International legal rights of children living with disabilities: The realizations behind country-level implementation

International guidelines paint a relatively clear picture of the legal rights that all children living with disabilities share across the globe. These rights apply regardless of the region in which the child lives. The rights are inherently fundamental. These international human rights standards serve as excellent guidelines for countries looking to adopt and modernize their disability laws.  However, country-level implementation of these international laws on an individual country basis can be arduous even for the most experienced lawyers and human rights advocates. Sometimes changes on a local level take years to come into force, and even then, compliance with international standards may be questionable. However, research proves that economically driven changes in local social work efforts are one possible solution to alleviate these difficulties.

 

If future legislation and social welfare efforts focus on a two-part approach highlighting education for those children living with disabilities and more professional training for their family members, affected families receive an opportunity to become economically self-sufficient. Economic stability improves families lives and acts as one practical step towards reaching social and cultural equality for their children living with disabilities. Research shows that as societies modernize there are increasing options for online special education programs tailored towards children with disabilities, as well as professional development programs geared towards parents. Depending on the available technology, these alternative education methods are available both at home and in the classroom.

 

A human rights instrument with an explicit social development dimension

 

Binding treaties are a significant portion of international law.  The individual countries that sign onto these treaties become member states. These agreements create mandatory duties on all member states that ratify them.  The UN Human Rights Convention on the Rights of Persons with Disabilities entered into force in 2008. The UN describedthe treaty as, “a human rights instrument with an explicit, social development dimension.” The treatyadopted a broad definition of “persons with disabilities” to “include people who have long-term physical, mental, intellectual or sensory impairments which may hold them back from doing things or sharing in society in the same way other people do.”

 

The treaty reinforced ideas that persons living with disabilities must enjoy all the same fundamental freedoms as their fellow citizens. Member states must provide “reasonable accommodation” by implementing “appropriate changes or adjustments that need to be made in order to allow a person with a disability in a particular situation to exercise or enjoy all human rights and freedoms in the same way other people do.”

The treaty “identified areas where adaptations have to be made for persons with disabilities to effectively exercise their rights and also areas where their rights have been violated, and where protection of rights must be reinforced.”

 

To aid this effort the treaty established an optional UN protocol allowing the committee to consider claims on behalf of individuals claiming to be victims of discrimination by member states. Optional protocols often follow international human rights treaties providing procedures that injured parties can follow to file their claims for rights’ infringements.

 

Article four sets out the basic guidelines member states must follow

 

The general obligations set out in Article Four serve as four basic guidelines that member states must follow. First, member states must agree to remove or change laws that discriminate against people with disability. Second, members must consider the rights of people with disabilities when establishing and managing public policies and programs. Third, members must make sure that government officials act consistently with the obligations outlined in the treaty. Finally, considering available resources, the member states must gradually carry out their commitments related to economic, social and cultural rights.  The Convention on the Rights of Persons with Disabilities is important when outlining the specific rights afforded to children living with disabilities. However, one ambiguity exists: the use of the word “gradually” creates some uncertainty regarding the time frame member states must carry out their commitments. This has led to issues with implementation taking longer than expected.

 

Specific legal rights afforded to children living with disabilities

 

The treaty specifically discusses children with disabilities in Article Seven. In summary, the government is responsible for taking steps to ensure that children living with disabilities enjoy the same human rights and decencies as other children. Article Nineof the treaty defined accessibility as, “the right to live independently and take part in all aspects of life.”  Countries must perform research determining which aspects of life are most difficult for the disabled so that the government may remove the barriers and obstacles that those living with disabilities face daily. One focus area containing several barriers for children living with disabilities is education. Barriers include lack of special education teachers and accessible classrooms just to name a few, which makes online and distance-based learning options attractive.

