohibited ground of discrimination. Convention No. 111 does, however, make provision for “special measures” in the case of disabled people: “Any Member may, after consultation with representative employers’ and workers’ organizations, where such exist, determine that other special measures designed to meet the particular requirements of persons who, for reasons such as sex, age, disablement, family responsibilities or social or cultural status, are generally recognized to require special protection or assistance, shall not be deemed to be discrimination” (Art. 5(2)). The Convention also provides that additional grounds of discrimination can be determined by member States, after consultation with the social partners and other appropriate bodies (Art 1(1)(b)). Disability is frequently considered under Convention No. 111 in this context.

Mindful of the effects of technological change on jobs, the ILO issued a Resolution concerning Vocational Rehabilitation of Disabled Persons in 1965, concerning techniques employed by member States in the rehabilitation and training of disabled persons for new forms of employment.

The ILO’s continuing interest in workers with disabilities was reflected in the requirement in Article 13 of its Invalidity, Old-Age and Survivors’ Benefits Convention, 1967 (No. 128) that Members should, under prescribed conditions:

(a) provide rehabilitation services designed to prepare a disabled person wherever possible for the resumption of previous activity, or, if this is not possible, the most suitable alternative gainful activity, having regard to aptitudes and capacity; and

(b) take measures to further the placement of disabled persons in suitable employment.

That the ILO was determined to progress policy in vocational rehabilitation and to eliminate all discrimination in relation to the employment of disabled workers was evidenced in 1968 by a Resolution of the International Labour Conference concerning Disabled Workers adopted on 24 June 1968, requesting the Director-General to carry out appropriate studies to enable the Conference to consider the possible revision of the Vocational Rehabilitation (Disabled) Recommendation, 1955 (No. 99), or the possible adoption of a new international instrument.

1.8 International Covenants

In December 1966, the UN General Assembly adopted two important International Covenants, on Economic, Social and Cultural Rights (ICESCR), and on Civil and Political Rights (ICCPR). Together with the Universal Declaration of Human Rights (see 1.3 above), they form the International Bill of Human Rights.

The ICESCR, which was drafted in close collaboration with the ILO, contains a number of important provisions relating to work and equal employment opportunity:

Article 6:

(1) The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his [sic] living by work which he [or she] freely chooses or accepts, and will take appropriate steps to safeguard this right.

(2) The steps to be taken . . . to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

Article 7:

The States Parties . . . recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and 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;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his [or her] employment to an appropriate higher level, subject to no considerations other than those of seniority and competence….

The Covenant also guarantees the right to education (Art. 13).

The ICCPR contains no specific provisions on employment conditions, but it does include an important safeguard against discrimination: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (Art. 2).

Although disability is not explicitly included in either Covenant among the prohibited grounds of discrimination, it is encompassed by the term “or other status” (UN CESCR 1994, General Comment No. 5).

1.9 UN Declaration on the Rights of Mentally Retarded Persons

In 1971, the UN General Assembly proclaimed a Declaration on the Rights of Mentally Retarded Persons (Resolution 2956 (xxvi) of 20 Dec. 1971). The Declaration affirmed that mentally retarded persons had the same rights as everyone else. Specifically, they had a right to such education, training, rehabilitation and guidance as would enable them to develop their ability and maximum potential; a right to economic security and a decent standard of living; a right to perform productive work or to engage in any other meaningful occupation to the fullest possible extent of their capabilities.

1.10 ILO measures on the development of human resources

The ILO Human Resources Development Convention, 1975 (No. 142) calles on member States to develop comprehensive and coordinated policies and programmes of vocational guidance and vocational training, closely linked with employment, in particular through public employment services. Systems of vocational guidance, including continuing employment information, are to be extended to ensure that comprehensive information and the broadest possible guidance would be available to all, including persons with disabilities.

The accompanying Recommendation (No. 150) was revised and replaced in 2004 by the Human Resources Development Recommendation (No. 195) that emphasizes that education and training are a right for all and calls for the development of human resources development, education, training and lifelong learning policies which among other things, reduce inequality in the participation in education and training. Equal opportunities should be provided for women and men in these spheres and access to education, training and lifelong learning should be promoted for people with nationally identified special needs, including people with disabilities, indigenous people, ethnic minority groups and the socially excluded. Of significance for adults with disabilities, the Recommendation calls for the development of approaches for non-formal education and training, especially for adults who were denied education and training opportunities when young. The call for the recognition of formal and informal workplace learning is also of relevance to adults with disabilities. Equal opportunity strategies, measures and programmes should developed to promote and implement training for people with special needs, with the objective of reducing inequalities; and equal opportunities in accessing career guidance and skills upgrading should be promoted. While governments are seen as holding primary responsibility for education and pre-employment training, the Recommendation calls for recognition of the role of social partners in promoting further training, the important role of employers in providing work experience, and of the role of local authorities and communities and other interested parties in implementing programmes for people with special needs. The Recommendation also calls for data collection to be disaggregated by specific socio-economic categories, so that trends can be established and analysis undertaken to guide policy development.

1.11 ILO call for comprehensive campaign

The ILO Resolution concerning Vocational Rehabilitation and Social Reintegration of Disabled or Handicapped Persons adopted on 24 June 1975 was short, but particularly significant for a number of reasons. Referring to the fact that Rehabilitation International had declared the 1970s to be the Rehabilitation Decade, the Resolution acknowledged growing public recognition of the need for special measures to integrate disabled persons into the community; deplored the fact that too many persons with disabilities, the majority of whom lived in developing countries, had very limited opportunity for work; and called on all public authorities and employers’ and workers’ organizations to promote maximum opportunities for disabled persons to perform, secure and retain suitable employment. The resolution called for a comprehensive campaign for vocational rehabilitation and social integration of disabled persons, in cooperation and coordination with the UN, its specialized agencies, and international, regional and non-governmental organizations (NGOs), a campaign which was to result, inter alia, in the International Year of Disabled Persons and the World Programme of Action concerning Disabled Persons.

1.12 UN Declaration on the Rights of Disabled Persons

The UN General Assembly, at the end of 1975, proclaimed a Declaration on the Rights of Disabled Persons (resolution 3447 (xxx) of 9 Dec. 1975). The Declaration affirmed that disabled persons had the same civil and political rights as other people, as well as the right to, inter alia, education, vocational training, counselling and placement services, the right to secure and retain employment or to engage in a useful, productive and remunerative occupation. The Declaration proclaimed that these rights were for all disabled persons without discrimination on the basis of sex or other grounds.

