Employment Legal Framework for Persons with Disabilities in China: Effectiveness and Reasons

In order to promote the employment of persons with disabilities, two dominant legal approaches—anti-discrimination legislation based on the social model of disability and an employment quota scheme based on the medical model—are usually employed on a nation-state basis in disability policies. This article systematically examines the reasons why both the anti-discrimination and employment quota scheme legal frameworks have limited effectiveness in promoting employment of persons with disabilities in China. We found that the lack of a definition of disability, the lack of a definition of discrimination, and the absence of effective enforcement mechanisms are the reasons for poor outcomes of the anti-discrimination legal framework. For the employment quota scheme, conflicts between the mainstream labor market legal framework and the quota scheme legal framework have prompted employers to pay penalties rather than hire persons with disabilities. China should address these issues in the current legal system in the short term. Meanwhile, the CRPD should be more strongly emphasized in China. This article argues for the human rights model espoused by the CRPD, instead of the medical model, to develop a coherent and sustainable disability legal framework for promoting participation of persons with disabilities, rather than focusing on viewing them as recipients of care.

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Lessons from the Experience of U.N. Convention on the Rights of Persons with Disabilities: Addressing the Democratic Deficit in Global Health Governance

The Journal of Law Medicine & Ethics ◽

10.1111/j.1748-720x.2010.00512.x ◽

2010 ◽

Vol 38 (3) ◽

pp. 564-579 ◽

Cited By ~ 17

Author(s):

Janet E. Lord ◽

David Suozzi ◽

Allyn L. Taylor

Keyword(s):

Global Health ◽

Social Protection ◽

Medical Model ◽

Social Model ◽

Model Framework ◽

Persons With Disabilities ◽

Social Model Of Disability ◽

Socially Constructed ◽

High Commissioner ◽

Traditional Approaches

The United Nations Convention on the Rights of Persons with Disabilities (the CRPD or the Convention), adopted on December 13, 2006, and entered into force on May 3, 2008, constitutes a key landmark in the emerging field of global health law and a critical milestone in the development of international law on the rights of persons with disabilities. At the time of its adoption, the U.N. High Commissioner for Human Rights heralded the CRPD as a rejection of the understanding of persons with disabilities “as objects of charity, medical treatment and social protection” and an embrace of disabled people as “subjects of rights.”The text of the Convention itself, and the highly participatory process by which it was negotiated, signal a definitive break from previous international approaches that focused on disability within a medical model framework. In contrast to traditional approaches, the CRPD embraces a social model of disability, concentrating the disability experience not in individual deficiency, but in the socially constructed environment and the barriers that impede the participation of persons with disabilities in society.

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Art.1 Purpose

The UN Convention on the Rights of Persons with Disabilities ◽

10.1093/law/9780198810667.003.0002 ◽

2018 ◽

Author(s):

Kakoullis Emily ◽

Ikehara Yoshikazu

Keyword(s):

Medical Model ◽

Social Model ◽

International Human Rights Law ◽

Human Rights Law ◽

International Human Rights ◽

Persons With Disabilities ◽

Social Model Of Disability ◽

Societal Participation ◽

United Nations Convention ◽

Medical Model Of Disability

This chapter examines Article 1 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). The article sets out the purpose of the CRPD and describes its target group. It enshrines a ‘paradigm shift’ in approach to the concept of ‘disability’ in international human rights law: a shift from an approach underpinned by a ‘medical model of disability’ that views persons with disabilities as ‘objects’ of medical treatment and in need of charity; to a ‘social model of disability’, which views persons with disabilities as ‘subjects’ with rights and focuses on the barriers persons with disabilities face that may hinder their societal participation.

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Daouidi v Bootes Plus SL and the Concept of ‘Disability’ in EU Anti-Discrimination Law

European Labour Law Journal ◽

10.1177/2031952518817568 ◽

2019 ◽

Vol 10 (1) ◽

pp. 69-84 ◽

Cited By ~ 1

Author(s):

Delia Ferri

Keyword(s):

Medical Model ◽

Social Model ◽

Social Model Of Disability ◽

Attitudinal Barriers ◽

Direct Discrimination ◽

The Social ◽

Social Environmental ◽

Definition Of ◽

First Time

Daouidi v Bootes Plus SL is one the latest decisions in which the CJEU has been directly confronted with the concept of disability in the realm of EU anti-discrimination legislation. In particular, in this judgment, the Court attempted to identify when the dismissal of a worker due to temporary incapacity of an unknown duration may constitute direct discrimination on the grounds of disability. This decision appears to be significant in that, for the first time, the CJEU discusses the meaning of ‘long-term limitation’ for the purpose of Directive 2000/78. Although the Court treads carefully, it attempts to further elucidate and bring new elements to the definition of disability in EU anti-discrimination law. In spite of the fact that the Court is potentially widening the notion of disability, it appears, once again, quite reticent in its approach to the role of social, environmental and attitudinal barriers in disabling an individual, and remains somewhat ‘trapped’ in the medical model of disability. All in all, this analysis endeavors to highlight that the CJEU is struggling to move beyond a rhetorical recognition of the social model of disability and to apply this in practice.

