عنوان مقاله [English]
War, poverty, genetic diseases, lack of hygienic, malnutrition, etc. are usually considered as congenital and non-congenital causes of disability. The results are social isolation, discrimination, and violence. A disabled child based on a rather permanent defection in his body or psych is more prone to vulnerability and thus demand special protection and support. In 2018 Iranian legal system ratified the Act of “Protection of Disabled’s Rights (PDR)” in the parliament after its joining to the Convention on the Rights of Persons with Disabilities (CRPD)”, in 2008. “Convention on the rights of the child1989 (CRC)”, CRPD and the new ratified Act are the main legal documents on disabled people in Iran. Article 3 of the CRC introduced the best interest of the child as a determining factor in the decisions related to the children. All the authorities in this field should consider this principle as a primary consideration. The paper aims to evaluate disabled children's situations in the above mentioned legal documents with the BIC factor.
BIC is a flexible concept that can be interpreted in different situations. However, in this paper, the main criteria such as Non-discrimination, respect to privacy and family life, non-violence, right to education are focused. Disabled children experience more discrimination in comparison with their peers based on their special situation. Many live in institutions and orphanages instead of family. They are 3.6 times more likely to be victims of physical violence, and 2.9 times more likely to be victims of sexual violence. Some of the violence applies as a treatment or behavioral improvement via electroshock. Disabled children usually considered as the ones who are not capable of learning. Lack of tutorial instrument is also another problem for their education. Undoubtedly considering disabled child’s BIC need efficient means such as a child’s inherent dignity, individuality, and independence, giving weigh to the child’s views, accessibility, and family empowerment. These strategies seem efficient in BIC’s improvement and thus are analyzed in this paper.
The research method is descriptive and analytic in which the BIC's criteria and the strategies to consider them are explained and then they are analyzed comparatively in three legal documents in the Iranian legal system.
The PDR has not specified disabled children’s rights in a special part while the two other documents have mentioned their situation. PDR has a general and merely protective approach and its regulation is not design for empowerment. CRC and CRPD, on the contrary, have tried to recognize a disabled child as a member of the society by his special capacities and restrictions. This is spotlighted on the education issue. While on the PDR exclusive education is suggested, inclusive education and the child’s appearance in normal schools to live among other peers has emphasized in CRC and CRPD. The two approaches of “Education to the children” and “Education for the children” as supplementary points are ignored in PDR. It seems that the protective approach of PDR and its inattention to disabled child independence, individuality, and the child’s views is against BIC. Moreover, the comparison of the three legal documents shows that CRPD is more attentive to the BIC’s criteria and PDR has the most gaps. This Act is a recent ratified document in Iran and many practical problems are not clarified yet. Hence, its coordinator and monitoring committee’s report will be important and considerable.
1. انصاری، باقر (1392)، «حق کودک به آموزش در نظام بینالملل حقوق بشر»، فصلنامۀ حقوق اسلامی، دورۀ 10 ش 36.
2. توسلی نائینی، منوچهر و کاویار، میرحسین (1387)، «تأملی بر حقوق معلولان از منظر کنوانسیون حقوق معلولان و سایر اسناد بینالمللی»، فصلنامۀ حقوق خصوصی، ش 13.
3. رمضانی قوامآبادی، محمدحسین (1390)، «حمایت از معلولین در حقوق بینالملل»، فصلنامۀ رفاه اجتماعی، ش 41.
4. کمالی، محمد و ایران، فریبا (1382)، «مروری بر حقوق کودکان دارای ناتوانی و معلولیت»، فصلنامۀ رفاه اجتماعی، ش 7.
5. غنیزاده بافقی، مریم (1396)، مصالح عالیۀ کودک در عهدنامۀ حقوق کودک، فقه اسلامی و نظام حقوقی ایران، رسالۀ دکتری سید مصطفی محقق داماد، دانشگاه شهید بهشتی، تهران.
6. Beiter, Klause (2006), The Protection of the Right to Education by International Law; Including a Systematic Analysis of Article 13 of the International Covenant on Economic, Social and Cultural Rights, Netherlands: Martinus Nijhoff Publishers.
7. Committee on the Rights of Persons with Disabilities reviews the report of Cuba, 27 March 2019.
8. Convention on the Rights of Child, 1989.
9. Convention on the rights of persons with disabilities, 2006.
10. CRC Committee (2007), General Comment; No. 9: para. 42.
11. CRC Committee, General Comment No. 5 (2003) on general measures of implementation of the Convention on the Rights of the Child (on Articles 4, 42 and 44), UN Doc. CRC/GC/2003/5, para. 12.
