The Universal Declaration of Human Rights 1948 (UDHR) was the first clear international declaration of basic human rights for all. It lists the civil, political and economic rights we all have in a single document: the right to life, freedom from torture and slavery, the right to vote, to work, to an adequate standard of living. Fundamental to human rights is the idea that they are available to all without discrimination; all human beings are equal in dignity and rights. The fundamental importance of equal status cannot be overstated. It is there in the first line of the preamble to the UDHR in the recognition of “the inherent dignity and of the equal and inalienable rights of all members of the human family” and again its first two articles:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Of course, it is notable that disability is not mentioned. Nevertheless it could be covered by ‘other status’. The point of human rights is that they began to set down standards about how States could and should treat their citizens and the conditions that States would create for all those within their borders. These human rights standards are based on agreement that all people are of equal status and worth, and everyone deserves to be treated with dignity.
The International Covenants
Whereas the UDHR was declaratory, the twin covenants of 1966: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR) created legal obligations for State Parties, albeit with weak enforcement mechanisms. The ICCPR specifically states that State Parties must prohibit discrimination, but again discrimination is not specified:
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.
The ICESCR, which includes the right to work (article 6), has a similar provision:
The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
The UDHR declares a right to work, which means a right to decent work with decent pay. This is a right for everyone, discrimination is not specifically mentioned because Article 2 makes it clear that all rights within the convention are set forth ‘without distinction of any kind’.
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.
The ICCPR is concerned with Civil and Political Rights. It protects the right to join a trade union as part of the freedom of association (article 22). The right to work, as a social and economic right is contained the ICESCR:
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 living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
2. The steps to be taken by a State Party to the present Covenant 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.
In addition article 7 elaborates on the right to work, specifying the right to “just and favourable terms and conditions of employment” and article 9 provides for the right to social security and social insurance, implicitly for periods of unemployment.
Although all of this sounds very positive it is important to note that social and economic rights do not have to be immediately implemented, instead they should take steps to progressively realise these rights and then they are only obligated in so far as they have sufficient resources to fulfil these obligations. It has been a traditional criticism of Economic and Social rights that they are limited in this way.
UK Employment protection
Since 1995 in the UK people who are disabled have had formal legal protection against discrimination in the workplace and when looking for work. This was provided through the Disability Discrimination Act 1995, which was modelled on the Americans with Disabilities Act of 1990. Both the US and UK statutes includes reasonable accommodation, although the DDA used the term ‘reasonable adjustments’. The DDA has now been replaced by the Equality Act 2010 which consolidates all discrimination legislation under one Act.
The Convention on the Rights of Persons with Disabilities
The CRPD reinforces some of the economic, social and cultural rights contained in the ICESCR, in the context of disability. The optional protocol to the CPRD (OP-CPRD) provides a mechanism for individual complaint, which at the time was absent from the ICESCR. However, on 10 December 2008 the UN adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) which provides similar mechanism for redress and came into force on 5 May 2013. Nevertheless, the OP-CRPD and the CRPD itself have been more extensively ratified than the ICESCR and its protocol. For example the US has not ratified the ICESCR but has ratified the CRPD, although neither protocol. The UK has ratified both conventions but only the protocol to the CRPD. For advocates of social rights the CRPD is a potentially powerful tool.
Human rights language is arguably more empowering, more positive. Emphasis on the right to work, or right to livelihood, emphasises not the discrimination but the importance of occupation for human flourishing. It is a demand for something.