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Tracing the Boundaries between Disability and Sickness in the European Union: Squaring the Circle?

European Journal of Health Law ◽

10.1163/15718093-12341392 ◽

2016 ◽

Vol 23 (1) ◽

pp. 5-35

Author(s):

Silvia Favalli ◽

Delia Ferri

Keyword(s):

European Union ◽

Case Law ◽

Social Model ◽

The European Union ◽

Persons With Disabilities ◽

Social Model Of Disability ◽

Court Of Justice ◽

The Social ◽

Definition Of ◽

Employment Equality

In recent years the European Union (eu) has sought to develop a far-reaching policy regarding persons with disabilities. However, to date, eu non-discrimination legislation does not provide any clear legal definition of what constitutes a disability. The Court of Justice of the European Union (cjeu) has attempted to fill this gap and, in several decisions, has elaborated on the concept of disability and its meaning under eu law. The cjeu, with reference to the application of the Employment Equality Directive, has explained the notion of disability mainly by comparing and contrasting it to the concept of sickness. Against this background, this article critically discusses recent case law and attempts to highlight that, even though the Court has firmly embraced the social model of disability envisaged by the un Convention on the Rights of Persons with Disabilities, the boundaries between the concepts of sickness and disability remain blurred.

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Hak atas Pekerjaan bagi Penyandang Disabilitas di Sektor Publik: Antara Model Disabilitas Sosial dan Medis

Undang Jurnal Hukum ◽

10.22437/ujh.4.1.1-48 ◽

2021 ◽

Vol 4 (1) ◽

pp. 1-48

Author(s):

Muhammad Dahlan ◽

Syahriza Alkohir Anggoro

Keyword(s):

Human Rights ◽

Public Sector ◽

Medical Model ◽

Legal Framework ◽

Educational Background ◽

Social Model ◽

Persons With Disabilities ◽

The Public ◽

Medical Model Of Disability ◽

The Government

The opportunity to fulfill the rights to work for persons with disabilities has been increasing since the ratification of Convention on the Rights of Persons with Disabilities (CRPD). Indonesia has adopted a “quota scheme” through the Law Number 8 of 2016 on Persons with Disabilities where government institution has set a minimum quantity of two percent as the number of workers for persons with disabilities as affirmative action targeted at promoting human rights. This article examines the progress of the legal framework for persons with disabilities by using a case study in civil cervants in the public sector. We argue that despite Indonesia’s disability legal regime has pushed the social model of disabilities that promotes human rights-based approach, its implementation is still based on the medical model of disability, in which it sees persons with disabilities on physical condition, and thus, they are assumed to be able to work in a certain field determined by the government. This article argues that affirmative policy does not provide equal opportunities to persons with disabilities as the special formation and medical requirements prevent them from applying for occupations that match their interests and educational background. The use of the medical model of disability in providing employment opportunities in the public sector prevents the level of participation and the formation of an inclusive workplace environment. Abstrak Peluang untuk memenuhi hak atas pekerjaan bagi para penyandang disabilitas terus meningkat sejak ratifikasi Convention on the Rights of Persons with Disabilities (CRPD). Indonesia mengadopsi “skema kuota” melalui UU Nomor 8 Tahun 2016 tentang Penyandang Disabilitas di mana institusi negara menetapkan minimal dua persen jumlah formasi pekerja bagi para penyandang disabilitas sebagai tindakan afirmatif yang ditargetkan untuk mempromosikan hak asasi manusia. Artikel ini memeriksa sejauh mana kerangka kerja hukum disabilitas di Indonesia memfasilitasi pemenuhan hak atas pekerjaan bagi penyandang disabilitas dengan menggunakan contoh kasus pada penyelenggaraan ketenagakerjaan di sektor publik. Kami berpendapat bahwa meskipun rezim hukum disabilitas di Indonesia menekankan model sosial disabilitas yang mempromosikan pendekatan berbasis hak asasi manusia, implementasinya masih didasarkan pada model medis disabilitas yang memandang penyandang disabilitas berdasarkan kondisi fisik dan karenanya diasumsikan hanya dapat masuk pada bidang pekerjaan yang telah ditentukan oleh negara. Artikel ini berpendapat bahwa kebijakan afirmatif tidak memberikan peluang yang setara bagi penyandang disabilitas karena formasi khusus dan persyaratan medis menghambat mereka untuk melamar pada bidang pekerjaan yang sesuai dengan minat dan latar belakang pendidikannya. Penggunaan model medis disabilitas dalam penyelenggaraan kesempatan kerja di sektor publik pada gilirannya menghambat tingkat partisipasi dan pembentukan lingkungan kerja yang inklusif.

