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Abstract

María del Carmen Barranco Avilés, Human Rights Institute “Bartolomé de las Casas”, Universidad Carlos III de Madrid. Khalid Al Ali¶ Patricia Cuenca Gómez§ Rafael de Asís Roig§ Pablo Rodríguez del Pozo* § Instituto de Derechos Humanos Bartolomé de las Casas, Universidad Carlos III de Madrid ¶ Qatar University * Division of Medical Ethics, Department of Medicine, Weill Cornell Medicine - Qatar This publication was made possible by the NPRP award NPRP-7-380-5-051 from the Qatar National Research Fund (a member of The Qatar Foundation). The statements made herein are solely the responsibility of the authors. ABSTRACT The Convention of the Rights of Persons with Disabilities (CRPD) is a new paradigm for international law, grounded on the consideration of disability as a human rights issue and on the social model of disability. This new paradigm provides a modification of the kind of public policies used to tackle to disability issues. The CRPD also remarks the indivisibility and interdependence of human rights, putting at stake the long-standing distinction between civil and political rights (traditionally understood as negative rights) on the one hand, and economic, social, and cultural rights (traditionally understood as negative rights on the other. Starting of these general ideas on the CRPD, this paper examines what impact the Convention will have on the Qatar's legislative framework regarding some economic, social, and cultural rights: right to health, right to education, right to employment, and right to an adequate standard of living and social protection. Its intends to analyze how these domains need to be re-evaluated in light of the CRPD: where recent improvements in the rights of persons with disabilities in Qatar can enable compliance and where the greater challenges lie. In the health domain, the positive dimension of the right to health of persons with disabilities does not seem to be a problem in Qatar, the concern (which becomes clear in the case of compulsory admission) is to take into consideration the will of persons with disabilities. In relation to this question, the idea of the indivisibility and interdependence of the rights becomes clear. The main shortcoming in the implementation of the provisions of the CRPD (Article 12) on the right to health in Qatar is the lack of development of the right to equal recognition before the law, thereby securing equal guarantees for consent to health care, not just simply access to health services, for persons with disabilities. Regarding the right to education, Qatar is facing a paradigm shift from a model based on special schools, towards a more inclusive model. However, children with disabilities can still stay outside of the educational system and special education still seems to be the chosen way for persons with intellectual disabilities. A more effective model shift based on inclusive education is needed; to achieve this goal, Qatar already has professionals trained in the more recent advances in educational psychology, such as universal design for learning. It is also important to clarify the educational curriculum from the point of view of diversity, ensuring continuity for persons coming from a special system and providing persons with disabilities tools for vocational training, to achieve the highest levels of education if it is their choice. Qatar's legislation on the right to work of persons with disabilities is anchored in the medical model; for example, the Ministry of Labor and Social Affairs may stop paying the relevant pension if they reject rehabilitation. Qatari law also lacks measures aimed at adapting the workplace to persons who might need particular modifications. The regulation of disability from the specialty perspective is a technical problem, because the applicable legal requirements concerning persons with special needs remain isolated from general regulation. As a result, the system in place regarding access to work also seems not to support the inclusion of persons with disabilities, which is a main goal of the Convention. Any measure to be implemented in favor of persons with disabilities pursuant to labor rules must be tied to general labor law provisions. Qatar seems to have a good level of social protection for persons with disabilities. Nevertheless, from a legal perspective it remains unclear who are considered persons with disabilities in order to qualify for social protection. In addition, most of the services are designed from the specialty perspective. Accordingly, the field of social protection illustrates some of the general shortcomings of this approach, for instance: absence of the social model, the lack of a unified concept of a person with disabilities, absence of participation of persons with disabilities in the design of public policies on disability, or the absence of persons with disabilities in the design of his or her own life plan. According to this analysis, the paper concludes that the main challenges faced by Qatar regarding the implementation of the CRPD in these domains – as in other domains - are related to the adoption of the traditional treatment of disability based on the medical model of disability, the point of view of assistencialism, and the strategy of specialized solutions. Moreover, the shortcomings also have to do with requirements that are far beyond considering these rights specifically as social rights. Although we usually hear the claim that social rights depend upon the economy, Qatar's situation shows how even under good economic conditions these rights can still be ineffective. Usually civil and political rights are deemed to be negative rights, provided with judicial guarantees, whereas economic, social, and cultural rights are considered rights to obtain benefits, the scope of which must be debated and negotiated in the political arena and not within the legal domain. Insofar as they are rights to obtain certain benefits, social rights are expensive, so their effectiveness is subject to the existence of resources. Therefore an argument in favor of differentiating both categories of rights can be made, departing from the analysis of the situation faced by Qatar regarding the implementation of the CRPD. Indeed, persons with disabilities in Qatar face several barriers in order to enforce their social rights. This is due to the prevalence of a legal capacity regime where persons with disabilities are not granted the right to equal recognition before the law and where accessibility is not guaranteed. The long-standing distinction between categories of rights that has placed such rights in different pieces of legislation within the universal protection system does not account for the new scenario where the principle of indivisibility and interdependence has come into play.

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/content/papers/10.5339/qfarc.2018.SSAHPP905
2018-03-15
2019-10-17
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