1.13 International Year of Disabled Persons

On 16 December 1976, the UN General Assembly proclaimed 1981 the International Year of Disabled Persons, with the theme “full participation and equality” (Resolution 31/123). Towards the end of 1981, the General Assembly urged Member States to consolidate and build further on the results of the International Year in order to secure prevention of disability, rehabilitation and full integration of disabled persons into society. The General Assembly also urged the Secretary- General, the specialized agencies and other UN bodies to undertake or expedite measures already under way to improve employment opportunities for disabled persons within these bodies at all levels (Resolution 36/77 of 8 Dec. 1981).

1.14 UN World Programme of Action (WPA) and Decade of Disabled Persons

One year later, the UN General Assembly, stressing that the primary responsibility for promoting effective measures for prevention, rehabilitation and the realization of the goals of full participation and equality rested with individual countries and that international action should be directed to assist and support national efforts in this regard, adopted the World Programme of Action concerning Disabled Persons (Resolution 37/52 of 3 Dec. 1982). On the same day, the General Assembly proclaimed the period 1983–1992 as the UN Decade of Disabled Persons and encouraged Member States to utilize this period as one of the means to implement the WPA (Resolution 37/53 of 23 Dec. 1982).

The WPA contains three overall aims: prevention, rehabilitation, and equalization of opportunities. Equalization of opportunities is defined as:

the process through which the general system of society, such as the physical and cultural environment, housing and transportation, social and health services, educational and work opportunities, cultural and social life, including sports and recreational opportunities are made accessible to all (para. 12).

The WPA states that “experience shows that it is largely the environment which determines the effect of an impairment or a disability on a person’s daily life” (para. 21); an acknowledgement which epitomizes the shift from a care/welfare approach to a social/rights one.⁷

1.15 ILO Convention No. 159 and Recommendation No. 168

It will be recalled that the ILO had some years earlier proposed considering a possible revision of the Vocational Rehabilitation (Disabled) Recommendation, 1955 (No. 99), or the possible adoption of a new international instrument (see 1.7 above).

Building on the “full participation and equality” theme of the International Year, and goal of the WPA, the ILO adopted the Vocational Rehabilitation and Employment (Disabled Persons) Convention No. 159 and Recommendation No. 168 in 1983. The Convention requires member States, in accordance with national conditions, practice and possibilities, to formulate, implement and periodically review a national policy on vocational rehabilitation and employment of disabled persons. The renewed emphasis on full participation is reflected in Article 1(2), which describes the purpose of vocational rehabilitation as being to enable a disabled person to secure, retain and advance in suitable employment and “thereby to further such person’s integration or reintegration into society” (emphasis added), the highlighted phrase being an addition to Recommendation No. 99. The “equality” goal is captured in Article 4 of the Convention:

The said policy shall be based on the principle of equal opportunity between disabled workers and workers generally. Equality of opportunity and treatment for disabled men and women workers shall be respected. Special positive measures aimed at effective equality of opportunity and treatment between disabled workers and other workers shall not be regarded as discriminating against other workers.

The clear recognition of both women and men with disabilities will be noted. The Convention prescribes the action to be taken at national level to implement the policy. It also reminds Members, as did Recommendation No. 99 nearly thirty years previously, of the need, not only to provide the relevant services, but to evaluate them with a view to their continual improvement. The equality theme runs through Recommendation No. 168: for example,

• disabled persons should enjoy equality of opportunity and treatment in respect of access to, retention of and advancement in employment which, wherever possible, corresponds to their own choice and takes account of their individual suitability for such employment (Para. 7);
• in providing vocational rehabilitation and employment assistance to disabled persons, the principle of equality of opportunity and treatment for men and women workers should be respected (Para. 8);
• measures should be taken to promote employment opportunities for disabled workers which conform to the employment and salary standards applicable to workers generally (Para. 10).

The Recommendation reminds Members that such measures should include the making of “reasonable adaptations to workplaces, job design, tools, machinery and work organization” to facilitate training and employment. Given the increasing shift away from the “caring” to the “rights” model which was then beginning to take place at national as well as international levels, the Recommendation is forthright in stating that disabled persons should be informed “about their rights and opportunities in the employment field” (Para. 16). Reflecting the widespread provision of programmes and services for persons with disabilities in segregated settings at that time, it deals primarily with services solely for persons with disabilities.

Based on the recommendations of a Working Party on the Revision of Standards, set up by the ILO Governing Body, the Governing Body decided in 2002 that the ratification of Convention No. 159, among others, should continue to be encouraged as it continued to respond to current needs (Cartier Working Party, 2002).

1.15.1 Monitoring the implementation of Convention No. 159

The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) is one of two supervisory bodies with responsibility for the regular supervision of the observance by member States of their standards-related obligations. The other standing supervisory body is the Conference Committee on the Application of Standards. Members of the CEACR, appointed by the ILO Governing Body for a renewable period of three years, serve in a personal capacity among impartial persons of technical competence and independent standing, drawn from all parts of the world. The CEACR reviews the periodic reports of member States on the measures which they have taken in law and practice to give effect to the provisions of Conventions which they have ratified. It also examines any observations from workers’ or employers’ organizations. As of June 2015, 83 ILO member States had ratified Convention No. 159.

In its report (ILO, 1998) on a General Survey on the implementation of the provisions of Convention No. 159 and Recommendation No. 168, the CEACR commented that the principle of equality of opportunity and equality of treatment in employment for disabled persons requires particular attention in an environment characterized by global competition and deregulation of labour markets, and emphasized the applicability of the Convention to all member States:

Convention No. 159 is promotional: it sets objectives and lays down basic principles to be observed in attaining them. Because its provisions are flexible as to the attainment of its objectives, due account can be taken of the situation prevailing in each country. They can be applied to all member States, regardless of the stage they have reached to their activities for the vocational rehabilitation and employment of disabled persons (ILO, 1998, para. 247).

Recalling the fundamental importance of consultations between governments and the social partners, the CEACR emphasized that consulting representative organizations of persons with disabilities on vocational rehabilitation and employment matters was a crucial element of the consultation process. It went on to strongly urge member States to promote the formation of truly representative organizations of persons with disabilities and to facilitate communication between such organizations and administrative and technical bodies involved in vocational rehabilitation.

The CEACR also commented succinctly on equality of opportunity and treatment between disabled men and disabled women workers:

People with disabilities face many obstacles in their struggle for equality. Although both men and women with disabilities are subject to discrimination, women with disabilities are double disadvantaged by discrimination based on gender and their disability status. Women with disabilities are more likely than their male counterparts to be poor or destitute, illiterate or without vocational skills, and most of them are unemployed. They have less access to rehabilitation services, they are more likely to be without family or community support and they often suffer greater social isolation due to their disability. The situation is dramatic, and the Director-General of the ILO in 1981 pointed out that poor disabled women are all too frequently deprived of all human rights. (ILO, 1998, para. 114; see also ILO, 1981).