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Introduction

Mental Health Law ◽

10.1093/oso/9780192843258.003.0001 ◽

2021 ◽

pp. 1-33

Author(s):

Kay Wilson

Keyword(s):

Mental Health ◽

Human Rights ◽

Mental Health Problems ◽

Medical Model ◽

Social Model ◽

Health Law ◽

Persons With Disabilities ◽

Mental Health Law ◽

Social Model Of Disability ◽

Key Terms

Chapter 1 introduces the key question asked by the book: whether mental health law should be abolished or reformed and defines all the key terms (e.g. mental health law, mental impairment, involuntary detention and treatment, voluntary treatment, abolition and reform, etc). It puts mental health law into its wider social context pointing out that while at least 20 per cent of the community in any given year and 50 per cent in their lifetime have a mental health problem, mental health law only applies to a relatively small number of persons with severe mental health problems who are medically assessed to be at risk of harming themselves or others. It sets out the background to the fierce controversy about the future of mental health law during the United Nations Convention on the Rights of Persons with Disabilities (CRPD) negotiations and since its entry into force in 2008. It explains the conceptual framework for the book being human rights treaty interpretation and the jurisprudential or ethical analysis consistent with Ronald Dworkin of three core CRPD and human rights concepts—dignity (including autonomy), equality, and participation—to create the ‘interpretive compass.’ It discusses the social model of disability, the medical model, the human rights model, and the interactive model. It defines the scope of the book in that it excludes consideration of mental health specific criminal law doctrines like fitness to plead and the insanity defence and clarifies that the focus is on mental health law rather than other forms of substitute decision-making like guardianship. It explains the structure of the book.

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Analysing the Definition of Disability in the UN Convention on the Rights of Persons with Disabilities: is it really based on a 'Social Model' approach?

International Journal of Mental Health and Capacity Law ◽

10.19164/ijmhcl.v2017i23.630 ◽

2017 ◽

Vol 2017 (23) ◽

pp. 25 ◽

Cited By ~ 2

Author(s):

Katerina Kazou

Keyword(s):

Social Situation ◽

Social Model ◽

International Classification Of Functioning ◽

Personal Factors ◽

Environmental Barriers ◽

Persons With Disabilities ◽

Social Model Of Disability ◽

The Social ◽

Wide Range ◽

Definition Of

This article challenges the generally accepted view that the UN Convention on the Rights of Persons with Disabilities 2006 (CRPD) is based on the ‘social model of disability’. The ‘social model’ understands disability as a social situation, and particularly a form of social oppression imposed on people with impairments, which is caused by social and environmental barriers that exclude them from participating in society and which is entirely distinguished from their individual impairment. The article argues that the definition of disability in the CRPD is closer to the definition provided in WHO’s International Classification of Functioning, Disability and Health (ICF). The ICF understands disability as the multi-dimensional and interactive experience of a wide range of difficulties in functioning; in particular, these difficulties include impairments, limitations in performing activities and restrictions in participating in life situations, and arise out of the complex interaction between health conditions, personal factors and barriers in the physical and social environment. Associating the CRPD with the ICF rather than the ‘social model’ might have positive implications for its implementation, as it can avoid the criticism faced by the ‘social model’ for its limitations, especially for considering impairment as being entirely irrelevant to the experience of disability, and therefore governments and policy makers might be less sceptical towards the CRPD and more willing to engage with it. At the same time, the valuable insights of the ‘social model’ regarding the disabling effect of social and environmental barriers can be retained, as the ICF recognises this too, but without ignoring the relevance of impairment to the experience of disability or minimising the health needs of persons with disabilities.

