INTERNATIONAL NORMS
AND STANDARDS RELATING TO DISABILITY
Part I. National Frameworks. 4/5
  
3. Remedies for Rights Violations
Every state has the primary responsibility within its territory to ensure human rights are guaranteed to all members. By signing and ratifying human rights conventions, governments at national and local levels must commit to avoiding any actions that would violate or lead to a violation of human rights. In addition, most treaty obligations require the government to take positive steps to adopt affirmative measures, to ensure or protect the enjoyment of human rights. They may also require enacting and enforcing legislation or adopting other appropriate measures to ensure that individuals and other entities respect human rights. Many countries create human rights enforcement systems, which may include a human rights commission to investigate claims and special adjudicative bodies to hear cases. Also, human rights claims may be heard through regular course of a civil or criminal case. Finally, ad hoc or permanent commissions may be established to monitor and write reports on immediate or ongoing issues.
To ensure enforcement of human rights obligations, various mechanisms exist at national, regional and international levels. At the international level, most of these mechanisms provide vehicles for monitoring compliance. Some offer petition procedures which allow individuals to challenge breaches by the state of their human rights obligations. In some cases mechanisms are linked to constitutions and national legislation, in others to human rights treaties and in still others to specialized agencies of the UN charged with the enforcement of specific rights, such as labour refugee and health rights. Mechanisms linked to national constitutions and legislation may offer more concrete and enforceable remedies and should usually be tried first, before turning to international petition procedures.
3.1 Due Process
The concept of procedural due process refers to the process by which all rights are implemented by the State. Most of the formal protections of due process are linked to the conduct of a fair hearing. All persons are, according to the International Covenant on Civil and Political Rights, entitled to a fair and public hearing, and at trial stage, to be informed promptly and in a language in which he / she understands the nature of the charge (article 14). These norms are relevant in the context of disability in three respects. Firstly, they are critically relevant in the civil commitment context. Secondly, they are obviously relevant in the context of ordinary criminal proceedings against individuals who happen to have disabilities. Thirdly, they are relevant in the sense of affording a right to the court to vindicate other rights. Thus, the right to a court might be used offensively to establish and vindicate rights.
International law also recognises that a person is entitled to certain minimum standards of due process in judicial proceedings. Article 10 of the Universal Declaration of Human Rights stipulates that: "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him."
3.2 Locus Standi
Most of the international recourse procedures require from the petitioner prima facie personal involvement in the matter. The claim of being a victim is a condition laid down in most of the conventions that provide for remedies. However, the Human Rights Committee (of the ICCPR) has agreed to consider communications submitted on behalf of alleged victims by others, when the victim has been unable to submit the complaint himself. This opens the complaint system of the Covenant to a vast number of victims who cannot contact a lawyer. The petitioner must show authority to act on the behalf of the victim; in practice the Committee has opened the door only for persons showing a close family connection. The American Convention on Human Rights recognises explicitly actio popularis in its article 44, stipulating that: "Any person or group of persons, or any non-governmental entity legally recognised in one or more Member States of the Organization, may lodge petitions with the Commission containing denunciations or complaints of violations of this Convention by a State Party."
Individuals whose rights have been violated are victims and, therefore have the right to vindicate their rights in courts or other relevant judiciary bodies. However, persons with disabilities may lack the possibility of effectively pursuing their rights. The rules of locus standi can be radicalised to broaden access to courts to those who hitherto could not come before the court due to poverty or social or physical disability. This can be done by extending standing to any member of the public or social action group to bring an action on behalf of the person or group of persons to whom the harm was caused. In order to circumvent the time consuming and expensive writ petition, claimants could perhaps be permitted to address a letter to the court in order to commence action.
3.3 Recourse Procedures at the National Level
Persons with disabilities may lack resources required to hire legal aid. The Declaration on the Rights of Disabled Persons, paragraph 11, states that "…disabled persons shall be able to avail themselves of qualified legal aid when such aid proves indispensable for the protection of their persons and properties." The States should provide legal aid to persons with disabilities, as well as for other vulnerable sections of society. Persons with disabilities may have difficulties in financing the costly lawyers' fees. One solution to this problem could be a socialisation of legal services where the lawyers would be obliged to handle certain cases of important social nature at a considerably reduced fee.
