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Challenges and New Directions of Information Accessibility for Persons with Disabilities in China: From the Perspective of the Convention on the Rights of Persons with Disabilities
October 18,2018   By:
Challenges and New Directions of Information Accessibility for Persons with Disabilities in China: From the Perspective of the Convention on the Rights of Persons with Disabilities

CAI Cong*
 
Abstract: Accessibility is the basis and prerequisite for persons with disabilities to enjoy and exercise all human rights and fundamental freedoms. With the rapid development of the internet, providing and promoting information accessibility is considered an important obligation for the State. In the process of transforming international human rights law into domestic law, how to deal with the human rights protection of persons with disabilities and the obligations of the private sector to ensure persons with disabilities receive services and products that meet the requirements and principles of information accessibility has become a development issue in the new era. Against the backdrop of the Convention on the Rights of Persons with Disabilities and in the context of the booming development of the cause of persons with disabilities in China, legal scholars, persons with disabilitiesand organizations have jointly proposed the Beijing Initiative on the Principles of Information Accessibility for Science and Technology Products. It clarifies that the private sector should embrace the human rights model advocated by the Convention in terms of information accessibility, and provide equal participation for persons with disabilities in the process of designingproducing and selling scientific and technological products. The Initiative also states that the private sector should keep pace with the United Nation’s sustainable development goals and the basic national policy of building a well-to-do society in an all round way, ensuring persons with disabilities are included within a moderately well-off society. It also provides civil opinions on the formulation and clarification of relevant laws in the future.

Keywords: Convention on the Rights of Persons with Disabilities w human rights w information accessibility w organizations for persons with disabilities
 
I. Information Accessibility is a Basic Human Rights Principle Respected and Guaranteed by Chinese Law

Nearly 1,000 visually impaired people submitted a joint letter on the internet in December 2016, hoping to attract the attention of the media and the manufacturer to the issue that visually impaired people were unable to use the mobile phones of a Chinese brand due to problems of information accessibility.[1] Visually impaired people chose this method because there was no other channel through which they could solve the problem or seek redress, even though Chinese law stipulates that persons with disabilities should have access to information. Even if enterprises do add barrier-free functions to their products under the pressure from the media to which the visually impaired people turn for help, they consider it a charitable gesture out of kindness. They usually describe it as “special models” for the visually impaired.[2]

Accessibility is the basis and prerequisite for persons with disabilities to live independent lives and participate fully and equally in society. It is also one of the basic principles of the UN Convention on the Rights of Persons with Disabilities (hereinafter referred to as the Convention).[3] “Accessibility in materials, society, the economy, and cultural environments, health care and education, and information and communication are crucial to the full enjoyment of all human rights and fundamental freedoms for persons with disabilities.”[4] Therefore, the provision of accessibility and the promotion of its development are regarded as important obligations for the State.[5]

Specifically, accessibility includes accessibility to the physical environment and accessibility to information and communication. Requirements for accessibility to the physical environment include: The planning, design and construction of urban roads, public buildings and residential areas should take barrier-free passage into consideration. For example, urban sidewalks should be friendly to wheelchair users, persons walking on crutches, and visually handicapped persons. Buildings should have barrier-free entrances and exits, and install lifts, handrails, toilets, rooms, counters and other facilities for the disabled. The requirements for accessibility to information and communication include: The public media should enable visually impaired, and speech- and hearing-impaired people to gain access to information and communicate without hindrance. For example, telecommunications products should be equally available for use by visually or aurally impaired persons.
As cell phones, computers, and the internet are becoming increasingly essential in the modern information society, special emphasis must be placed on information and communications accessibility for persons with disabilities. Persons with disabilities should receive education, achieve employment, and enjoy social services equally through all kinds of information media, such as online learning, employment through the internet, and use of online software to order taxis, order meals and office services. Obviously, information technology plays an important role in reducing social barriers and promoting social integration.