 

Article Nineteen enables children and their families to stay together

 

Article Nineteen requires standards for independent living and community involvement for persons living with disabilities. Under this article, countries must provide access to in-home community support services to help those living with disabilities participate in the community. Ideally this requirement enables children and their families to continue to stay together and not end up in a state-run institution. Article Twenty-four of the Convention requires grade school and high school education for children, and they must give people living with disabilities the same access to these opportunities. Further, countries must provide university, vocational training, and adult education to those living with disabilities. The article requires governments to provide education without any discrimination on the basis of disability. This may require physical and administrative changes to ensure that schools and universities are adequately in compliance with international law.

 

Governments must provide services tailored towards those with disabilities

 

Article Twenty-five of the Convention states that those living with disabilities deserve the same types of free or affordable health care as other citizens. Governments must provide services specifically tailored towards those with disabilities. The article provides a total ban on discrimination on the basis of disability in health care insurance to protect children living with disabilities and their families from undue financial hardship. The article also prohibits medical providers from discriminating on the basis of a disability when providing medical treatment. Finally. the government must provide these health services in close proximity to the person’s community, even if the child and their family are in a rural area.

 

Article Twenty-six covers rehabilitation programs designed to help children living with disabilities develop skills and take part in the community. This article places an affirmative duty on the government to provide and train social workers and counselors on how to reintegrate people living with disabilities back into the community.

 

Application of international convention to domestic law

 

After reviewing the applicable international guidelines, it appears that member states must implement changes to include children with disabilities in areas like education. With such a robust international legal framework providing tangible rights for children living with disabilities and their families, the question becomes focused on how these rights may be implemented on a country-wide basis.  There are two primary methods: legislative practice and application by domestic courts.

 

Oftentimes, politics and resources become entangled

 

A country can legislatively implement changes by direct incorporation of the new rights into the country’s equivalent of its “Bill of Rights.” An alternative method is separately enacting legislative measures in civil, criminal, and administrative codes. Additionally, there are self-executing international legal instruments, which once signed into effect by the member state automatically operates to introduce new rights for citizens. Ideally, disability legislation rises quickly through the country’s legislative branches on its own merits, but often politics and resources become entangled. Oftentimes, legislation can take years to come into force, and children suffer while the bureaucratic process takes its course.

 

With enough judicial action, the other branches may feel pressured to act

 

If legislative action has yet to be effective, there are other ways to influence a country’s disability laws. Individual judges may ensure compliance with international laws by creating precedent in local jurisdictions as new issues arise. With enough judicial action on the court’s behalf, the other branches may feel pressured to act. However, in reality, the success of these methods turns on the willingness of the officials in the positions of authority and decision-making power at that time. It is self-evident that this can pose problems for implementation.

 

Administrative hardships lead to serious, life-threatening issues for the children

 

There are also several non-legal factors that make implementation challenging. These factors include lack of social workers, difficulty adapting Westernized models of social work for use in developing countries, and a lack of training for indigenous development agents with a detrimental reliance instead on imported foreign advisors.

 

Research shows an overall lack of experienced social workers, especially in rural areas. Social workers are essential to performing many of the administrative tasks required by updated legislation. Red tape combined with a lack of overall resources and trained government employees prolongs routine procedures for months or years. Administrative hardships lead to serious, life-threatening issues for children living with disabilities such as food or medicine shortages. These shortages often require private parties to step in and assist. Because countries do not have the necessary financial resources to employ enough social workers to keep up with the administrative workload imposed by updated human rights laws, implementation can lag behind.

 

Westernized models of social work are ineffective in developing countries

 

Also clear is the apparentfailureat “attempts in the past at the mere transplantation of foreign experience and ready-made solutions” in developing countries.  Experts within the field of social work who focus on studying developing countries note that Westernized techniques have consistently failed when implemented across the globe. In his research from “Social Work and the Third World,” scholar S.K. Khindukawrote that universal techniques regarding “social welfare cannot be dissociated from the attitudes and values prevailing in their native environment.”  This quote evidences the need for indigenous development agents who reside in the community and stand to benefit from the decisions made, rather than foreign development agents.

