By Zhao Shukun
Human rights is one of the major issues of common concern to contemporary international society, and is also one of the basic values indispensable to China’s cause of ruling by law. “The Communist Party of China leads the people in undertaking revolution, construction and reform in order to achieve a wide range of freedom, democracy and human rights for all Chinese people . . . China focuses on economic development, promotes comprehensive social progress, adheres to the development of socialist democracy, and is building a socialist country under the rule of law. All of this is to promote the human rights cause of the Chinese people.”1 More and more attention has been paid to human rights protection of specific groups, such as ethnic minorities, women, children, the elderly, and the disabled. On April 13, 2009, the Information Office of the State Council issued the National Human Rights Action Plan (2009-2010), and on June 11, 2012, the National Human Rights Action Plan (2012-2015) was also issued. Both action plans take the article of “protecting minorities, women, children, the elderly and disabled rights” as listed. According to data from the second national handicapped persons sample survey, as of April 1, 2006, the number of disabled people, of all types, in our country reached 82.96 million, or 6.34 percent of the whole population. What are the existing problems related to the rights of persons with disabilities? How to further promote human rights protection for this large group of people? The author will analyze these questions from the perspective of international human rights law.
I. History of Changes in Thinking on Protecting the Disabled
In ancient China, there were a lot of concepts and systems regarding protecting the disabled, objectively leading to the result of improving basic human rights protection for this group of people. But in general, there were obviously historical limitations in protecting the human rights of the disabled. On the one hand, ancient people’s view of the disabled could be called the “theory of individual damage.” In other words, disability was viewed as an individual tragedy or misfortune. In this view, the disabled person was considered to be the victim of his or her own damage. They were cast in a role of misfortune or misery, with extreme dependency and strongly requiring mercy, sympathy and care from others. On the other hand, beginning in the Zhou Dynasty, China developed the concept of respecting Heaven while protecting the people, and the emperor needed to care for all the people under his governance. As the Book of Songs and other books said, only good rulers could be considered to be parents of the people. Confucius also stood by the theory that only those governing people while abiding by the rules of rites and music could be looked upon as parents of the common people. Under these theories, in ancient China, sympathizing with and assisting the disabled was common on the part of both the state and the rulers. However, this ancient way of protecting the disabled on the basis of the family-country social order, though starting from moral obligation and human relations – although it to some extent changed the disabled individual’s miserable life situation – was still a “ruling the country like a family” pattern, in which “reassuring the people” and “feeding the people” were the only core theory. In other words, the ancient way of protecting the disabled was not based on the premise of safeguarding the individual person. It did not recognize their independence, nor did it pay close attention to their subjective initiative and social identity. Thus, there was no concept of equality of the individual between disabled people and others, nor the possibility of real and long-term protection of disabled persons.[page]
Since the modern era, the ancient Chinese system of small countries and kingdoms has been gradually replaced by the nation-state system. Especially in recent years, the emergence of new ideas and patterns of human rights discourse and ruling the country by law has opened up a new perspective for ensuring the human rights of the disabled. On the one hand, human rights theory claims that humans should enjoy rights, which cannot be reduced when a person’s capacity is damaged. Any person, based on his being a person, has the right to enjoy equal selfhood, dignity and rights with others. As a result, there are differences in understanding “disabled” and “personal damage theory”: Disability is an individual physical defect, but it is only a defect of the body; it is not a human difference. “We have to distinguish before the law a person’s capacity and behavioral ability, in which the latter is also recognized as the ability to establish the rights and obligation relations through their own actions. To be recognized as a person’s capacity before the law is essentially linked with the recognition of legal personhood, while behavioral ability is not the inevitable result of admitting legal personhood.”2 Since disability is not damage to human nature, based on the principle of common humanity, each person’s life is unique, and has the same intrinsic value, so that all people are equal in selfhood and dignity, and everyone has the right to be cared for by the society, and has the right to self-development and freedom. 3 On the other hand, for a country under the rule of law using the constitution to emphasize the nation’s respect and protection for human rights, maintaining and protecting the rights of the disabled are undoubtedly a national responsibility. So, protecting the disabled is no longer mercy or benevolence by the rulers but the inherent requirement of legitimacy. Any country or government must be devoted to relief, support and protection of the inalienable rights of the disabled. This protection will not change when the leader changes their focus of governance, and is institutionalized, procedural and standardized. Since the beginning of reform and opening up in 1978, the concept of protecting the rights of the disabled has been mainly set up on the ideological base of the binary structure of person vs. country or rights vs. power. To maintain and safeguard the rights of persons with disabilities is one aspect of the goal of constructing a socialist country under the rule of law.