Noting that governments had not supplied detailed information on the situation of people with disabilities living in rural areas and isolated communities, the CEACR observed that these persons are doubly affected, by their disability and by their distance from services available to the general population and to people with disabilities living in urban centres. It highlighted the importance of community-based rehabilitation (CBR) programmes in facilitating the integration of some disabled persons into the economic and social life of their communities.

Having observed a general trend in national practice concerning persons with disabilities towards the use of general services for vocational guidance, training, placement, employment and other related services which exist for the general population, the CEACR noted that this process of mainstreaming has contributed considerably to changing negative ideas and attitudes with regard to the place and role of people with disabilities in working life and in society.

In a final comment, the CEACR emphasized that the implementation of the Convention’s provisions and the measures advocated by Recommendation No. 168 did not necessarily require vast resources, but depended on a commitment of the relevant stakeholders. In view of this and the fact that both instruments take into account the diversity of national situations and conditions, it urged member States which had not yet done so to ratify the Convention.

1.16 EU Recommendation concerning employment for persons with disabilities

The original six Member States – Belgium, France, Federal Republic of Germany, Italy, Luxembourg and the Netherlands – of the then European Economic Community (EEC) (now the European Union (EU)) had relatively similar social systems and levels of economic development, and they did not perceive social policy as a major issue of potential disagreement. Hence, between 1957 and the first enlargement of the EEC in 1973 when Denmark, Ireland and the United Kingdom joined, social policy was not a serious preoccupation. There were two exceptions: free movement of workers and equal opportunities. The focus of equal opportunities legislation was, however, primarily on gender. Concern about the need for an active social policy increased with the entry into the Community of Greece in 1981 and Portugal and Spain in 1986.

While the Council of Ministers had no formal competency until the Treaty of Amsterdam in 1997 to adopt legal measures in the disability field, this did not prevent it from adopting non-binding Recommendations and Resolutions (see Degener and Quinn, 2000, pp. 94 et seq.).⁸ In 1986, a Recommendation was adopted urging Member States “to take appropriate measures to promote fair opportunities for persons with disabilities in the field of employment and vocational training” (86/379/EEC, 1).

1.17 UN Convention recommended

The Global Meeting of Experts to Review the Implementation of the World Programme of Action concerning Disabled Persons at the Mid- Point of the UN Decade of Disabled Persons was held in Stockholm in 1987. It was proposed that a guiding philosophy should be developed to indicate priorities for action in the years ahead, and that the basis of that philosophy should be the recognition of the rights of persons with disabilities. The Meeting recommended that the General Assembly convene a special conference to draft an international convention on the elimination of all forms of discrimination against people with disabilities, to be ratified by States by the end of the UN Decade. A draft outline of a convention was prepared by the Government of Italy and presented to the General Assembly at its forty-second Session. Further presentations concerning a draft convention were made by the Government of Sweden at the forty-fourth Session. On neither occasion could a consensus be reached on the suitability of a convention. In the opinion of many representatives, existing human rights documents appeared to guarantee persons with disabilities the same rights as others (UN 1994).

1.18Council of Europe: A Coherent Policy for the Rehabilitation of People with Disabilities

Probably the best-known Council of Europe Recommendation concerning people with disabilities was adopted by the Committee of Ministers on 9 April 1992. Recommendation No. R (92) 6, A Coherent Policy for the Rehabilitation of People with Disabilities, is more comprehensive than the title might suggest. In fact, its sub-title, “A model rehabilitation and integration programme for national authorities”, is probably a more useful description of the document, which includes detailed sections on prevention and health education; education; vocational guidance and training; employment; social integration and environment; social, economic and legal protection; personnel training; information; statistics and research.

1.19 Asian and Pacific Decade of Disabled Persons

The Asian and Pacific region has by far the largest number of persons with disabilities in the world. Most of them are poor, their concerns unknown and their rights overlooked. In April 1992, the UN Economic and Social Commission for Asia and the Pacific (ESCAP), recognizing that more needed to be done and building on the results of the UN Decade, proclaimed the period 1993 to 2002 as the Asian and Pacific Decade of Disabled Persons (UNESCAP Resolution 48/3). Thirty-three governments had co-sponsored the Resolution, which was adopted by acclamation. In December 1992, the meeting to launch the Decade adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region and the Agenda for Action for the Asian and Pacific Decade of Disabled Persons, 1993-2002. In April 1993, the Commission adopted the Proclamation and Agenda for Action (UNESCAP Resolution 49/6). Training and Employment forms one of the major policy categories in the framework of the Agenda for Action (ESCAP, 1994).

On 22 May 2002, ESCAP, while “recognizing that since the inception of the Asian and Pacific Decade, an overall improvement in all twelve policy categories under the Agenda for Action is evident, although achievements have been uneven, with significant achievements in the areas of national coordination and legislation and some improvement in the areas of the prevention of causes of disability, rehabilitation services, access to built environments and development of self-help organizations of disabled persons, but a continuing and alarmingly low rate of access to education for children and youth with disabilities and marked sub-regional disparities in the implementation of the Agenda for Action”, adopted UNESCAP Resolution 58/4: “Promoting an inclusive, barrier-free and rights-based society for people with disabilities in the Asian and Pacific region in the twenty-first century” which extended the Asian and Pacific Decade of Disabled Persons for a further decade, 2003–2012. The theme of this Decade, described in the Biwako Millennium Framework for Action, was ‘Towards an Inclusive, Barrier-free and Rights-based Society for Persons with Disabilities in Asia and the Pacific’.

Following a review of the achievements of the 2nd Decade, governments of the ESCAP region, meeting at Incheon, Republic of Korea from 29 October to 2 November 2012, agreed to a 3rd Decade of Persons with Disabilities covering the period 2013 to 2022, and endorsed the Incheon Strategy to “Make the Right Real” for persons with disabilities in Asia and the Pacific. This Strategy, developed by governments of countries in the region in close consultation with civil society stakeholders, builds on the UN Convention on the Rights of Persons with Disabilities and the Biwako Millennium Framework for Action and sets out regionally agreed disability inclusive development goals.

1.20 UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities

The Standard Rules on the Equalization of Opportunities for Persons with Disabilities were adopted by the UN General Assembly on 20 December 1993 (Resolution 48/96).

In its resolution (A/C 3/48/C.3 1 Oct. 1993) to the General Assembly, the Economic and Social Council described the Rules as follows:

Although these Rules are not compulsory, they can become international customary rules when they are applied by a great number of States with the intention of respecting a rule in international law. They imply a strong moral and political commitment on behalf of States to take action for the equalization of opportunities. Important principles for responsibility, action and cooperation are indicated. Areas of decisive importance for the quality of life and for the achievement of full participation and equality are pointed out. These Rules offer an instrument for policy-making and action to persons with disabilities and their organizations. They provide a basis for technical and economic cooperation among States, the UN and other international organizations (p. 6).