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The Role of Estonian Community Settings for Achieving Independent Living for Persons with Disabilities in Eastern European Countries

Groningen Journal of International Law ◽

10.21827/grojil.9.1.128-142 ◽

2021 ◽

Vol 9 (1) ◽

pp. 128-142

Author(s):

Vugar Mammadov

Keyword(s):

Independent Living ◽

Medical Model ◽

Social Model ◽

Eastern European ◽

Community Settings ◽

Persons With Disabilities ◽

Social Model Of Disability ◽

The Social ◽

Medical Model Of Disability ◽

Eastern European Countries

This article is dedicated to analysing the implementation of Article 19 (paragraphs ‘b’ and ‘c’) of the Convention on the Rights of Persons with Disabilities (hereby: the CRPD) in community settings in Estonia and how Estonian experiences can shift the development of independent living and deinstitutionalization in other non-European Union member countries of Eastern Europe. In this regard, this article depicts the details of independent living for persons with mental health problems according to the UN CRPD Committee. Furthermore, the introduction of Maarja Küla (village) SA and its role in providing independent living has been highlighted as well. Finally, the primary obstacles in Eastern European countries ahead of establishing an independent living as well as solutions for the implementation of Article 19 are underlined, and as an author, I have emphasized how to foster deinstitutionalization in the conclusion. In most congregated community settings where organizational management techniques have relied on the medical model of disability rather than the social model of disability, inhabitants suffer from legal incapacitation in most cases. These community settings had been established before the adoption of the CRPD, but gradually have been developed and adjusted to the fundamental principles of the Convention. In my view, a human rights approach has been emerging in such places, though the UN CRPD Committee has urged to rectify management methods and to promote the social model of disability. This research paper also aims to describe the current situation in community settings that has arisen following the pandemic and to find out scientific and practical solutions to abolish the remaining elements of the medical model of disability and to substitute the human rights approach towards a social model of disability in the management and philosophical views of community settings for persons with disabilities.

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PROTECTION OF PERSONS WITH DISABILITIES RIGHTS: PRINCIPLES UNDER THE CONVENTION AND THE NATIONAL CASE-LAW

Medicne pravo ◽

10.25040/medicallaw2021.02.086 ◽

2021 ◽

pp. 86-94

Author(s):

R. B. Hobor

Keyword(s):

Case Law ◽

Social Model ◽

Persons With Disabilities ◽

Social Model Of Disability ◽

National Courts ◽

The Social ◽

Physical Health Problems ◽

High Attitude ◽

The Right ◽

Key Resources

In spite of all the short-comings, the level of protection of rights and capabilities of people with disabilities has become a good indicator of nation’s development, and such a trend is nothing but hopeful. At the same time, one can hardly imagine that this high attitude would be attainable without the influence of left liberal ideologies, that among omnibus achievements granted the shift from medical to social disabilities model.This situation cannot stand but to resemble in a certain state of rights and capabilities exercise, and even the availability of access to the key resources is impossible to bring to the point of marginalization of the mental and physical health problems. As the analyzed material shows, left liberal ideologists,being responsible for shaping the current International Law on Persons with Disabilities, finally succeeded in promoting their principle ideas in the nation case-law. The right to water, lay down on the ship’s practice, as you will look lower, you can use the clever illustration of that relief flow, as the national judiciary can fix the development of the rights and capabilities of individuals from the same basis.The article further develops the idea, that national courts sometimes tend to use realistic approach (as invented by R. Pound, J. Llewellyn, O.W. Holmes) for the sake of implementing the social model of disability. It has been concluded that legal realism is a transmitter for left liberal values in the modern western societies.

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Recognizing and Respecting the Rights of Children with Disabilities in the Classroom

International Journal of Education ◽

10.5296/ije.v8i3.9444 ◽

2016 ◽

Vol 8 (3) ◽

pp. 1

Author(s):

Cornelia Schneider

Keyword(s):

Children With Disabilities ◽

Children's Rights ◽

Relationship Building ◽

Children’S Rights ◽

Social Model ◽

Human Beings ◽

Persons With Disabilities ◽

Social Model Of Disability ◽

Rights Of The Child ◽

The Right

The UN Convention on the Rights of the Child was adopted and ratified in 1990 by the UN General Assembly, and signed by most member countries of the United Nations. However, its implementation is slow, complex, and can to-date be considered as incomplete in most countries, particularly as children’s rights often seem to be in contradiction with traditional perceptions of children as dependent, immature and incompetent human beings under their parents’ tutelage. Furthermore, it appears that children’s rights are at risk of colliding with the rights of the family. These issues are even more strongly highlighted when it comes to children with disabilities, as those children often are perceived as vulnerable and incompetent. The UN Convention on the Rights of Persons with Disabilities of 2006 emphasizes the right to full participation based on the social model of disability, including the right to inclusive education for children with disabilities. This article addresses both conventions, the contradictions within but also with each other, which impede the rights of children with disabilities as much as traditional perceptions of childhood do. It will then demonstrate how the recognition of the rights of children with disabilities can be improved by using the frameworks of sociology of childhood (Corsaro, 2015) and the work on relationship building and solidarity by Honneth (1995). Lastly, the article will give examples of how to implement and respect the rights of children with disabilities in schools, by using the example of the Index for Inclusion.

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