Article 14, para 3 (d) ICCPR states that "To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of his right; and to have legal assistance assigned to him, in any case where the interests of justice so require and without payment by him in any such case if he does not have sufficient means to pay for it."
The European convention on Human Rights states in article 6, para 3 (c) that "… to defend him self in person or through legal assistance of his own choosing, or if he has not sufficient means to pay for legal assistance, to be given it for free when the interests of justice so require".
Many advocacy organizations, including several outside European countries rely on the human rights case of the European Court, Airey v. Ireland (ECHR Decision of 11 September 1979, Series A no. 32). In, the Court found that the obligation of states to make access to the courts possible and effective includes a right to free legal assistance in civil matters when the procedure involved is so complex as to require legal assistance in order to ensure access to the court. The Airey precedent, and decisions that followed it, have led to extensive reform of European domestic law in order to protect access to the courts for the indigent in civil legal matters.
Another barrier to seek recourse in a court of law can also be the formal structure of the courts. The atmosphere should be encouraging and humanising for its clients. Participation in the legal process and the formal court procedure is often one of the most fundamental human rights.
Controversial disability matters, such as the sterilisation of mentally retarded children, might fall within the jurisdiction of special family courts. These courts are aimed at providing informal and speedy relief in family law matters. Family court counselling staff may assist in the process. Out of court settlements are encouraged. Conciliation and mediation are other informal methods of dispute settlement.
3.4 National Courts
Human rights, in the first instance must be enforced through domestic courts. The reasons are:
- While most human rights treaties provide for independent supervisory procedures and organs, few states -perhaps with the exception of the parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms- have accepted the optional clauses or protocols concerning the right of individuals to have recourse before such organs (the American System, however, is different).
- Even where contracting parties have allowed such individual rights, the role of domestic courts remains critical, since, as a general rule, the route to international remedies remains blocked until full exhaustion of domestic remedies has occurred.
Most states have some type of laws protecting human rights guarantees. Countries that are signatory to regional and international human rights documents are obligated to abide by their provisions. At times national laws directly refer to human rights and many states copy international and regional guarantees virtually word for word into their national law. Many countries create human rights enforcement systems, which may include a human rights commission to investigate claims and special adjudicative bodies to hear cases.
Mechanisms linked to national constitutions and legislation may offer more concrete and enforceable remedies and usually should be tried first, before turning to international petition procedures. At the national level the weight of the nations legal system can be brought to bear on the enforcement of human rights.
The types of mechanisms and procedures vary from country to country. For example, human rights commissions exist in some countries while they are unheard of in others. Similarly, constitutional courts exist in some countries but not in others. States may also establish administrative bodies to monitor and carry out compliance with international and regional agreements.
The greater the extent to which international norms on disability are widely known, the greater the possibility of domestic courts complying with these norms. National courts could become a promoter and protector of international human rights of persons with disabilities. Furthermore, judicial initiatives can propel the executive and legislative branches of Government to reform the law.
The domestic court system serves an important function in ensuring the rights of persons with disabilities. Aggrieved disabled persons may bring an action when their rights are violated. They may sue for damages where appropriate. The court may then decide whether the rights of the claimant have been infringed. Judgements of the court can be enforced by ordinary means. Courts also may bring matters to legislative attention and encourage various interest groups to take up action on certain issues. National human rights systems can be important for two reasons:
- They are more easily accessible to large numbers of persons with disabilities and advocacy groups in each country;
- Where jurisdiction for human rights claims lie with a superior court (such as the High Court, Court of Appeals or Supreme Court) a decision in favour of disability rights establishes law that can, in turn, be used by other persons with disabilities whose rights are violated. This is the doctrine of judicial precedent- a common law rather than a civil law, approach.
International and regional human rights law can be used in national human rights mechanisms in different ways including:
- Basing the human rights claim on international or regional law, where such law is part of national law or has otherwise been incorporated into national law.
- Using the international and regional human rights law as an aid to the interpretation of national law provisions. Judges in many countries can and have been guided by international law in their interpretation of specific legal provisions.