II. The plight of legal protection of the rights of the disabled
After 30 years of exploration of the rule of law, our country has made great achievements in constructing a system for protecting the rights of persons with disabilities. Before reform and opening up, protection of the rights of the disabled in China mainly depended on policy. Soon after the founding of New China, the1950 Provisional Regulations of Special Treatment and Pensions for Revolutionary Disabled Soldiers and for the Militia Soldiers and Civil Workers stated clearly the provisions for special pensions for wounded and disabled soldiers, migrant workers and the militia. The 1951 Labor Insurance Regulation made it clear that pensions for the retired, the sick and the disabled were included in the social security system. Since 1978, rule by law has gradually played an increasingly important role in the construction of the legal system for the country. Protecting the rights of the disabled has also gradually been realized in a standard system of domestic laws, in which general and special laws, central and local laws, and laws and regulations coordinate with each other and mutually support each other.[page]
Let’s look at the characteristics of this system. First is the mutual coordination between general and special laws. Article 45 of the Chinese Constitution says that “Citizens of the People’s Republic of China have the right to material assistance from the state and society when they are old, ill or disabled. The state develops the social insurance, social relief and medical and health services that are required to enable citizens to enjoy this right. The state and society ensure the livelihood of disabled members of the armed forces, provide pensions to the families of martyrs and give preferential treatment to the families of military personnel. The state and society help make arrangements for the work, livelihood and education of the blind, deaf, mute and other handicapped citizens.” Under the guidance of the Constitution, general laws like the electoral law, military service law, administrative permit law, civil service law, criminal law, general provisions of the civil law, property law, marriage law, inheritance law, labor law, compulsory education law, criminal procedure law, civil procedure law and the administrative procedure law have all included terms for the protection of the rights of persons with disabilities in their provisions. At the same time, special regulations on protecting the rights of persons with disabilities have been developed in a timely way. In 1990, the Standing Committee of the National People’s Congress adopted the Protection Law for the Disabled, and revised it in 2008. The newly revised law made more explicit government responsibility in developing the cause of disabled persons, and defending the rights of the disabled. It further explicitly prohibited discrimination of people with disabilities in education, employment, cultural life, and improved the operability of the law. In addition, the Regulations on Education for the Disabled promulgated in 1994, and the Disabled Employment Ordinance issued in 2007 also belong to this group of special legal documents.
The second is coordination between central and local laws. China’s territory is vast and unbalanced development is one of the most important national conditions. In order to effectively implement the aforementioned central government laws that protect the rights of persons with disabilities, local legislative bodies, in coordination with local realities, have effectively implemented rules and measures, etc., thus constituting a regulation system that coordinates with central laws and regulations. By 2009, seven provincial-level and 20 prefecture-level local special laws and regulations had been formulated or revised to protect disabled people. Disabled federations at all levels have also participated in setting or modifying rules and regulations related to the disabled: 38 at the provincial level and 60 at the city level. Regarding those regulations concerning assisting the disabled, the numbers were nine at the provincial level, 88 at the city level and 484 at the prefecture level. As for policy documents protecting the rights of the disabled, the numbers were 48, 134 and 460, respectively.