There are 22 Rules, ranging from awareness-raising to international cooperation, linked to measures enumerated in the World Programme of Action (see Section 1.14). Employment is covered by Rule 7.

The Rules provide for the appointment of a Special Rapporteur to monitor implementation and provide reports to the UN Commission for Social Development. An international panel of experts may be consulted by the Special Rapporteur or, when appropriate, by the Secretariat, to provide advice or feedback on the promotion, implementation and monitoring of the Rules.

There was inevitably some disappointment that the General Assembly had failed to agree on introducing a Convention on the Rights of Persons with Disabilities and adopted the non-binding Standard Rules instead. For example, Degener and Quinn (2000) refer to the Standard Rules as “a compensatory alternative” (p. 18). Despouy, then Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, described the establishment of an international body or mechanism to supervise respect for the human rights of disabled persons as “one of the most cherished aims of the non-governmental organizations”. Writing in 1993, as the Standard Rules were being finalized, he stated:

Despite the many actions undertaken throughout the Decade and the valuable results that have been achieved for disabled persons in many respects, it must be said that, at the end of this period, persons with disabilities are going to find themselves at a legal disadvantage in relation to other vulnerable groups such as refugees, women, migrant workers, etc. The latter have the protection of a single body of binding norms, such as the Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, etc. In addition, those Conventions have established specific protection mechanisms: the Committee on the Elimination of Discrimination against Women and the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families are in charge of supervising compliance with the Conventions . . . there is no specific body in charge of monitoring respect for the human rights of disabled persons and acting, whether confidentially or publicly, when particular violations occur. It can be said that persons with disabilities are equally as protected as others by general norms, international covenants, regional conventions, etc. But although this is true, it is also true that unlike the other vulnerable groups, they do not have an international control body to provide them with particular and specific protection (Despouy, 1993, pp. 40-41).

The Special Rapporteur also expressed his disappointment “at the virtually total lack of bibliographic material on the specific problems of women with disabilities” (Despouy, 1993 p. 20). The fact that the Standards Rules contain few direct references to the gender dimension of disability was also regretted by the Special Rapporteur of the UN Commission for Social Development in his report to the Commission (UN, 2002, p. 20).

1.21 Vienna Declaration

The Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights on 25 June 1993, reinforced the fact that all human rights are universal, indivisible, interdependent and interrelated. The Declaration noted (Art. 22) that “special attention needs to be paid to ensuring non-discrimination, and the equal enjoyment of all human rights and fundamental freedoms by disabled persons, including their active participation in all aspects of society”. The Declaration emphasized (Art. 64) 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 (UNGA A/Conf. 157/23, 12 July 1993).

1.22 Monitoring the International Covenant on Economic, Social and Cultural Rights (ICESCR) in relation to persons with disabilities

Towards the end of 1994, the UN Committee on Economic, Social and Cultural Rights issued a salutary reminder that, notwithstanding the many international instruments adopted over the years by the ILO and the UN, States Parties to the ICESCR had devoted very little attention to ensuring the full enjoyment of the relevant rights by persons with disabilities (General Comment No. 5). Attributing the absence of an explicit, disability-related provision in the Covenant to the lack of awareness of the importance of addressing this issue explicitly, rather than only by implication, at the time of the drafting of the Covenant over twenty-five years previously, the Committee drew attention to a number of more recent international human rights instruments which had addressed the issue specifically, including:

• the Convention on the Rights of the Child (Art. 23);
• the African Charter on Human and Peoples’ Rights (Art. 18 (4));
• the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Art. 18).

Reminding governments that the ultimate responsibility was theirs for remedying the conditions that lead to impairment and for dealing with the consequences of disability, the Committee pointed out that the effects of disability-based discrimination had been particularly severe in the fields of education, employment, housing, transport, cultural life and access to public places and services. Regarding the rights relating to work contained in Articles 6 to 8 of the Covenant, the Committee considered the field of employment as one in which discrimination had been both prominent and persistent. In most countries, the unemployment rate among persons with disabilities was two to three times higher than the unemployment rate for others. Persons with disabilities were mostly engaged in low-paid jobs with little social and legal security and often segregated from the mainstream labour market. As the ILO had frequently noted, physical barriers such as inaccessible transport, housing and workplaces were often the main reasons why persons with disabilities were not employed. The Committee drew attention to the valuable and comprehensive instruments developed by the ILO, including in particular Convention No. 159, and urged States Parties to the Covenant to consider ratifying that Convention.

The methods to be used by States parties in seeking to implement their obligations under the Covenant towards persons with disabilities are, the Committee pointed out, essentially the same as those in relation to other obligations. They include the need to ascertain, through regular monitoring, the nature and scope of the problems existing within the country concerned, the need to adopt appropriately tailored policies and programmes to respond to what is required, the need to legislate where necessary to prohibit discrimination and to eliminate any existing discriminatory legislation, and the need to make budgetary provisions or, where necessary, seek international cooperation and assistance. International cooperation is likely to be a particularly important element in enabling some developing countries to fulfil their obligations under the Covenant.

The Committee drew particular attention to the situation of women with disabilities: “Persons with disabilities are sometimes treated as genderless human beings. As a result, the double discrimination suffered by women with disabilities is often neglected. Despite frequent calls by the international community for particular emphasis to be placed upon their situation, very few efforts have been undertaken during the Decade.” The Committee urged States Parties to address the situation of women with disabilities, with high priority being given in future to the implementation of economic, social and cultural rights-based programmes.

The right to the enjoyment of “just and favourable conditions of work” (Art. 7 of the Covenant) applies to all disabled workers, whether they work in the open labour market or in sheltered employment. The right to join a trade union (Art. 8) similarly applies to all disabled workers. Social security, including social insurance, is particularly important for persons with disabilities (Art. 9). The Committee referred to the UN Standard Rules, which state that States should ensure the provision of adequate income support to persons with disabilities who, owing to disability or disability-related factors, have temporarily lost or received a reduction in their income or have been denied employment opportunities. Such support should reflect the special needs for assistance and other expenses associated with disability. Support provided, adds the Committee, should also, as far as possible, cover individuals (who are generally female) who undertake the care of a person with disabilities: such persons are often in need of financial support because of their assistance role.