 

More indigenous development agents required

 

Outside help and resources contribute to development, but there is a need for indigenous development agents rather than temporary foreign advisors. The reason is simple. In his article within the Journal of Social Service, Khindukastated that:

 

short- term “diplocrats” invited from a foreign country to aid and advise local officials, leaders, planners, and educators. . .  [D]o not belong to the host country [which] often makes it necessary for them to display a special respect for the practices and institutions of the host society.

 

However, Khindukapointed out thatthe special respect accorded by short term advisors is detrimental. This respect exists “even for those practices and institutions that may have contributed to the economic underdevelopment of that society.”  This issue is a critical distinction because the local development agent has to bear the brunt of the responsibility and face the burden of decisions made, long after the foreign diplocrats have left. Therefore, the local indigenous development agents, social workers and the like, do not need to “put tact before truth.” These indigenous development agents have a long-term stake in the game, and they will hold more influence in the local area than a foreign agent who has short-term interests in mind.

 

Why focus on local social work when analyzing implementation of International Law?

 

There are several reasons why an analysis of local social work efforts proves useful to analyze factors affecting country-level implementation of international legal rights for children living with disabilities. Professor of Law Sara Dillon conducted extensive research on the impact of international legal regimes for success rates of intercountry adoption. More specifically, Dillon researched the role that the UN Convention on the Rights of the Child played on the success of implementation of intercountry adoption laws on a microlevel. She noted in her researchthat:

 

The effects . . . must be examined quite apart from ideological or national analyses. . . [O]nly non-legal studies in the . . . measurable effects of institutionalization can really assist us in determining the degree to which the UNCRC is flawed, or at least inadequate, when it comes to adoption.

 

She proposed that only non-legal studies focusing on statistical data of institutionalization serve to illustrate the effectiveness of the international adoption laws. Dillon studied the country-wide implementations of the rules regarding Intercountry Adoption that followed the enactment of the treaty. Dillon measured their effectiveness by evaluating the children on a microlevel that the rules were meant to protect. Similarly, here, legal studies will be ineffective to weigh the factors affecting implementation of disability laws. More useful to this study would be journals of social work—the reason being that journals of social work are more acutely aware of the statistical data driving social welfare decisions related to disability reform.

 

Juxtaposing Dillon’s findings against Khinduka’s research in social work, evidence suggests that “social gains can come only from economic surplus.” Therefore, “a country’s general economic development is an overriding factor in determining its priorities in welfare.”  Ultimately the conclusion is that “economic development should be viewed as a major and legitimate form of social work practice; and welfare programs likely to contribute to economic development and modernization should receive top priority.” This recommendation is especially true regarding children living with disabilities, as they usually receive some form of government welfare assistance, hence the need for economically minded social work efforts founded on education for children and professional training for their families.

 

Assistance must address the child’s immediate needs as well as his or her long-term needs. Dillon notes in her articleconcerning intercountry adoption that, “expressing commitment to investment in long-term solutions to the problem of abandonment has no logical corollary in disregarding the immediate matter of children presently in institutions.” Similarly here, the point is that assistance needs to address both the child’s immediate and long-term needs. To address both needs a two-pronged approach is best. First, a focus on education will improve the child’s short-term needs by helping them communicate with others and integrate into society. Second, microbusiness efforts like small business loans and vocational training for parents will help solve long-term needs with goals of future financial stability.

 

Distance based education teaches life skills and helps children communicate

 

One of the primary ways to address a child’s best interests is with education. Distance learning for persons with disabilities teaches life skills and helps children communicate. Distance learning can be monumental in giving these children the equal freedoms to which all humans are fundamentally entitled.  A Fordham Law Journal articlediscussed the implications of an Internet-based mental disability program and its impact on social change in nations with developing economies. The reportmentioned the primary difficulty in implementing such a plan was “providing a program that can be meaningfully accessed by persons with disabilities.”  The article discussed the high cost of necessary equipment and highlighted the growing need for community-based services providing assisted technology for persons living with disabilities.