The final point is the collaboration between law and policy. Besides the above laws, policies to protect the rights of people with disabilities have also played a huge role. In September 1988, the State Council approved the Five-year Outline for the Cause of the Disabled in China (1988-1992), the Outline of the Eighth Five-year Plan for the Cause of the Disabled in China (1991-1995) was adopted in 1991, the outline of the Ninth Five-year Plan Period was ratified in 1995, and was followed by the tenth (2001-2005) and the eleventh (2006-2010). All these successive outlines promoted the development of rights for the disabled in our country. In March 2008, Opinions on Promoting the Cause of the Disabled in China, issued by both the Central Committee of the CPC and the State Council, put forward the general thought, guiding principles, goals and major measures for promoting and protecting the rights and interests of the disabled. Approved by the State Council in 2009, its Information Office released the National Human Rights Action Plan (2009-2012), and in 2012 released the National Human Rights Action Plan (2012-2015). These both put forward specific requirements and reasonable objectives for the human rights protection of the disabled. In March 2010, the State Council issued the Guiding Opinions about Accelerating the Construction of the Social Security System and Service System for the Disabled. It specified that the basic framework of the social security system and service system for the disabled should be set up by 2015, and certain improvement in the “two systems” should be achieved by 2020, making the disabled able to enjoy basic public services, a minimum standard of living, basic medical and health care and rehabilitation services, with a significant increase in the education level and more employment. On July 11, 2011, the State Council issued the 12th Five-year Plan for the National Basic Public Service System, in which “basic public services for the disabled” was listed in a single chapter. It clarified the major tasks, basic standards and program for providing basic public services to the disabled in the 12th five-year period.[page]
In addition, as early as 1956, China signed the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. In 1987, the International Labor Organization Vocational Rehabilitation and Employment (Disabled Persons) Convention was approved. In 2008, the UN Convention on the Rights of Persons with Disabilities and the International Convention on Economic, Social and Cultural Rights, which concern nondiscrimination and equality for the disabled, were both approved.
Law, however, as a reality stemming from the split between the dominant norms for protecting the rights of the disabled and the practical operational effects of institutional norms, can be considered an impossible-to-ignore dilemma regarding protecting the rights of persons with disabilities. The first is the problem that “there are only laws and regulations but no implementation.” For example, government agencies, social organizations, enterprises and institutions should employ disabled persons in a certain proportion according to regulations related to the employment of disabled persons. In practice, however, many units have suitable positions for the disabled, but do not employ disabled persons according to the proportion specified by law. According to statistics released by the Ministry of Human Resources and Social Security in 2011, in the last five years, 29 provinces, autonomous regions and municipalities directly under the control of the central government only hired 92 disabled people as civil servants in the last five years, and most of these were employed by the disabled persons' federations at all levels. The second problem is that “there are laws and regulations but no relief.” Some problems arise because of the difficulty in determining the main responsibility for infringing the rights of the disabled. Some arise because of lack of applicable laws in judicial practice. Others arise due to overlap or conflict among laws or difficulty in application. For example, accessible facilities cannot be found in many domestic airports; facilities such as wheelchairs and special elevators for the disabled are either damaged or unused; walkways for the blind are crowded with other things; and special toilets for the disabled have been turned into storage rooms. Moreover, equal rights for the disabled in education and in the realm of marriage and family have not been realized as expected. The third problem is that “there are laws, but no foundation.” One situation is that the law lacks a deep cultural foundation. Laws claim, for example, that the disabled have the same dignity as others and enjoy equal rights. But in reality, many people still consider people with disabilities to be “second-class citizens,” and in daily life reject them, discriminate against them or even hurt them. Others, although they are objectively willing and able to be nice to disabled people and to help them, nevertheless, subjectively put themselves in a morally high place. They act kind to disabled people as if they were bestowing grace on them, looking down on them from the height of charity. Another situation is the lack of economic foundation for the law. For example, according to a certain viewpoint, protecting the rights of persons with disabilities is closely related to national economic strength. Only when the country has a developed economy and is financially sound can the objectives of medical care, rehabilitation aid and entertainment and education assistance for the disabled be achieved. Without the support of an economic foundation, good laws are just good looking on paper.[page]
III. Inspiration for Protecting the Rights of the Disabled in the View of International Law
With deeper and deeper involvement of China’s human rights cause in the international community, more useful experience in caring for the disabled should be absorbed from the international community. The Standard Rules for Equal Opportunity for the Disabled, which was passed by the UN General Assembly in 1993, points out that in the late 1960s, some disabled groups in certain countries began to formulate a new concept of the disabled. This new concept showed that restrictions disabled persons encounter are not only closely related to the design and structure of the environment, but are also closely related to people’s attitudes. The 2006 UN Convention on the Rights of Persons with Disabilities emphasizes that disability is an evolving concept, and disability is the interactive effect between the disabled and the attitudes and environmental barriers hindering them from fully and effectively participating in social life on the basis of equality.