1.23 Copenhagen Declaration and Programme of Action

The Copenhagen Declaration and Programme of Action, adopted by the World Summit for Social Development in March 1995, acknowledged that people with disabilities, who form one of the world’s largest minorities, are too often forced into poverty, unemployment and social isolation. In relation to employment, the Heads of State and Government at the Summit committed themselves, inter alia, to put the creation of employment, the reduction of unemployment and the promotion of appropriately and adequately remunerated employment at the centre of strategies and policies of governments, in full respect for workers’ rights, and giving special attention to disadvantaged groups and individuals including persons with disabilities. The elimination of all forms of discrimination is emphasized throughout the Declaration, and the Programme of Action includes “taking effective measures to bring to an end all de jure and de facto discrimination against persons with disabilities” (para. 15 (i)). In a specific employment reference, the Programme states that broadening the range of employment opportunities for persons with disabilities requires:

The Declaration and Programme of Action makes frequent mention of the need to achieve equality and equity between women and men, including women and men with disabilities. In the context of work and employment, parties to the Declaration commit themselves to:

• promoting 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 to promote full and equal participation of urban and 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 5a);
• promoting and attaining the goals of universal and equitable access to quality education . . . making particular efforts to rectify inequalities relating to social conditions and without distinction as to race, national origin, gender, age or disability (commitment 6);
• ensuring that persons with disabilities have access to rehabilitation and other independent living services and assistive technology to enable them to maximize their well-being, independence and full participation in society (commitment 6n).

The Programme of Action acknowledges that empowerment and participation are essential for democracy, harmony and social development and that gender equality and equity and the full participation of women in all economic, social and political activities is essential: “the obstacles that have limited the access of women to decision-making, education, health-care services and productive employment must be eliminated . . .” (para. 7).

The Programme calls on governments to enhance the quality of work and employment by, inter alia:

• observing and fully implementing the human rights obligations that they have assumed;
• safeguarding and promoting respect for workers’ basic rights, including freedom of association and the right to organize and bargain collectively, equal remuneration for men and women for work of equal value and non-discrimination in employment, and fully implementing the ILO conventions in the case of States party to them (para. 54).

1.24 EU Treaty amendment prohibiting discrimination

Within the European Union, disability issues had been largely regarded as a matter of social policy. The European Commission, in a social policy White Paper published in 1994 (EC, 1994):

• acknowledged that there was a need to build the fundamental right to equal opportunities into EU policies;
• said it would ensure, through appropriate mechanisms, that the needs of disabled people were taken into account in relevant legislation,programmes and initiatives;
• said it would prepare an appropriate instrument endorsing the UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities;
• promised it would prepare a code of good practice in relation to its own personnel policies and practices on employing persons with disabilities; and
• said that, at the next opportunity to review the EU Founding Treaties, serious consideration must be given to the introduction of a specific reference to combating discrimination on the ground of disability.

In December 1996,⁹ the EU Social Council adopted a Resolution which reaffirmed the commitment of the Member States to:

• the principles and values that underlie the UN Standard Rules;
• the ideas underlying the Council of Europe’s 1992 Resolution on a coherent policy for the rehabilitation of people with disabilities (see section 1.18);
• the principle of equality of opportunity in the development of comprehensive policies in the field of rehabilitation; and
• the principle of avoiding or eliminating any form of negative discrimination on the grounds of disability.

Also in December 1996, the Intergovernmental Conference (IGC) – comprising representatives of EU Member States meeting to review the EU Treaties – agreed to include in the draft revised Treaties a new article prohibiting discrimination based on a number of grounds, including disability. What was finally approved in the Treaty of Amsterdam in 1997, however, was a watered-down version of what had been agreed at the IGC:

. . . the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation (Art. 13).

While generally welcomed as an important step in the right direction, the amendment fell far short – particularly in the requirement for unanimity and the optional nature of the provision – of what many had hoped for.

1.25 Council of Europe: European Social Charter

The European Social Charter deals with economic and social rights. The original Charter was opened for signature in 1961 and entered into force in 1965. It was added to in 1988 and extensively revised in 1996. (All references in this book to the Charter are to the 1996 version.) In developing the Charter, the Council of Europe paid particular attention to the work of, and the measures adopted by the ILO.

Part I sets out general principles which Contracting Parties undertake to accept. These include the rights of everyone to appropriate facilities for vocational guidance (Art. 9) and vocational training (Art. 10); the right of persons with a disability to independence, social integration and participation in the life of the community (Art. 15); and the right of everyone to protection against poverty and social exclusion (Art. 30).

Part II lists the obligations to which Contracting Parties are bound under each of the 31 articles in Part I, which results in protection of rights in over one hundred areas. The breakdown of Article 15, for example, reads as follows:

With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular:

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 specialized 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 specialized 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.

The European Social Charter is a legally-binding treaty. However, the number of rights protected depends on whether the Contracting Party has ratified the original Charter, the 1988 Additional Protocol or the Revised Charter of 1996. For example, under Part III of the 1996 Charter, a Contracting Party must agree to be bound by at least six of nine listed Articles of Part II. Article 15 is not included in this “core” list. In addition, the Contracting Party must agree to be bound by an additional number of articles or numbered paragraphs of Part II which it may select, provided that the total number of articles or numbered paragraphs by which it is bound is not less than sixteen articles or sixty-three numbered paragraphs. Member States which have ratified only the original Charter are only bound by a minimum of five out of seven core articles and at least five others or forty-five paragraphs.

Allowing for the unusual “à la carte” manner of obligations accepted, the European Social Charter is still a valuable treaty which more Member States should be encouraged to ratify. NGOs, in particular, need to be made more aware of its potential in terms of promoting and advancing the rights of persons with disabilities (see Kenny 1997; Council of Europe 1997a, 1997b).

1.26 Inter-American Convention

The Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities was adopted in June 1999. It is the first regional treaty to define discrimination against persons with disabilities. The term “discrimination against persons with disabilities” in this Convention means any distinction, exclusion, or restriction based on a disability, record of disability, whether present or past, which has the effect or objective of impairing or nullifying the recognition, enjoyment, or exercise by a person with a disability of his or her human rights and fundamental freedoms (Art. 1(2)(a)).

A Committee on the Elimination of all Forms of Discrimination against Persons with Disabilities was set up to monitor the implementation of the Inter-American Convention and to provide guidance on the gradual fulfilment of its requirements. Following the adoption and entry into force of the UN Convention on the Rights of Persons with Disabilities, however, this Commitee now focuses on supporting the implementation of the UN Convention through monitoring and guiding the implementation of the programme of action of the Decade of the Americas (Flynn, 2011).

