■This paper aims to examine the formation and changes in international legislation concerning the deinstitutionalization of people with disabilities, with a focus on the United Nations. Additionally, this study intends to review the implementation of deinstitutionalization policies in major countries, aiming to extract valuable lessons and implications that could be beneficial for enhancing social policies in Korean society.
￮Delving into the background leading to the adoption of the Convention on the Rights of Persons with Disabilities (2006), examining its key provisions and the monitoring mechanisms for its implementation.
￮Exploring various legislations and practical examples concerning the rights of people with disabilities within the European Union and the United States.
￮Analyzing discussions on deinstitutionalization in Korea following ratification of the Convention on the Rights of Persons with Disabilities
■The UN has consistently emphasized the deinstitutionalization of people with disabilities since the adoption of the Convention on the Rights of Persons with Disabilities in 2006.
￮The Convention on the Rights of Persons with Disabilities is the eighth of the nine core international human rights conventions adopted by the United Nations. It acknowledges individuals with disabilities as independent and deserving of dignity.
-The Convention facilitates a shift in the perception of persons with disabilities, from seeing them as mere recipients of welfare to recognizing them as active subjects with human rights. It emphasizes the autonomy, participation, and independence of individuals with disabilities.
-All articles of the Convention are connected to these objectives, with Article 19, titled "Living Independently and Being Included in the Community," being particularly relevant.
-Article 19 of the Convention asserts that States Parties recognize the equal right of all individuals with disabilities to live within the community, enjoying the same level of choice as others. To support this, States Parties are obligated to implement effective and appropriate measures. These measures are aimed at ensuring that persons with disabilities can fully enjoy inclusion and participation in the community.
￮The Committee on the Rights of Persons with Disabilities has issued five specific guidelines aimed at addressing several specific issues as well as eight General Comments intended to offer an interpretation of the Convention’s provisions. These documents have consistently demonstrated a trend towards emphasizing the importance of deinstitutionalization.
-The Committee’s General Comment No. 5 (2017) serves to augment the interpretation of Article 19 of the Convention. It specifically clarifies the definition of "deinstitutionalization," providing a more comprehensive understanding of this concept within the context of the Convention.
-Following the COVID-19 Pandemic, the Committee issued a fourth set of guidelines (Guidelines on Deinstitutionalization, Including in Emergencies) in 2022, highlighting the importance of deinstitutionalization while calling for the employment of immediate government measures.
￮Furthermore, the Committee has persistently underscored the significance of deinstitutionalization in its "concluding observations," which are recommendations issued following the review of States Parties' regular reports. This emphasis is also evident in its inquiries regarding "grave and systematic violations of rights," demonstrating the Committee's commitment to ensuring that individuals with disabilities can live inclusively and independently in community settings.
-Concluding observations to key States Parties for the past decade show that deinstitutionalization is still an ongoing issue in each country.
-Among the three inquiries conducted by the Committee, two notable cases concerning the United Kingdom in 2017 and Hungary in 2020, indicate that certain conditions and governmental stances can potentially lead to regressive trends in upholding the rights of people with disabilities.
￮The Committee issued the concluding observations on the reports of the Republic of Korea in 2014 and 2022 and urged the state to develop deinstitutionalization strategies.
-In the initial concluding observation of 2014, the Committee urged South Korea to implement robust deinstitutionalization strategies, anchored in a human rights-centered approach to disability. It also emphasized the need for a significant enhancement in community-based support services. Subsequent observations, both the second and third, further underscored the importance of South Korea giving due weight to its 2021 government-adopted deinstitutionalization roadmap, marking a significant step in this ongoing effort.
-In December 2022, Korea ratified the Optional Protocol to the Convention on the Rights of Persons with Disabilities, becoming the 101st country to do so. This ratification enables the Committee to examine individual complaints and conduct investigations within Korea.
■Despite variations between US and EU policy approaches, they have both persistently implemented deinstitutionalization policies.
￮Since 1993, the European Union has consistently shown interest in policies concerning the rights of people with disabilities. It has been actively managing monitoring bodies, grounded in the Charter of Fundamental Rights of the European Union (2000) and the "European Pillar of Social Rights" (2017).
-Since the 2000s, the European Union Agency for Fundamental Rights and the European Disability Forum have suggested research findings and recommendations at different levels to promote deinstitutionalization.
-The European Union has navigated through trial and error, creating funds and guidelines for Convention implementation. This involves developing community-based support services, rather than transferring to smaller institutions.
￮While the United States has yet to ratify the Convention, it has enacted deinstitutionalization policies established through legal actions grounded in the amended Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990.
-Since the 1970s, policies aimed at decreasing the number of institutionalized individuals with disabilities have been enacted. These policies have utilized court rulings from landmark lawsuits, executive orders stemming from those rulings, and relevant guidelines issued by both federal and state governments.
-Aiming to effectively incorporate the ruling of Olmstead v. L.C. (1999), which is grounded in the Americans with Disabilities Act of 1990, various states have developed Olmstead plans. These plans articulate the importance of deinstitutionalization policies, responding to a range of judicial decisions.
■International legislation and case studies hold significant relevance for Korean society, which has been rapidly undergoing the process of deinstitutionalization within a relatively short timeframe.
￮Korea is currently in the initial stages of implementing deinstitutionalization policies, with this movement having begun less than two decades ago.
-To effectively navigate this process, Korea must develop medium- and long-term strategies, informed by an in-depth analysis of approaches undertaken by other nations.
-Recognizing the need for a clear direction, Korea should interpret lessons from international experiences and proceed with decisive actions.
￮Insights in three key areas emerge from examining international legislation as well as a number of relevant case studies.
-Legislative Actions: It's recommended that the Act on Closing Institutions for Individuals with Disabilities and the Deinstitutionalization Support Act be passed. These laws would provide the legal foundation and framework necessary to back the national strategy aimed at supporting the closure of institutions and facilitating deinstitutionalization.
-Executive measures: A national-level apology for past institutionalization practices and a formal declaration of commitment to deinstitutionalization should be issued. Drawing on the Committee’s General Comment No. 5 and established guidelines for deinstitutionalization, there should be a proactive implementation of deinstitutionalization policies. This can be achieved through revising the existing roadmap for deinstitutionalization and establishing a national-level coordinating body. This body should possess both independence and substantive authority to effectively oversee and guide the deinstitutionalization process.
-Judiciary measures: The Convention on the Rights of Persons with Disabilities should be actively applied in court proceedings. Legal cases involving human rights violations or deaths within institutions should be categorized as special cases. Moreover, it's essential to establish an independent mechanism within the judiciary specifically designed to prevent human rights violations in institutional settings.
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