Obviously, this new concept of disability has a different concern or focus. The theory of individual damage considers physical disability to be a contingency of fate, or an individual misfortune. However, the new concept regards disability not only as a medical disorder concerning personal capacity, but also a deformity affected by the interaction of public attitudes and environmental barriers. So-called “normal people” first of all is a set of norms established by society, and then a total set of basic norms, organizations and even cultural understanding for running the society designed in line with these “normal standards.” All “abnormal” people not in conformity with “normal” standards or the so-called disabled will surely encounter a series of barriers. Apparently, these barriers are related to physical facilities, however, as soon as the difference between “normal” and “abnormal” becomes solidified in actual practice, it will soon affect the cultural mentality. For example, society takes “being able to hear and see” as the normal standard, and thus literature and art are full of sound and color. So, when a person is blind or deaf, he or she cannot enjoy this literature or art, and will then be labeled as “abnormal” or “disabled.” Here, the reason deaf and blind people are separated out is due to the “normal” view of the public, and the interaction among social environmental barriers formed based on this “normal” view. Thus, international human rights conventions, as exemplified by the Human Rights Convention on People with Disabilities, start to urge people to realize that disability is not merely or primarily a defect of the disabled person’s individual ability. It is instead obstacles to integration into the social environment. The reasons for these obstacles include discrimination by the public and lack of support for the disabled. 4[page]
Since the dimension of society has been introduced into the understanding of “disabled,” the protection of the rights of the disabled has to take the social dimension into consideration. Since “society” materially participated in or helped the formation of the “disabled,” there should be a social dimension added to the thought structure of “power or rights” for the disabled, which was mentioned above. In other words, this thought structure should be changed to “power, society, and rights.” The advantages of this three-part structure are:
On the one hand, the introduction of the “social” dimension would contribute to more detailed study of the social and cultural foundation of the legal system, and the people’s cultural and psychological factors that legal standards are up against. Equality is a modern value and its deepest meaning is individual equality and protecting dignity from infringement. Yet for many Chinese, it is still unfamiliar or not understandable. The Survey Report on Chinese Public Opinion on Human Rights pointed out that “Chinese people’s demand is more for economic and social rights.” It also said that “regarding groups having disreputable jobs or those who were morally disadvantaged, there was less public recognition of their rights.” 5 In reality, many people are more willing to financially help the disabled, but are unable to eliminate the feeling of discrimination against them in their hearts. If the public cannot eliminate discrimination both in attitude and at the psychological level, then actions by the system will vary by time and place and it will be difficult to maintain continuity and predictability.
On the other hand, the introduction of the “social” dimension helps to relieve the pressure on the government to act alone. China’s social structure has long been dubbed as “big government and small society.” Due to late and weak social development, both the government and the nation have played “universal” roles in assuming responsibility in all fields. However, along with the advancement of modern society, “universal” government is hard to realize, and the government cannot take responsibility for everything in society. Those matters that can be managed by the society should be handed to the society. Regarding the protection of the rights of the disabled, if there is no participation by NGOs, social organizations and autonomous groups, the government will not be able to manage everything that has to be done.
This new understanding of international human rights law regarding disability and new ways of thinking based on this understanding no doubt are helpful to the development of China’s cause of protecting the rights of the disabled. It also reminds us at the same time that we should have a more open attitude, with a more international perspective, and promote the cause of rights protection for the disabled by absorbing more good experience in order to see greater progress.
(Zhao Shukun is an associate professor at the Southwest University of Political Science and Law.)
1.Selected Work of Jiang Zemin, Vol. 2, Beijing: People’s Publishing House, 2006.
2.Nowak, Manfred,Comments on Civil Rights Convention(first half), translated by Bi Xiaoqing, Sun Shiyan, Beijing: SDX Joint Publishing Company, 2003, p. 280.
3.Zhang Aining, Protection of Human Rights for the Disabled by International Law, Forum of Politics and Laws, 2010(4), p. 139.
4.Zhang Wanhong, Ding Peng, Protection Situation of Human Rights of the Disabled in China; Li Junru: Development Report of the Cause of Human Rights Protection in China, Social Sciences Academic Press, 2011, p. 408.
5.Zhang Yonghe et al., Survey Report on Chinese Public Opinion of Human Rights; Li Junru, Development Report of the Cause of Human Rights Protection in China, Social Sciences Academic Press, 2013, p. 408.