1.27 African Decade of Disabled Persons

The African Decade of Disabled Persons (1999–2009) was declared in July 2000 by the Organization of African Unity (OAU) Heads of State and Government. A Continental Action Plan was adopted unanimously by participants at the Pan African Conference on the African Decade in February 2002, and endorsed by the Executive Council of the African Union (AU), meeting in Durban in June 2002. The Action Plan was intended to provide guidance to Member States and Governments of the OAU in achieving the goal of the Decade – the full participation, equality and empowerment of persons with disabilities in Africa. The Action Plan included a range of measures to be undertaken by member States in developing national disability programmes to promote the participation of persons with disabilities in the process of economic and social development, and to ensure and improve access to training and employment.

This Decade has been extended to a second phase, 2010-2019. A Continental Plan of Action (CPoA) for the extended African Decade of Persons with Disabilities (2010 – 2019) was adopted by the 20th Ordinary Session Assembly of the AU in January 2013. The goal of the CPoA is full participation, equality, inclusion and empowerment of people with disabilities in Africa. Eight strategic thematic areas are outlined for implementation at the national level, and priority action areas are identified for each thematic area. The thematic areas include a focus on mainstreaming, disability statistics, non-discrimination legislation, and an adequate standard of living and social protection for persons with disabilities, among others (African Decade Secretariat, n.d.). The Secretariat of the Decade, recently renamed the Africa Disability Alliance, is based in Pretoria, South Africa.

Following a consultative meeting convened by the UN Special Rapporteur on Disabilities in 2012, leaders of regional and national organizations of persons with disabilities in Africa, meeting in Addis Ababa, Ethiopia in November 2014, established an African Disability Forum (ADF) to enable people with disabilities and their organizations in Africa to have a unified representative voice in promoting their rights and inclusion at pan-African, sub-regional and national levels. The ADF aims to become a representative umbrella organization of member DPOs and will seek to work closely with the Secretariat of the African Decade of Persons with Disabilities.

1.28 EU Charter of Fundamental Rights

The Charter of Fundamental Rights of the European Union was proclaimed at the Nice European Summit in December 2000 (EU 2000a). The Charter sets out, for the first time in the history of the EU, the full range of civil, political, economic and social rights of all European citizens and all persons resident in the EU, including persons with disabilities. In the context of work and employment, the most relevant provisions are:

• the right to human dignity (Art. 1);
• the right to education and to have access to vocational and continuing training (Art. 14.1);
• the right to engage in work and to pursue a freely-chosen or accepted occupation (Art. 15.1);
• any discrimination based on any ground including disability is prohibited (Art. 21);
• equality between men and women must be ensured in all areas, including employment, work and pay (Art. 23);
• 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 (Art. 26);
• the right of access to a free placement service (Art. 29);
• the right to protection against unjustified dismissal, in accordance with Community law and national laws and practices (Art. 30);
• the right to working conditions which respect health, safety and dignity (Art. 31.1); and
• the entitlement to social security benefits and social services(Art. 34.1).

The Charter became legally binding on EU institutions and on national governments with the entry into force of the Treaty of Lisbon in December 2009.

1.29 EU Directive on Discrimination

An EU Directive (EU 2000b) on discrimination in employment was adopted by the EU Social Affairs Ministers at the end of 2000. The Directive prohibits direct and indirect discrimination on a number of grounds, including disability, and applies, inter alia, to selection criteria and recruitment conditions, vocational guidance, vocational training, employment and working conditions, including pay. Importantly, the Directive states that “reasonable accommodation” shall be provided, which means that employers are to take appropriate measures, where needed, to enable a person with a disability to have access to, participate in, or advance in employment, or to provide training, unless such measures would impose a “disproportionate burden” on the employer. Members States are obliged to transpose this EU Directive into national legislation within a time frame of three years, extended in the case of disability to six years, if required.

1.30 European Union Disability Action Plan and Strategy

Equality of opportunity is the objective of the European Union’s longterm strategy on disability, which aims to enable persons with disabilities to enjoy their right to dignity, equal treatment, independent living and participation in society. The strategy is built on three pillars: EU anti-discrimination legislation and measures, which provide access to individual rights; eliminating barriers in the environment that prevent disabled people from exercising their abilities; and mainstreaming disability issues in the broad range of Community policies which facilitate the active inclusion of people with disabilities.

To ensure a coherent policy follow-up to the European Year of People with Disabilities of 2003 in the enlarged Europe,¹⁰ the EU Disability Action Plan (DAP) was established by the Commission in 2003 (EC, 2003) to provide a framework to develop the EU disability strategy. Within the EU, disability policies are essentially the responsibility of Member States, but Member States are asked to take full account of the DAP when developing national disability policies. The DAP covered the period 2004–2010 in successive phases: phase 1 ran from 2004 – 2005, phase 2 from 2006 – 2010, with the second phase focussed on active inclusion of persons with disabilities, building on the values inherent in the UN Convention on the Rights of Persons with Disabilities. Priority actions centred around raising employment and activity rates; promoting access to quality support and care services; fostering accessibility of goods and services, including accessible public transport and an accessible public environment; and improving the reliability and comparability of data.

Building on the DAP experience, the European Disability Strategy 2010 – 2020 on the theme ’A renewed commitment to a barrier-free Europe’ aims to empower people with disabilities so that they can enjoy their full rights and benefit fully from participating in society and in the European economy (European Commission 2010a) This is combined with the aim of ensuring effective implementation of the UN CRPD across the EU.¹¹ The Strategy focuses on eliminating barriers in eight main areas, namely accessibility, participation, equality, employment, education and training, social protection, health and external action. In relation to employment the Commission through the Disability Strategy and the Europe 2020 Strategy, undertakes to enable many more people with disabilities to earn their living in the open labour market by supporting and supplementing national efforts to analyse the labour market situation of women and men with disabilities, pay particular attention to young people with disabilities in their transition from school to work; address intra-job mobility in the open labour market and in sheltered workshops; as well as addressing the issue of self employment and quality jobs. It aims to fight ‘benefits traps’ and cultures that discourage people from seeking employment; develop job placement services and support structures, including on-the-job training; as well as taking measures to support labour market inclusion through the use of the Social Fund. It also promotes the use of the Commission General Block Exemption Regulation¹² that allows granting of State aid without prior notification of the Commission (EU Council Regulation No 733/2013 ).

1.31 Council of Europe – Malaga Declaration

In May 2003, the Council of Europe Ministers responsible for integration policies for persons with disabilities, meeting in Malaga, adopted a Ministerial Declaration on People with Disabilities, “Progressing towards full participation as citizen”. The Declaration reaffirmed Member States’ commitment to securing human rights and fundamental freedoms for everyone under their jurisdiction, as set out in the European Convention on Human Rights. The main aim in the next decade, according to the Declaration, was to improve the quality of life of persons with disabilities and their families, putting the emphasis on their integration and full participation in society. As an appropriate strategy to achieve this aim, the Declaration called for an Action Plan to promote the elimination of all forms of discrimination against persons with disabilities of all ages, with a special focus on disabled women and persons with disabilities in need of a high level of support.