Information accessibility is fundamental for persons with disabilities to enjoy the right to education and right to employment. Its realization will help narrow the digital divide, reduce or even eliminate inequality between persons with disabilities and persons with no disabilities. It is even more important in respect to building a harmonious society.[6]

Information accessibility has been recognized by Chinese law. Despite information accessibility for persons with disabilities is not explicitly expressed, Article 33 of the Constitution provides that “the State respects and protects human rights.” Article 45 of the Constitution stipulates: “The State and society help make arrangements for the work, livelihoods and education of the blind, deaf-mutes and other persons with disabilities.” Information accessibility is the prerequisite and basis of labor, life, and education for persons with disabilities. It is inherently contained in the rights of persons with disabilities in the Constitution. Moreover, Article 52 of the Law of the People’s Republic of China on the Protection of Persons with Disabilities provides that: “The State and society shall take measures to gradually improve barrier-free facilities, promote barrier-free information exchanges, so as to create a barrier-free environment for persons with disabilities to participate in social life equally. The people’s governments at all levels shall formulate overall plans for the construction of barrier-free environment, coordinate comprehensively and strengthen supervision and administration.” Although the term “accessibility” (or “right to barrier-free environment”)[7] is not used in this clause, the obligations of the state, people’s governments at all levels and society actually correspond to the opportunities of the persons with disabilities to achieve “accessibility”. Of these, the obligation of the State and society to “promote barrier-free information exchange” corresponds to the requirement of information accessibility for persons with disabilities. The State needs to make proactive efforts through legislation, administrative enforcement, and judiciary means.

The Regulations on the Construction of Barrier-free Environment were passed at the 208th executive meeting of the State Council on June 13, 2012 and took effect on August 1, 2012. Article 26 of the Regulations states that “telecommunications terminal equipment manufacturers should provide technologies and products that are compatible with barrier-free information exchange services.” Although the law stipulates the requirements for accessibility, due to the absence of corresponding relief mechanisms, the government and other entities have not fulfilled the obligations of building a barrier-free environment in accordance with the law. There is no clear legal responsibilities, and there is a lack of litigation channels and legal basis from the judicial aspect. Especially in the information-based society with the rapidly developing internet, the products and services provided by private entities (internet companies and tech companies) have an increasing impact on the lives of members of society. On the basis of the principle of protecting information accessibility for persons with disabilities, how to deal with the protection of rights for persons with disabilities and establish and standardize the relevant obligations of the private entities has become a new challenge in the new era. The Convention on the Rights of Persons with Disabilities, which was signed and ratified by China, provides reference for the formulation and enactment of Chinese laws in terms of legislative philosophy and practical implementation.

II. The Significance of China Signing and Ratifying the UN Convention on the Rights of Persons with Disabilities

In December 2006, the 61st session of the United Nations General Assembly adopted the Convention on the Rights of Persons with Disabilities; the first legally binding international convention specifically established to protect the rights of persons with disabilities. It is the efforts made by the international community to protect and promote the rights of persons with disabilities, and the fruits of decades of hard work and advocacy of the persons with disabilities and their families, as well as the personnel concerned with social justice and human development worldwide. Many experts hold the view that this Convention is the most advanced and comprehensive international document on human rights to date. It marks the “paradigm shift” in the people’s attitudes and methods of treating persons with disabilities from an individual and charitable model to a social model with human rights as the core.

The cornerstone of the Convention is ensuring persons with disabilities the rights and fundamental freedoms inherent to human beings equally with the able-bodied people, and have equal opportunities to fully participate in all matters and make due contributions to society. The Convention does not create new rights for persons with disabilities. Instead, it reaffirms all basic rights shared by persons with disabilities and other people. It also demonstrates the special significance of these rights for persons with disabilities and the effective ways to realize these rights. The Convention covers rights that should be enjoyed by persons with disabilities, such as equality, non-discrimination and equal recognition before the law, right to health, right to employment, right to education and accessibility, and the right to participate in political and cultural life.

