Foreign Policy and Disability:
Legislative Strategies and Civil Rights Protections to Ensure Inclusion
of People with Disabilities
September 9, 2003
National Council on Disability
1331 F Street, NW, Suite 850
Washington, DC 20004
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Publication date: September 9, 2003
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The views contained in this report do not necessarily
represent those of the Administration as this and all NCD reports
are not subject to the A-19 Executive Branch review process.
National Council on Disability
An independent federal agency working with the President and
Congress to increase the inclusion, independence, and empowerment
of all Americans with disabilities.
September 9, 2003
The President
The White House
Washington, D.C. 20500
Dear Mr. President:
On behalf of the National Council on Disability (NCD),
I am submitting a report entitled Foreign Policy and Disability:
Legislative Strategies and Civil Rights Protections To Ensure Inclusion
of People with Disabilities. This report is a follow-up to NCD’s
1996 Foreign Policy and Disability report that found continued barriers
to access for people with disabilities in U.S. foreign assistance
programs.
In the 1996 report, NCD recommended a series of policy
changes to ensure inclusion of people with disabilities in all foreign
assistance programs, including the establishment of specific objectives
for inclusion with a timetable for their fulfillment. Seven years
later, NCD has concluded that inclusion of people with disabilities
in U.S. foreign policy will be achieved only when specific legislation
is enacted to achieve that purpose. This report reviews a number
of models that Congress has adopted for linking human rights and
foreign policy that can be adapted to ensure the inclusion of people
with disabilities. This report looks primarily at the U.S. Department
of State and the United States Agency for International Development
(USAID). Among the various strategies and approaches to improve
foreign assistance policies and practices, NCD recommends that Congress
amend the Foreign Assistance Act to ensure inclusion of people with
disabilities in all U.S. programs by requiring every U.S. agency
operating abroad to operate in a manner that is accessible and inclusive
of people with disabilities. NCD recommends that this be accomplished
by, among other reforms, amending the Foreign Assistance Act to
create a Disability Advisor at the State Department and creating
an office on Disability and Development at USAID.
NCD also calls on your Administration to recognize
that all U.S. government operations abroad should be brought into
compliance with Section 504 of the Rehabilitation Act and the Americans
with Disabilities Act. The principles of non-discrimination, access,
and inclusion of people with disabilities have been established
as civil rights. The reforms discussed in this report are needed
to ensure that people with disabilities can fully contribute to
U.S. foreign policies and programs abroad as they have done so effectively
at home.
Sincerely,
Lex Frieden
Chairperson
(The same letter of transmittal was sent to the President
Pro Tempore of the U.S. Senate and the Speaker of the U.S. House
of Representatives.)
1331 F Street, NW -- Suite 850 -- Washington, DC 20004
202-272-2004 Voice -- 202-272-2074 TTY -- 202-272-2022 Fax -- www.ncd.gov
National Council on Disability Members and
Staff
Members
Lex Frieden, Chairperson, Texas
Patricia Pound, First Vice Chairperson, Texas
Glenn Anderson, Ph.D., Second Vice Chairperson, Arkansas
Milton Aponte, Florida
Robert R. Davila, Ph.D., New York
Barbara Gillcrist, New Mexico
Graham Hill, Virginia
Joel I. Kahn, Ohio
Young Woo Kang, Ph.D., Indiana
Kathleen Martinez, California
Carol Novak, Florida
Anne M. Rader, New York
Marco Rodriguez, California
David Wenzel, Pennsylvania
Linda Wetters, Ohio
Staff
Ethel D. Briggs, Executive Director
Jeffrey T. Rosen, General Counsel and Director of Policy
Mark S. Quigley, Director of Communications
Allan W. Holland, Chief Financial Officer
Julie Carroll, Attorney Advisor
Joan M. Durocher, Attorney Advisor
Martin Gould, Ed.D., Senior Research Specialist
Gerrie Drake Hawkins, Ph.D., Program Specialist
Pamela O’Leary, Interpreter
Brenda Bratton, Executive Assistant
Stacey S. Brown, Staff Assistant
Carla Nelson, Office Automation Clerk
Acknowledgments
The National Council on Disability (NCD) wishes to
express its appreciation to Eric Rosenthal, Executive Director,
Mental Disability Rights International, and Professor Arlene Kanter,
Syracuse University College of Law, who conducted research and coauthored
this report. NCD would also like to acknowledge the contributions
of Einat Hurwitz, New Israel Fund Fellow and LL.M. student at the
Washington College of Law, who contributed to writing this report.
Contents
I. Executive Summary and Conclusions
II. Right to Inclusion in Foreign Policy and Assistance
Programs
1. Background: Discrimination and Development
2. History of Efforts to Ensure Inclusion
III. Current Foreign Assistance Legislation Regarding
Human Rights
1. General Legislation
2. Rights-Specific Legislation
IV. Current Civil Rights Protections
1. Extraterritorial Application of the Disability
Discrimination Laws
V. Recommendations
1. GAO Should Conduct a Study of Current Practices
2. Amend the Foreign Assistance Act
3. Enforce the Application of the Rehabilitation Act of 1973 to
U.S. Government Programs Overseas
VI. Looking Ahead: The UN Disability Rights Convention
VII. Appendix
VIII. Endnotes
Part I.
Executive Summary and Conclusions
More than 600 million people, almost 10 percent of the world’s
population, have a disability. This number will rise dramatically
in the coming years as the population ages and as more people become
disabled by AIDS. Rates of disability are particularly high in post-conflict
societies, among refugee populations, and in countries with histories
of political violence. Even in stable societies, however, people
with disabilities make up the poorest of the poor. In some of the
world’s poorest countries, according to the United Nations
(UN), up to 20 percent of the population has a disability.
Individuals with disabilities are subject to a broad
pattern of discrimination and segregation in almost every part of
the world. In most countries, people with disabilities and their
families are socially stigmatized, politically marginalized, and
economically disadvantaged. The economic cost to society of excluding
people with disabilities is enormous. No nation in the world will
achieve its full potential for economic development while it leaves
out people with disabilities. No society will be a complete democracy
unless people with disabilities can participate in public life.
Failure to respond to the concerns of people with disabilities ignores
one of the great humanitarian and human rights challenges of the
world today.
The United States is well positioned to lead the world
in demonstrating how to build on the tremendous human potential
of people with disabilities. It is among the world leaders in protecting
the civil rights of people with disabilities, with legislation that
seeks to ensure their full participation in society, and in supporting
their independent living. The Americans with Disabilities Act (ADA)
represents a sweeping commitment on the part of the U.S. government
to abolish discrimination against people with disabilities in all
walks of life. Since the adoption of the Rehabilitation Act in 1973,
U.S. civil rights laws have required all U.S. government programs
to be inclusive of and accessible to people with disabilities. As
they have exercised their rights over the past 30 years, Americans
with disabilities have broken barriers to inclusion, shattered stereotypes
about their limitations, and contributed to the economic, cultural,
and political life of the nation.
At present, U.S. foreign policy does not reflect the
great accomplishments of people with disabilities within the United
States. U.S. citizens with disabilities cannot serve in many embassies
abroad because these buildings are physically inaccessible. Qualified
and talented individuals may be excluded from U.S. government service
abroad based on their medical history. In addition to failing to
protect U.S. citizens with disabilities in foreign operations, U.S.
foreign policies and programs have generally not been designed to
respond to the concerns of individuals with disabilities abroad.
While the Foreign Assistance Act has long established that “a
principal goal of the foreign policy of the United States shall
be to promote the increased observance of internationally recognized
human rights by all countries,”1 the rights of people with
disabilities have been long ignored.
The U.S. National Council on Disability (NCD) calls
on the Executive Branch and Congress to create a new foreign policy
that ensures access by people with disabilities to the benefits
of democracy and economic development around the world. All U.S.
foreign operations abroad (including foreign assistance efforts)
would be greatly improved if the principles established in U.S.
civil rights law—under the Rehabilitation Act and the ADA—were
applied to U.S. operations abroad. Such a policy would require U.S.
foreign assistance funding to be used in a manner that is accessible
to people with disabilities. Such protections would also ensure
that U.S. citizens and contractors with disabilities would be protected
against discrimination in the implementation of U.S. programs abroad.
Leadership by U.S. citizens with disabilities in our foreign operations
would greatly improve our ability to respond to the concerns of
people with disabilities in other countries.
In 1996, NCD issued a report on foreign policy and
disability that found that U.S. programs abroad did not conform
to the letter or spirit of U.S. disability rights law. On the basis
of recent legal developments, this paper demonstrates that current
U.S. disability discrimination laws may now be found to apply to
U.S. foreign programs operating abroad. NCD recommends that Congress
instruct the State Department and United States Agency for International
Development (USAID) to apply the protections of the Rehabilitation
Act and the ADA to U.S. operations abroad.
In addition to extending civil rights protections
that would govern the operation of all U.S. agencies abroad, NCD
recommends the adoption of specialized new legislation to ensure
the inclusion of people with disabilities in foreign assistance.
Such legislation would also greatly improve the effectiveness of
U.S. efforts to promote human rights and economic development worldwide.
One major source of evidence that guides U.S. human
rights policy is the State Department Country Reports on Human Rights
Practices. In recent years, the State Department Bureau of Democracy,
Human Rights and Labor (DRL), has made an important step in the
right direction by adding a section on disability rights to the
Country Reports. This documentation has already had a valuable impact
on promoting the rights of people with disabilities.2 But the information
about disability rights in Country Reports is extremely limited
and does not begin to paint a full picture of the scope of human
rights violations to which people with disabilities are subjected
throughout the world today: de jure discrimination against people
with disabilities that excludes them from jobs; de facto discrimination
that permits exclusion from inaccessible public services or transportation
systems; physical and linguistic barriers to participation in public
life; denial of public education to people with developmental disabilities;
failure to provide medical care to children with disabilities; and
arbitrary detention in psychiatric or social facilities where people
with disabilities are left to languish in some of the most inhuman
and degrading conditions known to humankind.
State Department DRL staff have explained that the
lack of information about human rights violations against people
with disabilities in the Country Reports is a product of the fact
that there are so few nongovernmental human rights or disability
rights organizations conducting investigations and documenting abuses.
DRL relies extensively on such information for its reports. Both
DRL and USAID provide funding and assistance to support civil society
and human rights programs abroad. To date, these programs have not
sought to fill the gap in human rights documentation or advocacy
for people with disabilities.
Despite the tremendous hardships faced by people with
disabilities around the world, a 1991 investigation by the General
Accounting Office (GAO) found that the major U.S. foreign assistance
agencies do not include the concerns of people with disabilities
as a priority or as a goal of specific programs. In 1996, NCD issued
a report on U.S. foreign policy and disability and found continued
barriers to access for people with disabilities. The 1996 NCD Report
recommended a series of policy changes to ensure inclusion of people
with disabilities in all foreign assistance programs, including
the establishment of specific objectives for inclusion with a timetable
for their fulfillment.
In response to the 1996 NCD Report, USAID adopted
a Disability Policy. USAID accepted NCD’s recommendation to
include people with disabilities in all its programs, but it dedicated
no resources for this purpose. The USAID Disability Policy includes
no specific objectives or timetables, creates no new initiatives
to reach out to people with disabilities, and does not require U.S.
Missions abroad to change their practices. Disability experts working
abroad have reported that the vast majority of staff at U.S. Missions
abroad are unaware of USAID’s Disability Policy.
USAID has issued a series of three valuable self-evaluations
on its own efforts to include people with disabilities. These reports
provide documentation of USAID’s implementation of its Disability
Policy—or the lack thereof. The most recent survey of activities
by USAID Missions finds “inclusion of PWDs in significantly
more projects than in the 2000 and 2002 reports.” The 2003
report concludes that “[a]lmost all USAID programs have the
potential to prevent disability or to enhance the lives of people
living with disability. Except where there is specific legislation,
however, relatively few programs give systematic thought to including
people with disabilities in their design and implementation. The
Congress has expressed interest in programs to assist the disabled
and USAID has been responsive, for example, through the Leahy War
Victims Fund and the Victims of Torture Fund.”
The 2003 USAID report describes a number of important
programs for people with disabilities and finds “an increasing
variety of activities that target or include people with disabilities.”
These programs demonstrate how disability issues can be incorporated
into USAID’s existing work where there is a will to do so.
When U.S. agencies operating abroad have focused on the concerns
of people with disabilities, they have demonstrated that it is both
practical and cost-effective to create appropriate accommodations—even
in some of the poorest countries of the world. In the post-war reconstruction
of Afghanistan, for example, USAID adopted a policy of making new
structures accessible to people with disabilities. This program
has reportedly helped people with disabilities in Afghanistan at
little additional cost to the United States. By planning ahead,
U.S. assistance programs in Afghanistan avoided the future costs
of retro-fitting buildings and public thoroughfares for people with
disabilities. All Afghanis benefit because this policy ensures that
the human potential of people with disabilities contributes to the
growth of the society as a whole. Without legislation to ensure
an approach like the one adopted in Afghanistan, however, there
is no guarantee that rebuilding efforts in other countries—such
as Iraq—will follow the same pattern. Indeed, the U.S. contracts
that have been awarded to large American construction companies
to rebuild the infrastructure in Iraq do not require that new construction
be accessible to people with disabilities. As this report goes to
press, it is not too late for Congress to act to require that all
reconstruction efforts by the U.S. military as well as by private
U.S. contractors in Iraq be accessible to and inclusive of people
with disabilities.
Seven years after NCD’s initial Report on Foreign
Policy and Disability, NCD issues this follow-up paper to examine
legislative options and civil rights protections to ensure inclusion
of people with disabilities in U.S. foreign policy. NCD has come
to the conclusion that legislation is necessary to ensure the inclusion
of people with disabilities in foreign affairs. This report reviews
a number of models that Congress has adopted for linking human rights
and foreign policy. These laws provide models that can be adapted
to ensure the inclusion of people with disabilities.
The legislative reforms and new foreign assistance
programs proposed by NCD do not amount to special privileges for
people with disabilities. The principles of nondiscrimination, access,
and inclusion of people with disabilities have been established
as civil rights. The new initiatives NCD proposes are similar to
programs already established by the United States for women and
vulnerable populations. These reforms are needed to ensure that
people with disabilities can fully contribute to U.S. foreign policies
and programs abroad as they have done so effectively at home.
Summary of Recommendations
The following is a summary of NCD’s recommendations.
More detailed recommendations appear in Part V of the report. While
NCD’s recommendations are primarily directed at Congress,
the Department of State, and USAID, the Department of Defense and
other agencies operating abroad can take up many of these recommendations
immediately without further action by Congress.
NCD calls on the Bush Administration
to recognize the extraterritorial application of Titles II and III
of the Americans with Disabilities Act and Sections 501, 503, and
504 of the Rehabilitation Act. All U.S. government operations abroad
should be brought into compliance with these laws.
NCD recommends that Congress:
- Instruct the State Department
and USAID that Sections 501, 503, and 504 of the Rehabilitation
Act apply to overseas operations of the U.S. government. This
will ensure that civil rights protections against discrimination
on the basis of disability apply to U.S. government employees
and contractors working abroad. It will also ensure that all U.S.-funded
programs are used in a manner that is accessible to and inclusive
of people with disabilities. Similarly, the ADA is intended to
ensure that U.S. corporations operating abroad are prohibited
from discriminating against U.S. citizens with disabilities.
NCD recommends that Congress amend the Foreign
Assistance Act or adapt other legislation to:
- Create a Disability Advisor at
the U.S. Department of State to serve as a leader in the
development of U.S. international disability policy and to ensure
that respect for disability rights is included in U.S. bilateral
and multilateral policies and programs, complete with a staff
and resources to carry out the work of this advisor. The advisor
and staff should be composed of a strong contingent of people
who have personal experience with disability and disability advocacy
as well as the necessary technical expertise.
- Require documentation of disability
rights violations in Department of State Country Reports—Congress
should act to ensure that reliable and detailed documentation
of the full scope of worldwide discrimination and abuse of people
with disabilities is obtained and made available to policymakers
and the public. The State Department DRL, which produces annual
Country Reports on Human Rights Practices, has already demonstrated
a willingness and an ability to provide this documentation in
an effective manner. Congress should provide DRL with the additional
funds needed to further improve its coverage of people with disabilities
in the Country Reports. The Department of State should be required
by law to report on human rights violations against people with
disabilities wherever they occur. Where reliable information about
human rights conditions of people with disabilities is not available,
DRL staff should (1)_investigate some of the more common human
rights violations against people with disabilities and/or (2)
provide grants to independent nongovernmental disability organizations
and mainstream human rights organizations to provide necessary
documentation (grants may be coordinated with the proposed USAID
Fund for Inclusion, described below).
- Ensure inclusion of people with
disabilities in all U.S. programs abroad by providing a broad
legal mandate to require every U.S. agency operating abroad to
operate in a manner that is accessible and inclusive of people
with disabilities. This mandate should apply to all aspects
of U.S. foreign assistance, including economic development, disaster
relief, and human rights programs. All new investments in physical
infrastructure using U.S. government funds, including U.S. military
construction programs, should be accessible to people with disabilities.
