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UN Programme on Disability   Working for full participation and equality

Expert Group Meeting on
International Norms and Standards
relating to Disability

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LEGAL FRAMEWORK


A. Overview of existing international legal framework

The Meeting noted that there was already extensive protection of the human rights of persons with disabilities under international law, in the form of treaties, customary international obligations and non-treaty instruments. Some of these were general, while others addressed disability specifically.12

All international human rights instruments protect the rights of persons with disabilities through the principles of equality and non-discrimination. Universal and regional human rights instruments that deal with general human rights include the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. International human rights instruments which have provisions explicitly concerning persons with disabilities include: Universal Declaration of Human Rights (article 25, right to an adequate standard of living), Convention on the Rights of the Child (article 23), African Charter of Human and Peoples’ Rights (article 18(4)), and the Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights13 and Additional Protocol to the American Convention on Human Rights in relation to Economic, Social and Cultural Rights14. Moreover, provisions protecting members of vulnerable population groups, which are included in basic human rights instruments, are also applicable to disabled persons. In addition, General Comments on the human rights of persons with disabilities have been adopted by the Committee on Economic, Social and Cultural Rights15 and the Committee on the Elimination of Discrimination against Women.16

In addition to these treaties, which are binding on States parties to them, some universal instruments, such as the Universal Declaration on Human Rights, and some specific provisions, such as the principle of non-discrimination, have become part of customary international law and bind all States, whether or not the State has ratified the treaty in which a particular guarantee also appears.

There has been growing recognition in contemporary international law that all States have a duty under article 56 of the Charter of the United Nations to ensure respect for and to observe human rights, including the incorporation of human rights standards in their national legislation. While the means chosen to promote full realisation of the human rights of persons with disabilities will differ from one country to another, there is no country in which a major policy or programme effort is not required. The obligation of States Parties to the international human rights instruments to give effect to their obligations clearly requires Governments to do much more than merely abstain from taking measures which might have a negative impact on persons with disabilities.

In addition to protection provided by binding rules of international law, whether embodied in treaties or rules of customary international law, further protection of the rights of persons with disabilities is contained in non-treaty instruments adopted by various international bodies. These instruments represent a moral and political commitment by States to enhance the status of persons with disabilities, and in some case may contribute to or codify customary international law rules. They also can be used as guidelines for States in enacting legislation and formulating policies concerning persons with disabilities.

Disability-specific international instruments concerning the rights of disabled persons have also been adopted at the international level. Unlike the international legal instruments mentioned above, these consist of declarations, resolutions and guidelines adopted by the General Assembly of the United Nations. While these instruments may not themselves be legally binding, their provisions may nevertheless in part reflect customary international law norms or be important sources for the interpretation of more general norms contained in treaties. These instruments include the Declaration on the Rights of Mentally Retarded Persons, the Declaration on the Rights of Disabled Persons, the World Programme of Action concerning Disabled Persons, the Tallinn Guidelines for Action on Human Resources Development in the Field of Disability, the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, and The Standard Rules on the Equalization of Opportunities for Persons with Disabilities.

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B. Fundamental human rights principles

The Meeting identified a number of fundamental principles of human rights that it considered should form the basis for the development of law, policy and practices in the field of disability and that should inform the interpretation of existing human rights standards and the elaboration of future instruments.

The overarching principle was that all persons are entitled to the full enjoyment of fundamental human rights and freedoms on the basis of equality and without discrimination on the basis of disability. An important theoretical and practical consequence of this was the duty of the State to ensure that persons with disabilities have the facilities and services that they need to exercise the rights to which every member of the community is entitled. Specific elaborations of the overarching principle were put forward:

  • Every person is born equal in dignity and rights, and has the right to equal individual human dignity, worth, and autonomy (which includes the right freely to make and pursue choices concerning his or her life)
  • Every person has the right to the full and equal enjoyment of all fundamental human rights and freedoms, including economic, social, cultural, civil and political rights, which are interrelated and indivisible
  • All persons are equal before and under the law and are entitled to the equal protection of the law
  • No person shall be discriminated against on the basis of disability
  • Every person has the right of full and equal participation and inclusion in all
  • fields of the life of the community, including the political, economic, social, cultural, civil or any other field
  • Every person has the right to an adequate standard of living and well-being (including, inter alia, adequate food, clothing, housing, and access to health care)
  • Every person has the right to obtain an effective remedy for violations of her or his rights, including access to tribunals
  • The human rights of persons with disabilities, in particular their economic and social rights, are not to be viewed as optional obligations that can be dispensed with or limited as a matter of expediency or convenience in times of economic hardship or recession, or as part of a process of marketisation or privatisation of governmental functions
  • States have the obligation to take all necessary measures to ensure that allpersons, irrespective of disability, enjoy fundamental human rights; this obligation includes the duties (a) to take any special measures needed to ensure that persons with disabilities are in a position to exercise and enjoy those rights (such measures should not be considered to amount to discrimination) and (b) to ensure that the State, public institutions, and private persons and organisations refrain from discrimination on the basis of disability.

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Footnotes:

12 See "Human Rights and Disabled Persons", Centre for Human Rights, New York / Geneva 1993

13 Committee on Economic, Social and Cultural Rights, report of the 14th/15th session, Official Records, 1997, Supplement No.2, E/1997/22, Annex IV at 91

14 http://www.oas.org:80/EN/PROG/ichr/embas5.htm

15 See "General Comment No. 5", in: General Comments, adopted by the Committee on Economic, Social and Cultural Rights, 9 December 1994

16 CEDAW, General Recommendation 18, UN Doc A/46/38

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United Nations, 2003-04
Department of Economic and Social Affairs
Division for Social Policy and Development