On March 14, 2004, the Second Session of the Tenth National People’s Congress of China adopted the Amendment to the Constitution of the People’s Republic of China, adding “The State respects and protects human rights” as Article 33 (3) of the Constitution. That the Constitution establishes the principle of human rights protection is of great significance to promotion of human rights in China, and also lays the foundation for the protection of human rights for persons with disabilities. Under the guidance of the Constitution, which stipulates “state respecting and safeguarding human rights,” China has enacted laws and regulations for protecting human rights. It has also revised relevant laws and regulations, rescinded laws and regulations in conflict with the principle of human rights protection, and joined international conventions relating to human rights protection.
As one of the countries that participated in the drafting of the UN Convention on the Rights of Persons with Disabilities, China signed the Convention in March 2007. In June 2008, the Standing Committee of the National People’s Congress of China approved the Convention.[8] The National People’s Congress Foreign Affairs Committee holds that ratifying the Convention will raise public awareness of respecting the rights of people with disabilities. The ratification of the Convention means that the Chinese government is committed to guaranteeing the rights for persons with disabilities under the Convention and taking action to eliminate discrimination against persons with disabilities.

China’s ratification of the Convention was of great significance to the promotion of the rights of persons with disabilities. First, the ratification promoted the improvement and promotion of relevant Chinese laws. Since the ratification of the Convention, great progress has been made in the laws regarding the rights of people with disabilities in China. Laws and regulations concerning the education, rehabilitation and employment of persons with disabilities have been enacted and continuously revised. Second, the ratification has led to changes and progress in the awareness of the public. In recent years, the public has paid increasing attention to the content of the Convention and gradually accepted and used the concept of respecting the rights of persons with disabilities in real life. This is inseparable from the ratification of the Convention by China. Third, the ratification can spur the exchange and integration between China and the international community. Since China’s ratification of the Convention, exchanges between China and foreign countries in the field of disabilities have become more frequent, with close international interaction at the government and social levels. These positive events are closely related to the role of the Convention as a platform.

III. Difference in Concepts Regarding Different Terms

From 1980s to the early 21st century, what persons with disabilities are called in China has gradually changed. The terms that commonly used are “crippled (残废)”, “disabled as a disease (残疾)” and “disabled as a handicap (残障)”. Different terms have different connotations and reflect the views and perspectives of the society on persons with disabilities. “The views or perspective on persons with disabilities are called a model because it is the way to translate ideas into practice and action. The model on disability plays exactly such a role. Therefore, the model is surely not irrelevant and can be ignored. On the contrary, a prevailing model plays a subtle, ubiquitous role, with its influence on every aspect of society, including related theories and practice.”[9]

A. Crippled (traditional model of disability)

In life, superstition and prejudice have a widespread negative impact on persons with disabilities. Throughout human history, every culture and every society have special views on physical and psychological differences. People’s views on disability often have negative connotations, bringing with it insults, belittlement, prejudice and discrimination against persons with disabilities. These views have a far-reaching impact. Persons with disabilities have often been regarded as bad and evil, punished by God. Under this traditional model, persons with disabilities were called “cripples” for a long time. For example, the J72 stamp[10] issued in 1981 by the former Ministry of Posts and Telecommunications of China in honor of the International Year of Persons with disabilities blatantly bore the words “International Year of Crippled Persons”. Even today, the traditional model of disability continues to exist in society, culture and institutions. Companies usually view information accessibility as a kind of “love and largesse” for “crippled persons”, members of society also do not link information accessibility with moral and value issue, not to mention treat it as the important foundation and principle for realization of rights for persons with disabilities.

B. Disabled as a disease (individual model/medical model for disability)

The expression disability as a disease means that disability is “individual” or “medical”, namely the problem faced by “persons with disability as a disease” is caused by their own disability.[11] “It treats disability as a disease and abnormality, emphasizing the tragedy of person with a disability. Disability is defined as a personal defect and an abnormal state, holding that disability per se is the main cause of inequality faced by individuals with disabilities and putting the strategy for solving disability-related problems inappropriately on medical methods. This model requires persons with disabilities to passively adapt to the environment as objects, with a focus on absolute medical intervention and control for the purpose of correcting and compensating persons with disabilities. Its goal is to “normalize” them so that they obtain qualifications for entering the “mainstream society”. Otherwise, special and isolated arrangement will be made to take care of persons with disabilities, excluding them from the system.”[12]

Under the guidance of this model, persons with disabilities as a group generally suffer from structural discrimination in society. Segregation and exclusionary arrangements in all aspects of the social system are considered reasonable and even lawful. These are assumed as the arrangements best in line with the special nature and needs of persons with disabilities.

