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Intruments TREATIES The promotion and protection of human rights is one of the fundamental aims of the United Nations. Since its creation, the Organisation has made enormous progress in setting legal standards in the field of human rights and establishing mechanisms to monitor the implementation of these standards. The State Parties to the six core human rights conventions are obliged to respect and to ensure the rights recognized in these instruments to all individuals, and to take the necessary steps to give effect to these rights. Each of these six core human rights treaties establishes a committee of independent experts – usually referred to as “treaty monitoring body” or “treaty body” – to monitor the domestic implementation of the human rights provisions contained in those treaties. Four treaties also establishes procedures which allow individuals who claim to be victims of a violation by a State party of the rights set out in the respective treaties may submit individual complaints to the treaty monitoring body. There are no international human rights treaties which apply solely to persons with disabilities. Rather, international human rights treaties apply to this category of individuals via the anti-discrimination clause which is included in each treaty. Under these provisions, States Parties undertake to guarantee that the rights recognized in the treaty will be exercised without distinction of any kind, “such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Although disability is not expressly included among the prohibited grounds for discrimination, it is widely accepted that it falls under the heading “other status” and is thus treated as a ground in respect of which discrimination is prohibited. The International Covenant on Economic, Social and Cultural Rights (ICESCR) The 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) aims at the protection and promotion of a wide range of economic, social and cultural rights. Like ICCPR, it does not contain any explicit reference to persons with disabilities, but many of its provisions are undoubtedly of great importance for ensuring the full participation of, and equal opportunities for, disabled persons in their societies. Under Article 2, for example, States parties are required to take appropriate measures, to the maximum extent of their available resources, to enable such persons to seek to overcome any disadvantages, in terms of the enjoyment of the rights specified in the Covenant, flowing from their disability. The right to education (Article 13) is violated whenever children with disabilities are denied access to public educational institutions (e.g. because buildings are not accessible) or when their special educational needs – including special communication needs (e.g. use of sign language or Braille) – are not taken into account in developing national educational programmes. According to Article 12 (Right to health), persons with disabilities must be provided with the same level of medical care as other members of society, and have the right to have access to, and to benefit from, those medical and social services – including orthopaedic devices – which enable them to become independent, prevent further disabilities and support their social integration. The right to work (Article 6) may be violated when the State fails to adopt adequate regulations and policies to make the workplace accessible to disabled persons, to provide persons with disabilities with adequate technical and vocational guidance to improve their capabilities and skills or to support the integration of the disabled in mainstream employment. The International Covenant on Civil and Political Rights (ICCPR) The 1966 International Covenant on Civil and Political Rights (ICCPR) provides protection for civil and political rights. It seeks to underpin the freedom of the individual and to ensure that he/she is enabled to exert influence over the political life of the community. Disabled persons are not explicitly mentioned by the ICCPR; however, many provisions of the Covenant are of direct relevance for persons with disabilities. For instance, Article 7 (right to freedom from torture and other cruel, inhuman or degrading treatment and punishment) may be violated when persons with disabilities are placed in an inappropriate environment or when a person with a mental or psychiatric disability is subject to medical or scientific experimentation without his/her prior informed consent. Involuntary or forced institutionalisation of a person with a mental or psychiatric disability may constitute, when carried out without strict procedural safeguards, a breach of the right to liberty and security of a person (Article 9). The right to be recognised as a person before the law (Article 16) may be violated when a person is deprived of his/her legal capacity on account of an actual or perceived disability without the safeguards to protect the rights of the person and/or periodical review by competent judicial authorities to verify the need for representation and the proper exercise of the function by the legal representative. Finally, the denial of the right to form a family (e.g. forced sterilisation), to live with one’s own family or to experience sexuality and parenthood may constitute violations of the right to right to marry and found a family (Article 23) and/or the right to privacy and family life (Article 17). The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) Four other United Nations treaties are usually included among the “core” human rights instruments. One of them deals with the right to be free from torture: the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). This Convention is of obvious importance to persons with disabilities. Torture is often the cause of severe physical or mental disability. Furthermore, persons with disabilities, and especially those who live in institutionalized settings, are particularly vulnerable to torture or other forms of inhuman or degrading treatment. A massive imbalance of power often exists in institutions between an inmate and those in authority. This imbalance is magnified many times over in institutional settings for persons with disabilities. Torture, and the less severe but equally abominable phenomena of cruel, inhuman or degrading treatment or punishment, are not uncommon in mental and physical disability institutions – whether public or private – and negatively affect the physical and emotional well-being of their residents. Legal protection against torture is therefore of the utmost importance in protecting the human rights and dignity of persons with disabilities and ensuring respect for their physical and psychic integrity wherever they reside. The definition of torture contained in Article 1 of CAT covers those forms of ill-treatment that intentionally cause severe pain or suffering and are carried out by individuals exercising public functions, which renders it inapplicable in many cases involving the abuse of persons with disabilities in institutions and other settings. However, States parties to the Convention are also under a duty to prevent cruel, inhuman or degrading treatment or punishment (Article 16), and this provision may be of great relevance in cases of ill-treatment against persons with disabilities. A violation of this provision may occur, for example, when the State:
The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Other two treaties, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), deal with particular groups or categories of persons who are at risk of discrimination. These treaties generally serve two purposes. First, they establish the principle of non-discrimination with respect to the enjoyment of all human rights for the categories of persons covered. Secondly, and to the extent required, they add specificity to the general ICCPR and ICESCR rights, tailoring them more directly to the circumstances of the groups covered. These group-specific conventions are of obvious importance in the context of double discrimination. People with disabilities may suffer discrimination not only because they are disabled but also because they belong to other groupings or minorities such as ethnic groups or women. CERD aims at the elimination of racial discrimination in all its forms. W hen people with disabilities happen to belong to a racial group or minority, they may face discrimination on the grounds of both race and disability. The Convention prohibits “any form of distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life” (Article 1, paragraph 1). Special measures taken for the sole purpose of securing adequate advancement of certain groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms (i.e. affirmative action) shall not be deemed racial discrimination, provided that some conditions are respected (Article 1, paragraph 4). The overarching goal of CEDAW is the achievement of de iure and de facto equality for women. The non-discrimination rights included in the Convention cover the whole spectrum of human rights, be they civil, cultural, economic, political or social. Women with disabilities may be vulnerable on account of both disability and gender, and are more likely to suffer from discrimination than able-bodied women or men with disabilities. Although the Convention does not specifically refer to women with disabilities, it is clear that as the CEDAW provisions cover all women, they apply equally to women with disabilities and able-bodied women. With regard to disabled women, States are in particular required to take measures, including special measures to ensure that they have equal access to education and employment, health services and social security, and to ensure that they can participate in all areas of social and cultural life. The Convention on the Rights of the Child (CRC) The 1989 Convention on the Rights of the Child (CRC) is the first binding instrument in international law to deal with the rights of children . It contains 42 detailed provisions enshrining the rights of children in all areas of their lives and includes provisions on civil, cultural, economic, political and social rights. Unlike the other international human rights instruments, the CRC contains two provisions relating to disability. Article 2 expressly prohibits any discrimination in respect of the enjoyment of Convention rights on the ground of disability. Most importantly, the Convention includes a specific provision (Article 23) on the rights of children with disabilities, which reads as follows:
The Convention also includes other provisions which are particularly relevant to children with disabilities, such as the right not to be separated from one’s family (Article 9), the right to protection from abuse (Article 19), the right to an adequate standard of living (Article 27), the right to health care (Article 24), the right to education (Article s 28 and 29) and the right to physical and psychological recovery and social reintegration for victims of neglect, exploitation, abuse, torture or any other form of cruel, inhuman or degrading treatment or punishment, or armed conflicts (Article 39). The application of general rights provisions to disabled children is ensured by the prohibition of discrimination on the ground of disability contained in Article 2. Other treaties addressing the issue of disability In addition to human rights treaties, other United Nations instruments address the issue of disability. Article 1 of the UNESCO Convention against Discrimination in Education, for example, guarantees equal access to education of all types and levels and prohibits the limitation of any person or group of persons to education of an inferior standard. Persons with disabilities must therefore be provided with equal access to education, which is of a comparable standard to that available to non-disabled persons. The ILO Convention concerning Vocational Rehabilitation and Employment (Disabled Persons) recognises the rights of disabled persons to appropriate training and employment, not only in specialised institutions and sheltered workshops, but also in open labour markets, and stipulates that employers’ and workers’ organisations – together with Governments and organisations of disabled persons – share responsibility for helping disabled persons to realise their rights. The definition of discrimination in Article 1 of the ILO Convention concerning Discrimination in Respect of Employment and Occupation does not specifically include a distinction based on disability of a person; however, as under article 1(2), the term discrimination includes “…such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers’ and workers’ organisations…”, discrimination on the ground of disability may come within the provisions of the Convention, if so determined by the Member. At the regional level, the new Article 15 of the Revised European Social Charter recognises the “right of persons with disabilities to independence, social integration and participation in the life of the community”, and commits Contracting Parties to (1) take the necessary measures to provide persons with disabilities with guidance, education and vocational training, (2) to promote their access to employment through all measures tending to encourage employers to hire and keep in employment persons with disabilities in the ordinary working environment and to adjust the working conditions to the needs of the disabled, and (3) to promote their full social integration and participation in the life of the community in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.” The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights specifically refers to the rights of persons with disabilities. According to Article 18, “everyone affected by a diminution of his physical or mental capacities is entitled to special attention to help him to achieve the greatest possible development of their personality”. States Parties agree to undertake programs aimed at providing persons with disabilities with the resources and environment needed for attaining this goal, to provide special training to the families of the handicapped. The Inter-American Convention on the Elimination of all Forms of Discrimination against People with Disabilities is aims at the prevention and elimination of all forms of discrimination against persons with disabilities and the promotion of their full integration into society. States parties undertake to adopt the legislative, social, educational, labor-related, or any other measures needed to achieve the goals of the Convention, and to co-operate with one another in helping to prevent and eliminate discrimination against persons with disabilities. See also:
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