A legal view of the
UN Convention on the Rights of Persons with Disabilities
by Raffaello Belli
Summary
IMMEDIATELY BINDING POINTS ............................................................................................................................. 1
THE ROLE OF COURTS .......................................................................................................................................................... 1
BASIC FREEEDOMS ............................................................................................................................................................... 2
CHILDREN ........................................................................................................................................................................... 2
EDUCATION .......................................................................................................................................................................... 2
SOCIAL MODEL .................................................................................................................................................................... 2
DISCRIMINATION .................................................................................................................................................................. 3
Bad parts ............................................................................................................................................................................. 3
SELFDETERMINATION........................................................................................................................................................... 3
TO CONSULT DISABLED PEOPLE ............................................................................................................................................ 4
TO BE DISCUSSED ......................................................................................................................................................... 4
REASONABLE ACCOMMODATION ......................................................................................................................................... 4
THE MAXIMUM OF ITS AVAILABLE RESOURCES ..................................................................................................................... 5
AWARENESS-RAISING ........................................................................................................................................................... 5
INDEPENDENT LIVING .......................................................................................................................................................... 5
EQUAL REMUNERATION ....................................................................................................................................................... 6
PREGIUDICE ................................................................................................................................................................... 6
DIVERSITY ........................................................................................................................................................................... 6
BAD PROBLEMS ............................................................................................................................................................ 7
AFFIRMATIVE ACTIONS ........................................................................................................................................................ 7
A LAW TO BE PASSED ............................................................................................................................................................ 7
In my opinion there are too many hopes as regards UN Convention on disabled persons.
As regards some items the Conventions can be helpful, but it is very different as regards
some other items.
When we discuss law and disability the main problem is that most disabled people have no
opportunity to enjoy basic freedoms. And Independent Living is a matter of basic freedoms
mainly. I mean it is not a human life if one has not the self-determination in his/her life.
This is the reason it is essential to discuss which parts of the UN Convention on disabled
people are immediately binding for authorities of States Parties. When the Convention is
not binding, State Parties can choose when enforce it and it can take many years.
Immediately binding points
The role of courts
In the article 4, paragraph 1 there is:
(b) To take all appropriate measures, including legislation, to modify or abolish existing
laws, regulations, customs and practices that constitute discrimination against persons with
disabilities;
It is clear that we have to wait for parliaments take all appropriate measures against
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discrimination of disabled people. But it is sure that courts may immediately stop some
discriminations.
Moreover in the same article 4 paragraph 4 of the Convention there is:
(d) To refrain from engaging in any act or practice that is inconsistent with the present
Convention and to ensure that public authorities and institutions act in conformity with the
present Convention;
According to Italian Constitution it means that constitutional (or supreme) courts shall
annul laws which break the Convention. And ordinary courts shall not enforce those laws
which break the Convention.
These points work immediately and it can be powerful to force politicians to work
more to overcome disability discrimination.
For example according to the Convention disabled children have to attend ordinary
schools. In Italy we are lucky as we have no special schools now. But, if an Italian law
should force disabled children to attend special schools, the constitutional court could
annul such a law because it would break the Convention.
Basic freeedoms
In several parts of the Convention it is declared “the full and equal enjoyment of all human
rights and fundamental freedoms”. It is immediately binding for States Parties.
It is important that any disabled person has the right to enjoy all the human rights and
basic freedoms. It is important to combat prejudice especially. And it is important to be
aware that prejudice is the basis of disability.
Children
In the article 7, paragraph 3 it is declared that “children with disabilities have the right to
express their views freely on all matters affecting them”.
It is immediately binding for States Parties. It is very important to educate children in selfdetermination and independent living.
Education
In the article 27 it is clearly stated that the full integration of disabled children in ordinary
school is important. It is very important that the Convention makes this declaration against
special and segregated education. This can be important for independence of disabled
people because it is essential to know some independence when one is a child.
Social model
In the Preamble of the Convention:
(e) Recognizing that disability is an evolving concept and that disability results from the
interaction between persons with impairments and attitudinal and environmental barriers
that hinders their full and effective participation in society on an equal basis with others
It means that in the Convention the social model of disability is recognized and accepted.