The Declaration also called for an integrated approach towards the elaboration of national and international disability policies and legislation, duly reflecting the needs of persons with disabilities in all areas including education, vocational guidance and training, employment, the built environment, transport and social protection. Progress should be made towards the integration of persons with disabilities in the labour market, preferably in the open market, with the focus on assessing abilities and implementing active policies. There is consistent emphasis throughout the Declaration on the need to mainstream equality of opportunity for persons with disabilities throughout all policy areas.

1.32 Council of Europe Action Plan

Building on the 2003 Malaga Declaration, the Committee of Ministers to Member States of the Council of Europe adopted in April 2006 the “Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: Improving the quality of life of people with disabilities in Europe 2006-2015” (Rec (2006) 5). Officially launched in St. Petersburg on 21–22 September 2006 at the European conference “Improving the quality of life of people with disabilities in Europe: Participation for all, innovation, effectiveness”, the Action Plan aims to provide a comprehensive framework that is both flexible and adaptable in order to meet country-specific conditions. It is intended to serve as a “roadmap for policy-makers, to enable them to design, adjust, refocus and implement appropriate plans, programmes and innovative strategies” (para. 1.1.2), ultimately mainstreaming disability throughout all policy areas. It has the potential to serve as an implementation tool for the UN Convention on the Rights of Persons with Disabilities in the European region, supported by the European Co-ordination Forum for the Council of Europe Disability Action Plan (CAHPAH), established to promote, monitor and follow up on the implementation of the Council of Europe Action Plan.

The Action Plan has a broad scope, encompassing 15 key areas of life and setting out 15 “action lines” (objectives and specific actions) to be implemented by Member States. These action lines include information and communication, education, the built environment, transportation, rehabilitation and awareness-raising.

Action line No. 5 on employment, vocational guidance and training, points out that, compared to non-disabled persons, the employment and activity rates of disabled people are very low: policies to increase the activity rate need to be diversified – according to the employment potential of disabled people – and comprehensive, in order to address all the barriers to participation in the workforce. (For more detail see CAHPAH, Annex 5.)

Two objectives are specified:

• to promote the employment of people with disabilities in the open labour market by combining anti-discrimination and positive action measures; and
• to tackle discrimination and promote participation of people with disabilities in vocational assessment, guidance, training and employment- related services.

Social enterprises (for example, social firms, social cooperatives) as part of open employment, or sheltered workshops, may contribute to the employment of disabled people.

Specific actions to be undertaken by Member States include:

• mainstreaming issues relating to the employment of people with disabilities in general employment policies;
• removing disincentives to work in disability benefit systems and encouraging beneficiaries to work when they can;
• considering the needs of women with disabilities when devising programmes and policies related to equal opportunities for women in employment, including childcare; and
• ensuring that support measures, such as sheltered or supported employment, are in place for those people whose needs cannot be met without personal support in the open labour market.

In 2011, the responsibility for the Council of Europe’s Disability Action Plan and related activities was transferred from the social policy field of work to the Human Rights and Anti-discrimination Directorate which was replaced in 2014 by the Directorate of Human Dignity and Equality. The disability-related programme remains part of the Council of Europe’s broad work on anti-discrimination measures. Those changes reflect the paradigm shift, mentioned earlier, in the understanding of disability issues in international policy, involving a departure from regarding persons with disabilities as objects of social welfare or charity, to an approach which views them as citizens and as rights holders.

1.33 Arab Decade for Persons with Disabilities

The Arab Decade for Persons with Disabilities, 2004-2013, was formally proclaimed at the Summit Meeting of the Arab League in Tunis in May 2004. Arab States were called on, inter alia, to promote the full integration of persons with disabilities in public schools, the labour market and other sectors of society through a wide range of measures, paying particular attention to the requirements of women and children with disabilities. Specifically relating to training and employment, States were called on to establish training organizations for people with disabilities which reflect new technologies and labour market requirements; to encourage persons with disabilities to establish small and medium-sized enterprises through financial support and assistance with sales and marketing; as well as to encourage the private sector to train and employ persons with disabilities and enable them to advance in their careers. Following the declaration of the Decade, growing interest in the rights of persons with disabilities in the region was reflected in the revision of disability-related legislation in several of the Arab States, as well as in numerous regional and national capacity-building events.

In 2013, marking the closure of the Arab Decade, a conference was held by the United Nations Economic and Social Commission for Western Asia (ESCWA) and the League of Arab States to review challenges and achievements in disability policy in the Arab Region. Conference participants adopted a joint outcome statement reaffirming Arab countries’ commitment to implementing the provisions of the UN Convention on the Rights of Persons with Disabilities and calling for a new regional framework to support Governments in their efforts to develop suitable policies (UN Social Development Network, 2013).

1.34 Decade of the Americas

In 2006, the Organization of American States (OAS) declared the Decade of the Americas for the Rights and Dignity of Persons with Disabilities 2006 – 2016 on the theme ‘Equality, Dignity and Participation’, reflecting the principles of the Inter-American Convention and the UNCRPD. A Working Group was established to develop an associated programme of action for the Decade. In 2008, a Secretariat for the Decade, SEDISCAP, was set up to facilitate information exchange on implementing the programme of action, promote research to support achievement of the Decade’s goals, mainstream these goals throughout the OAS system and promote cooperation with the UN Committee on the Elimination of all Forms of Discrimination against Persons with Disabilities (Flynn, 2011).

1.35 UN Convention on the Rights of Persons with Disabilities(CRPD)

In 1999, the General Assembly of Rehabilitation International adopted a new Charter which called for an international convention on the rights of persons with disabilities. Representatives of Rehabilitation International, Disabled People’s International, Inclusion International, World Blind Union and World Federation of the Deaf, meeting in Beijing in March 2000, expressed serious concern that UN instruments “have yet to create a significant impact on improving the lives of people with disabilities” and called for international collaboration towards the development and adoption of a new convention.

The UN Commission on Human Rights was also concerned about the adequacy of existing measures. At its meeting in April 2000, the Commission adopted Resolution 2000/51 which invited the High Commissioner for Human Rights to examine measures to strengthen the protection and monitoring of the human rights of persons with disabilities. In response, the Office of the High Commissioner for Human Rights (OHCHR) commissioned a study to evaluate existing standards and mechanisms in the field of human rights and disability. The preliminary findings of the study were presented at a meeting in the OHCHR in Geneva in January 2002.

