REGARDING A NEW INTERNATIONAL HUMAN RIGHTS CONVENTION FOR PERSONS WITH DISABILITIES
Japan National Assembly of Disabled Peoples’ International
1. Why Japanese persons with disabilities demand for a convention on the rights of persons with disabilities
(1) All over the world, persons with disabilities experience discrimination and abuse in many domains. Japan is not an exception, though, in Japanese law, discrimination is neither defined, nor prohibited. In Japan, discrimination as such is not illegal, and therefore is not protected under law.
(2) Actions taken on the basis of existing conventions and their limits
On the basis of existing international conventions, DPI Japanese Assembly has submitted a counter-report to “Government Report on the International Covenant on Civil and Political Rights” and “Government Report the International Covenant on Economic, Social and Cultural Rights”. Consequently, the Japanese Government has been recommended to enact a comprehensive legislation prohibiting all forms of discrimination. Though, this recommendation has not sufficed to improve the Japanese situation on disability. This clearly shows that existing conventions have limits to solve the Japanese situation on disability.
(3) DPI-Japan has taken numbers of actions to promote the human rights of persons with disabilities since its foundation in 1986. Followings are recent practices:
- In 1998, DPI-Japan submitted "Counter Report of the Report of the Japanese Government Made at the 64th session of the Human Rights Committee.” At the Committee, following some points of this counter report done by DPI-Japan, the Japanese Government was recommended to consider the compensation for the women with disabilities who were sterilized (removal of wombs and so forth) without any consent.
- In 2001, DPI-Japan submitted "Counter Report of the Report of the Japanese Government Made at the 26th Session of the Extraordinary Session of the Committee on Economic, Social and Cultural Rights, Geneva, 13-31 August 2001.” At the Committee, following the counter report of DPI-Japan, Japanese government was recommended to consider the rights of patients and the enactment of anti-discrimination legislation. DPI-Japan understands "the rights of patients” includes those of persons with psychiatric disabilities as DPI-Japan mentioned in its counter report.
- In 2002, DPI-Japan organized a project team to work on anti-discrimination legislation for persons with disabilities. In October 2002, the Team announced the outline of DPI-Japan’s proposal on the anti-discrimination law for persons with disabilities.
2. What for a convention is needed
(1) Persons with disabilities are said to be as much as 600 millions throughout the world. In economically developed countries as in developing countries, persons with disabilities have been excluded from the social system of their country. As a consequence, they are experiencing discrimination in political, economical and social spheres, and endure a living culturally and economically inferior to standards to which their non-disabled compatriots are entitled. Though, countries where discrimination against persons with disabilities is prohibited, and where domestic law provides for a social protection enabling persons with disabilities to autonomy, are rare, and even in such countries, national legislation are hardly effective.
(2) Given the present world situation, the only way to solve disability-related problems is to ratify a convention that (1) prohibits all forms of discrimination against persons with disabilities, so as to eradicate discrimination itself, and (2) sets an obligation for State Parties to take social measures providing access to national living standards so as to guarantee persons with disabilities with normalization. Despite some parts of existing conventions already prohibit discrimination against persons with disabilities, these have not been specifically designed for the disabled, and further more, they provide only for a partial protection. There is therefore a need for a convention that is specific to disability-related problems and comprehensive.
(3) Consequently, the convention shall provide for, firstly, civil and political rights of persons with disabilities which are the consequences of the prohibition of discrimination against them (the human rights model), and secondly, a social protection scheme to guarantee the civil and political rights of persons with disabilities that should be taken by State Parties(the social development model). The implementation of this second part of the Convention concerning social protection depends on the State Party’s national legislation. Yet, it is essential that the Convention determine the social protection scheme to be followed by the State Parties, set as a minimum requirement that social measures shall not violate the civil rights of persons with disabilities, and provide for the standard that the living conditions of persons with disabilities within their respective local communities shall be determined according to particular needs.
(4) Synergy between human rights and social development
Arguably, human rights cannot be promoted, unless social protection improves. However, what is pointed out here is that, because of the disabilities, persons with disabilities are not given access to existing social opportunities, system, resources and wealth. To put it in other words, this is not a question of how to distribute existing resources equitably. This is why the convention shall be two-fold. The core of the convention shall be the prohibition of all forms of discrimination against persons with disabilities, and the civil and political rights that derives from this prohibition, but the convention shall also provides for an obligation to protect social rights so as to promote these civil and political rights. Naturally, given the large disparities observed among countries, international cooperation concerning social development will be necessary.
3. Elements of the convention
Part I General Provisions
Chapter I General Rules
1. Definition of "disability”
For the purposes of this Convention, "disability” shall mean difficulties experienced, due to a social environment requiring some degree of ability and specific skills, without taking into account individual particularities related to, inter alia, injury or sickness.
2. Definition of "persons with disabilities”
(1) For the purposes of this Convention, "persons with disabilities” shall mean people who are in such a situation, that they experience, or might experience, difficulties in living, due to a long-term, temporary or future disability. "Persons with disabilities” shall mean people in such a situation that they are disadvantaged if compared to non-persons with disabilities, unless the environment undergoes adaptation measures to their disabilities.
