14th RI Korea Rehabilitation Conference
“Ratification and Implementation of the UN Disability Convention”(只備英文版)— Mr Raymond Tang, Chairperson, Equal Opportunities Commission
Current progress
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The Ad Hoc Committee, meeting in New York in August 2006, successfully concluded the negotiation on the Convention on the Rights of Persons with Disabilities[1].
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A drafting group of the Ad Hoc Committee is now finalizing the text of the Convention so that it can be presented to the General Assembly for formal adoption, after which the Convention will be open for signature and ratification by all countries.
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The Convention shall enter into force when 20 countries have ratified it[2].
Facts about disability -
Currently there is no universal definition for the term ‘disability’. Local legislation may define disability differently and for different purposes, for example, for entitlement to social welfare benefits (e.g. fare concession in using public transport), or, for licensing purposes (e.g. application for driving licence). Different jurisdictions may also adopt different definitions for their respective anti-discrimination laws. Hong Kong’s definition is more descriptive of a medical condition (e.g. loss of bodily or mental functions, presence of disease or illness, a disorder affecting a person’s thought processes or perception of reality, etc.). The Australian version is similarly worded. The US definition in the Americans with Disabilities Act has an element describing physical or mental impairment, which substantially limits the affected individual’s major life activities. In the United Kingdom, under the Disabilities Discrimination Act 1995, the physical or mental impairment has to last for 12 months or longer.
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However, the common understanding of the term ‘disability’ at the community level would include physical, mental and sensory impairments such as blindness, deafness, impaired mobility, developmental and intellectual impairments. Some people may suffer from more than one form of disability at the same time, as often the case with elderly people. Discussions at the UN appear to point to a growing understanding that disability refers to a physical, mental, or sensory impairment that limits the capacity to perform daily activities and are caused or aggravated by social and environmental conditions[3]. In the latest draft of the Convention[4], disability is described as “an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers which hinders their full and effective participation in society on an equal basis with others”.
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Some facts about people with disabilities according to information published by the UN[5]:-
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Around 10 per cent of the world’s population, or 650 million people, live with a disability;
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This figure is increasing through population growth, medical advances and the ageing process;
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In countries with life expectancies over 70 years, individuals spend on average about 8 years, or 11.5 per cent of their life span, living with disabilities;
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On average, 19 per cent of less educated people in OECD countries have disabilities, compared to 11 per cent among the better educated;
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20 per cent of the world’s poorest people are disabled, and tend to be regarded as the most disadvantaged;
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Ninety per cent of children with disabilities in developing countries do not attend school, says UNESCO;
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According to a 1998 UNDP study, the global literacy rate for adults with disabilities was as low as 3 per cent;
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Unemployment among the disabled is as high as 80 per cent in some countries;
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A 2004 US survey found that only 35 per cent of working-age eople with disabilities are in fact working, compared to 78 per cent of those without disabilities;
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A 2003 US survey of employers found that the cost of accommodations was only $500 or less and that 73 per cent of employers reported that their employees did not require special facilities at all;
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Other US surveys reveal that after one year of employment, the retention rate of people with disabilities is 85 per cent;
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The 1990 US national census revealed that people with disabilities have a higher rate of self-employment and small business experience (12.2 per cent) than people without disabilities (7.8 per cent).
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It can be seen from the above that large number of people with disabilities are very vulnerable in many countries. Even in so-called “advanced countries” like the US, people with disabilities are very much disadvantaged in areas such as education and employment. Another problem which can be found in advanced countries is that people with disabilities are often excluded from using buildings and other facilities (including information technology[6] and transport), because they are not suitable for their use.
Vision -
Despite the growing awareness and importance of general concepts of human rights, the human rights of people with disabilities are often neglected and marginalized. At best, dealing with disability has been approached as a matter of charity or welfare. At worst, it is a subject for discrimination and abuse.
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The Convention marks a paradigm shift in the approach to people with disabilities. It affirms and elaborates on the human rights of people with disabilities. High expectations hang on this Convention. Not only does it send a strong message that “we want to have a life with dignity for all and that all human beings are all equal”, but its implementation is meant to make a genuine difference to the lives of people with disabilities. Disability should no longer be an issue of social welfare for policy makers, but a matter of protecting and fulfilling the human rights of people who suffer from it.
