COMPILATION OF INTERNATIONAL NORMS
AND STANDARDS RELATING TO DISABILITY
Part II. International Human Rights. 2/8   
1. Introduction to the International Human Rights System
The human rights movement grew out of the disasters of World War11 and a half century
later deeply inform both the practice and theory of international law in nearly every
field.
1.1 Exhaustion of Local Remedies
The international rule of exhaustion of local remedies before taking to international
remedies, is one of the basic rules in international law. The object of the rule is to
enable the respondent State the first opportunity to correct the harm and to make
redress. The application of the rule of domestic remedies to the protection of human
rights depends on conventional provisions.
A person whose rights have been violated should make use of domestic remedies to right
a wrong, rather than first address the issue to an international committee, court or other
tribunal. Access to an international organ should be available, but only as a last resort,
after the domestic remedies have been exhausted. A person should seek redress from
domestic remedies because these are normally quicker, cheaper and more effective than the
international ones.
If no domestic remedies are available or there is unreasonable delay on the part of
national courts in granting a remedy, clearly, a person should have recourse to
international remedies. The rule of local remedies should not constitute an unjustified
impediment to access to the international remedies.
1.2 Disability Rights at the International Level
This section reviews the six core United Nations Conventions ( ICCPR, ICESR, CEDAW, the
Convention on the Rights of the Child, ILO, and The Convention Against Torture and other
Cruel, Inhuman and Degrading Treatment or Punishment) followed by a discussion of other
United Nations Conventions which have a bearing on the rights of persons with
disabilities.
In some cases, individuals have the right to complain directly about human rights
violations to expert bodies established under the UN human rights conventions. Three such
expert committees currently allow individual complaint procedures:
- The Human Rights Committee under the Optional Protocol to the International Covenant on
Civil and Political Rights (ICCPR)
- The Committee on the Elimination of Racial Discrimination (CERD), under Article 14 to
the International Convention on the Elimination of All Forms of Racial Discrimination; and
- The Committee Against Torture, under Article 22 of the Convention Against Torture and
Other Forms of Cruel, Inhuman and Degrading Treatment.
All of these procedures are contingent upon the state parties recognizing the
competence of the expert to hear individual complaints. The procedure under the ICCPR has
been the most visible and effective of the complaint procedures administered by human
rights treaty bodies since the optional protocol entered into force in March 1976, over
500 cases have been registered under the procedure.
The international community lacks the constitutionally institutionalised machinery of
law-making typical to domestic legal orders. Legal provisions on the international level
are enacted in accordance with the Vienna Convention on the Law of Treaties.
It codified customary rules related to treaties; hence, at large, the same body of
rules apply to both Parties and non-parties to the Vienna Convention. A majority of States
have ratified the convention. For States not Parties to the Vienna Convention, the
legislative process is governed by customary international law. The Vienna Convention
governs only treaties concluded between States. The Vienna Convention on the
Law of Treaties between States and International Organizations or between International
Organizations[35]applies to treaties concluded between States and
international organizations, or between international organizations. However, this
Convention has not been accepted by the international community, as has the 1969 Vienna
Convention.
There are no human rights treaties, which apply solely to persons with disabilities,
but the treaties will apply to disabled persons via the anti-discrimination clauses
provided within each treaty and are legally binding on those States which ratify those
conventions.
The International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights came into force in 1976 and
together are the most comprehensive international code of binding legal provisions in the
human rights area. They develop and supplement the provisions of the Universal
Declaration of Human Rights and together these three instruments form the International
Bill of Human Rights.
Neither the International Covenant on Civil and Political Rights nor
the International Covenant onEconomic, Social and Cultural Rights contain
provisions specifically related to disability. Nevertheless, the general human rights
guarantees as embodied in the Conventions apply to all persons; therefore, equal attention
should be given to the protection of these rights and their application to disabled
persons. Thus, the provisions of both Conventions may be invoked for the protection of the
rights of persons with disabilities.
1.3 The International Covenant on Civil and Political Rights
Article 8 of the Universal Declaration on Human Rights underlines the
sweeping customary requirement that everyone has the right to an effective remedy at law
for acts violating the "...fundamental rights granted him by the law and the
Constitution."
The International Covenant on Civil and Political Rights restricts in
article 2 (3) the right to an effective remedy at law to a vindication only of the rights
and freedoms recognised by the Covenant itself. But this text legitimately requires direct
observance of its provisions without regard to national laws or constitutions. Article 14
also recognizes the customary right of access to courts, as supplemented by the Human
Rights Committee General Comments.
The right to life constitutes the most fundamental of rights to the extent that it is
the pre curser to all other human rights guarantees. Article 6 of the International
Covenant on Civil and Political Rights states that the "...inherent
right to life......shall be protected by law..." and that no one can be
arbitrarily deprived of his / her life.
The other rights of disabled persons are protected by article 2 (1) which states that
each State Party "...undertakes to respect and to ensure to all individuals in the
present Covenant, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national, or social origin, property, birth, or any other
status." (emphasis added). Article 2 (3) (a) provides that States Parties
to the Covenant undertake to ensure that any person whose rights or freedoms "...are
violated shall have an effective remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity." Thus holding governments
accountable not only for rights violations but also when the government has failed to
provide protective measures.
