COMPILATION OF INTERNATIONAL NORMS
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.
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.
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:
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 Organizationsapplies 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.
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.
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.
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 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:
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.