COMPILATION OF INTERNATIONAL NORMS
The Preamble to the Universal Declaration of Human Rights refers to the customary norms of "...the inherent dignity and (...) equal and inalienable rights of all members of the human family." Further, article 1 states that every kind of discrimination has to be extinguished. The rights in the Declaration include negative rights such as "...no one shall be subjected to torture or to cruel, inhuman or degrading treatment..." (article 5). They also include positive rights such as article 3: "Everyone has the right to life, liberty and security of person." Other rights included in the Declaration are positive rights such as the right to work, the right to receive equal pay for equal work, the right to education and the right to equal access to public service. The term disability is found only once in the Declaration in the context of the right to security and an adequate standard of living in the event of "disability". (article 25 (1)).
Some provisions of the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families may be regarded as relevant to the prevention of disabilities among migrant workers and their families. Firstly, article 16 (2) provides that "...migrant workers and members of their families shall be entitled to effective protection by the State against violence, physical injury, threats and intimidation, whether by public officials or by private individuals, groups or institutions."
Secondly, under article 28 of the Convention, migrant workers and members of their families have "...the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State concerned."
The Geneva Convention relative to the Treatment of Prisoners of War and the Geneva Convention relative to the Protection of Civilian Persons in Time of War have special significance to the rights of persons with disabilities. Article 3 of the conventions states that "...Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely with out any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any similar criteria." Article 3 (1) (a) prohibits "...violence to life and person (¼) mutilation, cruel treatment and torture." Article 3 (2) states that the wounded shall be cared for.
Moreover, the Protocol II Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts says in its Part II. under the headline Human Treatment that "All Persons who do not take a direct part or who have ceased to take part in hostilities, (...) are entitled to respect for their person, honour and convictions and religious practices (article 4). Further on, the article mentions that "...violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;" shall be prohibited at any time and in any place whatsoever.
The Convention Against Discrimination in Education guarantees equal access to education of all types at different levels and prohibits the limitation of any person or group of persons to education of an inferior standard.
Article 32 of the Beijing Declaration provides that the Governments participating in the Fourth World Conference on Women are determined to "...intensify efforts to ensure equal enjoyment of all human rights and fundamental for all women and girls who face multiple barriers to their empowerment and advancement because of such factors as their (...) disability..." .
Article 15 (h) of The Copenhagen Declaration and Programme of Action states: "One of the world's largest minorities, more than 1 in 10, are people with disabilities, who are too often forced into poverty, unemployment and social isolation." Included in the Declaration are ten commitments for the achievement of social progress and development. For example, the participating Governments commit to eradicate poverty, promote the goals of full employment, social integration, full respect for human dignity, universal and equitable access to quality education and the highest attainable standard of physical and mental health. Clearly, these commitments are of particular relevance to disabled persons who have historically been denied equitable access to such services.
In the Preamble of the Declaration on the Elimination of Violence against Women, the General Assembly states its concern "...that groups of women, such as women belonging to minority groups, indigenous women, refugee women, migrant women, women living in rural or remote communities, destitute women, women in institutions or in detention, female children, women with disabilities, elderly women and women in situations of armed conflict, are especially vulnerable to violence." (emphasis added).
Article 10 of the Declaration on Social Progress and Development states that "...social progress and development shall aim at the continuous raising of the material and spiritual standards of living of all members of society, with respect for and in compliance with human rights and fundamental freedoms...", through the attainment of the Declaration's main goals. These goals include the assurance of a steady improvement in levels of living, the achievement of the highest standards of health and the provisions of health protection for the entire population, if possible free of charge.
Article 11 of this Declaration states that social progress and development shall aim at the progressive attainment of the following goals:
(a) the establishment and improvement of social security and insurance schemes for all persons, who because of disability, are unable to earn a living, with a view to ensuring a proper standard of living for such persons and their families and
(b) the protection of the rights and the assuring of the welfare of the disabled and the provision of protection for the physically or mentally disadvantaged.