Legislation should require all U.S. agencies operating abroad
to develop plans to ensure that the concerns of people with disabilities
are among their priorities. Specific action steps for the inclusion
of people with disabilities should be included in the strategic
plans of all USAID divisions (including, but not limited to, such
programs as democracy and governance, cultural exchange, health,
economic development, disaster relief, and rebuilding post-conflict
societies).
- Create an office on Disability
in Development (DID) at USAID, similar to the USAID office of
Women in Development (WID), responsible for promoting the inclusion
of people with disabilities in all USAID programs. As with
WID, Congress should set aside funds for the operation of the
DID office. Unlike WID, however, the DID office should be incorporated
into one of the main substantive divisions or “pillars”
of USAID to ensure the office is not isolated and that disability
programs are effectively mainstreamed into a broad array of existing
programs. The DID office will provide technical assistance to
other USAID offices to assist them in developing appropriate accommodations
and outreach programs to ensure the inclusion of people with disabilities
in all existing areas of USAID programming. The DID office will
ensure that annual and long-term strategic plans at all USAID
offices include provisions requiring that concrete steps be taken
to ensure the inclusion of people with disabilities. The DID office
will administer a Disability Rights Fellowship that will place
technical experts on disability issues in U.S. Missions abroad.
Congress should set aside sufficient funds to permit DID to assist
all U.S. Missions and to place a Disability Rights Fellow in the
majority of USAID Missions abroad. The Disability Rights Fellows
should be composed of a strong contingent of people who have personal
experience with disability and disability advocacy as well as
the necessary technical expertise.
- Establish a Fund for Inclusion,
Leadership, and Human Rights of People with Disabilities (referred
to as the Fund for Inclusion). The Fund for Inclusion will
be a grants program designed to promote the participation of people
with disabilities in all aspects of U.S. foreign assistance programs.
The Fund for Inclusion will
-Support the creation, development, and viability of nongovernmental
organizations (NGOs) made up of people with disabilities around
the world;
-Promote educational exchanges, technical assistance, and collaboration
among U.S. disability rights groups, foreign governments, human
rights organizations, and disability leaders abroad;
-Assist governments in drafting enforceable disability rights
legislation and assist NGOs in proposing and promoting such legislation;
and
-Establish independent human rights oversight, advocacy, and enforcement
programs for people with disabilities.
The Fund for Inclusion shall be used to support the work of U.S.-based
disability organizations to provide technical assistance abroad
or to serve as cooperating partners in the development of disability
programs by USAID. Congress should allocate substantial resources
to this program at least as large as other specialized programs
for other vulnerable populations.
- New initiatives in post-conflict
societies should make people with disabilities a priority—USAID
and U.S. military programs in post-conflict societies should recognize
that (1) war and conflict lead to high levels of disability, (2)
the health and safety of people with disabilities are particularly
at risk in post-conflict societies, and (3) it is most cost-efficient
to plan for the inclusion of people with disabilities when new
investments are being made in the built environment. Thus, inclusion
of people with disabilities should be a priority in the immediate
aftermath of major conflicts and disasters.
- Inclusion should be a required
part of the Millennium Challenge Account—The proposed
Millennium Challenge Account, which would establish a development
program parallel to USAID, should be required to include people
with disabilities from the outset.
Request the GAO to document access to people with
disabilities in current U.S. government–funded programs. GAO
will complete the task it set for itself in 1991 to conduct a thorough
examination of the procedures and directives that guide the Department
of State in the construction and renovation of facilities abroad to
ensure accessibility to people with disabilities. Support
the drafting of a UN Disability Rights Treaty—In addition
to amending the Foreign Assistance Act, NCD calls on Congress and
the Bush Administration to demonstrate their commitment to the international
human rights of people with disabilities by supporting the drafting
of a new UN Convention on the Rights of People with Disabilities
in the spirit of the ADA and other civil rights laws that will bring
about the full inclusion of people with disabilities in society.
U.S. agencies operating abroad should establish guidelines
for the implementation of the Rehabilitation Act in their programs
abroad. The Department of State and other U.S. agencies should initiate
a planning process to ensure the inclusion of people with disabilities
into all their programs abroad. NCD supports the principle, recognized
in the current USAID Disability Policy, that people with disabilities
should be included in all existing foreign assistance programs.
NCD requests that USAID make this policy an agency commitment that
is binding in all programs run by U.S. Missions abroad and a mandatory
part of all USAID grants and contracts. USAID should establish a
program for fully implementing this commitment and should incorporate
this program into its main strategic plans. Other U.S. government
agencies operating abroad should establish similar policies.
PART II.
Right to Inclusion in Foreign Policy and
Assistance Programs
1. Background: Discrimination and
Development
People with disabilities are subject to economic and
social marginalization, segregation, discrimination, and a broad
range of other civil and human rights violations around the world.3
Three UN Special Rapporteurs have found that individuals with disabilities
experience discrimination in employment, housing, health services,
public accommodations, education, transportation, communication,
recreation, voting, and opportunities for political participation
on every continent.4 With 600 million people with disabilities in
the world, of whom 80 percent are in developing countries,5 the
scope of this problem is enormous.6 UN Special Rapporteur Leandro
Despouy found in 1991 that “millions of children and adults
[with disabilities] throughout the world are segregated and deprived
of virtually all their rights and lead a wretched, marginal life.”7
This year’s State Department Country Reports on Human Rights
Practices refers to only a small number of the world’s human
rights violations against people with disabilities, but they are
valuable examples of the deprivations that could be addressed through
political pressure or targeted foreign assistance.8 NGOs have documented
severe human rights abuses against people with disabilities—including
arbitrary detention in institutions, where people are subject to
inhuman and degrading treatment, and life-threatening conditions.9
People with disabilities are among the poorest of
the poor in most developing nations. A recent study done by the
World Bank found that people with disabilities have less access
to education and lower income levels than the rest of the population
and are thus more likely to live below poverty levels than the rest
of the population in most countries.10 A report by the British Department
for International Development cites statistics that “mortality
for children with disabilities may be as high as 80 percent even
in countries where under-five mortality as a whole has decreased
below 20 percent. In certain cases there seems to be a ‘weeding
out’ of children with disabilities, the ‘missing children’.”11
The problem of AIDS in developing nations is closely
linked with issues of disabilities. People living with AIDS may
acquire a broad range of physical or mental disabilities. Failure
to accommodate the disabilities associated with AIDS may exclude
individuals from the economic and social support systems they need
to care for themselves. Failure to provide education in AIDS prevention
in a manner that is accessible to people who are blind, deaf, or
mentally disabled leaves this population particularly at risk of
AIDS.
The lack of protection against discrimination and
exclusion of people with disabilities leads to economic hardship
and a loss of productive capacity in every society.12 Even in societies
with no active exclusion of people with disabilities, the experience
of human rights violations, economic hardship, stigma, and the lack
of opportunities for leadership limits the access of people with
disabilities to participation in public life. Without representation
of the skills, experiences, and voices of people with disabilities,
representative democracy in any society will not be fully effective.
The 1993 World Development Report of the World Bank
has documented the enormous cost to society of excluding people
with disabilities from economic opportunities.13 Foreign assistance
programs of other major donor nations are increasingly cognizant
of the fact that discrimination against people with disabilities
impedes economic development. As described by the British Department
for International Development in its study Disability, Poverty,
and Development,
- Disability does not just affect the individual,
but impacts on the whole community. The cost of excluding people
with disabilities from taking an active part in the community
life is high and has to be born[e] by society, particularly those
who take on the burden of care. This exclusion often leads to
losses in productivity and human potential. The UN estimates that
25 percent of the entire population is adversely affected in one
way or another as a result of disabilities.14
The British study describes a “vicious cycle”
of disability and poverty. For example, “[p]eople with disabilities
who are denied education are then unable to find employment, driving
them more deeply into poverty.” Thus, the British foreign assistance
program recognizes that specialized programs to attack barriers to
participation by people with disabilities are needed:
- [G]eneral improvements in living conditions will
not be enough. Specific steps are still required, not only for
prevention, but also to ensure that people with disabilities are
able to participate fully in the development process, obtain a
fair share in the benefits, and claim their rights as full and
equal members of society.15
The British foreign assistance programs specifically target the
problem of discrimination as the root cause of many of the costs
associated with disability:
There is increasing recognition that the term disability
does not simply express a medical condition but a complex system
of social restrictions emanating from discrimination. Empowerment,
participation and equal control become the means of overcoming disability,
rather than medical care alone.16
The Norwegian government has adopted a similar approach that supports
active participation by people with disabilities and human rights
protections as a way to promote both economic and social development.17
The World Bank has also adopted a new program to incorporate disability
into its activities.18 The cofounder of the World Institute on Disability
and a former Assistant Secretary of Education is the newly appointed
World Bank Disability Advisor. The World Bank program is premised
on the idea that economic development and the inclusion of people
with disabilities are closely linked.19 The World Bank disability
program anticipates that disability issues will become increasingly
important in the years to come. The proportion of persons with disabilities
is growing because of increased aging of the world population and
because of the worldwide problem of AIDS/HIV. The World Bank policy
also recognizes the special vulnerability of people with disabilities
in war-torn countries and post-conflict societies. The World Bank
policy on disability recognizes that increasing the participation
and opportunities for persons with disabilities results in economic
and social benefits for the whole society.20
While the United States does not have a formal disability and foreign
policy program, it is one of the world’s leaders in developing
civil rights protections for people with disabilities at home.
In domestic U.S. law, there has been a 30-year public commitment
to banning discrimination and promoting full participation of people
with disabilities in public life. The Rehabilitation Act of 197321
protects people with disabilities against discrimination by the
U.S. government, and it bars federal funds from programs that are
not fully accessible to people with disabilities. When President
Bush signed the ADA22 in 1990, the United States extended its commitment
to protection against discrimination to private individuals and
entities. The ADA is a powerful statement of the U.S. commitment
to full inclusion, equality of opportunity, independent living,
and economic self-sufficiency for people with disabilities. As described
by NCD,
The unparalleled legal protection given Americans through the Rehabilitation
Act, ADA, and other disability rights laws won the admiration of
people with disabilities, human rights activists, and people of
goodwill around the world. These laws underscore the authority of
the United States to speak not only as a rich and powerful nation
but also as a good and moral one. By demonstrating its strong commitment
to the equality of all people, including those with disabilities,
the United States strengthened its global position. Disability policy
fits naturally with foreign policy.23
Overview
In 1996, NCD issued a report, Foreign Policy and Disability, to
examine the role of people with disabilities within U.S. foreign
policies and programs abroad. Based on a review of federal laws
and regulations as well as U.S. foreign policies and practices (including
a questionnaire completed by selected U.S. embassies abroad), the
1996 NCD Report found a broad failure to include people with disabilities
in foreign policy.
This report is a follow-up to the 1996 report. This paper documents
the lack of progress in developing new policies since 1996 to ensure
the inclusion of people with disabilities within U.S. foreign programs.
This paper offers legislative and policy recommendations to ensure
a legally enforceable right of access to people with disabilities—as
participants in policymaking and as subjects or beneficiaries of
policies and programs. Unlike the 1996 NCD Foreign Policy and Disability
report, this paper is not an empirical analysis of the operation
of programs in the field. Such an analysis is needed, and NCD recommends
that Congress request the General Accounting Office (GAO) to conduct
a thorough examination of the extent to which people with disabilities
have access to U.S. programs abroad. This paper does draw on the
field experiences and policy recommendations of a working group
of disability rights, women’s rights, and international human
rights experts convened by NCD in 2000 and 2002.
Part II of this paper provides background on the reasons people
with disabilities should be included in U.S. foreign policy. It
examines efforts over the past decade to accomplish this goal of
inclusion, including NCD’s 1996 recommendations.
Part III of this paper examines current laws that may be used to
ensure the inclusion of people with disabilities in foreign policies
and programs, including provisions of the Foreign Assistance Act,
which currently require a linkage between human rights and foreign
policy. Part II also examines other legislation, such as laws requiring
the inclusion of women in development, that can be used as models
and adapted to promote the inclusion of people with disabilities
in foreign assistance programs.
Part IV examines U.S. civil rights protections and evaluates the
extent to which programs funded by the U.S. government are now legally
required to protect against discrimination and ensure equal access
to people with disabilities. The 1996 NCD Foreign Policy and Disability
report found that U.S. programs abroad did not conform to the letter
or spirit of U.S. disability rights law. The 1996 Report assumed,
however, that U.S. disability rights laws were not binding on U.S.
programs abroad. Recent developments in case law suggest that current
disability discrimination law is applicable to U.S. foreign programs
operating abroad. These new cases provide a basis for the extraterritorial
application of both the Rehabilitation Act of 1973 and the ADA.
Congress has already amended Title I of the ADA to apply to employees
of American companies overseas. Congress should now instruct the
State Department and USAID, as well as other federal agencies, that
the Rehabilitation Act and Titles II and III of the ADA also apply
overseas, require that U.S. offices and U.S.-funded buildings abroad
be physically accessible, and ensure that U.S. citizens with disabilities
are protected against discrimination in U.S. government programs
and activities overseas.
Part V provides detailed recommendations for legislative and policy
changes needed to ensure the inclusion of people with disabilities
in U.S. foreign policy and programs abroad.
Part VI concludes with a look ahead to the development of a UN Convention
on the Rights of People with Disabilities.
NCD recognizes that the reform of foreign assistance programs to
ensure full inclusion of people with disabilities is an enormous
challenge and that foreign assistance agencies are already overwhelmed
by demands that require them to stretch very limited resources.
The inclusion of people with disabilities will be possible only
if this process is not set up as one more “special interest”
group that drains resources from the common goal of development.
With appropriate planning and project design—and the incorporation
of lessons learned from successful programs implemented in the United
States and around the world—development for all people will
be more effective if people with disabilities are included.
NCD also recognizes that inclusive development will require that
accommodations be made in a broad range of programs, including programs
to support economic growth, democratization, human rights, health,
education, and other areas of development. The population of people
with disabilities is enormously diverse in any country, and the
reforms that would be needed to bring about their full participation
in society are tremendously varied. Following are only a few of
the most common challenges: buildings, streets, transportation,
medical services, schools, and other public accommodations must
be physically accessible; communication systems must be adapted
for people who are deaf; public information must be accessible to
people who are blind; educational programs must be appropriate for
children with developmental disabilities; mental health services
should not segregate people from society in closed facilities; counseling
services, women’s shelters, and rights protection programs
must be established to reflect the fact that women and girls with
disabilities are subject to double discrimination in society and
require protections against physical and sexual abuse in the family
and in the very social programs created by society to serve them;
workplaces should be adapted to provide qualified individuals with
disabilities with the opportunity to earn a living and establish
their economic independence; and all people with disabilities should
have the right to vote and the opportunity to participate in cultural,
social, and political life. The civil rights protections needed
to ensure access for a qualified individual with a disability in
an employment setting are enormously different from the human rights
needs of a child with a disability living in poverty who is denied
access to medical care. International development programs must
respond to each of these varied challenges.
The U.S. disability movement has experience in crafting effective
responses to these challenges in the United States and abroad. To
date, this experience is a largely untapped resource available to
the international development community. People with disabilities
in the United States are eager to lend their expertise in developing
accessible and appropriate programs that meet the needs of people
with disabilities—and that promote the most effective development
for all people.
2. History of Efforts to Ensure Inclusion
NCD issues this paper after more than a decade of educational and
collaborative efforts to bring about changes in U.S. government
policies abroad. In the early 1980s, for example, the World Institute
on Disability and the Disability Rights Education and Defense Fund
(DREDF) brought to the attention of the U.S. Department of State
and USAID the fact that few people with disabilities had access
to U.S. government–funded programs abroad. One recommendation
was that Congress establish a legal commitment to include people
with disabilities in international development programs modeled
on the Percy Amendment of the 1970s. The Percy Amendment guaranteed
the creation of programs for the inclusion of women in development.
Despite these efforts, U.S. agencies operating abroad
have shown little commitment to addressing disability issues. The
U.S. State Department is particularly weak in the enforcement of
disability rights for its employees even within the United States.
NCD has recently conducted a study of compliance with Section 504
of the Rehabilitation Act by five U.S. federal agencies with regard
to the programs it funds in the United States (the study found that
the Department of State provided $139 million to 313 recipients
in fiscal year 2000). This study, Rehabilitating Section 504, released
February 12, 2003, found that the U.S. Department of State ranked
the lowest among federal agency practices reviewed. The study found
that
The Department of State has reported no federally
assisted civil rights enforcement over the 10 years covered by this
paper. It effectively has no Section 504 enforcement program. The
agency reports that it has had no formal Section 504 complaints
filed against recipients during the period covered by this report.