Article 7 too is relevant to the protection of rights of disabled persons. The article
states: "...no one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment." It further provides that "...no one shall be subjected
without his or her free consent to medical or scientific experimentation."
Article 9 (1) provides that everyone has the right to liberty and security of person,
and that no one shall be subject to arbitrary arrest or detention. This article is of
relevance to persons with mental disabilities who may be susceptible to arbitrary arrest
and detention in breach of article 9 (1) and / or who may not be fully informed of the
reasons for his or her arrest in breach of article 9 (2). Furthermore, this article is of
relevance to those who may be unable intellectually to take proceedings in a court to
challenge the lawfulness of his or her detention in breach of article 9 (4).
Article 17 (1) states that "...no one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor to unlawful attacks on
his honour or reputation."
Article 23 (2) recognises the right of men and women of marriageable age to marry and
to found a family. It could be argued that this right is violated when mentally
disabled persons are compulsorily sterilised and compulsory institutionalised.
Article 25 establishes the right of everyone "...to take part in the conduct of
public affairs, directly or through freely chosen representatives, to vote and be elected
at periodic elections and to have access, on equal terms, to public service in his (or
her) country." These rights apply without any of the distinctions mentioned in
article 2 and without unreasonable restrictions. Unreasonable restrictions may include
inadequate access to polling booths for disabled persons.
Another important provision, which relates to disability is article 26 embodying the
customary principle of equality and non-discrimination. Article 26 states: "All
persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination on any such
ground as (...) birth or other status." (emphasis added). Disability is clearly an other
status for the purposes of this provision.
1.4 Reporting Procedure Under the ICCPR
Article 40 of the International Covenant on Civil and Political Rights
obliges States Parties to submit reports within one year of the Covenant coming into force
for the States concerned, and thereafter, whenever the Committee so requests. The reports
should indicate measures adopted to give the effect to rights in the Covenant. It should
also indicate the factors and difficulties affecting the implementation of those rights.
The Committee expects the States Parties to indicate in their reports the manner in which
human rights knowledge is promoted at every level of society within that State.
The obligations of the States include undertakings by them not only to respect, but
also to actively ensure all the rights mentioned in the Covenant to individuals within
their territory. This calls for affirmative action by the States to deal with the Covenant
violations wherever they occur, in the private or in the public sector. After
consideration of the reports, the Committee proceeds to draft and adopt its comments
comprising a critique of the report, noting positive factors, drawing attention to matters
of concern and making suggestions and recommendations.
1.5 Emergency Procedure
This procedure based on article 40 of the Covenant, was developed by the Committee in
1991. In case of an exceptional situation, the Committee, when it is not is session, may
make a request through the chairman that a report be submitted. In most of those cases,
the States Parties are requested to submit the reports within three months. The reports
are then considered by the Committee at the next scheduled session. Concluding comments
may include a provision whereby the Secretary General of the United Nations is requested
to bring grave human rights violations to the attention of the competent organs of the UN,
including the Security Council.
1.6 Individual Communication Procedure
This procedure permits individuals to complain directly or through representatives to
the Committee, about a State Party in circumstances where they are the alleged victims of
violations of the Covenant, and the State Party has ratified the Optional Protocol to the
Covenant. Nevertheless, it should be noted that the Committee is not a court; it does not
issue judgements. It can only issue views which might be published with the Committee's
annual report, but it has no means to enforce any views, which it might adopt.
A case must negotiate two stages, those of consideration for admissibility and on the
merits. The admissibility requirements are as follows:
- Cases may only be taken by an individual who claims to be a victim of violations of the
rights guaranteed under the Covenant;
- The alleged victim must have been subject to the jurisdiction of the State Party at the
time of the alleged violation;
- The alleged violation must be of rights in the Covenant;
- The alleged violation must have occurred after the State Party acceded both to the
Covenant and to the Optional Protocol;
- The State Party must not have contracted out of the specific provisions by means of a
reservation or by a declaration under article 4;
- Cases may only be taken against a States Party. It is necessary to indicate culpability
on the part of the State;
- Cases may not be taken which are subject to consideration by another redress mechanism;
and
- All relevant domestic redress procedures must have been exhausted. This requirement is
waived if it can be shown that the pursuit of the local remedy would be ineffective.
On average, once a case is found to be admissible, it can take from two and a half to
four years for the case to negotiate its way through the process. Nevertheless, the
Committee may at any state of the process, request that the State take interim measures to
safeguard the alleged victim. Such a request has no binding force.
Pursuant to the decision on admissibility, comes a period of exchanging views between
the State Party, the alleged victim, and the Committee. Afterwards, the matter may be put
before a Rapporteur or working group of the Committee before going the plenary meeting for
the adoption of the view on the merits. Where the Committee is of the view that there has
been a violation, it will give suggestions as to how the matter might be rectified. Such
suggestions may indicate that compensation be paid.
A member of the Committee, the Special Rapporteur for the Follow-up of Views, is
charged with maintaining contact with the Parties to observe the manner in which effect is
given to the action of the Committee. In March 1994, the Committee adopted a number of
decisions intended to increase the level of publicity accorded to its follow-up
activities, such as naming recalcitrant States in annual reports and welcoming information
of NGOs as to what measures the State Party has taken.
35 Adopted in 1986, not yet entered into force.
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