The “individual model” is based on two assumptions: (1) Persons with disabilities need asylum and welfare; (2) Damage can lead to the loss of legal capacity. Both assumptions have dangerous implications for the realization of human rights. The former is legalized and justified isolation facilities for persons with disabilities, such as special schools, placement agencies or sheltering workshops. For example, Law of the People’s Republic of China on Compulsory Education stipulates that: “Local people’s governments at and above the county level shall set up corresponding schools (classes) for the implementation of special education as required so as to provide compulsory education for children and teenagers of schooling age who are visually impaired, have hearing or speech disabilities, or an intellectual disability.” The Law of the People’s Republic of China on the Protection of Persons with Disabilities stipulates that: “The government, society and schools shall take effective measures to solve the actual difficulties in the schooling of disabled children and teenagers, and help them finish the compulsory education”; “General elementary and junior high schools must enroll children and teenagers with disabilities who can adapt to their life and learning”; “General early childhood education institutions shall accept children with disabilities who can adapt to their live.” These statements are not in line with the requirements of the Convention that “Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability.” Based on the latter, society has set up a guardianship system that to some extent infringes on the legal rights of some persons with disabilities.

In 1984, following the establishment of the China Foundation for Persons with disabilities, it was clearly stated that “the disabled and the able-bodied are both the creators of material progress and of spiritual progress”, and the wording “crippled persons” was rescinded. Since then, the title “the disabled” has been in use. However, some non-governmental organizations believe that this is no longer in line with the spirit of the Convention, and that the expression of disability as “disability as a disease” should be gradually removed from official language and documents that have legal and administrative effect in order to comprehensively implement the Convention.[13]

Under this model, obviously, the inability to use technology products and the internet to make self-improvement will naturally be regarded as a problem of “disability as a disease.” The government does not have the right to mandate enterprises to regard information accessibility as their obligation, while enterprises also regard this requirement of the disabled as an “extra burden” and “special requirement”. Therefore, quite a few companies refer to the barrier-free information accessibility as the “blind mode” and use this label for isolation and separation.

C. Disability (social mode of disability)

When reviewing the report[14] submitted by the State parties, the Committee on the Rights of Persons with Disabilities[15] found that: “the State parties have deep misunderstandings regarding the content and scope of their obligations in certain articles. The State parties do not seem to understand that the Convention is dedicated to promoting the fundamental changes in the laws and regulations concerning disabilities. It is actually very difficult to grasp the oft-mentioned paradigm change in the modes of disability.” “From the reports by some State Parties, they are still following the traditional medical model.”[16]

The social model is often considered the philosophical basis of the Convention, and the paradigm shift to the social model has always been considered the most notable achievement of the Convention. “The social model positions disability as a phenomenon that exists in society and is a component of society. It does not deny the functional limitations and different characteristics of persons with disabilities, but confirms that disability is the combined result of the interaction between functional limitations and the social environment. Only through the objective social and cultural framework can we fully understand and define disability. The social model deems disability as part of the human nature and normality, holding that the problems concerning disability are caused by the social response to individual limitations. It emphasizes that obstacles and wrong attitudes in the environment cause persons with disabilities to be unnecessarily segregated and marginalized as a group, and holds that it is a one-sided view to attribute the situation of the persons with disabilities as a group to individual’s functional limitations.”[17]

In the social model, disability is the result of social construction such as discrimination and oppression. It focuses on society rather than the individual. For example, if the national college entrance exam is not provided for visually impaired people through braille or an electronic version, if no adjustment is made for the hearing impaired, visually and hearing impaired people are unable to equally participate in the examination, thereby denying them their fair access to education. If there are no barrier-free elevators or slopes on subways and buses, wheelchair users cannot use public transportation and participate equally in social and cultural life. However, the inability of persons with disabilities to use internet services and technology products is naturally due to the problems and defects in services and products. Enterprises must actively strive to solve this problem.