The lack of complaints likely reflects the agency’s lack of
public education and outreach about the rights of people with disabilities
under Section 504 rather than a lack of discrimination against people
with disabilities.24
The lack of domestic efforts to educate its personnel
about disability rights issues and to enforce disability rights
law is consistent with the findings of two studies conducted in
1991 and 1996 concerning the operation of State Department programs
abroad.
i. The 1991 GAO Report—Foreign
Assistance: Assistance to Disabled Persons in Developing Countries
In 1991, the GAO conducted an investigation of U.S.
foreign assistance programs in developing countries.25 The GAO report
found that while many foreign assistance programs did affect the
lives of people with disabilities, inclusion of people with disabilities
in such programs was “sporadic.”26 GAO found that the
major U.S. foreign assistance agency, USAID, “does not generally
attempt to target the disabled in its regular bilateral assistance
programs….”27 In the absence of planning or directives
from its central office in Washington, DC, USAID officials observed
that USAID Missions abroad could take the initiative to include
people with disabilities, since USAID Missions have broad discretion
as to how to program approximately 75 percent of U.S. foreign assistance
funds.28 As of 1991, however, the GAO report documented the lack
of such programs at the Mission level. The GAO report found that
“other than small, random efforts, the missions had not provided
any assistance to the disabled during the past three years and that
missions have no assistance projects planned for the future.”29
To address this problem, USAID officials recommended programs for
“heightening awareness of disability issues” among USAID
Mission staff and foreign government counterparts,30 including a
number of proactive measures, such as providing support for NGOs
to “establish sub-offices in developing countries to assist
in the development of disability organizations.”31 GAO recommended
further study of the problem of physical access and other accommodations
for people with disabilities at U.S. Missions abroad.32
ii. The 1996 NCD Report: Foreign Policy and Disability
Five years after GAO’s report, the NCD issued
a report entitled Foreign Policy and Disability. The 1996 NCD Report
determined the extent to which U.S. foreign policy and foreign assistance
programs conformed to the principles of nondiscrimination, independence,
and full participation as represented in U.S. disability rights
law. The 1996 NCD Report reviewed the activities of the Department
of State, USAID, and the U.S. Information Agency (USIA) and found
that “the United States does not have a comprehensive foreign
policy on disability.”33 As the report found,
Those responsible for creating and implementing U.S.
overseas policies and programs generally are unaware of disability
issues, cannot articulate our national policies with respect to
people with disabilities, do not incorporate the interests of people
with disabilities into U.S. foreign policy objectives, and do not
see the importance of U.S. disability advances and achievements
for people with disabilities in other countries.34
Accordingly, the 1996 report concluded that “neither
the spirit nor the letter of U.S. disability rights laws is incorporated
into the activities of the principal foreign policy agencies. People
with disabilities are rarely targeted in U.S. foreign assistance
programs, and few programs address disability.”35
The 1996 NCD Report examined two types of access to
U.S. foreign policy and assistance programs: (1) access by U.S.
personnel or contractors, including employment and physical access
to U.S. embassies and other offices abroad, and (2) access in recipient
countries to the benefits of U.S.-funded assistance, including participation
in international organizations (such as the UN) that receive U.S.
funds. The 1996 NCD Report found a broad failure to incorporate
disability rights principles in both aspects of U.S. foreign policy
and practice. With regard to access by U.S. personnel, many U.S.
employees with disabilities have been excluded from serving abroad
because embassies are inaccessible or because of the lack of enforcement
of anti-discrimination laws and policies for foreign service workers.
With regard to access to the benefits of U.S. foreign
service programs, the U.S. government has long held—and maintains
to this day—that U.S. disability rights law does not apply
to its programs abroad and that the U.S. government is under no
legal obligation to ensure that people with disabilities have access
to benefits of foreign assistance programs.36
As a result of these findings, the 1996 NCD Report
proposed a number of legal and policy initiatives, including the
following recommendations:
Create a comprehensive foreign policy on disability
to advocate for people with disabilities through activities on international
levels;
Extend U.S. disability law by legislation or executive
order to include unambiguously the international operations of the
U.S. government;
Employ domestic standards of nondiscrimination in
U.S.-sponsored international_activities;
Train U.S. foreign affairs agencies and their contractors
to plan for programmatic accessibility; and
Establish the principle that no U.S. international
activity should have a lower standard of inclusion than its domestic
correlate.
iii. USAID Disability Policy
In response to the 1996 NCD Report Foreign Policy
and Disability, USAID adopted a Disability Policy in consultation
with U.S. disability rights organizations. The Disability Policy
states a commitment to “promote the inclusion of people with
disabilities both within USAID programs and in host countries where
USAID has programs.” 37 USAID summarizes its approach as one
to “avoid discrimination against people with disabilities
in programs which USAID funds and to stimulate an engagement of
host country counterparts, governments, implementing organizations
and other donors….”38
The USAID Disability Policy falls short of addressing NCD’s
1996 recommendations in a number of key areas. It creates no measurable
goals or timelines, nor does it require the creation of any disability-specific
programs by USAID’s central office or U.S. Missions abroad.
The Policy recommends “engagement” with disability organizations
in host countries, but it does not suggest any framework for consultation.
There is no requirement that U.S. Missions consult with disability
organizations in the United States or abroad to develop or implement
programs or to ensure access to existing programs.
The mechanism for implementation of the USAID Disability Policy
is a Disability Plan of Action, in which USAID promises to raise
disability issues within interagency and interdonor meetings. The
Plan of Action creates an Agency Team for Disability Program that
is intended to meet quarterly and “foster awareness...regarding
the importance of including persons with disabilities in USAID.”39
The Agency Team will issue periodic reports on the implementation
of the USAID Disability Policy.
Instead of any centralized requirements, the USAID Disability Policy
states that each U.S. Mission should create its own plan for outreach
to people with disabilities. It promises that “USAID employees
and contractors will be trained in issues of relevance to people
with disabilities so that, as appropriate, USAID programs reflect
those issues.”40
Pursuant to the Disability Plan of Action, USAID published annual
reports in 1998 and 2000. These reports show very little progress
toward real inclusion of people with disabilities in USAID programs
and activities. The first annual report found that the great majority
of Missions had never created any Disability Plan.41 The report
called for an immediate remedy to this problem and stated that by
the end of the second year each USAID Mission will have a specific
disability plan, and that 80 percent of the Missions will have at
least one contact NGO in the disability community in that country.42
In 2002,43 the self-assessment report found that “while several
USAID organizations have included people with disabilities in their
development programs with great success, others still deny any potential
linkage between disability and development issues.” The second
USAID self-assessment reached the following conclusion:
Specific disability programming has taken hold only in response
to congressional mandates: i.e., the Patrick J. Leahy War Victims
Fund. ‘Sporadic’ examples of inclusion are available,
and may be increasing slightly. However, egregious exclusion can
also be discovered…. Efforts at promoting the USAID Disability
Policy have been disjointed and minimally effective.… Opportunities
for personal contact with PWDs, while fruitful, have not been deemed
a priority. And, a reward structure does not exist to promote adherence
to this policy.44
The 2002 USAID report recommended that, due to the enormous pressure
of conflicting priorities, specific funding should be set aside
for disability issues. The report also recommended that a specific
“home” be established for the implementation of the
disability policy; otherwise, it will never become an agencywide
effort and will continue to be the campaign of a small group.45
The third report on the Implementation of the USAID Disability Policy
(2003) finds significant improvements in the inclusion of people
with disabilities in USAID programs. But there are still major shortcomings.
Of 48 USAID Missions that responded to the survey, only 11 reported
having a Mission-specific disability plan. The survey found, however,
that “there is not a direct correlation between plans and
projects.” A full 35 USAID Missions report having at least
one project that included people with disabilities. Despite the
gains cited in the 2003 USAID report, it concludes that “[a]lmost
all of USAID programs have the potential to prevent disability or
to enhance the lives of people with disabilities. Except where there
is specific legislation, however, relatively few programs give systematic
thought to including PWDs in their design and implementation.”
The 2003 USAID report provides a valuable insight into the resistance
on the part of some staff at USAID to include people with disabilities
in their work. “[W]ithin the official development arena, disability
is still largely considered a ‘special interest’ that
requires a separate effort.” USAID staff have similarly explained
at NCD meetings that the agency has so many Congressional mandates
to serve the needs of special interest groups that funds are limited
to meet their core goal of promoting economic development. The 2003
USAID report responds to this perception, stating that “[d]isability
is much more than a ‘special interest’ in the developing
world.” The 2003 USAID report cites the United Nations World
Program of Action Concerning People with Disabilities, which points
out that “[a]s many as 80 percent of all disabled persons
live in isolated rural areas in the developing countries. In some
countries, the proportion of the disabled population is estimated
to be as high as 20 percent. Thus, if families and relatives are
included, 50 percent of the population could be adversely affected
by disability.” The 2003 USAID report provides a valuable
endorsement to the principle that overcoming barriers to the inclusion
of people with disabilities must be core to USAID’s mission.
The 2003 USAID report recommends training on disability at all USAID
Missions. With USAID funding, Mobility International USA has drafted
a training manual to sensitize international development workers
to disability issues and to provide them with guidance on developing
accessible programs.
iv. Recent NCD Efforts and New Policies on Foreign
Affairs and Disability
Since its 1996 Foreign Policy and Disability report, NCD has continuously
reached out to U.S. foreign policy and foreign assistance personnel
to promote collaboration and to offer technical assistance to promote
inclusion in foreign assistance efforts. Furthermore, over the past
three years, NCD has convened two meetings, in 2000 and 2002, to
gather information from international disability experts on the
topic of foreign assistance and disability. Participants at these
meetings described a number of consistent barriers to access for
people with disabilities:
International facilities remain inaccessible—U.S.
government employees, contractors, and representatives of NGOs are
limited in their access to U.S. government offices throughout the
world because buildings are physically inaccessible. UN offices,
international policy conferences, and programs funded by U.S. government
funds remain similarly inaccessible. After years of pressure by
disability activists, the U.S. Department of State has recently
promised to make improvements. In a September 2002 speech to the
International Career Advancement Program, the Director General of
the Foreign Service and the Director of Human Resources promised
to make U.S. embassies abroad more accessible to people with disabilities.
While this promise is extremely valuable, the Department of State
still does not recognize that it is obliged to provide such access
as a matter of law.
Lack of disability-specific mandates undercuts
participation by international disability organizations—In
the absence of disability-specific mandates, most large USAID requests
for proposals (RFPs), requests for applications (RFAs), technical
cooperation contracts, cooperative agreements, or other programs
lack any mention or consideration of disability as a priority. The
structure of USAID RFPs and RFAs favors large international development
organizations that can respond to the broad expertise in the areas
sought by USAID, such as in health, education, civil society, rule
of law, small-enterprise development, or women’s issues. While
a number of disability rights organizations have developed an excellent
international track record within the disability area, they are
at a disadvantage in applying for these larger contracts or cooperative
agreements—even in the rare cases when disability is one of
many parts of a larger program. In theory, disability organizations
can form partnerships with large mainstream development organizations.
In practice, however, without any requirement that disability issues
be included in RFPs and RFAs, mainstream development organizations
have no incentive for including disability groups in leading roles.
The development of large USAID proposals is prohibitively expensive
for most disability organizations that lack other funding sources
for international activities. Given these barriers to entry into
international affairs by disability groups, mainstream international
development and civil society organizations do not benefit from
the tremendous expertise of U.S. disability rights organizations.
Disability activists have established one new program to promote
the inclusion of people with disabilities, particularly women with
disabilities, in overseas development programs.46 Mobility International
USA (MIUSA) has worked with InterAction, a coalition of more than
165 U.S.-based international development, relief, refugee, advocacy,
and environmental agencies, to create a system of voluntary standards
for the inclusion of women with disabilities in development programs.
While InterAction members are NGOs, 56 percent of these organizations
receive funding from USAID. InterAction has recently adopted the
disability standards, and their impact has not yet been fully tested.
While MIUSA is optimistic about the promise for increasing the inclusion
of people with disabilities in overseas development programs, these
are voluntary standards that do not mandate a change in practices
or create any new disability-specific programs. Rather, the standards
address organization policy, management practice and human resources,
the inclusion of people with disabilities in programs, accessibility
of material assistance to people with disabilities, and child sponsorship.47
MIUSA has recently published a valuable companion to the new InterAction
standards entitled “Gender and Disability: A Survey of InterAction
Member Agencies.” Of the 165 members of Inter-Action, 104
organizations participated in MIUSA’s survey. The survey found
that almost one-third of respondents operate disability-specific
programs. Despite this, “few women and men with disabilities
are employed by respondent organizations or are served in field
programs aimed at general populations.”48 The survey finds
that “[a]lthough people with disabilities are the poorest,
least enfranchised, and most discriminated-against group in almost
every society, many respondent organizations tend to overlook them
as a group despite the fact that they are present among the general
populations they serve. This omission is paradoxical in light of
the humanitarian goals of most respondent organizations.”49
MIUSA describes the findings of the survey as a “clarion call
for InterAction members to begin implementing” the new disability
standards.50
Field offices are unaware of USAID disability
policy and concerns of people with disabilities—As
reported to GAO in 1991, USAID Missions abroad have the discretion
to use funds to support disability projects. As directed in the
USAID Disability Policy, each U.S. Mission is supposed to determine
how to create outreach programs for people with disabilities suited
to local circumstances. Representatives of international disability
organizations at the 2000 and 2002 NCD meetings reported a general
lack of awareness of the USAID Disability Policy by agency officials
abroad. While a few disability organizations have received contracts
through U.S. Missions abroad, this situation remains the exception.
Local disability groups lack support to compete
for grants—The USAID Disability Policy calls for local
outreach to disability organizations abroad. In practice, this may
be impossible in countries where disability organizations are not
well developed or do not exist. Mental Disability Rights International
reports, for example, that in many countries there are no organizations
made up of people with psychiatric or developmental disabilities.
Umbrella groups made up of people with disabilities do not always
include members with mental as well as physical disabilities—or
they might actively exclude certain disability groups.51 USAID officials
often state that civil society support programs are open to all
local nongovernmental groups and that disability groups abroad can
compete for funding with other local NGOs. It is difficult for many
disability groups to compete, however, against other more established
civil society organizations. People with disabilities and the organizations
representing them—struggling with current and historical discrimination,
exclusion from educational programs, and economic marginalization—often
lack the necessary resources or experience to apply for competitive
programs. Legal or social barriers may make it literally impossible
for people with disabilities to apply for grants.52
It has been difficult to identify and engage staff
members from USAID or the Department of State, and some gains have
been reversed by the lack of coordination within agencies—Officials
were designated by the Department of State and USAID on a short-term
basis to coordinate with NCD on the implementation of the new Disability
Policy. When these officials were transferred, no one was assigned
to pick up their responsibilities. As a result, different parts
of the State Department do not collaborate on this issue. At a 2000
NCD conference on disability and foreign affairs, numerous disability
experts working abroad reported frustration with the lack of support
or interest by Department of State and USAID officials. A high-level
USAID official attending the meeting suggested an educational and
outreach effort by the disability community to educate and sensitize
U.S. foreign service and development employees to disability issues.
In response to this request, NCD conducted a series of roundtable
discussions in 2000 and 2001 with USAID and State Department staff
to develop plans for technical assistance and cooperation between
the disability community and those people responsible for overseas
program planning and execution. One State Department staff member
with a personal interest in disability participated, but there was
no official engagement of the State Department in the project. Apart
from the USAID staff member assigned to liaise with NCD on this,
USAID participants were generally not supportive, even indicating
during the meeting that the USAID Disability Policy was never intended
to become agency policy, only a “resource” for staff
with an interest in disability issues. The liaison who had been
supportive left USAID the week after the first roundtable, and no
further events were scheduled due to lack of interest.
Lack of coherent strategy for inclusion undermines
U.S. leadership—At NCD’s December 2002 meeting,
international disability experts pointed out that the lack of a
coherent international strategy for the inclusion of people with
disabilities has already begun to erode U.S. leadership in the international
disability field. As described above, the World Bank, the United
Kingdom, and the Scandinavian countries have developed major new
policy initiatives to promote the inclusion of people with disabilities
in their foreign assistance programs, and they have dedicated new
funds for these programs.53
The NCD 2000 meeting recommended that NCD learn from the experience
of women’s rights activists and seek an amendment to the Foreign
Assistance Act, similar to the Percy Amendment, which was adopted
in 1973 to promote the inclusion of women in all development programs.
In December 2002, NCD invited representatives of women’s organizations
to meet with disability experts to provide additional advice as
to how to learn from the experience of the inclusion of women in
development. Participants at the meeting agreed that legislation
to bring about access to people with disabilities in both foreign
policy and foreign assistance should draw from a variety of legislative
models developed by the human rights and women’s rights communities.
Seven years after NCD’s report Foreign Assistance and Disability
and 12 years after GAO’s report Foreign Assistance: Assistance
to Disabled Persons in Developing Countries, NCD has concluded,
consistent with USAID’s own reports, that a legislative mandate
is needed to ensure that U.S. foreign policy and assistance efforts
are responsive to the concerns of people with disabilities. After
years of collaborative efforts with U.S. officials to bring about
the inclusion of people with disabilities in U.S. foreign policy
and assistance programs, NCD now recognizes that it is necessary
to enact legislation to ensure inclusion as a matter of law.
The following part reviews these legislative models to determine
their potential usefulness in drafting legislative proposals to
promote the inclusion of people with disabilities.
Part III.
Current Foreign Assistance Legislation Regarding
Human Rights
The international community has long recognized the
importance of human rights. While international law has traditionally
been built on the core principle of state sovereignty, the United
Nations Charter established that matters of human rights are of
common concern and are a proper subject of international action.
