Positive Discrimination As A Supportive Basis for Ensuring the Rights of Persons with Disabilities; A Comparative Examination of Domestic and International Legal Measures

Document Type : Academicm and Research

Author

Professor of the Department of Public Law, Faculty of Law and Political Science, University of Tehran, Iran.

10.22091/csiw.2024.8755.2345

Abstract

Individuals with disabilities constitute a significant minority in human society. However, despite the existence of Islamic, international, and domestic fundamental principles of human rights such as inherent dignity and equality, this group has faced deprivation in realizing their rights compared to others. The necessity of effective measures to guarantee their rights has raised the issue of "positive discrimination," which functions as a supportive basis in international documents, Islamic standards, and domestic laws. The main question of this paper is: What are the effects and consequences of positive discrimination as a supportive basis for ensuring and protecting the rights of persons with disabilities in domestic and international systems? This article, recruiting a descriptive-analytical approach, concludes that positive discrimination, due to its rational and intrinsic basis, legitimizes and serves as a significant factor in identifying protective rights for individuals with disabilities. The primary legal impact of positive discrimination lies in the recognition of this element in domestic laws and international documents, allowing persons with disabilities to enjoy their rights and equal social participation like other citizens. In this regard, the Convention on the Rights of Persons with Disabilities adopted in 2006 and the Law on the Protection of the Rights of Persons with Disabilities passed by the Islamic Consultative Assembly in 2017 are considered symbols of the influence of positive discrimination in supporting persons with disabilities. However, it is worth noting that domestic measures have a stronger executive backing compared to the international arena. Nevertheless, it should be acknowledged that comprehensive theoretical discussions on positive discrimination for individuals with disabilities have not been adequately addressed in the legal literature of Iran.

Keywords

Main Subjects

References

Bacchi, C. (2009). Challenging the Displacement of Affirmative Action by Gender Mainstreaming. Asian Journal of Women’s Studies, 15(4).
Boxill, B. (2003). Affirmative Action. In R. G. Fryer, C. Heath, & C. Blackwell (Eds.), A Companion to Applied Ethics. Blackwell Publishing.
Cane, P. (2008). The new Oxford Companion to Law. Oxford University Press.
CRPD: Convention on the Rights of Persons with Disabilities. Retrieved from:    
http://unhcr.org/refword/docid/45f973632.html
Fleming, C. M., & Girma, H. (2021). "Positive discrimination does not mean anything": Understanding Black French Ambivalence toward Affirmative Action. Social Problems, 68.
Gurtler, M., & Gurtler, O. (2019). Promotion signaling, discrimination, and positive discrimination policies. Rand Journal of Economics, 50.
Bennett, M., Roberts, S., & Davis, H. (2019). THE WAY FORWARD – POSITIVE DISCRIMINATION OR POSITIVE ACTION? International Journal of Discrimination and the Law, 6.
Munyi, C. (2012). Past and present perceptions towards Disability: A historical perspective. Disability Studies Quarterly, 32(2).
Renshon, S. (2001). One American? Political leadership, national identity, and the dilemmas of diversity. Georgetown University Press.
Ruzicho, A. (2007). Handicap Discrimination: How to comply with the Rehabilitation Act of 1973. KF3738. R89.
Streba, J. (2009). Affirmative Action for the Future. Cornell University Press.
World Health Organization & World Bank. (2015). World Report on Disability. Geneva: World Health Organization.
 
Persian and Arabic Sources
The Holy Quran.
Nahj al-Balagha.
Bariklou, A., & Fatemi-Nejad, S. H. (2018). Validity and effectiveness of positive discrimination in the realization of women's rights. Journal of Islamic Law, 63, 236-264.
Fahimi, F., et al. (1400). Critical analysis of the feminist perspective on the definitions of handicapped and disability in Iranian legal documents and international documents. Islamic and Western Law Comparative Research Journal, 4, 213-234.
Gurji Azandriani, A. A., et al. (2013). Positive Discrimination: Fair Discrimination or Treating the Effects of Discrimination. Journal of Legal Research, 55, 331-363.
Hasheminejad, Q. (1391). Book of Ayub. Tehran: Hermes.
Jahed, M., & Kavandi, S. (2012). Reparative actions: Criticism and analysis of the reasons for supporters and opponents. Research Journal of Ethics, 21, 112-97.
Jan Ghorban, A., & Abolhasani Zare, H. R. (2018). Supporting the human rights of the disabled in international law. Journal of Ta'ali Hoquq, 15, 95-111.
Karami Qahi, M. T., & Ebrahimi, M. (1401). Investigation of positive discrimination in policy documents based on gender. Welfare Planning and Social Development, 52, 44-71.
Larijani, S., & Karimi, A. (1401). Examination of Jonathan Wolff's theory of positive discrimination in criticism of feminism and its relationship with human rights. Islamic Human Rights Studies, 25, 29-50.
Mohseni Tabrizi, A., & Jabali, K. (2012). Social Construction of Disability. Iranian Social Issues Quarterly, 1, 131-154.
Omrani, S., Bakhshloo, R., & Mohammadi, M. R. (1401). "Positive Discrimination" or "Legal Discrimination"? A reflection on the concept of separation in Iran's legal system; A local case study of employment selections. Administrative Law, 30, 120-99.
Parveen, K., & Arefi, M. S. (1401). Comparative study of positive discrimination in the field of employment of disabled people in the laws of Iran, America, and India. Islamic Human Rights Studies, 24, 7-31.
Ramezani Qavamabadi, M. H. (2013). Protection of disabled people in international law. Social Welfare, 41, 342-307.
Research Center of the Islamic Council (1401). Recommendation No. 99 of the International Labor Organization. Retrieved from http://rc.majlis.ir/fa/law/show/95088
Tabarsi, F. b. H. (1380). Majma al-Bayan fi Tafsir al-Qur'an (A. H. Shaarani, Ed.). Tehran: School of Al-Alamiya.
United Nations. (2018). Disabilities: A guide to the implementation and effective implementation of the Universal Convention on the Rights of Persons with Disabilities (A. Faqih, Trans.). Tehran: Iran's Welfare Organization.
Zarei, M. H., & Mohammadi, H. (2012). Legal Discrimination in Iran's Higher Education with Emphasis on Special Provisions. Journal of Majlis va Rahbord, 76, 35-5.
Send comment about this article
CAPTCHA Image
Comparative Studies on Islamic and Western Law
Volume 10, Issue 4 - Serial Number 38
December 2023
Pages 135-154

Files

Share

How to cite

Statistics