Disability has been defined as an evolving concept; the UNCRPD recognises the social definition, rather than the medical definition of disability, which holds that full and effective participation of disabled persons in society can only occur if barriers are removed. The definitions of accessibility (taking appropriate measures to ensure access, on an equal basis, to all members of society) is based on that of disability.
The scope of Information and Communication Technologies (ICTs) has been defined in Articles 9 and 21, and the Convention has defined core concepts like communication, assistive technologies, universal design, and reasonable accommodation; these have been discussed in detail in this section.
The definition of Disability can be found in Paragraph (e) of the preamble of the Convention: “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”. Article 1 further specifies that: “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”.
This definition constitutes the legal foundation of Accessibility Rights:
- It confirms the abandonment of the traditional “medical” definition of disability which focused exclusively on a person’s impairment;
- It clearly establishes the “social” definition of disability which results from the interaction between persons with impairments and attitudinal and environmental barriers, a notion that emerged in the later part of the 20th century;
- It affirms that the full and effective participation of disabled persons in society can only occur if those barriers are removed;
- Accessibility Rights, including to Information and Communication Technologies, are established to ensure that persons with disabilities enjoy a “full and effective participation in society on an equal basis with others” and become an integral part of Human Rights.
Consistent with the above definition of disability, the Preamble of the Convention includes the following initial consideration (v): “Recognizing the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms”.
- Accessibility is affirmed by Article 3 as one of the eight general principles of the Convention:
“The principles of the present Convention shall be:
(a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
(c) Full and effective participation and inclusion in society;
(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
(e) Equality of opportunity;
(g) Equality between men and women;
(h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities”.
- Accessibility is covered by Article 9 which specifies in its first paragraph: “To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems”…
- The terms “Accessibility” and “Accessible” are mentioned respectively 9 and 17 times in the text of the Convention, the vast majority of those occurrences in articles covering specific provisions by application areas, which are covered in the following sections.
Furthering the definition of accessibility including ICTs, “Communication” is defined by the Convention as including all possible means of communications that may eliminate barriers: “Communication” includes languages, display of text, Braille, tactile communication, large print, accessible multimedia as well as written, audio, plain-language, human-reader and augmentative and alternative modes, means and formats of communication, including accessible information and communications technologies” (Article 2).
Scope of Information and Communications Technologies
Although the Convention includes seven references to Information and Communications Technologies, the most relevant article to ascertain the meaning of Information and Communications Technologies is Article 9 on Accessibility which states: “information and communications, including information and communications technologies and systems”. This definition implies that information and content, communication as defined above, and systems – i.e. hardware and software including human interfaces, all need to be accessible.
Furthermore, Article 9 on Accessibility specifies:
- “These measures shall include the identification and elimination of obstacles and barriers to accessibility, and shall apply to … Information, communications and other services, including electronic services and emergency services” (1.b).
- “States Parties shall also take appropriate measures to:
o Promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information; (2.f)
o Promote access for persons with disabilities to new information and communications technologies and systems, including the Internet (2.g)
In addition, Article 21 on Freedom of Expression and Opinion, and access to information” specifically covers communication and contents in the context of ICTs, mass media and the Internet:
“States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice, as defined in Article 2 of the present Convention, including by:
(a) Providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost;
(b) Accepting and facilitating the use of sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions;
(c) Urging private entities that provide services to the general public, including through the Internet, to provide information and services in accessible and usable formats for persons with disabilities;
(d) Encouraging the mass media, including providers of information through the Internet, to make their services accessible to persons with disabilities;
(e) Recognizing and promoting the use of sign languages."
Product Development and Universal Design
The Convention addresses explicitly the root cause of the inaccessibility of many products and services by stipulating that States Parties should “Promote the design, development, production and distribution of accessible information and communications technologies and systems at an early stage, so that these technologies and systems become accessible at minimum cost.” This disposition naturally applies to all private sector products and services as well as to public services relying on ICT devices, applications or contents interacting with citizens.
Furthermore, the Convention includes a guideline for States Parties to “undertake or promote research and development of universally designed goods, services, equipment and facilities...which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines.”
Assistive Technologies (AT) are extensively covered by the Convention:
- In its definition of Universal Design, the Convention specifies that “Universal Design shall not exclude assistive devices for particular groups of persons with disabilities where this is needed.” This clearly establishes assistive technologies as a distinct category which should be promoted in addition to pursuing all forms of ICT accessibility (Article 4.f).
- It also requires States Parties “To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost” (Article 4.g), hereby re-enforcing the notion that special policies and programs should be developed in support of assistive technologies in addition to promoting accessible ICTs. This disposition justifies the implementation by States of public-private partnerships in support of Research and Development.
Three articles further cover Assistive Technologies in specific application areas:
o Article 20 (b) on Mobility specifies that States Parties shall “Facilitate access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost."
o. Article 26.3 on Habilitation and Rehabilitation mandates that “States Parties shall promote the availability, knowledge and use of assistive devices and technologies, designed for persons with disabilities, as they relate to habilitation and rehabilitation.”
o Article 29.a (ii) on Participation in Political and Public life seeks to “Protect the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate.”
o Finally, Article 32 (d) on International Cooperation encourages States Parties to provide, “as appropriate, technical and economic assistance, including by facilitating access to and sharing of accessible and assistive technologes, and through the transfer of technologies.”
“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.”
What constitutes “Reasonable Accommodation” has been the subject of much debate and controversy in those countries which have included similar definitions in their existing legislation such as the United States or the United Kingdom. With this background in mind, the Ad Hoc Preparatory Committee for the Convention included in its text several important dispositions affirming and detailing several areas of applicability of the notion of “Reasonable accommodation,” which relate directly to ICT accessibility and Assistive Technologies:
• Denial of "Reasonable accommodation" is a form of discrimination: “Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation" (Article 2.3).
• As a result, Article 5 on Equality and Non-Discrimination stipulates that: “In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.”
• Specific areas of applicability underlined by the Convention include:
o Liberty and Security of the Person (Article 14)
o Education (Article 24)
o Work and Employment (Article 27)
Article 24 on Education covers a number of requirements which cover ICT and assistive technologies such as “Facilitating the learning of Braille, alternative script, augmentative and alternative modes, means and formats of communication and orientation and mobility skills, and facilitating peer support and mentoring” (24.3.a) or ensuring the appropriate training of teachers: “Such training shall incorporate disability awareness and the use of appropriate augmentative and alternative modes, means and formats of communication, educational techniques and materials to support persons with disabilities” (24.4). These detailed dispositions demonstrate the level of “reasonable accommodation” expected in education.
Long term, what constitutes “reasonable accommodation” in other areas and specifically for the workplace will likely be influenced by shared good practices serving as benchmarks among employers from both the public and private sectors. The inclusion in this Toolkit of case studies and good practices is intended in part to serve as references for “reasonable accommodation” involving ICT solutions.