The basic scope and principles of modern international human rights
law were established by the Universal Declaration of Human Rights
(UDHR), adopted unanimously by the UN General Assembly in 1948 and
now commonly accepted as part of customary international law. Since
1948, the UN has adopted a broad array of international human rights
covenants, including specialized conventions to protect vulnerable
groups such as women, children, and migrant workers. Regional bodies
such as the Council of Europe, the African Union, and the Organization
of American States (OAS) have also established regional human rights
regimes, including mechanisms for promoting the domestic enforcement
of human rights. By ratifying human rights conventions, governments
agree to abide by international human rights standards and to subject
their own practices to international scrutiny. Many human rights
conventions explicitly commit governments to collaborate on the
advancement of human rights. The obligations established by international
human rights law entail a corresponding duty of governments to take
action against violations of internationally recognized human rights
at home or abroad.54
One important development in the international human rights field
for people with disabilities has been the adoption of the Standard
Rules on the Equalization of Opportunities for Persons with Disabilities55
by the UN General Assembly in December 1993. The UN Standard Rules
establish that people with disabilities have a right to participate
in public policymaking and program development on matters that concern
them. The Standard Rules are nonbinding, but they “imply a
strong moral and political commitment on behalf of States to take
action for the equalization of opportunities for persons with disabilities….
The Rules offer an instrument for policymaking and action to persons
with disabilities and their organizations. They provide a basis
for technical and economic cooperation among States, the United
Nations, and other international organizations.”56 The Standard
Rules establish guidelines for the inclusion of people with disabilities
in policymaking, human rights protection, medical care, support
services, education, employment, income maintenance and social security,
family life and personal integrity, culture, recreation and sports,
and religion. Rule 21 of the Standard Rules states that “both
industrialized and developing [nations] have the responsibility
to cooperate in and take measures for the improvement of the living
conditions of persons with disabilities in developing countries.”
The Standard Rules have been explicitly used by other donor governments
as a new framework for reforming international development and cooperation
programs to ensure the inclusion of people with disabilities.57
However, while an important development, the Standard Rules are
but one step in the right direction—again, the Rules are nonbinding
and lack timelines and other enforcement mechanisms.
While the United States has yet to craft an international disability
policy, Congress has long established that human rights principles
should guide our foreign policy and assistance programs. As mandated
by Section 502B of the Foreign Assistance Act of 1974, “a
principal goal of the foreign policy of the United States shall
be to promote the increased observance of internationally recognized
human rights by all countries.”58
Through a series of amendments to the Foreign Assistance Act, Congress
has sought to enforce human rights protections by conditioning a
foreign government’s eligibility for U.S. military assistance
59 or economic aid60 on its human rights record, or by withholding
the use of multilateral funds to governments with unsatisfactory
human rights records.61 In addition to creating sanctions for countries
that do not enforce human rights, Congress has established a broad
array of targeted foreign assistance programs to promote the efforts
of governments to enforce human rights. These programs include assisting
governments in implementing the rule of law, “civil society”
programs to assist NGOs in advocating for human rights, and targeted
assistance to assist particularly vulnerable populations.
As the rights of people with disabilities are increasingly recognized
as international human rights, the U.S. government should include
the concerns of people with disabilities explicitly in its foreign
policies not just as a matter of good policy—but as a matter
of currently binding law. Disability organizations can learn from
the lessons of international human rights organizations to leverage
existing protections. Any new legislative initiative should build
on links that have already been established, and new protections
for people with disabilities should be mainstreamed into current
foreign assistance legislation.
The human rights and foreign assistance legislation can be roughly
divided into two categories: general legislation and rights-specific
legislation (targeted to promote the enforcement of a particular
kind of right or targeted to protect the rights of a specific population).62
General protections apply to people with disabilities as they do
to all other individuals. As such, they represent an untapped resource
to promote international disability rights. In addition to general
protections, there are a number of kinds of rights-specific legislation.
Some of this legislation now protects sub-groups of people with
disabilities, such as war victims. New rights-specific legislation
needs to be crafted to promote the protection of the rights of all
people with disabilities. This part deals with general legislation
and the next one reviews rights-specific legislation.
1. General Legislation
i. Security Assistance
The first main article concerning human rights and foreign assistance
is Section 502b of the 1961 Foreign Assistance Act,63 which starts
off with this proclamation:
(a) (1) The United States shall, in accordance with its international
obligations as set forth in the Charter of the United Nations and
in keeping with the constitutional heritage and traditions of the
United States, promote and encourage increased respect for human
rights and fundamental freedoms throughout the world without distinction
as to race, sex, language, or religion. Accordingly, a principal
goal of the foreign policy of the United States shall be to promote
the increased observance of internationally recognized human rights
by all countries.
The statute continues and specifies as follows:
(2) …no security assistance may be provided to any country
the government of which engages in a consistent pattern of gross
violations of internationally recognized human rights…unless
the President certifies in writing [to Congress] that extraordinary
circumstances exist warranting provision of such assistance and
issuance of such licenses.
The President is instructed to “formulate and conduct international
security assistance programs” in a manner that “will
promote and advance human rights” (Section (3)).64 The allocation
of funds given under this article or under the Arms Export Control
Act65 needs to take into account significant improvement of the
human rights record of the foreign country.
The definition of “gross violations of internationally recognized
Human Rights” is as follows:
(d) (1) the term “gross violations of internationally recognized
human rights” includes torture or cruel, inhuman, or degrading
treatment or punishment, prolonged detention without charges and
trial, causing the disappearance of persons by the abduction and
clandestine detention of those persons, and other flagrant denial
of the right to life, liberty, or the security of person.66
In practice, human rights conditionality under Section 502(b) of
the Foreign Assistance Act is rarely invoked—yet the threat
of its use has provided powerful political leverage to influence
governments. Indeed, this provision can be applied to gross violations
of human rights abuses against people with disabilities. Section
502(b) should be amended to include disability along with race,
sex, language, and religion as appropriate for protection under
the principles of human rights and fundamental freedoms.
The European Court of Human Rights67 and the Inter-American Commission
on Human Rights68 both have found individual human rights violations
against individuals with disabilities that constitute “inhuman
and degrading treatment” under international human rights
law. Where abuses against people with disabilities are permitted
by governments to continue on a large scale—such as the detention
of individuals in institutions where they are exposed to dangerous
communicable diseases or left to freeze or die of starvation—abuses
could certainly rise to the level of the “gross violations”
of rights contemplated by Congress.69
The requirement that a specific kind of human rights abuse could
trigger sanctions under the Foreign Assistance Act would not be
unique to people with disabilities. Congress has indicated that
a foreign government’s denial of freedom of religion to its
own citizens could justify sanctions.70 This was added by the International
Religious Freedom Act of 1998,71 which includes “particularly
severe violations of religious freedom”72 as one of the human
rights violations that can justify sanctions under Sections 116
and 502(b) of the Foreign Assistance Act of 1961.
ii. Development Assistance
Section 116 of the Foreign Assistance Act of 196173 establishes
a linkage between development assistance and human rights practices.
It provides that assistance can be given to a country with a grossly
repressive government only if the assistance “directly benefits”
the needy people in such a country.74 Given the linkage between
the creation of opportunities for community integration and general
economic and social development, it would be hard to justify a suspension
of foreign assistance because of disability rights violations that
are common in the world today. Where foreign governments are clearly
unresponsive to the most extreme abuses against people with disabilities,
however, Section 116 provides economic leverage that must be available
to people with disabilities—as it is to all other vulnerable
peoples.
iii. Country Reports on Human Rights Practices
The evaluation of any country’s human rights record requires
an objective foundation of documentation regarding its record of
enforcing human rights. The most important source of information
for U.S. government policy is the U.S. Department of State’s
Country Reports on Human Rights Practices. Section 116, Subsection
(d) creates a duty for the State Department to report annually on
the human rights practices of all the countries that are members
of the UN, whether or not they receive foreign assistance.75 The
report must include information on the government’s conduct
in many human rights issues: freedom from torture and other cruel
or inhuman punishment, detention without charge, disappearances,
denial of right to life or liberty, religious freedom, human rights
of children, trafficking of women, and treatment of refugees.76
In 1993, an amendment to the Foreign Appropriations Act was proposed
to require the State Department to include in its Country Reports
“an examination of the discrimination against people with
disabilities, including whether the government has enacted legislation
or otherwise mandated provision of accessibility to public buildings.”
This proposal has not become law. In recent years, however, the
U.S. State Department has begun to include regular reporting on
the rights of people with disabilities abroad. While this is a valuable
development, reporting is often cursory. While issues of physical
access are often covered, a broad array of other important disability
rights issues are usually left out—including the most extreme
forms of human rights violations that take place in institutions.
As described above,77 there is now a growing body of evidence that
people with disabilities are deprived of their liberty in life-threatening
conditions in psychiatric institutions, mental retardation facilities,
orphanages, jails, and prisons around the world, and they are often
subjected to inhuman treatment or punishment.
Officials at the Office of Democracy, Human Rights, and Labor (DRL)
in the State Department who write the Country Reports have explained
that they obtain most of their information from NGOs that document
abuses. One of the main reasons the State Department does not include
evidence of human rights abuses against people with disabilities
in most countries, DRL officials explain, is that they are not aware
of any disability rights groups documenting these abuses. In part,
this is a failure of outreach, as there are some disability rights
organizations in most countries. In part, it is a reflection of
the same limitations that undermine the effectiveness of the current
USAID Disability Policy: such limited funds are available for disability
rights organizations that basic information about documentation
of human rights conditions is lacking. NCD recommends that Congress
remedy this problem by setting aside funds to support the development,
training, and operation of disability rights organizations around
the world.
A specific Congressional mandate in the Foreign Assistance Act itself
that reinforces the State Department’s role in documenting
human rights abuses against people with disabilities in the Country
Reports would be helpful. Congress should state in detail the kinds
of abuses that should be documented. Congress should require that
State Department human rights officers consult with local disability
rights groups. Where local human rights or disability rights groups
have not documented abuses against people with disabilities, human
rights officers preparing the Country Reports should conduct site
visits to places where they may encounter human rights abuses against
children or adults with disabilities, such as orphanages, segregated
schools, psychiatric facilities, or other closed institutions.
2. Rights-Specific Legislation
In addition to provisions in the Foreign Assistance Act and related
laws, “rights-specific” legislation provides a number
of elements that can be used as models in the development of disability
rights legislation. By seeking disability-specific legislation and
specialized programs, people with disabilities are not seeking a
privileged position within the current rights protection framework.
This review demonstrates the U.S. government’s commitment
to specific protections and specialized forms of assistance to aid
discrete groups of people. The existence of other rights-specific
legislation is evidence of the need to craft specialized enforcement
mechanisms and incentives to ensure that particularly vulnerable
groups are protected. The following are examples of rights-specific
legislation that may provide a model for much-needed disability
rights legislation:
i. Torture Victims Protection Act
Section 132 of the Foreign Assistance Act78 authorizes the President
to provide assistance for the rehabilitation of torture victims.
This assistance can be in the form of grants to treatment centers,
specific projects, or other activities designed to treat victims
of torture.79 The aid can be used for direct services to victims
or for research and training to health care providers, enabling
them to provide appropriate care for torture victims.80 This section
is different from Section 502(b) in several ways: (1) instead of
sanctions, this law provides positive measures to remedy abuses;
(2) it is aimed at remedying the effect of a specific
human rights violation rather than preventing future abuses; and
(3) it is not directed to the government of a foreign country but
to specific organizations that provide treatment or rehabilitation.
Each of these elements could be valuable contributions to a disability
rights legislation that seeks to provide assistance to individuals
with disabilities who have been subjected to serious abuses.
Practitioners report that one of the most effective elements of
the Torture Victims Protection Act is that it creates a pool of
funding to which U.S. Missions abroad can apply. This provides incentive
for U.S. Missions to create relevant programs, and it rewards Missions
that do so by allowing them to expand the resources available to
them. As described below, NCD recommends that Congress establish
a somewhat similar approach when creating a “Fund for Inclusion”
of people with disabilities. The Fund could be used as an incentive
for Missions abroad to create disability programs. Provisions must
be established, however, for the fact that Missions abroad may not
take advantage of this incentive. People with disabilities represent
a much larger proportion of the world population (10 percent) than
torture victims, and they live in every country of the world. Thus,
special provisions must be established to ensure that people with
disabilities have access to support even in countries where the
Mission has not been proactive.
ii. War Victims Fund
The War Victims Fund was established in 1989 through the initiative
of Senator Patrick Leahy. Initially, the fund was focused on providing
prosthetics and orthotics to victims of conflict. It has become
a significant contributor to people with disabilities, with $45
million spent in 14 countries during its first eight years. The
fund has been particularly successful because it promotes the use
of local resources and employs local technicians—including
people with disabilities—to provide prosthetics and orthotics
quickly and inexpensively. Since the middle of the 1990s, the fund
has expanded its work by providing a broad array of rehabilitation
services.81
The War Victims Fund demonstrates that U.S. foreign assistance programs
can respond to the needs of specific groups, such as people with
disabilities, when a specific Congressional mandate is created.
The program is limited in scope, however, and does not respond to
the concerns of the vast majority of people with disabilities. The
program has been criticized because it is not mainstreamed into
other USAID activities. In fact, the fund operates separately from
USAID Missions. In some countries where the fund operates, the Mission
reported that its officials were not aware that there was any USAID
activity with regard to persons with disabilities.82
iii. Trafficking Victims Protection Act
The Trafficking Victims Protection Act (TVPA) of 200083 is the most
recent addition to assistance conditionality with respect to human
rights, and it provides an example of several linkages between human
rights violations associated with trafficking victims and foreign
assistance.
The TVPA establishes minimum standards for evaluating foreign governments’
efforts and conduct toward elimination of trafficking of people.84
According to the standards, the governments of such countries should
prohibit all forms of trafficking in persons and punish acts of
trafficking, including setting severe punishments for traffickers.
Countries must demonstrate that they are making serious and sustained
efforts to eliminate trafficking.85
Section 109 of the TVPA86 authorizes the President to provide assistance
to foreign countries for programs, projects, or activities designed
to improve the policies and conduct of the receiving country in
order to eliminate trafficking. The goal of the assistance is clearly
defined: to make the country meet the minimum standards for the
elimination of trafficking as defined in Section 7102 of the TVPA.
The legislation also specifies some of the means the country should
employ to combat trafficking.87
Perhaps the most important element of the TVPA as a model for disability
rights legislation is the inclusion of funding for specific programs
to end the practice of trafficking and to minimize the underlying
factors that lead to this practice. The TVPA provides funds through
loans or training to individuals subject to trafficking. The TVPA
provides support for programs to promote women’s participation
in economic decisionmaking; programs to keep children, especially
girls, in elementary and secondary schools; programs to educate
persons who have been victims of trafficking; and public education
about trafficking programs and promotion of women’s role in
society.88 Section 7105 authorizes programs to assist trafficking
victims in foreign countries.89
The law creates a duty to report on each country’s conduct
regarding trafficking of women, as well as its policies and efforts
to combat this phenomenon. Part of the report on each country proposed
to receive security assistance under Section 502(b) or development
assistance under Section 116 of the Foreign Assistance Act must
include a detailed account of that country’s policy and conduct
toward trafficking of women.90 Again, this detailed reporting model
could be used as part of a new disability rights legislation—and
reports could be mainstreamed into the current Department of State
Country Reports.
The section that generated the most debate in Congress91 and won
the most attention in other countries is Section 110.92 Section
110 sets up sanctions—in the form of denials of foreign assistance
and exchange programs and attempts to curtail loans from international
monetary bodies, such as the IMF—against countries whose governments
do not comply with the minimum standards for the elimination of
trafficking or are not making significant efforts at compliance.93
Similar kinds of sanctions should be a tool available to protect
people with disabilities who are actively exploited.
iv. Women in Development
The challenges to promote the inclusion of women in
development bear many similarities to the challenges faced by people
with disabilities. People with disabilities do not make up as large
a percentage of the population as women, but they are a much larger
group than the other small, discrete populations protected by other
rights-specific legislation. The interplay between discrimination,
economic marginalization, and stereotypes that hold back women and
people with disabilities means that remedies for this problem must
be multifaceted and must be integrated into a wide variety of other
programs. The thirty-year experience of the women in development
movement provides invaluable lessons for the disability community.