As a consequence the States Parties recognize and accept the social model. It is a big
cultural and social revolution.
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It is very important especially because it reverses the way of looking at disability. And it
immediately binds both the parliament and courts. It means that the parliament has to take
into account the social model when it passes a new law on disability. In Italy at least, if the
parliament does not follow the social model, the law may be annulled by constitutional (or
supreme) court. If the Parliament pass a law where disability is approached according to
the medical model, any disabled person can sue the Court.
Moreover, it often happens that more interpretations of a law are available: when it
happens the court has to adopt that one which is in keeping with the social model. This
can change a lot because impairment is no more an individual's fault and it increases
equality. And authorities are due to take a different approach to disability.
Discrimination
In many parts the Convention it deals with discrimination against disable people. It begins
with the point (h) of the Preamble and it continues in some other articles.
First of all the Convention recognizes that there are discriminations against disable people.
It means that the parliament has to take into account this discrimination when new
legislation on disability is passed. Moreover any court has to take into account this
discrimination when it has to interpret a law. It can be important because it will often
happen that courts have to adopt decisions which are more favourable to disabled people.
In Italy, if the parliament or a court do not take into account this discrimination, the
constitutional (or supreme) court may annul both the law and the sentence.
The article 5, paragraph 1, also deals with non discrimination and it is immediately
enforceable by courts.
We know that “equal opportunities” is a weak concept of equality. On the contrary “equal
benefit” is a strong concept of equality. In the Convention there is “equal protection and
equal benefit”: it is a strong concept of equality. The problem is that for people with a
severe disability it cannot be enough equal opportunities. It often happens it is essential to
have benefits enough to enjoy basic freedoms because equal opportunities are not
enough to allow the same life style as non disabled people.
Bad parts
As regards the non discrimination of disabled people, in the Convention there are some
points which puzzle. First of all the article 2, paragraph 1, sub paragraph 3: it looks as if
there is discrimination only when “human rights and fundamental freedoms” are broken. It
is not good at all.
For example, according to the Italian law against discrimination of disabled people (law no.
67
of
2006,
http://www.ittig.cnr.it/BancheDatiGuide/Disabilita/LawNo67of1March2006.html), we have a
discrimination if there is a less favourable treatment or the disabled person is put in a
disadvantaged position. I mean that in Italy, when there is a discrimination against disabled
people, it is illegal regardless of the reason of the discrimination.
On the contrary the discrimination into the Convention only works when there is a violation
of human rights or basic freedoms. It means that, according to the Convention, if a
disabled person is discriminated against, it is illegal only if the discrimination is due to a
violation of human rights or basic freedoms. On the contrary, if the discrimination is due to
a different reason, the discrimination is ok. The Italian law seems to be a step forward in
respect of the UN Convention.
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In the article 5 of the Convention there is no definition of what discrimination is. It seems to
confirm the Preamble, point (c).
Moreover there is nothing about indirect discrimination. Discrimination is indirect when
it does not depend upon the will of another person. The discrimination is indirect when it is
due to a lack in a rule or in a person's attitude. This lack in the Convention is very bad.
And it is correct to say that the article 5, paragraph 1, is immediately enforceable by
courts. But it is only enforceable within the limits of paragraphs 2 and 3 of the same article.
That is, we have to wait for States Parties to adopt some laws to eliminate this
discrimination. And the Convention says nothing about the time limit within which they
have to adopt those laws.
Selfdetermination
In some points of the Convention for disabled people there is “the freedom to make their
own choices”. It is very important both because in most of the world disabled people have
not this freedom and because it is essential to live independently.
To consult disabled people
The article 4, paragraph 3 states that:
......... States Parties shall closely consult with and actively involve persons with disabilities,
including children with disabilities, through their representative organizations.
It is clear that it works for the future, but it works immediately too. And courts have to
enforce it immediately.
It means that any decision regarding disability is not valid if it is taken without disabled
people and it can be annulled by a court.