Participants at the meeting in Geneva - representatives of governments, United Nations agencies, intergovernmental organizations and non-governmental organizations - agreed on the need for a multiple approach to disability. There was wide agreement on the need for a focus on the human rights dimension of the issues involved. The findings of the study underlined how the drafting of a new convention should not be seen as an alternative to strengthening attention to disability within the existing international human rights system. This combination of a disability-specific convention and greater consideration of disability issues in existing human rights instruments has been described as a ‘twin-track’ approach. The discussion broadened that approach further, highlighting the need to strengthen social development efforts in the field of disability and to integrate better the UN work in that domain with reinforced attention to the matter from a human rights perspective (NHRI, undated).

Meanwhile, in December 2001, the UN General Assembly adopted Resolution 56/168, sponsored by the Government of Mexico, which established an Ad Hoc Committee, open to the participation of all Member States and observers to the UN, to consider proposals for a comprehensive and integral international convention to protect and promote the rights and dignity of persons with disabilities, based on the holistic approach adopted in the field of social development.

Following an open and transparent process, which provided for participation by all interested parties, in particular disabled persons and their representative organizations, the UN General Assembly on 13 December 2006 (resolution 61/106) adopted the Convention on the Rights of Persons with Disabilities (CRPD). The CRPD is seen as “a comprehensive and integral convention to promote and protect the rights and dignity of persons with disabilities [which] will make a significant contribution to redressing the profound social disadvantage of persons with disabilities and promote their participation in the civil, economic, social and cultural spheres with equal opportunities, in both developing and developed countries” (Preamble, (y)). The CRPD restates, reinforces and develops rights contained in other international instruments; and confirms that all such rights apply to persons with disabilities.¹³

The principles of the CRPD set out in article 3 are: (a) respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; (b) non-discrimination; (c) full and effective participation and inclusion in society; (d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; (e) equality of opportunity; (f) accessibility; (g) equality between men and women; and (h) respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

States Parties to the Convention have general as well as specific obligations. General obligations laid down in Article 4 include the following:

• to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the Convention;
• to take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes;
• to ensure that public authorities and institutions act in conformity with the Convention;
• to take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise; and
• to promote the training of professionals and staff working with persons with disabilities in the rights recognized in the Convention.

Requirements in respect of rehabilitation include taking effective measures to enable persons with disabilities “to attain and maintain maximum independence, full physical, mental, social and vocational ability” and the provision of comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services (Art. 26(1)).

The importance of education in enabling persons with disabilities to participate effectively in a free society, including in employment, is recognized in Article 24 which requires States Parties to, inter alia, ensure an inclusive education system at all levels and ensure that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination, on an equal basis with others, and with the provision of reasonable accommodation.

Article 27 is specifically devoted to work and employment and is quoted in full in the following box. Discrimination on the basis of disability is prohibited in all forms of employment. States Parties are called upon to open up opportunities in mainstream workplaces, both in the public and private sectors. To facilitate this, the Convention promotes the access of disabled persons to freely-chosen work, general technical and vocational guidance programmes, placement services and vocational and continuing training, as well as vocational rehabilitation, job retention and return-to work programmes. The provisions cover people with disabilities seeking employment, advancing in employment and those who acquire a disability while in employment and who wish to retain their jobs. The Convention also recognizes that for many disabled persons in developing countries, self-employment or micro business may be the first option, and in some cases, the only option. States Parties are called on to promote such opportunities. The right to exercise labour and trade union rights is promoted. States Parties are also called on to ensure that people with disabilities are not held in slavery or servitude and are protected on an equal basis with others from forced or compulsory labour.

Box 2 CRPD Article 27: Work and Employment

1.35.1 Recognition of Multiple Discrimination

The CRPD builds on the earlier recognition that women with disabilities are more vulnerable to discrimination, because they are women and because they have a disability, and that this double discrimination suffered by women with disabilities is often ignored or goes unnoticed because persons with disabilities are sometimes treated as though they are genderless human beings (see Section 1.22 above). It recognizes the particular situation of women with disabilities in Article 6 which requires States Parties to recognize that “women and girls with disabilities are subject to multiple discrimination, and in this regard shall take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms”. States Parties also undertake to “take all appropriate measures to ensure the full development, advancement and empowerment of women, for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms set out in the present Convention”.

The CRPD also expresses concern about multiple or aggravated forms of discrimination faced by persons with disabilities on the grounds of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status’ (CRPD, 2006, Preamble, para (p)). Implicitly, States Parties should take these multiple forms of discrimination into account in their laws, policies, programmes and services.

By September 2015, the CRPD has been ratified by 159 countries and the European Union, while the Optional Protocol has been ratified by 88 countries.

1.35.2 Optional Protocol

At the time it adopted the CRPD, the UN General Assembly also adopted an Optional Protocol. A State Party to the CRPD has the choice of being a party to this Protocol thus assuming additional obligations. States that ratify the Protocol recognize the competence of the Committee on the Rights of Persons with Disabilities to consider communications from or on behalf of individuals or groups of individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of the provisions of the CRPD. No communication shall be received by the Committee if it concerns a State Party to the CRPD that is not a party to the Protocol.

The Protocol further provides for the Committee to undertake inquiries into systemic or grave breaches of the CRPD.

1.35.3 Monitoring the implementation of the CRPD

Monitoring of implementation is provided for at national and international levels. Domestically, States Parties are required to designate a focal point or focal points within government on the implementation of the CRPD and should consider setting up a mechanism to coordinate action at different sectors and levels of government. An independent framework – possibly the national human rights institution – should be designated to promote and monitor implementation. Civil society and in particular persons with disabilities and their representative organizations, should participate fully in the monitoring process (CRPD, Art 33).

Internationally, the Committee on the Rights of Persons with Disabilities, made up of 18 independent experts, meets at least twice a year to consider reports submitted by States Parties on the implementation of the CRPD, make recommendations as appropriate, and request further information, if considered necessary. In its concluding observations on the implementation of the right to work and employment in State reports reviewed to date, the Committee has expressed concern at the high unemployment and underemployment of persons with disabilities; the lack of disaggregated data on labour force participation; the lack of monitoring of compliance with legal provisions; the additional discrimination faced by women with disabilities as reflected in gender gaps in employment and pay; and cultural barriers and prejudices that hinder labour force participation (Committee on the Rights of Persons with Disabilities n.d.).

The monitoring process provides the opportunity for States Parties to review their laws and policies and bring these more into line with the CRPD, provide for dialogue on human rights, establish a baseline to measure progress, and allow for public scrutiny at national and international levels (Quinn, 2009). The concerns raised and recommendations made by the Committee on the Rights of Persons with Disabilities regarding the right to work and employment will be revisited and further discussed in Chapter 4.