In 1973, Congress passed the Percy Amendment to the Foreign Assistance
Act, which requires a portion of U.S. foreign assistance for international
development to be allocated to the integration of women into the
economy of the recipient country.94 The rationale, as stated in
a USAID policy paper from the 1990s,95 is to integrate women into
the national economies, “thus improving their status and assisting
the total development effort.” In 1974, the Women in Development
(WID) office was created within USAID, and was charged with overseeing
implementation of the Percy Amendment. U.S. representatives to different
monetary bodies, such as the World Bank and the International Monetary
Fund, were instructed to encourage the integration of women into
the national economies of member and recipient countries and into
professional and decisionmaking positions in such organizations.96
Both economic and social arguments were used to support the original
Percy Amendment. In the early 1970s, the growing international women’s
movement was committed to demonstrating that women’s contributions
to society and to development went all too often unrecognized and
that current development strategies deny women the benefits of being
involved in the development process.97 This view was reflected in
the international development strategy for the Second United Nations
Development Decade (1970–1980).98 Later, in the 29th Session
of the UN, the General Assembly adopted the Charter of Economic
Rights and Duties of States. The charter viewed the integration
of women in development as an important component, stressing the
need for women’s equality with men in the home and in family
life so that women could take a greater part in the life of the
community, and aimed to achieve effective home and work possibilities
for both sexes.99
The UN called on bilateral and multilateral development agencies
to reevaluate their programs according to the various declarations,
charters, and plans of actions adopted by the UN, and to channel
their resources to ensure greater participation and benefit of women
in the development programs.100 Thus, when the WID office was set
up, its mission was to “help ensure that women participate
fully and benefit equally from U.S. development assistance programs.”101
The main concern was not women’s rights but rather achieving
better development through the inclusion of women.102
In 1978, Congress added another amendment to the WID legislation
authorizing up to $10 million for economic assistance to be “used
primarily to support activities which will increase the economic
productivity and income earning capacity of women.”103 Congress
added the section later known as (b)(2), which states “[n]othing
in this section shall be construed to authorize the establishment
of a separate development assistance program for women.”104
The House Report explains that the goal of this amendment was to
promote the participation and integration of women as equal partners
in the development process. The committee did not want to create
a separate program for women that would become marginalized, but
rather wanted to integrate the participation of women in the development
programs in each of the current programs.
The original conception of WID has been criticized for its lack
of attention to gender roles and women’s rights and equality.105
Others have observed that the international women’s movement
was able to develop and build upon many of the gains that resulted
from the original WID approach.106 Without question, the WID approach
has shifted over the past decade from promoting women as a resource,
to women as a group entitled to the protection of their human rights.
As the disability community seeks support for a new Disability in
Development (DID) office, it can build on the experiences of the
international women’s movement. There are a variety of economic
and social arguments for the inclusion of people with disabilities
in development programs. In some contexts, these certainly will
be persuasive. Economic arguments support a broad-based approach
to disability in development that promotes the participation of
people with disabilities in education, employment, and private enterprise.
Many international development experts not familiar with developments
in the disability rights movement may expect a DID office to be
justified purely in economic terms. Proponents of a new DID program
should not feel obliged to revive the old arguments for the Percy
Amendment, however. U.S. disability rights legislation establishes
that protection against discrimination and full inclusion in society
have been established as a matter of right. Recent experience with
WID demonstrates that a rights-based approach to participation in
development can be effective.
A new DID program should model itself on WID’s broad mandate
that includes economic, human rights, and civil society components.
WID has four strategic objectives: (1) enhancing the_economic status
of women; (2) expanding educational opportunities for girls and
women; (3)_improving women’s legal rights and increasing their
participation in civil society; and (4)_integrating gender considerations
throughout USAID programs.107
It is important to note that implementation of the Percy Amendment
has gone through many steps and that changes in the development
field have been slow.108 A new DID program should not rely on a
Percy type amendment alone but should attempt to create additional
mechanisms to avoid the pitfalls of the early WID experience.
Two USAID studies of the WID office in 1982 and 1987 109 demonstrate
difficulties that legislation to promote the inclusion of people
with disabilities should avoid. Both studies document the difficulty
of implementing gender policies by the preexisting aid bureaucracies.
These studies emphasized the importance of programs sensitizing
USAID staff to promote the inclusion of new concepts into their
work. The 1982 paper also points to the limited mandate of the WID
office, which enabled it to voice its concerns about new projects
and policies but not to have genuine influence.
One analysis published in 1990 found that WID had made little impact
since its budget was so low and it did not have the ability to influence
other mainstream USAID programs.110 This analysis cites the following
figures from the mid-1980s: no more than 4 percent of development
funding went to WID; one-tenth or less of the agricultural projects
specified a women’s component; fewer than one-fifth of all
international trainees were female.
Over the years, USAID has made a number of efforts to overcome the
early limitations of WID. In 1996, USAID put together a Gender Plan
of Action (GPA) designed to ensure that gender considerations were
institutionalized throughout its agencies’ development programs
and projects.111 The GPA creates mandatory staff training on gender
and new guidelines for USAID grantees and contractors that require
grant applicants to demonstrate their abilities to address gender
issues. The GPA also requires that each Mission review and revise
its “mission orders” to ensure that gender issues are
considered at all appropriate points in the process of planning,
achieving, and evaluating program results.112 These elements of
the GPA are consistent with the recommendations of the 1996 NCD
Report Foreign Policy and Disability. Full inclusion of people with
disabilities in foreign assistance programs would be greatly aided
by such staff training and the establishment of guidelines for contractors
and grantees to ensure access to people with disabilities in all
programs. A regular review of Mission activities to ensure inclusion
of people with disabilities would be equally important.
In recent years, with the increase of international attention on
women’s rights, the issue of women in development received
more attention both from NGOs working on women’s rights and
from the international community. There was an upgrade in the WID
program: the head of the program was raised to a higher executive
level and a gender officer was appointed to each regional program.113
Another key lesson for a Disability in Development program: its
director at USAID must be at a sufficiently high level to bring
about changes in policy throughout the agency.
Despite these developments, the financial commitment to WID at USAID
is still small. According to Women’s Edge, a coalition of
individuals and organizations concerned with promoting the economic
status of women around the world, of the $2.7 billion the United
States spent on international development in 2000, only $10 million
directly supported WID. In 2002 the figure was $14 million. The
small size of the WID office itself is an argument that could favor
individuals with disabilities. A coordinating Disability in Development
program would similarly cost a small amount to establish (in relation
to the full USAID budget and the large proportion of individuals
with disabilities).
WID is supplemented by a Small Grants Program that supports the
development of new NGOs representing women working on different
thematic issues.114 A similar small grants program for disability
rights groups will be critical to promoting participation by people
with disabilities in development. Women’s organizations around
the world are far more advanced than disability groups. Rather than
thematic support, disability groups are in need of funding for basic
organizational infrastructure, including membership outreach and
development.115
v. Democracy, Governance, and Civil Society
USAID has established “Democracy and Governance” as
one of its current priorities. In addition to assisting governments
in establishing the mechanisms they require for the operation of
effective democracy, the Democracy and Governance Programs include
a major component of support for the activities of NGOs, commonly
referred to as “civil society.” A current USAID priority
is to support the participation of NGOs that promote civil society
in the public policy arena.116 A new disability program could be
established to ensure inclusion of people with disabilities within
civil society programs.117
Arguments for a new civil society initiative are consistent with
current USAID goals and principles established by Congress in the
Foreign Assistance Act. Disability groups, like other advocacy NGOs,
promote citizen participation, free flow of information, and a democratic
political culture—all objectives of “Democracy and Governance.”
USAID itself wrote in one report118 that “support of [NGOs
that represent people with disabilities] fits easily within the
USAID goal of strengthening civil society” and that “as
a rule people with disabilities are the last to receive education
and other services in developing countries.”
While current civil society programs are theoretically open to people
with disabilities, this is an area where a targeted outreach program
is essential to ensure accessibility. Given the long history of
discrimination and exclusion of people with disabilities, as well
as active discrimination in most of the world today, people with
disabilities and organizations representing them are, at best, at
a competitive disadvantage in applying for the very programs intended
to help start new civil society organizations.
For all practical purposes, civil society programs are not currently
accessible to many people with disabilities in developing countries.
To take one example, individuals detained in psychiatric or other
institutions are literally cut off from information or opportunities
to advance their own interests. In some countries, according to
Mental Disability Rights International, people with mental disabilities
who live in the community can be declared “mentally incompetent”
for a lifetime without any form of due process or any opportunity
to challenge the deprivation of their legal rights. Such individuals
with disabilities cannot take a book out of a public library—much
less register a legal organization and apply for internationally
supported civil society grants.
Representative democracies cannot operate effectively if large portions
of the population are not in a position to participate in public
life. In order to develop effective programs to respond to the needs
of individuals with disabilities, governments and international
development organizations must be in a position to draw on the experiences
and expertise of people with disabilities. As a practical matter,
any new program to “mainstream” people with disabilities
into other development programs may need to begin with an investment
in the education, training, and leadership of individuals with disabilities.
It may also be necessary to directly attack the discrimination,
segregated social structures, and other human rights abuses that
create barriers to participation by people with disabilities.
The development of the full recommendations outlined in this report
may be incremental. NCD recommends that one of the first steps in
support of people with disabilities in development should be an
initiative to support new disability organizations, leadership opportunities
for individuals with disabilities, and human rights protections
for people with disabilities as a whole. A civil society initiative
for people with disabilities could provide the engine for participation
by people with disabilities that could drive the long-term development
of a much larger movement in both human rights and economic development.
One of the main recommendations of NCD is that Congress should set
aside funding in the Foreign Assistance Act for the creation of
a Fund for Inclusion, Leadership, and Human Rights of People with
Disabilities (to be known as the Fund for Inclusion). This proposed
program is described in the recommendations section of this paper.
Part IV.
Current Civil Rights Protections
This section of the paper examines the requirements
of U.S. disability rights laws and evaluates the extent to which
they require programs funded by the U.S. government as well as private
entities to protect against discrimination and ensure equal access
to people with disabilities.
In Foreign Policy and Disability, NCD found that U.S. programs abroad
did not conform to the letter or spirit of U.S. disability rights
laws. This study assumed that U.S. disability rights laws are not
binding on U.S. programs abroad. Upon further examination, as well
as a review of recent case law, it appears that American disability
rights laws do indeed apply to U.S. foreign programs operating abroad
and to Americans traveling and working overseas. Recent case law
indicates that courts may be willing to extend the protections of
American disability discrimination laws to persons and conduct overseas,
even in the absence of specific legislative language, and even in
the face of the long-held presumption against the extraterritorial
application of American laws. Further, to the extent that there
is any ambiguity about the extraterritorial application of American
disability discrimination laws beyond U.S. borders, NCD recommends
that Congress instruct all relevant federal agencies, including
the U.S. State Department and USAID, that American disability discrimination
laws apply to U.S. workers, embassies, and programs operated by
or with the U.S. government overseas.
1. Extraterritorial Application of the Disability Discrimination
Laws
i. Background
The United States Congress has the authority to enact laws beyond
its territorial boundaries, if it so chooses.119 Indeed, the Supreme
Court has recognized this authority by upholding federal statutes
applied to persons or activities outside of the United States, even
against constitutional challenges.120 However, for nearly two hundred
years courts have relied upon the presumption against extraterritoriality
to prohibit the application of U.S. laws overseas. The original
justification for the presumption was based on principles of sovereignty.
Federal laws are generally presumed to apply only to conduct or
people within the United States, absent an affirmative congressional
indication to the contrary, especially if the application of such
laws would conflict with the laws of another country.121
The Supreme Court reaffirmed the presumption against extraterritoriality
most recently in the context of civil rights laws in Equal Employment
Opportunity Commission v. Arabian American Oil Co. (hereinafter
Aramco).122 Aramco involved the application of Title VII to a foreign-born
American worker employed overseas by an American corporation who
alleged discrimination based on religion and national origin. Here,
the Court refused to provide a remedy for the plaintiff, concluding
that federal statutes are not to be construed to apply to conduct
abroad “unless a contrary intent appears.”123
But the presumption against the extraterritorial application of
federal law has been called into question. Especially since the
Court’s decision in Aramco, Congress and scholars, as well
as lower federal courts and the Supreme Court itself, in subsequent
and conflicting decisions,124 have challenged the continued legitimacy
of the presumption against extraterritoriality in light of the developing
global economy.125 In fact, as courts have begun to look behind
the words of federal statutes to determine their legislative intent,
courts have found reasons either to ignore the presumption against
extraterritoriality altogether or to articulate reasons for its
inapplicability in certain cases.126
Congress already has acknowledged the applicability of civil rights
laws to conduct overseas. Within months after the Supreme Court’s
decision in Aramco, Congress enacted amendments to the Civil Rights
Act in 1991 specifically to overturn the Aramco decision 127 and
to extend coverage of Title I of the ADA and Title VII of the Civil
Rights Act of 1964 to conduct overseas.128 Upon enacting the 1991
Civil Rights Act (CRA) Amendments, Congress stated that its purpose
was “to respond to recent decisions of the Supreme Court by
expanding the scope of relevant civil rights statutes in order to
provide adequate protection to victims of discrimination.”129
The effect of the CRA Amendments, therefore, is to expand our nation’s
civil rights protections to all Americans working for U.S. or U.S.-controlled
corporations regardless of the country in which they are employed.
ii. Civil Rights Protections for Americans with Disabilities
Traveling and Working_Abroad
With respect to protections for people with disabilities, in particular,
the 1991 CRA Amendments protect Americans with disabilities who
work for private employers, covered by Title I of the ADA. These
Americans with disabilities working overseas are now entitled to
all the accommodations, rights, and remedies provided to Americans
working within the United States.
The Federal Government, however, is not covered by the ADA. Instead,
the Rehabilitation Act applies to the Federal Government and entities
that are funded by the Federal Government. Section 504 of the Rehabilitation
Act provides protections to individuals employed by programs that
receive federal financial assistance. An individual is protected
from disability discrimination under Section 504 of the Rehabilitation
Act if the person is an “otherwise qualified individual[s]
with a disability in the United States.” One could assume
that the phrase “in the United States” expresses Congress’
intent to limit its application to actions that arise within the
borders of the United States only. But upon review of recent court
decisions, it appears that Section 504 also applies to conduct outside
of the United States. For example, at least two courts have recently
upheld the extraterritorial application of discrimination laws,
even in light of the statutory phrase “in the United States.”130
In one case, the court rejected a defendant college’s argument
that Section 504 does not protect a student who sought accommodations
in an overseas study program operated by the college. The court
observed that if the law were not applied extraterritorially, “students
on overseas programs would become the proverbial ‘floating
sanctuaries from authority’ not unlike stateless vessels on
the high seas.” And even a stateless vessel, the court continued,
“may be subject to United States jurisdiction where defendants
are all citizens or resident aliens of the United States.”131
In a second case involving discrimination based on gender, a federal
court observed that the phrase, a “qualified individual in
the United States,” applies to individuals who qualify for
the law’s protection in the United States, but does not limit
the law’s coverage only to programs within the United States.
Rather, according to this court, the prohibition of discrimination
applies to “all federally funded programs, not only those
in the United States.”132
Similarly, Section 503 of the Rehabilitation Act, which prohibits
discrimination by contractors with the Federal Government, may apply
extraterritorially, even in the absence of a specific legislative
provision. Although to date no court has addressed this issue, in
the absence of legislative language limiting the geographical area
of such contracts, the United States may still be obligated to comply
with the nondiscrimination mandate of Section 503 in programs overseas,
except insofar as such compliance would conflict with another country’s
laws.
Section 501 of the Rehabilitation Act, which prohibits discrimination
against federal employees, may also apply to programs abroad. Section
501 contains no prohibition on its application to federal employees
who are stationed abroad. Indeed, in the context of discrimination
claims by federal employees, courts have held that federal employees
working abroad are entitled to protection under American civil rights
laws, including the Rehabilitation Act.133
iii. Federal Buildings and Programs Abroad
The 1996 NCD Report indicated that federal buildings, including
embassies, remain inaccessible.134 The 1996 Report also observed
that “... many of the officials interviewed contended that
U.S. accessibility standards do not apply overseas, but federal
accessibility regulations do not reflect this opinion. In fact,
accessibility standards and federal disability compliance regulations
make no exemption for overseas U.S. operations, and there has been
no definitive jurisdictional test of disability rights statutes
in court.”135
All federal buildings must be made accessible under the Architectural
Barriers Act of 1968.136 This law requires that buildings designed,
constructed, or financed by the Federal Government must ensure physical
accessibility. The law contains no requirement that such buildings
must be located within the United States. Therefore it is disturbing
that government agencies have read into the law such a geographical
limitation and that the Federal Government has not recognized its
own responsibility to comply with this accessibility mandate.
In addition to the Architectural Barriers Act, the Rehabilitation
Act as well as Title I of the ADA may also require that a federal
building overseas be made accessible if such accessibility would
be an accommodation for a worker protected under the Rehabilitation
Act or Title I. Although Title I does not apply to the Federal Government,
a private employer who provides services to the Federal Government
overseas would be required to provide accommodations, including
an accessible workplace, to its workers under Title I.
Further, not only does federal law require the U.S. government and
private employers to accommodate American workers with disabilities
overseas, but a federal court recently extended the ADA’s
accessibility mandate. Although the ADA includes no specific provision
extending the reach of the ADA to places of public accommodations
overseas, a recent decision lends support for the potential application
of Title III of the ADA to non-American actors. In Stevens v. Premier
Cruises Inc.,137 the United States Court of Appeals for the Eleventh
Circuit held that the presumption against extraterritoriality did
not preclude application of the accessibility mandate of Title III
of the ADA to a foreign cruise ship which was required to provide
accommodations to a patron who uses a wheelchair.138
In sum, in light of courts’ recent willingness to apply American
laws to conduct and persons overseas, the Federal Government is
out of step with current legal developments when it acts as if American
disability discrimination laws do not apply to its programs or employees
overseas. To make clear that the presumption against the extraterritorial
application of American disability discrimination laws does not
preclude the Federal Government from complying with its own laws
here and abroad, Congress should instruct all applicable federal
agencies, including the U.S. State Department and USAID, that the
Rehabilitation Act, as well as the ADA, prohibits discrimination
against workers and in programs operated or funded by the Federal
Government overseas.