D. Convention: human rights model of disability

In recent years, the social model of disability has come under fierce criticism because it does not provide ethical principles and value foundations for disability policies. The social model can promote the realization of the rights for persons with disabilities from the anti-discrimination perspective, but it cannot solve the realization of social, economic and cultural rights for persons with disabilities, because the difference in physical functions between persons with disabilities and the able-bodied mean that they indeed need more assistance. This is what the “Convention” is trying to pursue.

The purpose of the Convention is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”. The human rights model as an improved social model was proposed and considered to surpass the social model. The protection of human rights is embodied in the written treaties.

The human rights model for disabilities covers the scope of civil and political rights, as well as the scope of economic, social and cultural rights. The basis is: “Human dignity is the cornerstone of human rights. Everyone is deemed to have the highest value, and no one is not worthy of mention. People are respected not because of their financial contribution or other use, but because of their inherent self-worth.”[18]

The Convention does not define disability, but rather recognizes that disability is an “evolving concept.” The Convention incorporates the social model and does not exclude medical means. Based on the realization and protection of human rights for persons with disabilities, disability is defined as follows: “disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.”[19] The UN Committee on the Rights of Persons with Disabilities has also raised the issue of paradigm of disability in China: “The Committee hopes to remind the signatory party again of the human rights model of the Convention, and requests the signatory party to promote in its awareness-raising events that persons with disabilities are independent right holders.”[20]

When we review the issue of information accessibility from the perspective of human rights, we focus on the strong guarantees provided by law and the corresponding judicial remedies, so that persons with disabilities can truly become holders of their own rights and participate in all matters related to themselves.

As the Convention became more widely known in China, people began to consider what term is appropriate in Chinese for persons with disabilities so as to reflect the human rights model of the Convention. “Disabled” was proposed as a brand new term for persons with disabilities. The proponents of the term “disability as a handicap” are of the opinion that the connotation of the term consists the following two parts. “残” refers to the physical disability and “障” refers to the environmental and attitude barriers from society.[21]

In 2006, One Plus One, China’s largest and most influential non-governmental self-help organization for persons with disabilities, formally launched the campaign to promote the use of “残障 (disabled)” instead of “残废 (disability as a disease)” in China. In 2010, the Administration for Industry and Commerce added the words “disability” to its name, and the name became “One Plus One (Beijing) Culture Development Center for the Persons with Disabilities”. This is the first time in mainland China that the word “disability” was used in the name of a social organization. It was of exemplary significance and officially marked the use of “disability” instead of “disability as a disease.” Thereafter, the frequency and scope of use of the word “disability” has increased in mainstream Chinese society. The Department of Social Welfare and Philanthropy Promotion of the Ministry of Civil Affairs set up the Bureau of Welfare for Persons with Disabilities. This is also the first time that the Central Government ministry used the term “disability” in a name for department. In 2010, the annual forum jointly organized by the Beijing Disabled Persons’ Federation and the Institute for the Development of the Undertaking of Persons with Disabilities of Renmin University of China also carried the theme of “Disability and Development”. More and more professional academic forums, seminars, and committees have begun to use the word “disability”.

Given that the prevailing Chinese version[23] of the international human rights treaty and Chinese laws still use the term “persons with disabilities as a disease,” this article still uses this term when quoting from the relevant laws due to respect for the legal document, the rest of this article adopts the term “person with disabilities as a handicap” that embodies the social and human rights model.

IV. Information Accessibility Responsibilities of Private Entities from the Perspective of Domestic Implementation of the Convention in China

Traditional international law only imposes obligations on the State, without directly interfering with and influencing private entities such as companies, groups, and natural persons. However, the development of international human rights law has, to a certain extent, exceeded this traditional limitation, showing the horizontal effectiveness of human rights treaties.