Implementation -
By making specific provisions in key areas such as inclusiveness, accessibility, removal of stereotypes, mobility, participation and non-discrimination, signature and ratification of the Convention will require commitment and action at local level in all these aspects.
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Article 33 of the Convention[7] specifically sets out a three-fold national implementation and monitoring approach:-
- designation of focal points within government to take and coordinate action;
- designation of independent mechanisms (i.e., national human rights institutions)
- full participation of civil society, in particular people with disabilities themselves, in the monitoring process
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In addition to national implementation and monitoring, like other human rights treaties, article 34 of the Convention[8] provides for a reporting system and the establishment of the Committee on the Rights of Persons with Disabilities. States are obliged to submit comprehensive reports regularly on measures taken to give effect to the Convention. The Committee will consider the reports and make suggestions and recommendations.
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There is a further optional protocol[9] providing for the Committee to receive individual communication claiming to be victims of violation of the Convention, and to initiate inquiry upon receiving reliable information indicating grave or systematic violation by a State Party.
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Among these provisions for implementation and monitoring, the first and foremost is of course implementation at the local level. This means the three-fold approach in article 33. The key element of local implementation is the establishment of appropriate local structures and mechanisms, within as well as independent of government.
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In terms of substance, anti-discrimination is a fundamental theme underlying the Convention. Rights relating to education, to employment and to access are all different aspects of this fundamental theme. Any effective implementation of the Convention is likely to involve local anti-discrimination legislation. However, according to the UN, only 45 countries have anti-discrimination and other disability-specific laws.
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The status of the Convention in the domestic legal system will differ from country to country. In many countries, effective implementation of the Convention is likely to involve enactment of local anti-discrimination legislation providing substantively for equality as well as the establishment of procedural frameworks and appropriate agencies to address issues of equality.
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Local anti-discrimination legislation which meets Convention requirements will generally share the following features:-
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covering all forms of discrimination, including direct and indirect discrimination and denial of reasonable accommodation;
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a comprehensive definition of disability concordant with the modern understanding of disability as an evolving concept informed by the interaction between people with impairments and the attitudinal and environmental barriers[10];
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covering all major aspects of life such as education, employment, access to services and facilities;
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a mechanism of redress which provide effective remedies to people suffering from all forms of discrimination; the administration of such a mechanism would usually involve an independent human rights agency.
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Other elements in the effective implementation of the Convention may include:-
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Encouragement and support for technological research;
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Collection of statistics and data for proper policy development and execution;
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The full participation of people with disabilities and / or their representatives in the policy-making process.
Hong Kong -
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In Hong Kong, the Convention will not have direct effect in the domestic legal system. Local laws needs to be enacted to implement the Convention. In fact, anti-discrimination legislation had already been enacted in Hong Kong since 1996. This is the Disability Discrimination Ordinance. It provides for equality for people with disabilities in all key areas now covered by the Convention. The major areas are:-
- Employment;
- Education;
- Goods, services and facilities;
- Access to buildings;
- Exercise of government powers.
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The Ordinance has a wide definition of disability. It covers both direct discrimination and indirect discrimination. It requires reasonable accommodation to be provided to people with disabilities. It established a mechanism for addressing issues of equality. It gives the Equal Opportunities Commission, which is a local independent human rights agency, the function of promoting equality and dealing with individual complaints of discrimination.
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While the EOC is independent of government, there are focal points within the government itself discharging the functions of policy co-ordination and development, such as the Bureau for Health, Welfare and Food. The EOC’s role in policy development is to work with government agencies and civil society. For example, the EOC was consulted and has been working together with the government on a scheme which provides concessionary fares to people with disabilities in public transport. The objective is to have an inclusive scheme where the needs of the beneficiaries can be objectively and properly assessed regardless of the type of disabilities. This is in accord with the inclusive purpose of the Convention and the recognition of the diversity of people with disabilities[11].
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Another example of policy development by the EOC is to encourage the government to put in place and strengthen the support for inclusive education. This is particularly relevant to article 24 of the Convention[12]. Government has to ensure that people with disabilities are not excluded from the general education system. They are entitled to an inclusive, quality and free primary and secondary education, and that effective individualized support measures are provided to maximize academic and social development, with full inclusion being the goal.