(2) For the purposes of this Convention, "persons with disabilities” shall mean people having in the past experienced "disabilities” as defined at paragraph 1, or considered as experiencing "disabilities”.
3. Definition of "discrimination against persons with disabilities”
(1) For the purposes of this Convention, "discrimination against persons with disabilities” shall mean situations, in a political, economical, social, cultural or any other context related to living conditions, and in which, people’s right to equal access to social life is denied or limited, because of their physical or psychological particularities.
(2) "Unintentional discrimination” shall be considered as "discrimination” as defined in aliened 1.
For the purposes of this Convention, "unintentional discrimination” shall mean situations in which, due to ignorance, incomprehension or prejudice against persons with disabilities, administrative services, public or private sectors, or individual deny actual violations of the rights of persons with disabilities, or, in which the specific needs related to a disability are not given adequate consideration, and as a result persons with disabilities are disadvantaged or suffers from ill-treatment.
4. Definition of "ill-treatment”
Are constitutive of an "ill-treatment”, abuse, neglect and financial exploitation. Abuse includes physical, sexual and psychological abuse. Neglect includes care-neglect and medical neglect.
5. Protection of the right of self-determination
All persons with disabilities have the right to be provided for the appropriate information, to make choices and to take decisions of their own, concerning their own living. All persons with disabilities have the right not to be subject to any interference, whether at its advantage or disadvantage.
6. Rights concerning language and characters
(1)Sign language shall be regarded as an independent language and, as such, shall be equal to phonetic languages.
(2)People with hearing-disability have the right to make use of sign language whenever they feel it necessary
(3) Braille shall be regarded as one form of writing.
(4) People with visual have the right to make use of Braille.
Chapter 2 Obligations of the State Parties (Measures of domestic implementation)
1. State Parties shall fulfill their obligation to implement immediately the human rights defined in Part II (civil freedoms of persons with disabilities).
2. State Parties shall fulfill their obligation to take measures for the implementation of the human rights defined in Part III (social, economical and cultural rights of persons with disabilities), through legislation and all other means available.
3. State Parties shall establish a national observatory which will survey the actual situation of the rights defined in the present Convention, examine the implementation measures taken by its government, communicate its opinions to it and enhance the implementation of the Convention. State Parties shall ensure participation of persons with disabilities in this observatory at all levels of its organization.
Part II Civil freedoms of persons with disabilities
Chapter 1 Freedom from discrimination
Section 1 Local community life
1. Right to local community life
Persons with disabilities, whatever the kind and the degree of their disabilities, have the right to live within their local community without being discriminated.
2. Prohibition of discrimination related to community life
Discrimination of persons with disabilities concerning their right to (local) community life shall be understood as situations in which persons with disabilities are given a treatment different from the one given to non-persons with disabilities, and shall be prohibited.
Section 2 Movement
1. Right to liberty of movement
Persons with disabilities, whatever the kind and the degree of their disabilities, have the right to liberty of movement.
2. Prohibition of discrimination related to movement
"Discrimination related to movement” shall mean situations in which persons with disabilities are treated differently from non-persons with disabilities, and shall be prohibited.
Section 3 Building environmental
1. Rights as to housing and access to building
Persons with disabilities, whatever the kind and the degree of their disabilities, have equal rights as non- persons with disabilities, in use and residence of house and building without suffering from discrimination based on their disabilities.
2. Prohibition of discrimination as to housing
"Discrimination as to housing and access to building” shall mean situations in which persons with disabilities, irrespective of the identification and the number of the user, are treated differently from non-persons with disabilities, and shall be prohibited.
Section 4 Usage
1. Right to usage
Persons with disabilities, regardless of the nature and seriousness of their disabilities, shall have the right to use services and programs, such as in any forms of products, facilities, benefits, sales, and service trades, without any discrimination on the ground of disabilities, equally with people without disabilities.
2. Prohibition against discrimination in usage
Discrimination against people with disabilities in usage shall be the case that the people with disabilities are treated differently from the people without disabilities, regardless of the identification and the number of the user, and is prohibited.
Section 5 Information and Communication
1. Right to Information and Communication
(1) Persons with disabilities have, by all means, the right to use all kind of information, and the right to express.
(2) Persons with disabilities, in the purpose of using the means under the articles of the general rule 6, have the right to claim a State party and a local government to improve their environments.
2. Prohibition against Discrimination in Information Security and Communication
To limit the rights in the proceeding clause on the ground of disabilities, or to neglect to guarantee the means to fulfill the rights shall be considered as discrimination, and is prohibited.
Section 6 Education
1. Right to Education
(1) Persons with disabilities, in every stage of the lives, have the right to education which includes us with the same generation without disabilities. However, deaf children and blind-deaf children have the right to group education by sign language.
Persons with disabilities are entitled to be supported individually, at any life stage, to be educated as which is mentioned above (1).