Paragraph 2 (2), Article 9 of the Convention states that the State parties shall ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities; this means that States are obliged to provide barrier-free public services for the persons with disabilities and private entities are required to provide barrier-free services to persons with disabilities according to the law.

It goes without saying that public services directly provided by the government should meet the needs for accessibility. As far as private entities such as private schools, hospitals or private shopping malls and recreational facilities are concerned, the State shall also take all appropriate legislative, administrative and judicial measures to ensure that the aforesaid private entities provide barrier-free environments for persons with disabilities. Otherwise it will be difficult to achieve accessibility. Similarly, the products provided by tech companies and internet companies should also take full account of the needs of persons with disabilities for accessibility.

The UN Committee on the Rights of Persons with Disabilities also holds that the focus of the issue is no longer on the legal status and public and private nature of persons who own buildings, transportation infrastructure, vehicles, information and communications, and services. As long as goods, products, and services are publicly available or provided to the public, they must be made available to all people, including persons with disabilities, regardless of whether they are provided by public authorities or private entities.[24]

At the same time, the State can only require private entities to comply with this standard only if the legislation stipulates the minimum standards on accessibility that all members of society should observe. If the law has clear stipulations on accessibility, it also sets the obligations of domestic laws on private entities. Failure to observe the law will incur legal liability. This is also a typical way of implementing international human rights law in China.

On January 25, 2016, Mr. Chen, a blind man from Gansu Province, has a brought a claim against China Railway Corporation, China Railway Corporation Information Center and China Railway Academy Co., Ltd. in the Haidian District People’s Court of Beijing. He claimed that the picture CAPTCHA on the railway ticketing website 12306.cn created obstacles for him to ticket purchasing, and required the three defendants to pay 110 yuan for the taxi fare and 1 yuan for mental damage compensation. After hearing the case, Haidian Court held that the CAPTCHA system on the official website of 12306.cn indeed created an obstacle for Mr. Chen to purchasing a ticket, but Mr. Chen’s right to travel and the equal right to purchase tickets are not infringed.[25] However, the author holds that this obviously breaches the principle of information accessibility stated in the Convention and the principle of equality and non-discrimination. Objectively, this affects and deprives persons with disabilities of their rights and freedoms of participating in and integrating into society equally.[26] Most of the media entities did not discuss this in accordance with the Convention.

This is not an isolated occurrence. In September 2016, Xiaoshi, a blind person from Hunan, went to Changsha Hongxing Sub-branch of Guangdong Development Bank twice to go through procedures of activating a credit card after applying for it online. However, due to his inability to read the risk warning and sign the form, he was rejected by the bank twice. Xiaoshi believed that he was discriminated against by the bank and took the sub-branch to court, requiring the bank to apologize in writing and pay 30,000 yuan in mental damages. After hearing the case, the court held that the bank complied with the relevant regulatory provisions in rejecting the activation of credit card for Xiaoshi, and this was not a discriminatory measure targeted at specific groups, thus its behavior was not illegal. On April 26, 2017, the court ruled against Xiaoshi.[27] The court also held that commercial banks, as financial service institutions, have the freedom to choose customers. However, this measure clearly runs counter to the provisions of the Convention mentioned above. Whether it is the CAPTCHA on 12306.cn that creates obstacles for the visually impaired, or the bank that fails to provide Braille forms or other barrier-free alternatives to signing as required by the Convention, it by nature is exclusion or restriction of persons with visual impairments, and infringes the economic, social and cultural rights of visually impaired people. It not only violates the provisions of Article 9 of the Convention, but also constitutes “discrimination based on disability”.[28] However, as there is a lack of an anti-discrimination legal system and judicial relief regarding the principle of information accessibility in China, it is hard for people with visually impaired rights to receive effective relief when their rights are violated. Therefore, under the guidance of the Convention, Chinese laws should transform and build on the principle and human rights content of ensuring the information accessibility for persons with disabilities.

