Article 8 of the UDHR 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 ICCPR restricts in article 2 (3) the right to an effective remedy at law to a redress 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's 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 ICCPR 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 is also 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.
Article 40 of the ICCPR obliges States Parties to submit an initial report within one year of the Covenant coming into force for the States concerned, and thereafter, every five years. 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. (Guidelines are to be found in Manual on Human Rights Reporting ).
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.
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.
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 are published with the Committee's Annual Report, but it has no means to enforce any views, which it might adopt. However, since 1990, the Committee gives States 180 days to respond and if they fail to do so or do not provide a satisfactory remedy for the victim, the country will be listed in the Committee's Annual Report. The Committee also asks States to provide information about redress for violations in their periodic reports. 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. The Committee also welcomes information from NGOs as to what measures the State Party has taken. The 'Special Rapporteur' recommends appropriate action for victims and communicates directly with the victims and the States.
A case must negotiate two stages, those of consideration for admissibility and on the merits. The admissibility requirements are as follows:
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.