2. Prohibition against discrimination in Education
Discrimination against persons with disabilities in education, which is referred to the following, shall be prohibited.
(1) Not to provide, in principle, the opportunity to be educated with the people without disabilities in an inclusive environment.
(2) Not to provide necessary supports on a basis of an individual, such as not providing sign-language education at school for the deaf.
Section 7 Work
1. Right to Work
(1) Persons with disabilities, without any discriminatory treatment, have the right to work in all fields of society.
(2) Persons with disabilities have the right to be provided necessary supports to be employed and to maintain us to be employed, such as work environment and human assistance.
2. Prohibition against Discrimination in the field of Employment
Discrimination against persons with disabilities in the field of work, which is referred to the followings, shall be prohibited.
(1) To refuge the employment or dismissal on the grounds of disabilities.
(2) To give an ill treatment on the basis of disabilities, in respect of working conditions or working environment, in employment, payment, and promotion and so forth.
Section 8 Medical Treatment and Rehabilitation
1. Right to Medical Treatment and Rehabilitation
Persons with disabilities, to maintain their mental and physical conditions good in accordance with their own will and to attain desired daily life and participation in the society, have the right to medical treatment and rehabilitation).
2. Prohibition against Discrimination in the field of Medical Treatment and rehabilitation
It shall be prohibited to discriminate against persons with disabilities in the field of medical treatment, such as denial the existence of persons with disabilities, give a wrongful medical treatment which harms our dignity as an individual, and putting into an isolated environment by force under the name of medical treatment.
Section 9 Birth
1. Right to Birth
(1) Persons with disabilities have the right not to be discriminated in birth.
(2) Unborn children with any form of disabilities at pregnancy or birth have the light to live.
2. Prohibition against Discrimination in Birth
No pregnant person shall be forcibly subjected to medical treatment or inspection with the purpose of eliminating a disability. No person, moreover, shall abort the pregnancy of an unborn child on the basis of a disability.
Section 10 Sexuality
1. Right to sexuality
Persons with disabilities, regardless of the nature and seriousness of disabilities, have the right to be respected as an individual with sexuality in the same way as people without disabilities, the right not to be restricted or forced in any romantic or sexual relationship, and the right to pregnancy and giving birth.
Section 11 Political Participation
1. Right to Political Participation
Persons with disabilities, regardless of the nature and seriousness of disabilities, have the right to political participation in the same way as people without disabilities, without any discrimination based on disabilities.
2. Prohibition against Discrimination in Political Participation
Discrimination against persons with disabilities in political participation shall be the case, regardless of the identification and the number of the user, which the people shall be treated differently from people without disabilities, and is prohibited.
Section 12 Judicial Procedure
1. Right to Judicial Procedure
Persons with disabilities, regardless of the nature and seriousness of disabilities, are guaranteed rights to judicial procedure provided in the positive laws of State Parties, without any discrimination based on disabilities, in the same way as the people without disabilities.
2. Prohibition against Discrimination in Judicial Procedure
Discrimination against persons with disabilities in judicial procedure shall mean that the judicial institutions fail to provide general accommodation and so forth towards the persons with disabilities or that their inherent rights which should maintain their own rights shall be restricted, and is prohibited.
Chapter II Freedom from ill treatment
1. Persons with disabilities have the right to be free from fear of damages to their lives, bodies, properties and spirits caused by ill treatment (abuse, neglect, economic exploitation).
2. All forms of ill treatments against persons with disabilities shall be prohibited.
3. Persons with disabilities have the right to claim judicial and administrative remedies, in the case when they are maltreated.
Part III Social, Economic and Cultural Rights of persons with disabilities
1. State Parties shall confirm that persons with disabilities in their own states have the right to claim measures to ensure them a life with average standard of non-persons with disabilities in the states, in social, economic, cultural, and all other fields of life
2. State Parties shall confirm that the following measures shall not violate the civil liberties of persons with disabilities described in the Part II of the treaty, and that the measures shall be guaranteed positively to ensure a life with average standard of non-persons with disabilities in their states, and shall be implemented.
3. State Parties shall take the following measures (1. guarantee of income, 2. guarantee of care and assistance, 3 guarantee of movement, 4 guarantee of accessible building environment, 5 guarantee of information and communication accessibility, 6 guarantee of inclusive education 7 guarantee of employment, 8 guarantee of appropriate medical treatment and rehabilitation service, 9 guarantee of birth). State Parties shall make persons with disabilities parties participate in any levels in the process of implementation of the measures.
Part ? International Cooperation
State Parties agree to consult and cooperate one another to implement the articles of the convention.
Part V International Measures for Implementation
State Reporting (Details abridged), 2. Individual Communications (Details abridged)
Part VI The Committee of the Elimination of all Forms of Discrimination against Persons with disabilities
The Committee of the Elimination of all Forms of Discrimination against Persons with disabilities shall be established in the purpose of monitoring the situations of the rights relating to the convention in the State Parties, and promoting implementations by the State Parties of the articles (Details abridged).