V. Key Points of Chinese Law in Dealing with the Responsibilities of Private Entities for Information Accessibility

Due to the lack of awareness and the imperfect legal system, private entities that play a major role in the development of information technology, product production, and service provision do not effectively assume obligations and responsibilities under the constraints of Chinese laws, excluding persons with disabilities from new technology and products, and impeding their enjoyment and exercise of all human rights and fundamental freedoms on the basis of equality with others.

On December 10, 2017, the forum on “Disability, Technology and Future Rule of Law”, which was sponsored by Renmin University of China Law School and other organizations, was held at Renmin University of China. In response to the challenges faced by persons with disabilities in the information age, the forum released the Beijing Initiative on Science and Technology Products Confirming to the Principle of Information Accessibility (hereafter called the Beijing Initiative). The Beijing Initiative was jointly initiated by the Renmin University of China Law School - Harvard University Law School Disability Project and the One Plus One Group for Disability. Alibaba Group, Jingdong Group, Chelaile Software, iFlytek and other representative tech enterprises formally signed and joined the Beijing Initiative. The forum organizers also invited other tech companies attending the forum, as well as experts and scholars from universities at home and abroad, and participants of non-profit organizations for the disabled to sign and join the Initiative.[29]

The Beijing Initiative is proposed based on the purposes, principles, and general duties of the UN Convention on the Rights of Persons with Disabilities, as well as Article 8 “Awareness-raising” and Article 9 “Accessibility.”
Information accessibility, especially the accessibility to internet technology products, is a new situation and new issue in the protection of the rights and interests of persons with disabilities in the new era. The rule of law shall play a more important role in protecting and guiding the application of modern technology to the lives of persons with disabilities and promoting the use of technology in practice. Meanwhile, experts, scholars, and people in the business and practice community shall also participate in the social issues on protecting the rights and interests of persons with disabilities. They should raise self-awareness and change their views, and jointly contribute to the protection of the rights and interests of persons with disabilities. It is particularly important that the participation of persons with disabilities and their representative organizations in the process should be recognized and protected. The release of this initiative is also an attempt by Chinese legal scholars and non-governmental organizations to address this challenge.

A. A change in idea goes to the heart of the problem

Based on the traditional model and the individual/medical model perspective on disability, the support provided by society for persons with disabilities is described by people as care and concern with a touch of inequality. Article 8 of the Convention recognizes this problem. It requires the State parties “undertake to adopt immediate, effective and appropriate measures to raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities; to combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life.” Moreover, unlike “step-by-step implementation” of accessibility, awareness-raising is an obligation that can be “immediately” implemented.

Article 9 of the Convention also stipulates that “State parties ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities”.

As regards how to accomplish the awareness-raising campaign on accessibility, it is explained in the General Comment No. 2 issued by the UN Committee on the Rights of Persons with Disabilities: “Awareness-raising is one of the preconditions for the effective implementation of the Convention on the Rights of Persons with Disabilities. Since accessibility is often viewed narrowly as accessibility in the built environment (which is significant, but only accounts to one aspect of access for persons with disabilities), State parties should strive systematically and continuously to raise awareness about accessibility among all relevant stakeholders. The all-encompassing nature of accessibility should be addressed, providing for access to the physical environment, transportation, information and communication, and services. Awareness-raising should also stress that the duty to observe accessibility standards applies equally to the public and to the private sector.”

Based on the human rights model underlined in the Convention, views should be transformed and information accessibility is the key to realization of the rights of persons with disabilities. This is clearly stated in the Beijing Initiative: “Information accessibility is of extraordinary significance for the persons with disabilities, and can even better change the ability of persons with disabilities to live, study and work than barrier-free facilities, so that they can truly participate in social life equally”; “It is not an extra burden for the technology products in the design and production process to incorporate accessibility design in accordance with the relevant regulations. If not, it will be the product’s problems and defects; it makes clear to technology companies and internet companies that information accessibility itself is an obligation and responsibility.” taking a long-term perspective, the Beijing Initiative offers clear suggestions on how to more effectively implement Article 8 of the Convention and the effective transformation of Chinese laws, namely “proactively promote and establish the importance of information accessibility regulations and training courses in the professional development of developers in China.”