Part V.
Recommendations
NCD recommends that Congress adopt legislation to
ensure full inclusion of people with disabilities in foreign policy
and foreign assistance programs.
1. GAO Should Conduct a Study of Current Practices
The 1991 GAO report on disability and foreign assistance provided
a valuable description of the barriers to access by people with
disabilities in U.S. agency activities abroad. The 1996 NCD Report
relied heavily on these findings, which led to the establishment
of a USAID Disability Policy. While no formal policy directives
have been established by other U.S. government agencies operating
abroad, these agencies have had ample opportunity to improve practices.
A new GAO investigation would provide an opportunity to determine
the extent to which U.S. agencies operating abroad have (1) developed
new planning or programs to ensure the inclusion of people with
disabilities as recipients of U.S. foreign assistance and (2) overcome
the specific barriers to access by people with disabilities identified
in the GAO study, the 1996 NCD Report, and this report.
NCD recommends that GAO’s new investigation be expanded to
examine whether there are barriers to people with disabilities in
policymaking, program development, and implementation of U.S. programs
abroad. The 1991 GAO Report recommended a follow-up report on the
procedures and directives that guide the Department of State in
the construction and renovation of facilities abroad to ensure accessibility
to people with disabilities.139 Apparently, this report has never
been done. In addition to examining physical access to U.S. buildings
abroad, NCD now recommends that GAO conduct a broad investigation
of access for people with disabilities to full participation in
U.S. policymaking and programs abroad.
In addition to U.S. programs, the GAO report examined access to
people with disabilities within the United Nations system in programs
directly or indirectly funded by the United States. The Untied Nations
is now engaged in a process of drafting a new UN Convention on the
Rights of People with Disabilities, and it is a particularly appropriate
time to determine whether the UN’s own offices and other facilities,
technical agencies, and programs abroad are accessible to people
with disabilities.
2. Amend the Foreign Assistance Act
Congress should amend the Foreign Assistance Act to ensure the full
inclusion of people with disabilities in U.S. policies and foreign
assistance programs. Congress should identify its commitment to
protecting the rights of people with disabilities by establishing
targeted protections within the human rights mandates of the respective
foreign assistance programs and laws. NCD recommends the following
specific amendments to the Foreign Assistance Act:
Create a disability advisor at the U.S. Department
of State to serve as a leader in the development of U.S.
international disability policy, to ensure that respect for disability
rights is included as a priority in U.S. bilateral and multilateral
policies and programs (including United Nations programs and activities),
to advise and assist the State Department Office of Democracy, Human
Rights and Labor (DRL) in preparing a section on disability rights
in the Country Reports on Human Rights Practices, to ensure the
inclusion of people with disabilities in policymaking, program development,
and implementation within the United States and abroad, and to coordinate
the work of the Department of State with the Inter-Agency Task Force
on Foreign Policy and Disability.
Require documentation of disability rights in
State Department Country Reports—State Department Country
Reports on Human Rights Practices should be required to include
specific information on the rights of people with disabilities,
such as information about improper detention in institutions and
conditions of confinement in psychiatric or mental retardation facilities,
orphanages, and other institutions where human rights abuses may
be particularly egregious. DRL should be required to establish guidelines
for staff abroad to assist them in identifying human rights abuses
against people with disabilities. These guidelines should require
that U.S. human rights officers abroad make contact with nongovernmental
disability rights organizations abroad representing the major groups
of people with physical, mental, and sensory disabilities. In countries
in which such groups cannot be identified or operate without adequate
public support, DRL should ensure that assistance is provided to
create or support human rights groups run by people with disabilities
through the Fund for Inclusion (described below). In countries in
which effective documentation by domestic disability rights groups
has not yet been established, DRL’s guidelines should suggest
that human rights officers conduct site visits to institutions where
people with disabilities are detained. Congress should set aside
funds for DRL to make this possible.
Ensure inclusion in foreign assistance programs—Create
a broad mandate to“mainstream” people with disabilities
into all aspects of U.S. foreign assistance and human rights programs.
In addition to guaranteeing that all programs be accessible to people
with disabilities, legislation should require planning to ensure
that the concerns of people with disabilities are among the priorities
of U.S. foreign assistance programs. This will require amending
22 U.S.C. 2151(n)(d) to include a new paragraph (10) addressing
the rights of people with disabilities to be free from human rights
abuses and discrimination; and by amending 22 U.S.C. 2304 (1)(1)
to include the word “disability” following race, sex,
language, and religion.
Create an Office on Disability in Development
(DID) at USAID, similar to the USAID office on Women in Development,
responsible for promoting the inclusion of people with disabilities
in all USAID programs. The DID office will provide technical assistance
to other USAID offices to assist them in developing appropriate
accommodations and outreach programs to ensure the inclusion of
people with disabilities in all existing areas of USAID programming.
In addition, the DID office will provide workshops for USAID staff
to provide the knowledge of disability issues necessary for active
collaboration in these efforts on the part of USAID staff and will
collect data on people with disabilities who are included in programs
supported by USAID funds. The DID office will establish a long-term
Strategic Plan for Inclusion to reform agency programs and will
develop an annual Disability Plan of Action to begin immediate implementation
of the Strategic Plan for Inclusion. The DID office will establish
minimum standards for the inclusion of people with disabilities
in all current USAID Requests for Proposals, Requests for Applications,
cooperative agreements, grants, and contracts.
The DID office will administer a Disability Rights Fellowship that
will place technical experts in disability issues in U.S. Missions
abroad that apply for this assistance to meet the requirement of
creating a Disability Plan of Action for the Mission. Congress should
set aside sufficient funds to permit the placement of a Disability
Rights Fellow in a majority of USAID Missions abroad.
To avoid the problems of isolation experienced by the WID office
over the years, and to promote the mainstreaming of disabilities
into substantive programs of USAID, NCD recommends that the DID
office be integrated into one of the largest substantive divisions
or “pillars” of USAID, such as the Democracy, Conflict,
and Humanitarian Assistance Division, as this is where civil society
issues are addressed. The DID office should be guided by a civil
rights approach that seeks to bring about the full inclusion of
people with disabilities into all USAID programs.
Create regional and Mission-level Disability Program
Officers—Every regional program of USAID and every
U.S. Mission abroad will be required to identify a Disability Program
Officer. The Disability Program Officer will create a Mission Disability
Plan of Action and will oversee its implementation in collaboration
with Mission staff.
Establish a Fund for Inclusion, Leadership, and
Human Rights of People with Disabilities (referred to as the Fund
for Inclusion)—The Fund for Inclusion will permit USAID
to provide grants and fellowships to promote the inclusion of people
with disabilities in foreign assistance programs. Until such time
as discriminatory practices are dismantled around the world, a targeted
program to promote leadership and participation by people with disabilities
will be essential. As a practical matter, governments and development
organizations will not be able to effectively overcome barriers
to full participation by people with disabilities until targeted
programs are created. These targeted programs can provide education,
training, and leadership experience that will help people with disabilities
overcome discriminatory barriers throughout their own societies.
NCD recommends that Congress allocate substantial support to the
Fund for Inclusion that will allow an appropriate response to the
scope of the issue and capacity building, recognizing that people
with disabilities make up at least 10 percent of the population
of any country. Funding should be at least as large as Congress
now allocates for more specialized programs that respond to the
needs of particular vulnerable populations.140
This fund will:
Support the creation of new nongovernmental organizations
and strengthen existing ones made up of people with disabilities
around the world. The Fund for Inclusion should be used to support
the work of U.S.-based disability organizations to provide technical
assistance abroad and to serve as cooperating partners in the development
of disability programs by USAID. People with disabilities who run
organizations in the United States have a broad range of valuable
skills that should be tapped for the development of participation
by counterparts abroad.
Notwithstanding the important participation by people with disabilities
from the United States, at least half of the Fund for Inclusion
shall go directly to organizations run by people with disabilities
abroad in the form of small grants, training, fellowships, or technical
assistance. The Fund for Inclusion will provide support to strengthen
existing organizations, including cross-disability organizations,
and promote their active participation in civil society and public
policymaking. The Fund for Inclusion will target support for the
development of organizations run by individuals with disabilities
that currently have no organizations representing them or are under-represented
in umbrella disability organizations as well as cross-disability
organizations. In many developing countries, for example, there
are no organizations run by people with psychiatric disabilities.
Promote educational exchanges, technical assistance,
and collaboration between U.S. disability rights groups,
foreign governments, human rights organizations, and disability
leaders abroad and build on successes that already exist in regional
and interregional training programs occurring between disability
policy organizations.
Provide technical assistance to governments and
nongovernmental disability organizations in the methodology
of disability rights legislation, implementation mechanisms, and
legal advocacy.
Assist governments in creating independent human
rights oversight or ombudsman programs to monitor and protect
the internationally recognized human rights of people with disabilities
in institutions and in the community. Ombudsman or human rights
oversight programs should be independent of government authorities
service programs they monitor; these programs should report directly
to independent advisory boards that include representation by leading
local disability organizations; and these programs shall publish
annual reports on the conditions of people with disabilities.
The DID office will create guidelines for the operation of the Fund
for Inclusion and will oversee its operation. Grants will be administered
directly by U.S. Missions abroad. Individuals and disability groups
may apply directly to the Fund for Inclusion from any country in
which USAID has a Mission.
New initiatives in post-conflict societies should
include people with disabilities—USAID programs in
post-conflict societies, and any legislation establishing new programs
in post-conflict societies, should recognize that (1) war and conflict
lead to high levels of disability, (2) the health and safety of
people with disabilities are particularly at-risk in post-conflict
societies, and (3) it is most cost efficient to plan for the inclusion
of people with disabilities when new investments are being made
in the built environment. Thus, inclusion of people with disabilities
should be a priority in the immediate aftermath of major conflicts
and disasters.
Inclusion should be a required part of the Millennium
Challenge Account—The proposed Millennium Challenge
Account, which would establish a development program parallel to
USAID, should be required to include people with disabilities from
the outset. Since education is a proposed component of the Millennium
Challenge Account, the requirement of inclusive and appropriate
education of all people with disabilities should be a particularly
important priority of this program.
3. Enforce the Application of the Rehabilitation
Act of 1973 to U.S. Government Programs_Overseas
The Rehabilitation Act, including Sections 501, 503, and 504, should
be applied specifically to all U.S. government–funded programs
abroad.
Part VI.
Looking Ahead: The UN Disability Rights Convention
In the past two years, NCD has identified a major new policy priority
in the area of foreign affairs: the support of a new United Nations
Convention on the Rights of People with Disabilities. In December
2001, the United Nations General Assembly adopted resolution 56/88
creating an Ad Hoc Committee to draft a convention. NCD has endorsed
the idea of drafting a new convention, and has published a white
paper entitled Understanding the Role of an International Convention
on the Human Rights of People with Disabilities.141 Among the many
important reasons for supporting a new convention,142 a disability-specific
human rights instrument will (1) guide the practice of the U.S.
government and international agencies to ensure inclusion of people
with disabilities in international affairs and (2) promote collaboration
between disability rights leaders in the United States and abroad.
U.S. government support for a strong UN Disability Rights Convention
will be a test of the country’s commitment to include disability
issues as a meaningful priority of U.S. foreign policy. The process
by which the U.S. government develops and advances its position
on the convention will demonstrate the U.S. commitment to full participation
of people with disabilities on matters that affect them. Effective
international collaboration in the drafting process will require
consultation and full participation of disability leaders in the
United States and abroad. Given the lack of funds for disability
groups to participate in the drafting process, NCD recommends that
the United States set aside funding from its current contributions
to the United Nations to support the UN Voluntary Fund on Disability
to facilitate consultation and dialogue with international experts,
national institutions, and leaders of NGOs concerned with the rights
of people with disabilities. By supporting a strong new UN Disability
Rights Convention, by consulting with disability groups, and by
setting aside funds necessary to ensure access to the consultative
process by people with disabilities, the U.S. will establish its
role as a leader in international disability rights consistent with
its commitments to citizens with disabilities at home.
Part VII.
Appendix
Mission of the National Council on Disability
Overview and Purpose
The National Council on Disability (NCD) is an independent
federal agency with 15 members appointed by the President of the
United States and confirmed by the U.S. Senate. The overall purpose
of NCD is to promote policies, programs, practices and procedures
that guarantee equal opportunity for all individuals with disabilities,
regardless of the nature or significance of the disability, and
to empower individuals with disabilities to achieve economic self-sufficiency,
independent living and inclusion and integration into all aspects
of society.
Specific Duties
The current statutory mandate of NCD includes the
following:
- Reviewing and evaluating, on a continuing basis,
policies, programs, practices and procedures concerning individuals
with disabilities conducted or assisted by federal departments
and agencies, including programs established or assisted under
the Rehabilitation Act of 1973, as amended, or under the Developmental
Disabilities Assistance and Bill of Rights Act, as well as all
statutes and regulations pertaining to federal programs that assist
such individuals with disabilities, in order to assess the effectiveness
of such policies, programs, practices, procedures, statutes and
regulations in meeting the needs of individuals with disabilities.
- Reviewing and evaluating, on a continuing basis,
new and emerging disability policy issues affecting individuals
with disabilities at the federal, state and local levels and in
the private sector, including the need for and coordination of
adult services, access to personal assistance services, school
reform efforts and the impact of such efforts on individuals with
disabilities, access to health care, and policies that act as
disincentives for individuals to seek and retain employment.
- Making recommendations to the President, Congress,
the Secretary of Education, the director of the National Institute
on Disability and Rehabilitation Research, and other officials
of federal agencies about ways to better promote equal opportunity,
economic self-sufficiency, independent living and inclusion and
integration into all aspects of society for Americans with disabilities.
- Providing Congress, on a continuing basis, with
advice, recommendations, legislative proposals and any additional
information that NCD or Congress deems appropriate.
- Gathering information about the implementation,
effectiveness and impact of the Americans with Disabilities Act
of 1990 (42 USC 12101 et seq.).
- Advising the President, Congress, the commissioner
of the Rehabilitation Services Administration, the assistant secretary
for Special Education and Rehabilitative Services within the Department
of Education, and the director of the National Institute on Disability
and Rehabilitation Research on the development of the programs
to be carried out under the Rehabilitation Act of 1973, as amended.
- Providing advice to the commissioner of the Rehabilitation
Services Administration with respect to the policies and conduct
of the administration.
- Making recommendations to the director of the National
Institute on Disability and Rehabilitation Research on ways to
improve research, service, administration and the collection,
dissemination and implementation of research findings affecting
persons with_disabilities.
- Providing advice regarding priorities for the activities
of the Interagency Disability Coordinating Council and reviewing
the recommendations of this council for legislative and administrative
changes to ensure that such recommendations are consistent with
NCD’s purpose of promoting the full integration, independence
and productivity of individuals with disabilities.
Preparing and submitting to the President and Congress an annual
report titled National Disability Policy: A Progress Report.
International
In 1995, NCD was designated by the Department of State to be the
U.S. government’s official contact point for disability issues.
Specifically, NCD interacts with the special rapporteur of the United
Nations Commission for Social Development on disability matters.
Consumers Served and Current Activities
Although many government agencies deal with issues and programs
affecting people with disabilities, NCD is the only federal agency
charged with addressing, analyzing and making recommendations on
issues of public policy that affect people with disabilities regardless
of age, disability type, perceived employment potential, economic
need, specific functional ability, veteran status or other individual
circumstance. NCD recognizes its unique opportunity to facilitate
independent living, community integration and employment opportunities
for people with disabilities by ensuring an informed and coordinated
approach to addressing the concerns of people with disabilities
and eliminating barriers to their active participation in community
and family life.
NCD plays a major role in developing disability policy in America.
In fact, NCD originally proposed what eventually became the Americans
with Disabilities Act. NCD’s present list of key issues includes
improving personal assistance services, promoting health-care reform,
including students with disabilities in high-quality programs in
typical neighborhood schools, promoting equal employment and community
housing opportunities, monitoring the implementation of ADA, improving
assistive technology and ensuring that those persons with disabilities
who are members of diverse cultures fully participate in society.
Statutory History
NCD was initially established in 1978 as an advisory board within
the Department of Education (P.L. 95-602). The Rehabilitation Act
Amendments of 1984 (P.L. 98-221) transformed NCD into an independent
agency.
PART VIII.
Endnotes
1 22 U.S.C.A. § 2304 (1979) (Supp. 2001).
2 The 2000 and 2001 State Department Country Reports
on Hungary both included a reference to the fact that people with
mental disabilities are detained in cages in Hungarian social care
facilities. Bureau of Democracy, Human Rights and Labor, U.S. Dep’t
of State, Country Reports On Human Rights Practices 2000, Hungary,
available at http://www.state.gov/g/drl/rls/hrrpt/2000/eur/774.htm
(viewed on June 1, 2003) [hereinafter Country Reports]; Country
Reports 2001, Hungary, available at http://www.state.gov/g/drl/rls/hrrpt/2001/eur/8264.htm.