 

The recommendations parallel the requirements set forth by international law. Arguably under a broad reading these requirements not only apply to the children but should also apply to digital training for their family members. This training should be multi-faceted and include training to help family members better assist in the daily needs of the child living with the disability. Training should also help family members provide financial support for their children living with disabilities. The more financially equipped the family members are to assist their children living with disabilities, the better off the child will be both in the short and long term. One hypothesis to achieve this goal is to pair vocational training with government funded microbusiness efforts.

 

Small business opportunities provide assistance the government cannot offer on a continual basis

 

Small business opportunities provide resources and assistance for families that the government is unable to offer on a continual basis. The premise behind microbusinesses for individuals living with disabilities and their families is that they will eventually become self-sufficient. If the family can become self-sufficient and no longer require government assistance, they reduce stress on the country’s welfare system. This reduced stress on the welfare system enables more funding for other expenses and in turn more government workers to handle the administrative burden required to fully implement updated disability laws on local levels.

 

It is the state’s responsibility to provide subsidies to people with disabilities and their families

 

An illustration of this concept is the “Fami Empresas” laws enacted in Panama in 1999 by SENADIS. SENADIS is the Panamanian National Secretariat of Disability, established to facilitate implementation of social policies on disability. Roughly translated to Family Business, Law 42 on the Equalization of Opportunities targeted “the family [that] lacks the resources to meet the needs and rights of any member with a disability.” The law states that “it is the State’s [responsibility], through the relevant agencies, to provide subsidies to those who, because of the nature of the disability, are unable to perform tasks of a remunerative nature.”

 

Specifically, Article 13 set out to “train small families in agricultural, commercial, and service sectors.” This legislation was particularly “aimed at people with disabilities and their families, in order to achieve their insertion to the productive system of the country.” Specifically, this law provides that the governmentof Panama provide a one-week (40 hours) training course to “advise people with disabilities and their families on labor, administrative, managerial and business training techniques, taking into account their natural resources and cultural patterns.”

 

The legislation may be a sustainable model for other countries

 

While it is too early to conclusively determine the effectiveness of these efforts, the Panamanian legislation seems to be a valid and sustainable option for supporting children living with disabilities and their families. The legislation takes a sustainable approach designed to help those with disabilities and their families become economically independent. But since its adoption several groups have criticized the measure for being ineffective.

 

If successfully implemented, similar microbusiness opportunities may help children and their families become self-sufficient in the future. This process reduces the financial strain on local governments, thus reducing the overall workload on local government employees. Additionally, children may have an opportunity to receive a higher standard of private care that often times the government is not able to provide. Therefore, microbusiness opportunities for families with children living with disabilities may effectively facilitate increased rates of success regarding the country-wide implementation of progressive disability rights.

 

Kevin Latshaw
About Kevin Latshaw (3 Articles)
Kevin is a third-year student at the Campbell University School of Law and currently serves as the Editor-In-Chief for the Campbell Law Observer. Originally from Wilmington, North Carolina, Kevin majored in Integrated Marketing Communication and minored in Entrepreneurship at The University of North Carolina Wilmington. Before starting law school, Kevin spent a summer in Washington, DC studying regulatory framework for start-ups at the Duke Law D.C. Summer Institute on Law and Policy. During his second year of law school, Kevin and his co-counsel earned second place in the Richard T. Bowser Intramural Client Counseling Competition. Kevin is active on campus and serves as the President of the Professional Law Student Association, and previously served as Treasurer for the Lambda Law Society. Additionally, he serves as a third-year class Representative for the Student Bar Association and Chair of the SBA Budget Committee. During the summer of his 2L year, Kevin studied International and Comparative Law at the University of Cape Coast, Ghana. When he returned from his travels he served as a legal intern for the U.S. Committee on Refugees and Immigrants. He spent his summer with USCRI working Pro Bono on immigration matters for clients facing deportation and removal. This Fall, Kevin will be a Legal Extern in the General Counsel office of a large corporation in Raleigh, N.C. Kevin has interests in corporate business law as well as international law and relations.
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