It is clear this rule can not produce any good result in itself. That is authorities may take
decisions which are different from disabled people's advice. Or authorities can avoid taking
any decision because they should consult disabled people. Or disabled people have not
enough awareness to give good advice.
But authorities are forced to consult disabled people and it can produce positive results if
disabled people are able to increase their awareness of themselves.
This point can be important to realise “nothing without us”.
To be discussed
Some points of the Convention are to be discussed.
Reasonable accommodation
In the article 2 paragraph 1 subparagraph 3 there is:
Reasonable accommodation” means necessary and appropriate modification and
adjustments not imposing a disproportionate or undue burden, where needed in a particular
case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis
with others of all human rights and fundamental freedoms
In the article 5 paragraph 3 there is:
In order to promote equality and eliminate discrimination, States Parties shall take all
appropriate steps to ensure that reasonable accommodation is provided
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It usually happens that many people are satisfied with the concept of “reasonable
accommodation”. I am not satisfied with this concept. It has to be discussed.
I agree with this concept when it is a matter of quality of life or when “reasonable
accommodation” is satisfying for disabled people
When we deal with disability it often happens it is not a matter of quality of life. It is a
matter of basic freedoms or inviolable rights. In this area we cannot be satisfied with
“reasonable accommodation” only. When it is necessary any accommodation has to be
provided even if its cost is not reasonable.
For example a father will organize holidays for his son only if the cost of the holidays is
reasonable with respect to family's finances.
Or we can think of a child going to primary school in need a very important drug. His father
will make any effort to pay for it, even if it means going to the border of family's finances.
This is a basic difference in human life. And it works as regards disability too.
We have the basic right to independent living even if it costs a lot.
The maximum of its available resources
The article 4, paragraph 2 states that:
............... each State Party undertakes to take measures to the maximum of its available
resources .........
This point should be discussed thoroughly because many questions are involved.
Nevertheless we can say that most of European States are far from allocating the
maximum of their available resources to disability. It is very easy to understand this point. It
can be difficult to prove it in front of the court. But this point is immediately enforceable.
And courts may annul decisions of authorities when it is proved that this point of the
Convention is broken.
We can invoke this point of the Convention to urge Governments to allocate more
funds for disabled people.
Awareness-raising
The article 8 entirely is on awareness-raising towards disabled people. But in the
Convention there is nothing about awareness-raising of disabled people into themselves. It
means that there is a low awareness of disabled people participating in the committee
which prepared the Convention.
It is a big lack of the Convention. The main problem of disability is that most of
disabled people have a wrong awareness of themselves. Of course it is not their fault.
It is bad awareness because of a wrong social attitude. But it will not possible to really fight
against disability until all disabled people have the right awareness of their situation. The
silence of the Convention on this point is a sentence against disabled people.
Independent living
This item mainly is in the article 19.
First of all in the paragraph 1: “States Parties ....... recognize ........” some freedoms. This is
the same legal question of the Preamble point (n). That is, when a court has to decide
among different interpretations of a law, it has to choose that one which goes into the way
of more freedom for disabled people. This point of the Convention works immediately.
In the same way, when they discuss a new law on disability, members of parliaments have
to pass those decisions which improve freedom and independence for disabled people. If
they do not make it the law will be annulled by constitutional (or supreme) court.
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Nevertheless we see some problems when the Convention faces affirmative actions for
freedom of disabled people.
In the article 19, paragraph 1, there is “full enjoyment ........ full inclusion”. But the
Convention is not enough as regards these very important points because in the
Convention these points are “facilitated”. We need to read that they are “ensured”.
It will be only ensured to disabled people what is listed in the points (a), (b) and (c) of this
article. This is a big limit of the Convention because we are discussing of basic freedoms
and human rights.
In the article 19, paragraph 1:
(a) Persons with disabilities have the opportunity to choose their place of residence and
where and with whom they live on an equal basis with others and are not obliged to live in a
particular living arrangement;
It means that States Parties have to ensure to disabled people the opportunity to choose
where and with whom to live. But it will only work if States Parties take decisions. And it will
be possible to sue the court, if these decisions will not ensure freedoms for disabled
people. But it is not possible to sue the court now. It will be possible to sue the court when
the States Parties will have adopted decisions.