Mental Disability Rights International (MDRI) had documented this
problem in its 1997 report, Human Rights and Mental Health: Hungary,
but Hungarian psychiatric authorities consistently defended the
use of cages. Mental Disability Rights Int’l, Human Rights
And Mental Health: Hungary (Washington College of Law, American
University 1997) available at http://www.mdri.org/report_percent20documents/Hungary.doc
(viewed June 1, 2003). Two days after the release of the 2000 State
Department Report, officials at the Hungarian Ministry of Welfare
contacted MDRI and disability activists in Hungary to begin a collaborative
process of drafting new regulations that would ban the use of cages.
Since then, the use of cages in Hungary has rapidly declined. The
practice has not yet been outlawed.
3 While there is currently no international convention
on the rights of people with disabilities, existing human rights
law provides a broad range of protections for people with disabilities.
Report of the United Nations Consultative Expert Group Meeting on
International Norms and Standards Relating to Disability, Convened
by the United Nations in Cooperation With Boalt Hall School of Law,
University of California at Berkeley and the World Institute on
Disability (Oakland, California USA) at Boalt Hall School of Law,
University of California at Berkeley 8-12 December 1998 (part 3–legal
framework), available at http://www.un.org/esa/socdev/enable/disberk0.htm
(viewed on May 30, 2003) (this meeting set out to review and discuss
issues and trends relating to the practical application of international
norms and standards to promote the human rights of persons with
disabilities in the international and domestic contexts).
4 As part of the Decade for Disabled Persons from
1983 to 1992, the UN Human Rights Commission appointed two special
rapporteurs, Leandro Despouy and Erica-Irene Daes, who documented
a worldwide pattern of abuse. Leandro Despouy, U.N. Ctr. for Human
Rights & U.N. Sub-comm’n on Prevention of Discrimination
and Prot. of Minorities, Human Rights and Disabled Persons, U.N.
Sales no. E92.xiv.4 (1993); United Nations Sub-comm’n on Prevention
of Discrimination and Prot. of Minorities, Principles, Guidelines
and Guarantees for the Prot. of Persons Detained on Grounds of Mental
Ill-Health or Suffering from Mental Disorder, United Nations, Economic
and Social Council, Commission on Human Rights, Sub-Commission on
Prevention of Discrimination and Protection of Minorities, Human
Rights And Disability, U.N. Doc. E/CN.4/Sub.2/1991/31 (prepared
by Leandro Despouy) [hereinafter Despouy Report]. United Nations,
Economic and Social Council, Commission on Human Rights, Sub-Commission
on Prevention of Discrimination and Protection of Minorities, Principles,
Guidelines, and Guarantees for the Protection of Persons Detained
on Grounds of Mental Ill-Health or Suffering from Mental Disorder,
U.N. Doc. E/CN.4/Sub.2/1983/17 (prepared by Erica-Irene Daes) [hereinafter
Daes Report].
5 Second Annual Report on the Implementation of USAID
Disability Policy, available at http://www.usaid.gov/about/disability/2ar_imp_policy.html#background
(viewed June 1, 2003).
6 Comprehensive and Integral International Convention
to Promote and Protect the Rights and Dignity of Persons with Disabilities,
3rd Comm., 56th Sess., Agenda Item 119(b), U.N. Doc. A/C.3/56/L.67/Rev.1
(28 Nov. 2001). See United Nations–Department Of Economics
And Social Affairs, Statistics Division, available at http://unstats.un.org/unsd/disability/default.asp
(viewed on June 1, 2003) (listing percentages of persons with disability
in different countries. Examples, in percent, are United States
1994 Survey - 15.0; Canada 1991 Survey -15.5; China 1987 Survey
- 5.0; New Zealand 1996 Survey - 20.0; Germany 1992 Survey - 8.4;
Sweden 1988 Survey - 12.1; United Kingdom 1991 Census - 12.2; Zambia
1990 Census - 0.9; Uganda 1991 Census - 1.2; Bangladesh 1982 Survey
- 0.8; India 1981 Census - 0.2. It seems that the percentage of
people with disabilities increases the more developed the country
is and the more recent the survey is. This is probably due to higher
levels of awareness about disabilities and what constitutes disability.
For the questions used in the surveys, see http://unstats.un.org/unsd/
disability/allquest.htm (viewed on June 1, 2003). “Existing
disability data is woefully inadequate, with published estimates
of national, regional, and global populations of people with disabilities
being highly speculative.” The United States Agency for International
Development (USAID) estimates the global population of people with
disabilities to be 10 percent or more, and the Roeher Institute
in Toronto, Canada, estimates the global population to be 10 to
13 percent.” See Robert L. Metts, Disability Issues, Trends
and Recommendations for the World Bank, Discussion Paper No. 0007,
6 (February 2000); Marcia Rioux, Enabling the Well-Being of Persons
With Disabilities 2 (Roeher Institute 1998), cited in National Council
on Disability, Understanding the Role of an International Convention
on the Human Rights of People with Disabilities 5 (June 12, 2002)
[hereinafter UN Convention White Paper].
7 Despouy Report, supra note 4 at para. 3.
8 In Bulgaria, for example, the Country Reports note
that people in psychiatric facilities are held in cages. See Country
Reports 2002, Bulgaria, available at http://www.state.gov/g/drl/rls/hrrpt/2002/18358.htm
(viewed on June 1, 2003). In Kosovo, the Country Reports note that
physical and sexual abuses have gone unchecked in psychiatric facilities.
In Albania, “[w]idespread poverty, unregulated working conditions,
and poor medical care posed significant problems for many persons
with disabilities.” Country Reports 2000, Albania, available
at http://www.state.gov/g/drl/rls/hrrpt/2000/eur/668.htm (viewed
on June 1, 2003).
9 See, e.g., Mental Disability Rights International,
Not On The Agenda: Human Rights Of People With Mental Disabilities
In Kosovo (2002), available at http://www.mdri.org/pdf/KosovoReport.pdf
(viewed on June 1, 2003); Mental Disability Rights International,
Human Rights & Mental Health: Mexico (2000), available at http://www.mdri.org/publications/Russia.html
(viewed on June 4, 2003); Mental Disability Rights International,
Human Rights & Mental Health: Hungary (1997), available at http://www.mdri.org/report
percent20documents/Hungary.doc (viewed on June 4, 2003). Mental
Disability Rights International, Human Rights & Mental Health:
Uruguay (1995), available at http://www.mdri.org/publications/index.htm
(viewed on June 1, 2003). See also Amnesty International Urgent
Action on Bulgaria at http://www.amnesty.org. See also Los Derechos
Humanos De Las Personas Con Discapacidad (compiled by Rodrigo Jimenez,
1996).
10Ann Elwan, Poverty and Disability: A Survey of the
Literature Social Protection Discussion Paper No. 9932, The World
Bank Group, available at http://wbln0018.worldbank.org/HDNet/hddocs.nsf/2d5135ecbf351de6852566a90069b8b6/
a16f1100a7ae28ff852567f600636b11?OpenDocument (viewed on June 4,
2003). (Elwan Report). According to figures of the National Organization
on Disability, the education levels of people with disabilities
in the United States are also below those of nondisabled: 22 percent
of Americans with disabilities fail to complete high school, compared
to 9 percent of those without disabilities. See National Organization
on Disability Web site, at http://www.nod.org/cont/dsp_cont_item_view.cfm?contentId=14
(viewed on June 4, 2003).
11 Department for International Development, Disability,
Poverty and Development 5 (2000), citing B. Hariss-White, Presentation
to the Development Studies Association Annual Conference, University
of Bath (September 13, 1999).
12 See Elwan Report supra, note 10. The report found
that “the links between poverty and disability go two ways—not
only does disability add to the risk of poverty, but conditions
of poverty add to the risk of disability.”
13 The World Bank, World Development Report: Investing
in Health (1993).
14 Department for International Development, Disability,
Poverty and Development 4 (2000), citing Leandro Despouey, Human
Rights and Disabled Persons—United Nations Centre for Human
Rights Study Series 6 (1993).
15 Disability, Poverty, and Development, Id. at 1.
16 Id. at 8.
17 Norwegian Association of the Disabled, Aid to the
Disabled in Developing Countries (1994).
18 The World Bank Web site: www.worldbank.org (viewed
on October 26, 2002).
19 A recent study done by the World Bank concludes
that “People with disabilities in the developing world are
among the poorest of the poor…. With disabled people invisible
in development initiatives, hundreds of thousands of people who
see themselves as potential and willing contributors to family and
national economic activity are instead relegated to the margins
of society where they are perceived as an actual burden. The result
can be devastating, both to the individual and to the economy.”
Deborah Stienstra, Yutta Fricke, April D’Aubin Baseline Assessment:
Inclusion and Disability in World Bank Activities, Canadian Centre
on Disability Studies, June 2002, available at http://wbln0018.worldbank.org/hdnet/hddocs.nsf/View+to+Link+WebPages/
841239FD3C23B7FD85256C07006824FE?OpenDocument (viewed on June 4,
2003).
20 For more information on World Bank projects concerning
disabled people see World Bank, Support for Project Design at http://wbln0018.worldbank.org/HDNet/hddocs.nsf/
2d5135ecbf351de6852566a90069b8b6/ 9ba0357c78adaadc8525683c00588c7c?OpenDocument
(viewed on June 4, 2003).
21 Rehabilitation Act of 1973, P.L. No. 93-112, 87
Stat. 355 (1973).
22 Americans with Disabilities Act of 1990 (ADA),
P.L. No. 101-336, 104 Stat. 327 (1990).
23 National Council on Disability, Foreign Policy
and Disability at 1 (1996), available at http://www.ncd.gov/newsroom/publications/foreign/html.
24 National Council on Disability, Rehabilitating
Section 504 at 76 (February 12, 2003), available at http://www.ncd.gov/newsroom/publications/section504.html
(viewed on June 4, 2003).
25 U.S. General Accounting Office, Foreign Assistance:
Assistance to Disabled Persons in Developing Countries (February
1991), Report #NSIAD-91-82, at 2. The report also examined activities
of the United Nations, other international organizations, and efforts
by nongovernmental organizations.
26 The exception to the rule identified by the GAO
report was the Peace Corps. “Among US Agencies, only the Peace
Corps has a specific mandate to assist disabled persons, and it
has emphasized special education and rehabilitation in the programs
it has provided. Assistance from other agencies has generally been
sporadic rather than part of planned programs with specific objectives
to target disabled people.” Id. at 3.
27 Id. at 26.
28 Id. at 48.
29 Id. at 26.
30 Id. at 48.
31 Id.
32 Transmittal letter of the GAO Report from Harold
Johnson, Director, Foreign Economic Assistance Issues, to the Honorable
Claiborne Pell, Chairman, Committee on Foreign Relations, United
States Senate, and the Honorable Jesse A. Helms, Ranking Minority
Member, Committee on Foreign Relations, United States Senate, February
15, 1991.
33 Id. at 23.
34 Id.
35 Id.
36 The current USAID Policy Paper on Disability states
that “[t]he Americans with Disabilities Act of 1990 (ADA)
is generally not applicable to USAID’s overseas programs.
While the ADA applies to US citizens (including USAID employees)
overseas, it does not apply to non-US citizens, who are the primary
beneficiaries of USAID programs. The USAID Disability Policy is
thus in part an effort to extend the spirit of the ADA in areas
beyond the jurisdiction of U.S. law.” U.S. Agency for International
Development, Policy Guidance: USAID Disability Policy Paper, September
12, 1997, at 3, available at http://www.usaid.gov/about/disability/DISABPOL.FIN.html
(viewed on June 4, 2003).
37 Policy states the following: “To avoid discrimination
against people with disabilities in programs which USAID funds and
to stimulate an engagement of host country counterparts, governments,
implementing organizations and other donors in promoting a climate
of nondiscrimination against and equal opportunity for people with
disabilities.” Id.
38 Id.
39 Id. at 9.
40 Id., at Section D.
41 US Agency for International Development, First
Annual Report on Implementation of US AID Disability Policy, December
23, 1998, available at http://www.usaid.gov/about/disability/disrept.htm#Status
(viewed on June 4, 2003).
42 Id.
43 US Agency for International Development, The Second
Annual Report on the Implementation of the USAID Disability Policy,
February 15, 2000, available at http://www.usaid.gov/about/disability/2ar_imp_policy.html#toc
(viewed on June 4, 2003).
44 Emphasis added.
45 Id.
46 At the December 6, 2002, meeting, Tina Singleton
of Mobility International USA (MIUSA) reported on one positive effort
to promote the inclusion of women with disabilities in current USAID
programs.
47 Id.
48 Mobility International USA, Gender and Disability:
A Survey of Inter-Action Member Agencies (2003), at ix, available
at http://www.miusa.org/development/resources/genderdisabilityreport.PDF
(viewed on June 4, 2003).
49 Id. at xv.
50 Id. at ix.
51 In parts of the world, psychiatric disability is
considered an “illness” rather than a disability, and
people with psychiatric disabilities are not included in umbrella
disability organizations. In much of the world, family members represent
people with disabilities—to the exclusion of individuals with
disabilities themselves. In Kosovo, MDRI documented international
development programs theoretically directed to support the inclusion
of people with disabilities that excluded individuals with mental
disabilities. A national Disability Task Force established by the
United Nations with international funds to promote the inclusion
of people with disabilities in public policies did not include representation
by people with mental disabilities because there were no mental
disability advocacy organizations in Kosovo. Instead, UN officials
invited the chief technician working at the psychiatric ward to
represent people with mental disabilities. MDRI, Kosovo Report,
supra note 9.
52 MDRI reports that in some countries, a person with
a mental disability can be declared “mentally incompetent”
for a lifetime without any form of judicial review. Such individuals
may have their identity papers taken away from them, may be excluded
from educational or vocational programs, and may be prohibited from
making contracts. In some countries, large numbers of people with
disabilities are segregated from society in institutions that control
every aspect of their lives. Such individuals are cut off from the
assistance of mainstream nongovernmental organizations and lack
information about foreign assistance programs that may be open to
them.
53 See, e.g., The Inclusion of Disability in Norwegian
Development Cooperation: Planning and_Monitoring for the Inclusion
of Disability Issues in Mainstream Development Activities (January
2002).
54 Stephen B. Cohen, Conditioning U.S. Security Assistance
on Human Rights Practices, 76 A.J.I.L. 246 (1982).
55 Standard Rules on the Equalization of Opportunities
for Persons with Disabilities, adopted by the General Assembly 85th
plenary meeting, 20 December 1993.
56 Id. at para 14.
57 See Nordic Disabled Person Organisations, Inclusion
of the Disability Dimension in Nordic Development Cooperation, 2000,
available at http://www.disability.dk/images/docpics/1006794750_Conference_report.doc
(reporting and consolidating the Nordic countries’ joint disability
and development policy) (viewed June 6, 2003).
58 22 U.S.C.A. § 2304 (1979) (Supp. 2001), as
updated by Foreign Relations Authorization Act,_Fiscal Year 2003,
P. L. No. 107-228, 116 Stat. 1350 (2002); P.L. 108-23, approved
May_19,_2003.
59 Id.
60 Id.
61 22 U.S.C.A. § 262d-1(1979) (Supp. 2001).
62 Frank Newman & David Weissbrodt, International
Human Rights: Law, Policy and Process, 395 (1996). This textbook
about international human rights contains a specific chapter titled
“How Can the U.S. Government Influence Respect for Human Rights
in Other Countries?” (Chapter 9), which surveys the policies
of different U.S governments concerning foreign assistance and human
rights and notes different lectures and articles of various Secretaries
of State about this issue as well as legislation.
63 22 U.S.C.A. § 2304 (2001), as updated by Foreign
Relations Authorization Act, Fiscal Year 2003, P. L. No. 107-228,
116 Stat. 1350 (2002); P.L. 108-23, approved May 19, 2003.
64 Congress, it appears, was concerned not only with
justice but also with the appearance of it. Another section of this
clause says that the assistance should be given in a manner which
would “avoid identification of the United States, through
such programs, with governments which deny to their people internationally
recognized human rights and fundamental freedoms, in violation of
international law or in contravention of the policy of the United
States as expressed in this section or otherwise” (22 U.S.C.A.
§ 2304). The President has authority to lift such sanctions
when he finds that a significant improvement in the foreign country’s
human rights record has occurred. 22 U.S.C.A. § 2304 (e). The
term “significant improvement” of a country’s
human rights record lacks a real definition, apart from specification
that changes must “[warrant] lifting the prohibition on furnishing
such assistance in the national interest of the United States.”
65 22 U.S.C.A. § 2751 (2001).
66 22 U.S.C.A. § 2304 (d) (1).