Although the relevant principles are mentioned in the Regulations on the Construction of Barrier-free Environment, the clear understanding of this principle by private entities and concrete measures provide a more feasible basis for the follow-up fulfillment of their obligations and the judicial relief for persons with disabilities.

B. The participation of persons with disabilities is central to the realization of the rights of persons with disabilities.

“Nothing about us without us" is the slogan of the international movement for persons with disabilities and is also the core spirit of the Convention. In the preamble and text of the Convention, the importance of involvement of persons with disabilities and their representative organizations is mentioned several times. Article 15 of the Preamble states that “persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programs, including those directly concerning them;” article 4 (3) stipulates that “In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, State parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.”

In terms of the principle of information accessibility, which concerns the realization of the rights of persons with disabilities, persons with disabilities are naturally the mainstay. In the General Comment No. 2 issued by the UN Committee on the Rights of Persons with Disabilities, Article 19 emphasizes that “strengthening the direct involvement of persons with disabilities in product development would improve the understanding of existing needs and the effectiveness of accessibility tests.” Article 35 also states that “Awareness-raising should be carried out in cooperation with persons with disabilities, their representative organizations and technical experts.”

The release of the Beijing Initiative was jointly completed by legal scholars and representatives of organizations for persons with disabilities. It is the best practice and example of the spirit of the Convention. The Beijing Initiative also reaffirms that the core spirit of the Convention is “Nothing about us without us”. It also appeals to the R&D, design, production, and sale companies of technology products to “pay attention to the principles of information accessibility in product development, design, production and sales; respect and invite persons with disabilities to participate in all aspects; establish an effective channel for user experience on information accessibility and feedback. The Initiative stresses at the end: “make persons with disabilities the participants, promoters and beneficiaries of the implementation of the UN Convention, the realization of the UN Sustainable Development Goals and the rapid development of society in the information age.” The establishment of this status will also provide an important basis for the disabled to participate in and seek judicial relief.

C. Give consideration to the times and the reality of China 

Although the Beijing Initiative is guided by the UN Convention on the Rights of Persons with Disabilities, it also takes into account the new global development goals and China’s national conditions. It also takes into account the UN’s sustainable development goals and the goal of a well-off society in all respects for the able-bodied and the disabled by 2020. This means that this initiative is made in the global context of the new era and also considers the requirements for the development of socialism with Chinese characteristics. When we solve this new challenge facing persons with disabilities, it is also very important to combine and embody these two points in the enactment and revision of Chinese laws.

VI. Conclusion

The Convention was ratified by the National People’s Congress of China in 2008. In 2010, the Chinese government submitted the first performance report to the UN Committee on the Rights of Persons with Disabilities as required. In 2018, China will submit its second and third combined reports. It is of great significance and value to review the achievements and challenges in promoting the information accessibility in China at this time.

Although the Law of the People’s Republic of China on the Protection of Persons with Disabilities revised and implemented in 2008 has confirmed the principle of information accessibility, it is far too abstract. According to the performance requirements, the State Council has enacted the Regulations on the Construction of Barrier-free Environment as a concrete measure to achieve information accessibility. It is still necessary to implement the minimum accessibility standards required by the Convention, to establish legal responsibilities of the entities and guarantee judicial litigation channels in domestic laws, so that the disabled as the mainstay of rights have the support of law. It is also necessary to bring a change to the current situation under which the private sector is only criticized and condemned for its failure in terms of information accessibility for the persons with disabilities and realizing basic human rights. In line with China’s overall reform of the judicial system, China makes contributions to the world’s protection of rights for persons with disabilities.

The Beijing Initiative gives some reflections from the perspectives of the concept change, the participation of persons with disabilities and keeping up with the times based on the Convention. In the process of the realization of the UN Sustainable Development Goals and the building of a well-off society in all respects in China, we not only ensure that persons with disabilities will not be left behind, but also create conditions for them to make unique contributions to society.

(Translated by LI Man)

 

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