The Declaration on the Right to Development states inArticle 1 (1) that "...the right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural, rights and fundamental freedoms can be fully realised." Article 2 (1) of the Declaration provides that the human person is the central subject of development and should be the active participant and beneficiary of the right to development. This obviously applies to disabled, as well as non-disabled persons. Article 8 provides that "States should undertake, at the national level, all necessary measures for the realisation of the right to development and shall ensure (¼) equality of opportunity for all in their access to basic resources, educational health services, food, housing, employment and the fair distribution of income. Effective measures should be undertaken to ensure that women have an active role in the development process. Appropriate economic and social reforms should be carried out with a view to eradicating social injustices."
In the Declaration on the Protection of Women and Children in Emergency and Armed Conflict, the General Assembly calls for strict observance of the Declaration by the Member States. In article 1, the Declaration states that "...attacks and bombings on the civilian population, including incalculable suffering, especially on women and children, who are the most vulnerable members of the population, shall be prohibited and condemned." Article 2 condemns the use of chemical and bacteriological weapons in the course of military operations. The Declaration also states that "...all efforts shall be made by States involved in armed conflicts (¼) to spare women and children from ravages of war." It also provides that "...all necessary steps shall be taken to ensure the prohibition of measures such as persecution, torture, punitive measures, degrading treatment and violence, particularly against that part of the civilian population that consists of women and children."
Article 1 of the Declaration on the Rights of Deaf-Blind Persons states that "...every deaf-blind person is entitled to enjoy the universal rights that are guaranteed to all people by theUniversal Declaration of Human Rights and the rights provided for all disabled persons by the Declaration of theRights of Disabled Persons."
In Chapter B, Part II of the Vienna Declaration and Programme of Action, the Conference stated that "...all human rights and fundamental freedoms are universal and thus unreservedly include persons with disabilities¼", e.g. the right to life and welfare. Any direct discrimination or other negative discriminatory treatment of a disabled person is, therefore, a violation of his / her rights. The World Conference on Human Rights calls on "Governments, where necessary, to adopt or adjust legislation to assure access to these and other rights for disabled persons." (paragraph 63).
Within the Proclamation of Teheran, the Conference noted that it is imperative that members of the international community fulfil their obligations under the Universal Declaration of Human Rightsto promote and encourage respect for human rights and fundamental freedoms for all without distinctions of any kind (paragraph 1).
The Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment apply for the protection of all persons under any form of detention or imprisonment; this includes disabled persons. Principle 1 states: "...all persons under any form of detention (...) shall be treated in a humane manner and with respect to the inherent dignity of the human person." Principle 2 proclaims that "...detention shall only be carried out strictly in accordance with the provisions of the law and by competent officials or persons authorised for that purpose."
In 1979, the General Assembly adopted the Code of Conduct for Law Enforcement Officials and transmitted it to Governments with the recommendation that favourable consideration should be given to its use within the framework of national legislation or practice as a body of principles for observance by law enforcement officials. Article 5 states that "...no law enforcement official may inflict, instigate or tolerate any act torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment."
The first principle of the Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides: "Health personnel, particularly physicians, charged with the medical care of prisoners and detainees have a duty to provide them with protection of their physical and mental health and treatment of disease of the same quality and standard as is afforded to those who are not imprisoned or detained." This may be particularly relevant for disabled prisoners who commonly require ongoing medical assistance and care.
Principle 2 states: "It is a gross contravention of medical ethics as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment." This provision is relevant to the prevention of disabilities.
Article 4 of the Basic Principles on the Role of Lawyers provides that special attention should be given to assisting the poor and other disadvantaged persons so as to enable them to assert their rights and where necessary call upon the assistance of lawyers. Arguably, disabled persons may be classified as disadvantaged persons for the purposes of this provision and, therefore, should be given special assistance.
The Rule 51of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty states that medical services provided to juveniles should seek to detect and treat any physical or mental illness or other condition that may hinder the integration of the juvenile into society. Rule 52 provides that the authorities should be notified if, in the opinion of a medical officer, a juvenile may be injuriously affected by continued detention. Pursuant to Rule 4, the Rules are to be applied "...impartially, without discrimination of any kind as to (...) disability." (emphasis added).