12. CRC Committee, General Comment No. 9 (2007), on the rights of children with disabilities, UN Doc. CRC/C/GC/9.
13. Della Fina, Valentina, Rachele, Cera, Palmisano, Giuseppe (2017), The United Nations Convention on the Rights of Persons with Disabilities; A commentary. Switzerland: Springer.
14. Dittman, Cassandra K, Farruggia, Susan P, Palmer, Melanie L, Sanders, Matthew R, Keown, Louise J (2014) "Predicting success in an online parenting intervention: The role of child, parent, and family factors", Journal of Family Psychology, 28(2), PP. 236–243.
15. European Union Agency for Fundamental Rights (2015), "Violence against children with disabilities: legislation, policies and programs in the EU", accessed on 12 July 2019, https://violenceagainstchildren.un.org/sites/violenceagainstchildren.un.org/files/documents/political_declarations/europe/violence_against_children_with_disabilities_legislation_policies_and_programmes_in_the_eu.pdf
16. Freeman, Michael (2007), A Commentary on the United Nations Convention on the Rights of the Child; Article 3, the Best Interest of the Child, The Netherlands: Martinus Nijhoff Publisher.
17. Haren, Barbara von, Fiedler, Craig (2008), "Support and empower families of children with disabilities", Intervention in school and clinic, 43(4): PP.231–235.
18. https://www.humanium.org/en/disabled-children/ accessed on 12.March2019.
19. Jones, Lisa, Bellis, Mark A, Wood, Sara, Hughes, Karen, McCoy, Ellie, Eckley, Lindsay, Bates, Geoff, Mikton, Christopher, Shakespeare, Tom, Officer, Alana (2012), "Prevalence and risk of violence against children with disabilities: a systematic review and meta-analysis of observational studies", Lancet, No8, 899-907.
20. Kanter, Arlene S, "The Right to inclusive education for students with disabilities under international Human rights law", In: Beco, Gauthier, Quinlivan, Shivaun, Lord Janet E (2019) The right to inclusive education in international human rights, Cambridge: Cambridge University Press.
21. Kiviorg, Merilin (2009), "Religious Autonomy in the ECHR", Accessed 2 March 2019, http://www.deltapublicaciones.com/derechoyreligion/gestor/archivos/07_10_31_124.pdf.
22. Madan, Ankur, Sharma, Neerja (2013), "Inclusive Education for Children with Disabilities: Preparing Schools to Meet the Challenge", Electronic Journal for Inclusive Education, 3(1), PP.1-23.
23. Mental Disability Rights International (2010), "Torture Not Treatment: Electric shock and long-term restraint in the United States on children and adults with disabilities, at the Judge Rotenberg Center", Washington, D.C., accessed on 31 January 2019, www.disabilityrightsintl.org/wordpress/wp-content/uploads.
24. Nüsken, Dirk, Rights of Children with Disabilities in Germany, Accessed on 15 July 2019, www.evh.bochum.de/brk/pdf/doku/Nuesken_rights_of_children_in_Germany.pdf.
25. Oliver, Michael (1990), The politics of disablement, Basingstoke: Macmillan and St Martin’s Press.
26. Petersen, Niels (2012), "Human dignity, international protection". In: Wolfrum, Rudiger (ed) (2012) The Max Planck encyclopedia of public international law, Oxford: Oxford University Press, PP. 1–9.
28. UNGA, resolution adopted by general assembly on the report of the third committee (2010), (A/64/435 and Corr.1), UN Doc. A/RES/64/146, March3, para33 (t).
29. UNICEF, INCLUSIVE EDUCATION Including children with disabilities in quality learning: what needs to be done?; (2017), Accessed on 2 August 2019, Available at: https://www.unicef.org/eca/sites/unicef.org.eca/files/IE_summary_accessible_220917_brief.pdf.
30. UNICEF, Progress for children: A Report Card on Child Protection No8, Access on 18 July 2019, https://www.unicef.org/protection/Progress_for_Children-No.8_EN_081309(4).pdf.
31. World Report on Disability. World Health Organization & World Bank. 2011. Available at: https://www.who.int/disabilities/world_report/2011/report.pdf accessed on 20. August 2019.
33. www.who.int/topics/disabilites/en/. Accessed on 25 March 2019.