- Reminding the state that if it has, through ratification of a treaty, freely assumed an obligation, national enforcement mechanisms should be under a duty to interpret national law so as not to conflict with the state's international or regional obligations.
- Using international human rights law as the minimum standard of protection which national law should attain. Advocacy for law reform and responsive judiciaries can endeavour in the first instance to bring national law in line with internationally accepted standards for the protection of disability rights.
National Laws and mechanisms can be used to advance disability rights by examining:
- Which provisions of the constitution or basic laws protect disabled persons rights and what provisions of other legislation are important for disabled persons rights
- Are there special constitutional or other legal provisions covering the right to non-discrimination and or to equality?
- Which human rights conventions has the country agreed to enforce? When did the convention come into force in the country?
- Are human rights treaties "self -executing"? That is, do they automatically form part of the local law as soon as they are signed or must supplemental legislation be passed?
- What direct mechanisms exist to protect human rights: constitutional courts, offices of civil rights, human rights commissions, ombudspersons, etc.? Do any of these bodies have officers focusing specifically on women?
- Have advocates raised international human rights claims in national courts in the past? If yes, how did the judges respond? Would your local judges take notice of international norms even though they may not be directly applicable.
In certain jurisdictions like Chile, a number of judicial precedents show that Chilean courts have tended to rely on international law in deciding a case. There are also important cases in which the automatic incorporation of customary international law has been recognised by the courts and applied accordingly. There are also cases where the courts have upheld domestic law above international law. This is particularly the case when the conflict arises between a treaty and a subsequent contradictory statute, since the court may be inclined to apply the rule enacted later in time. This is yet another consequence of having assigned a treaty the same legal hierarchy as a domestic statute. If the conflict arises between a rule of international law and a provision of the Constitution, the situation will be further complicated by the fact that courts will generally approach the question with added caution. This, of course, is not a peculiarity of the Chilean case, but of many other legal systems, as well. There is no question that from the viewpoint of international law, the argument that constitutional provisions prevail over treaties would not stand. From the point of view of a constitutional court, however, it is most probable that the Constitution will be upheld, unless its very clauses might provide for the supremacy of the international rule.
In Germany, international human rights and fundamental rights guaranteed in the Basic Law overlap to a large extent. The Basic Law begins with a catalogue of fundamental rights which opens in article 1 paragraphs 1-3 with a pledge of the German State to respect and protect individual rights: "The dignity of man shall be inviolable. To respect and protect it shall be the duty of all State authority." The German people, therefore, acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. In Germany, international law stemming from non-treaty sources is introduced into the German legal system via article 25 of the Constitution of the Federal Republic of Germany, which contains the following incorporation clause: "The general rules of public international law shall be an integral part of federal law. They shall take precedence over the laws and shall directly create rights and duties for the inhabitants of the federal territory." This means that no additional implementing legislation is required. These general rules are accorded a rank above all other domestic laws in the hierarchy of norms. In litigation, where doubts arise about the existence of a general rule of international law, this issue can be solved by way of reference to the Federal Constitutional Court.
In Japan, treaties have the force of law and override statutes by the Japanese parliament. Because treaties have such a privilege status in Japan, the country is extremely wary of acceding to a human rights treaty. Although Japan has not ratified many human rights conventions, it has ratified some of the most important ones within the last fifteen years. Upon ratification of these treaties, Japan revised its laws extensively to bring them into conformity with the requirements of the treaties.
Even though international law has domestic legal force in Japan, those international human rights instruments, which lack a legally binding character are not regarded as having the force of law. Binding character under international law is a prerequisite for the domestic force of law.
The drawbacks of the national system:
National human rights systems can also have significant limitations. Common limitations of national human rights systems may include:
- Dependency on the political environment. In countries where the government of the day is oppressive and does not protect human rights, it is unlikely that the national human rights mechanisms will effectively protect such rights;
- Where national laws are discriminatory, the national mechanisms may offer no redress for the violation;
- Where courts or other agencies do not function properly, are corrupt and/ or where officers are not sensitive to human rights issues, there may not be any redress at the national level.
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