Foreign Policy and Disability: Legislative Strategies and Civil Rights Protections to Ensure Inclusion of People with Disabilities
September 9, 2003

National Council on Disability
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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.
  

• 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.
  

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
  

• [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