67 Price v. United Kingdom, 53 Eur.Ct. H.R., (2001)
(in which a woman in a wheelchair detained in jail overnight was
denied accessible toilet facilities). This is obviously not the
kind of “flagrant denial” of human rights envisioned
by the Foreign Assistance Act, but the case demonstrates that international
human rights bodies have recognized that denial of accessibility
can cause great suffering and this can rise to the level of suffering
necessary to trigger the protections of the most strict provisions
of international human rights conventions. See generally Eric Rosenthal
& Clarence Sundram, The Role of International Human Rights in
Mental Health Legislation, 21 N.Y.L.Sch.J.Int’l & Comp.
L. 469.
68 The Case of Victor Rosario Congo, Inter-American
Commission on Human Rights Report 29/99, Case 11,427, Ecuador, adopted
in Sess. 1424, OEA/Ser/L.V/II.) Doc. 26, March 9, 1999 (a case from
Ecuador in which a man with a psychiatric disability died in detention
after he was denied appropriate medical treatment).
69 MDRI has documented conditions in psychiatric facilities
where conditions are so inhuman and dangerous that annual mortality
rates are above 20 percent. MDRI has received reports of institutions
for children with disabilities with mortality rates as high as 80
percent. In some institutions MDRI has investigated, there is no
oversight or protection. People are left covered in their own feces,
detained in cages, tied to beds for long periods of time, or subjected
to sexual abuses. See MDRI reports, supra note 9.
70 22 U.S.C.A. § 2304 (a)(4). “In determining
whether the Government of a country engages in a consistent pattern
of gross violations of internationally recognized human rights,
the President shall give particular consideration to whether the
government (A) has engaged in or tolerated particularly severe violations
of religious freedom, as defined in section 6402 of this title;
or (B)_has failed to undertake serious and sustained efforts to
combat particularly severe violations of religious freedom when
such efforts could have been reasonably undertaken.”
71 Pub.L. 105-292, Oct. 27, 1998, 112 Stat. 2787 (22
U.S.C.A. §§ 6401, 6402).
72 Subsection 11 to § 6402 reads: “The
term ‘particularly severe violations of religious freedom’
means systematic, ongoing, egregious violations of religious freedom,
including violations such as—(A) torture or cruel, inhuman,
or degrading treatment or punishment; (B) prolonged detention without
charges; (C) causing the disappearance of persons by the abduction
or clandestine detention of those persons; or (D) other flagrant
denial of the right to life, liberty, or the security of persons.”
22 U.S.C.A. § 6402 (11).
73 22 U.S.C.A. § 2151n, as updated by the Foreign
Relations Authorization Act, Fiscal Year 2003, P. L. No. 107-228,
116 Stat. 1350 (2002); P.L. 108-23, approved May 19, 2003.
74 Donald M. Fraser, “Congress’s Role
in the Making of International Human Rights Policy,” in Human
Rights and American Foreign Policy 247, 247-54 (Donald P. Kommers
& Gilburt D. Loescher, eds. 1979) in Frank Newman & David
Weissbrodt at 393, supra note 62.
75 Country Reports are submitted to the Congress by
the Department of State in compliance with sections 116(d)(1) and
502B(b) of the Foreign Assistance Act of 1961 (FAA), as amended,
and Section 505 (c) of the Trade Act of 1974, as amended. As stated
in Section 116(d)(1) of the FAA: “The Secretary of State shall
transmit to the Speaker of the House of Representatives and the
Committee on Foreign Relations of the Senate, by January 31 of each
year, a full and complete report regarding the status of internationally
recognized human rights, within the meaning of subsection (A) in
countries that received assistance under this part, and (B) in all
other foreign countries which are members of the United Nations
and which are not otherwise the subject of a human rights report
under this Act.” 22 U.S.C.A. § 2151n (d). Section (a)
provides: No assistance may be provided under this part to the government
of any country which engages in a consistent pattern of gross violations
of internationally recognized human rights, including torture, or
cruel, inhuman, or degrading treatment or punishment, prolonged
detention without charges, causing the disappearance of persons
by the abduction and clandestine detention of those persons, or
other flagrant denial of the right to life, liberty, and the security
of person, unless such assistance will directly benefit the needy
people in such country.
76 22 U.S.C.A. § 2151n (d) and (f).
77 See MDRI Reports supra note 9.
78 22 U.S.C.A. § 2152.
79 22 U.S.C.A. § 2152 (b).
80 22 U.S.C.A. § 2152 (c).
81 First Annual Report on Implementation of USAID
Disability Policy, supra note 41.
82 Id.
83 P.L. 106-386, Div. A, Oct. 28, 2000, 114 Stat.
1464.
84 22 U.S.C.A. § 7106.
85 More details concerning the criteria for determination
that the government is making “serious and sustained efforts”
to eliminate trafficking are set up in subsection (c). Id.
86 22 U.S.C.A. § 2152d.
87 22 U.S.C.A. § 2152d (a) (1)–(4). These
include drafting of legislation, law enforcement measures, and creation
of facilities and programs to protect victims of trafficking and
exchange programs for learning how to combat trafficking.
88 22 U.S.C.A. § 7104.
89 22 U.S.C.A. § 7105 as amended by Foreign Relations
Authorization Act, Fiscal Year 2003, P.L. No. 107-228, 116 Stat.
1350 (2002) (these recent changes specifically target NGOs that
provide services to trafficking victims as recipients of foreign
assistance funds). And see USAID_WID office report about its activities
regarding trafficking: Trafficking in Persons: USAID’s Response,
available at http://www.usaid.gov/wid/pubs/trafficking_pub_final.pdf
(viewed June 5, 2003).
90 22 U.S.C.A. § 2304 (h).
91 Sabrina Feve & Christina Finzel, Recent Development:
Trafficking of People, 38 Harv. J. on Legis. 279 (2001).
92 22 U.S.C. A. § 7107.
93 The President can decide to continue the foreign
assistance despite noncompliance with the minimum standards in two
cases: (a) American national interest requires it or (b) continuation
of assistance would promote the objective of the legislation. §
7107 (d)(4) Subsection (5) further decrees that the President will
use his discretion when there will be an adverse effect on women
and children.
94 22 U.S.C.A. § 2151k.
95 USAID, Policy Paper: Women In Development, Washington,
D.C., October 1992 at 2, reprinted in Gloria Nikoi, Gender and Development,
at 20 (1998).
96 22 U.S.C. § 2225.
97 Celestine I. Nyamu, How Should Human Rights and
Development Respond to Cultural Legitimization of Gender Hierarchy
in Developing Countries, 41 Harv. Int’l L.J. 381, 384_(2000).
98 United Nations: International Development Strategy–Action
Programme of the General Assembly for the Second UN Development
Decade, 5, reprinted in Nikoi, supra note 95, at 11. Following the
statement of goals and objectives came this: “As the ultimate
purpose of development is to provide increasing opportunities for
a better life, it is essential to bring about a more equitable distribution
of income and wealth for promoting both social justice and efficiency
of production…. Thus, qualitative and structural changes in
the society must go hand in hand with rapid economic growth; and
existing disparities—regional, sectoral, and social—should
be substantially reduced.” Id. at 12.
99 United Nations: 3281 (XXIX) Charter of Economic
Rights and Duties of States 52, reprinted in Nikoi, supra note 95,
at 13. The Charter stated further: “The right of women to
work, to receive equal pay for work of equal value, to be provided
with equal conditions and opportunities for advancement in work,
and all other women’s rights to full and satisfying economic
activity are strongly re-affirmed.” Id.
100 Nikoi, supra note 95, at 19.
101 WID Web site, available at www.usaid.gov/wid (viewed
on June 5, 2003).
102 Katherine Spengler, Expansion of Third World Women’s
Empowerment: The Emergence of Sustainable Development and the Evolution
of International Economic Strategy, 12 Colo. J. Int’l Envl.
L. & Pol’y 303, 313–314 (2001).
103 P.L. 95-424, 1978 HR 12222 §108.
104 Id.
105 Nyamu, supra note 97 at 385-386.
106 Spengler, supra note 102 at 315.
107 supra note 101.
108 At the December 6, 2002, NCD meeting, Elise Smith
of Women’s Edge, a coalition of individuals and organizations
concerned with promoting the economic status of women around the
world, observed that the Percy Amendment opened the door to women
in development programs, but that a number of subsequent initiatives
were needed to bring about effective inclusion. See also Ossai Miazad,
Legislative Focus: Gains Act, 9 Hum. Rts. Br. 37 (2002).
109 Kathleen Staudt and Alice Stewart Carloni, Women
in Development: AID’s Experience, 1973–1985, A-14, reprinted
in Nikoi, supra note 95 at 20-21.
110 Women, International Development, and Politics—The
Bureaucratic Mire, updated and expanded ninth edition (Kathleen
Staudt, ed., 1997).
111 Miazad, supra note 108.
112 USAID Office of Women In Development, Gender Plan
of Action: Fact Sheet, March 1997, available at http://www.usaid.gov/wid/pubs/actionfs.htm
(viewed on June 5, 2003).
113 Elise Smith, Women’s Edge, Coalition of
Individuals and Organizations Concerned With Promoting the Economic
Status of Women Around The World, National Council on Disability
Strategy Session, Washington, D.C., December 6, 2002.
114 Id.
115 MDRI has developed detailed recommendations to
funders for the development of nongovernmental advocacy groups.
See MDRI, Kosovo Report, supra note 9, and MDRI, Children in Russia’s
Institutions, supra note 9.
116 See “Civil Society” section in the
Office of Democracy and Governance on USAID Web site, http://www.usaid.gov/democracy/office/civ.html
(viewed on June 5, 2003).
117 The term “civil society” means the
independent, nongovernmental, nonprofit realm of citizen activity.
Within civil society are all those nonprofit organizations formed
of the free association of people and to create social support or
other community work, express views, debate issues, and advocate
for public policies on matters that affect them.
118 First Annual Report on Implementation of the USAID
Disability Policy, supra note 41.
119 Art. I, § 8, cl. 3 of the Constitution gives
Congress broad powers “to regulate Commerce with foreign Nations.”
See EEOC v. Arabian Am. Oil Co., 499 U.S. at 248 (1991) [hereinafter
Aramco] (citing Foley Bros. v. Filardo, 336 U.S. 281, 284-85 (1949)).
120 See Hartford Fire Ins. v. Cal., 509 U.S. 764 (1949);
Ford v. United States, 273 U.S. 593 (1927); American Banana Co.
v. United Fruit Co. 213 U.S. 341, 356 (1909); Lauritzen v. Larsen,
345 U.S. 571, 579 n.7 (1953); Steele v. Bulova Watch Co., 344 U.S.
280, 282-86 (1952) (rejecting constitutional challenge to application
of Lanham Act to conduct occurring in Mexico).
121 See Aramco, 499 U.S. at 248; Hartford Fire Ins.,
509 U.S. at 764 (Scalia, J., dissenting).
122 Aramco, 499 U.S. 244, superseded by P.L. No. 102-166
(1991).
123 Id. at 248 (discussing Foley Bros., 336 U.S. at
285, quoted in William S. Dodge, Understanding the Presumption Against
Extraterritoriality, 16 Berkeley J. Int’l L. 85, 92 (1998);
Curtis A. Bradley, Territorial Intellectual Property Rights in an
Age of Globalism, 37 VA. J. Int’l L. 505, 507 (1997).
124 See, e.g., Hartford Fire Ins. Co., 509 U.S. at
794-96 (applying Sherman Act to conduct abroad without referring
to presumption against extraterritoriality).
125 See, e.g., Jonathan Turley, “When in Rome”
Multinational Misconduct and the Presumption Against Extraterritoriality,
84 NW. U. L. Rev. 598, 663-64 (1990).
126 See, e.g., Envtl. Def. Fund v. Massey, 986 F.2d
528 (D.C. Cir. 1993). For a thorough discussion of the questionable
relevance of the presumption against extraterritoriality to disability_discrimination
laws, see Arlene S. Kanter, Taking it on the Road: The Extraterritorial
Reach of Disability Discrimination Laws to Students Studying Abroad,
Stanford J. Leg. and Pol. 2003 (forthcoming).
127 Following the Court’s decision in Aramco,
Representative Jefferson (D-LA) introduced H.R. 1694, American Employees
Equity Act of 1991, Representative Mfume (D-MD) introduced H.R.
1741, Extraterritorial Employment Protection Amendments of 1991,
and Senator Danforth (R-MO) introduced S. 1407, Protection of Extraterritorial
Employment, together with Senator Kennedy’s (D-MA) bills comprising
the Civil Rights Act.
128 Congress amended the Civil Rights Act in 1991
to give extraterritorial protection to American citizens working
overseas for American employers in Section 109. See P.L. No. 102-166,
105 Stat. 1071 (codified as amended at 42 U.S.C. § 1981 (1991)),
136 Cong. Rec. S15, 235 (daily ed. Oct. 25, 1991) (statement of
Sen. Kennedy). Senator Grassley, a sponsor of the amendments, remarked
that the 1984 amendments to the Age Discrimination in Employment
Act “close a loophole created by several court decisions.”
See 130 Cong Rec. S65, 46 (daily ed. May 24, 1984) (statement of
Sen. Charles Grassley). 42 U.S.C. 12111-117 (1990).
129 Civil Rights Act of 1991, P.L. No. 102-166, §
109, 105 Stat. 1071 (codified in sections of 42 U.S.C.). For a comprehensive
review of the enactment of the Civil Rights Act of 1991, and cases
applying that law, see Maher, supra note 49.
130 See Bird v. Lewis & Clark College, 104 F.
Supp. 2d 1271 (D. Or. 2000) aff’d 303 F.3d 1015 (9th Cir.
2002), cert. denied, 123 S.Ct. 1583 (March 24, 2003) (trial court
upheld extraterritorial application of the ADA and Section 504 but
denied relief under these laws to student who uses a wheelchair
and claimed the University had failed to accommodate her disability
in its overseas program, although the Court of Appeals for the Ninth
Circuit did not reach the issue of extraterritoriality). 2002 U.S.
App. Lexis 10842. See also King v. Bd. of Control of E. Mich. Univ.,
221 F.Supp.2d 783 (2002).
131 Order Ruling on Extraterritoriality, 9 (D.Or.
Oct. 13, 1999) (on file with author, citing United States v. Juda,
46 F. 3d- 961,067 (9th Cir. 1995).
132 King, 221 F. Supp. 2d 783 (2002).
133 See, e.g., Barth v. Gelb, in which the court held
that the State Department's Foreign Service is subject to the requirements
of the Rehabilitation Act, in a case involving an insulin-dependent
Foreign Service specialist who had alleged he was denied a reasonable
accommodation in the form of flexibility in assignments. Although
the court found for the defendant, Voice of America, the court specifically
recognized the applicability of the Rehab Act to foreign service
workers. Barth v. Gelb 761 F. Supp. 830 (D.C. Cir. 1991). See also
Local 1812 American Fed. of Government Employees v. US Department
of State, 662 F. Supp. 50 (D.C. Cir. 1987) (court recognized that
the Foreign Service Act is made subject to the Rehab Act in 22 U.S.C.
3905(e)(4)); Guerriero v. Schultz, 557 F. Supp. 511 (D.D.C. 1983)
(foreign service worker covered by the Rehabilitation Act); Mendez
v. Gearan, 956 F. Supp. 1520 N.D. Ca. 1997) (Peace Corps worker
covered by Rehabilitation Act); Barrera v. Dalton, 1997 U.S. App.
Lexis 17611 (4th Cir. 1997) (Navy employee covered by Rehabilitation
Act).
134 NCD Report at 21.
135 Id. at 23.
136 42 U.S.C. 4151-4157.
137 Stevens v. Premier Cruises Inc. 215 F.3d 1237
(11th Cir. 2000).
138 The Department of Justice and the Department of
Transportation have taken the position that foreign flag cruise
ships are subject to Title III of the ADA when they dock in U.S.
ports by virtue of their contacts with the United States. See U.S.
Dept of Justice Letter re: Foreign Flag Cruise Ships, 18 Nat’l
Disability L. Rep. (Lab. Rel. Press) ¶ 31 (July 13, 1999);
Letter re: Cruise ships, 3 Nat’l Disability L. Rep. (Lab.
Rel. Press) 330 (Dec. 7, 1992).
139 Transmittal letter accompanying the 1991 GAO Report,
Foreign Assistance: Assistance to Disabled Persons in Developing
Countries, from Harold J. Johnson, Director, Foreign Economic Assistance
Issues of the GAO National Security and International Affairs Division,
to the Honorable Claiborne Pell, Chairman, Committee on Foreign
Relations, U.S. Senate and The Honorable Jesse A. Helms, Ranking
Minority Member, Committee on Foreign Relations, U.S. Senate, dated
February 15, 1991.
140 For example, in USAID’s FY 2002 budget there
exists the following congressional mandated_programs:
Blind Children–1.3 million
ALL Vulnerable Children–25 million
Children with HIV–14.9 million
Victims of Torture–10 million
War Victims Fund–12 million
Women in Development–11 million
Trafficking of Women–6 million
141 UN Convention White Paper, supra note 6.
142 The most important reasons for supporting a convention
are (1) to improve protections under international law for the human
rights of people with disabilities around the world; and (2) to
create an international mechanism to monitor human rights enforcement
for people with disabilities. Other reasons for supporting a convention
are described fully in the UN Convention White Paper at 2, supra
note 6.
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