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Apart from promotion and policy development, another important role for the EOC is to discharge the function of resolving complaints of discrimination. This function is given to the EOC by the Ordinance. For individual complaints, the EOC will investigate and seeks to conciliate the parties in the hope that they can settle their dispute amicably. Where there is no settlement and if it is appropriate, the EOC will assist the victim to take legal action against the discriminator.
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An example of the EOC’s monitoring and providing assistance to victims to obtain remedies is the case against the recruitment policy of the government disciplinary services departments (the Police, Excise & Custom, Fire Services). For their perceived safety reasons, these departments refused to recruit people who are perfectly health but have family members who suffered from hereditary mental illnesses. But evidence from experts in fact did not justify their safety concerns. After the EOC investigated, the departments still refused to resolve the complaints. In the end, the EOC assisted the victims to take legal action against the government. The government was held liable and had to pay substantial amount of compensation to the victims.
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Apart from complaint-based cases, the EOC may also initiate its own action by investigating into systemic situation of discrimination. A recent initiative is to look into the issue of accessibility of public housing. This initiative is still on-going. It is anticipated that the EOC will be in a position to make recommendations and suggestions which will improve the accessibility of buildings and facilities so as to remove any discrimination and exclusion arising from buildings and facilities being unsuitable for use by people with disabilities.
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The Ordinance and the EOC and the related mechanisms will continue to function and will become the tools through which the Convention is implemented in Hong Kong, when it enters into force and is applied to Hong Kong.
Cost of accommodation -
According to the Chairperson of the Ad Hoc Committee, Don MacKay of New Zealand, one of the questions are often asked about the Convention is “would it cost a lot of money?”[13]
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Judging from the evidence revealed by various surveys and studies, the cost of empowering people with disabilities by education and accommodation so that they may fully participate in society is modest compared to the social or human cost of vast numbers of people with disabilities being deprived of education, employment, and other basic human rights. Given the statistics on employee retention and entrepreneurship, there is in fact a positive economic case for encouraging people with disabilities to fully participate.
Just the beginning of a long road ahead - To a Fairer World -
Disability is not a dividing line between an “us” on the one hand, and a “they” on the other hand. In truth, every one of us will spend a significant part of our life living with disabilities of one kind or another, through accidents, illness and disease, or simply through the natural process of ageing. When each of us becomes ill or old, the principles of equal opportunities are there for our own benefit. It is for our own good that we want to implement the Convention and make it work.
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There is much work to be done then simply signing and ratifying the Convention. In the course of putting in place local legislation and thereafter, there will likely to be difficult tasks to be completed. A country may need to review its existing laws, programmes and policies to ensure compatibility with the inclusive nature of the Convention. Given the diversity of people with disability, there may be tension between inclusion on the one hand and the need for effective resource allocation on the other. In order to properly resolve such tension, comprehensive data and statistic should be collected and objective criteria be developed to make appropriate decisions in resource allocation. There may be difficult judgments to be made case by case in applying local legislation.
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There are challenges ahead. Nevertheless, the challenges ahead should be the occasions for us all to strengthen our resolve in effectively implementing the Convention and in protecting and fulfilling the rights of people with disabilities.
Equal Opportunities Commission
Hong Kong
[1] On 25 August 2006 in the 8th Session of the UN General Assembly Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities
[2] Article 45 of the third revised text at http://www.un.org/esa/socdev/enable/documents/ahc8docs/thirdrevisedtext.doc
[3] http://www.un.org/disabilities/convention/about.shtml
[4] http://www.un.org/esa/socdev/enable/draftudpow.htm, Draft Convention on the Rights of Persons with Disabilities - Drafting Committee, 9 October 2006
[5] http://www.un.org/disabilities/convention/facts.shtml
[6] In the UK, 75 per cent of the companies of the FTSE 100 index on the London Stock Exchange do not meet basic levels of web accessibility, thus missing out on more than $147 million in revenue, according to facts published by the UN (see note 2 above)
[7] The third revised text at http://www.un.org/esa/socdev/enable/documents/ahc8docs/thirdrevisedtext.doc
[10] ibid, paragraph (e) of the Preamble
[11] ibid, see paragraph (i) of the Preamble and Article 2 which defines discrimination on the basis of disability by reference to any distinction, exclusion or restriction on the basis of disability
[12] The third revised text at http://www.un.org/esa/socdev/enable/documents/ahc8docs/thirdrevisedtext.doc
[13] http://www.un.org/News/briefings/docs//2006/disability_pc.doc.htm