Need for an Effective Domestic Remedy in the Disability Rights Convention

Written Statement of the International Commission of Jurists 
to the Ad Hoc Committee on the Disability Rights Convention

January 2005

The International Commission of Jurists (ICJ) is concerned about an important omission in the draft text for the international Convention on the human rights of persons with disabilities: the right to an effective domestic remedy for violations of the Convention is not addressed.  The right to an effective remedy is so firmly enshrined in international human rights law that any credible modern human rights treaty has to incorporate it.

To give a meaningful impact to the Convention at the national level, States have to provide an effective mechanism to supervise compliance with the Convention and to afford persons whose rights have been violated with a remedy capable of providing relief and redress.  

The Convention contains a wide variety of rights, both civil and political as well as economic, social and cultural (ESC rights).  All these rights have in common that they are multi-dimensional, so that States have positive and negative obligations to ensure their enjoyment, amongst them the obligations to respect, protect and fulfil the rights.  This is true both for civil and political and well as ESC rights.  All of these rights are justiciable and should be subject to effective control. 

It would be wrong to think that some rights of the draft Convention on disability rights require substantive resources while others do not, and that not all rights could be subject to a remedy.  Such an approach would overlook the fact that all rights require States to adopt both positive and negative measures, not only ESC rights, but also civil and political rights: the right to a fair trial requires significant financial investment in court systems, and frequently legal aid; the protection against torture and other forms of cruel, inhuman or degrading treatment calls for positive measures such as police training, construction of prison facilities, or protection of victims.  

Denying the justiciabilty of some rights disregards the fact that it is often impossible to separate the negative and positive obligations arising from a right, be it civil and political or economic and social.  For persons with disabilities in particular, many rights that are generally perceived as entailing merely negative duties of States are meaningless unless the State adopts positive measures to create an environment to make them accessible. 

Some of the rights of the draft Convention give rise to an obligation of progressive realization: not all aspects of the right can be immediately fulfilled, but must be achieved over time.  They require long-term policies and resource investment.  Nevertheless, remedies can and should exist for these rights: first for their core content, which must be guaranteed by States immediately and regardless of the State’s resources; secondly for the State’s failure to comply with its obligation to guarantee progressive realization.  While the authority in charge of deciding on the remedy cannot substitute its judgment for the State’s long-term policy judgment, it can monitor the obligation of the State to act in good faith within its capacities, to avoid retrogression and to comply with the minimum for the enjoyment of human dignity.  

Even those rights of the draft Convention that have a strong economic, social and cultural component can appropriately be subject of a legal analysis and decisions.  Over the last decades, domestic and regional courts have in many instances adjudicated issues related to the enjoyment of ESC rights, offering an adequate remedy to the victims, and creating a strong and consolidated jurisprudence on ESC rights.  As a result, a wide range of case law related to such rights as the right to food, health, housing or education has emerged. This case law bears witness to the direct justiciability of these rights.

An increasing number of countries, across all continents and legal systems, have incorporated judicial review of economic, social and cultural rights.  These include South Africa, Finland, Mauritius, Canada, Latvia, France, India, Bangladesh, Nigeria, Costa Rica, Colombia, Argentina and most countries in Central and Eastern Europe.  

ESC rights have also been reviewed, directly or indirectly, by international human rights bodies such as the UN Committee on Human Rights, the UN Committee on Economic, Social and Cultural Rights, the Inter-American Commission on Human Rights, the European Court of Human Rights and the European Committee of Social Rights, or the African Commission on Human and Peoples’ Rights.  Even those bodies which had no explicit language on ESC rights at their disposal had to find ways to decide on the economic, social and cultural aspect of human rights, because it is inseparable from civil and political rights: all aspects of human rights are fundamental to realize human dignity.

The ICJ therefore urges the Ad Hoc Committee to consider a strong provision on the obligation of States to ensure an effective remedy for violations of the Convention, which requires at the minimum that each State Party undertakes:  

•	to ensure that any person or group of persons whose rights recognized in the Convention are violated shall have an effective and appropriate remedy before an independent and impartial authority, including the right to seek just and adequate reparation; 
•	to ensure that the competent authorities shall enforce such remedies when granted; 
•	to ensure access to effective remedies through the provision of free legal assistance if necessary and to ensure accessibility of relevant legal proceedings to persons with disabilities, including through the removal of physical and communication barriers and the provision of reasonable accommodation.