In the article 19, paragraph 1, there is:
(b) Persons with disabilities have access to a range of in-home, residential and other
community support services, including personal assistance necessary to support living and
inclusion in the community, and to prevent isolation or segregation from the community;
In this paragraph it is stated “have access” instead of “shall have access”. It is remarkable
because it is sure it has an immediate value.
Moreover there are few words on personal assistance. But there are just few words:

these words are put together with some others “facilities” which are the far from
independent living. The look is that there is not the awareness for the importance of
personal assistance for independent living;

there is nothing about direct payments;

personal assistance is recognized as a legal right. We have to stress this is a legal
right. Unfortunately this legal right is not recognized circumlocution.
In the article 19, paragraph 1, there is:
(c) Community services and facilities for the general population are available on an equal
basis to persons with disabilities and are responsive to their needs.
This point is important because it is essential to make life easer in order to have the
opportunity to live independent. This also is essential to make independent living cheaper.
Equal remuneration
In the article 27, paragraph 1:
b) ..... “equal remuneration for work of equal value”
Indeed it looks very dangerous. The problem is that many disabled people are not as
productive as non disabled people. One could say that they have to receive less
remuneration. This is a disaster for independent living .
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Prejudice
The Convention is full of plenty of compromises. As a consequence some points of the
Convention are not good.
Diversity
In the Preamble there is:
(i) Recognizing further the diversity of persons with disabilities
In this point there is a lot of prejudice against disable people. It shows the incapacities to
understand what disability is. And the incapacity to understand the social model of
disability.
The problem is that every human being is different from each other. Any animals are
different from each other. Any flower is different from the other. And we are lucky that there
are some differences among living beings.
Disability exists not because we are different human beings. Disability exists because
some differences are differently evaluated in this society. For example I have some
difficulties in walking and it is a disability in this society. But, according to my point of view,
there are more “disabilities” in those “able-bodied” people who spend their holidays to
watch tv or who think that Mr. Berlusconi is a good prime minister.
Bad problems
Affirmative actions
When we discuss disability law we meet a big problem.
No disabled people can enjoy basic freedoms unless it is forbidden by a law. Moreover, if
the law breaks the constitution (or some international convention) there is a court (the
constitutional court or the supreme court) which may annul the law.
On the contrary disabled people can enjoy basic freedoms only if the parliament (national
or regional) passes one or more laws on affirmative actions for disabled people with the
allocation of enough funds. Moreover, if the parliament does not pass any law on this
item, no court obliges the parliament to pass a law. I mean that no court may send
police or army to arrest members of parliament because they do not pass a law.
In fact it means that basic freedoms of disabled people have no legal protection if the
parliament does not pass enough legislation. As I know no legal system is able to solve
this basic problem properly. And the UN Convention on disabled people cannot solve this
problem.
This is the basic reason because disabled people are inferior people according to the legal
point of view. Of course we are not inferior- It means that we are forced to live as inferior
people.
A law to be passed
Unfortunately there is the big problem as regards this point.
Most of disabled people will be able to enjoy basic freedoms only if parliament passes
some legislation for this purpose.
Nevertheless this point can be important for some reasons.
First of all the Convention says to parliaments what they have to pass. And they do not
work properly if they do not pass this legislation.
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Moreover, in Italy at least, constitutional (or supreme) courts shall annul laws which break
the Convention.
Last but not the least courts shall adopt those interpretations of laws which allow the
enforcement of the Convention.
The problem is that in many countries there are plenty of rules and facts which
discriminate against disabled people. Many lawyers would be necessary to ask
courts to enforce the Convention. But we have not enough money to pay hundreds
of lawyers.
Moreover in some counties it happens that basic rules are not widely enforced.
It is not considered the role of court to solve disability discrimination. A big social
change is necessary.
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