COMPILATION OF INTERNATIONAL NORMS
The right of everyone to "...life, liberty and security of person..." is stated in the article 3 of the Universal Declaration of Human Rights, whereas article 9 forbids "...arbitrary arrest, detention or exile." These provisions are of great importance for mentally disabled persons who are subject to unlawful detention. Furthermore, article 8 of the International Covenant on Civil and Political Rights states "... except on such ground and in accordance with such procedures as are established by law..."
Article 4 of the Declaration on the Rights of Mentally Retarded Persons deals with the obligation to insure a normal family life to mentally disabled persons, and to make them remain in their family surrounding.
Article 9 of the Declaration of the Rights of Mentally Retarded Persons deals with the right to live with one's own family and to benefit from the same treatment as everyone else, except for special health requirements of persons with disabilities.
Articles 9 and 10 of the International Covenant on Civil and Political Rights develop the basic right to liberty, protection against arbitrary detention, and the right to expose the conditions of living in the penitentiary system.
Article 9 of the Convention on the Rights of the Child forbids separation between a child and his / her parents, except for what is in the best interest of the child. Even a disabled child should not be separated from his / her parents to go to a specialised establishment if it is not absolutely necessary. Article 20 concerns the family environment, which is supposed to be the best frame for liberty and security of the person, for disabled people as well as for anyone else and article 25 develops and completes article 20.
Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms speaks of the basic principles of right to liberty and security of the person at a regional level.
Also of relevance are article 7 of the American Convention on Human Rights and article 6 of the African Charter on Human and Peoples' Rights.
Article 6 of the Universal Declaration of Human Rights proclaims the right of everyone to be recognised as a person before the law. It focuses on the legal position of the individual. Everyone includes disabled people even if it is not specifically stated. Article 7 recognises the right to equality before the law and to the equal protection of the law without discrimination.
The International Covenant on Civil and Political Rights speaks in article 16 of the rights of every person to recognition as a person before the law. Article 26 develops that statement stating that the law shall prohibit any discrimination and guarantee effective protection against discrimination. Even if disability is not expressly included in the grounds belonging to the article, it can be included under other status.
Article 24 of the American Convention on Human Rights states the right to equal protection.
Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms deals with equality before the Convention, and the prohibition of any discrimination in the enjoyment of the rights and freedoms set forth in this Convention.
All persons have the right to freedom of peaceful assembly and association, and no one can be compelled to belong to an association.
Another aspect of this right constitutes a right to take part in the government of one's country, directly or through freely chosen representatives.
Article 20 of the Universal Declaration of Human Rights provides the right, clearly and basically. It is the reference article that is less controversial. It uses some precise words and expressions, without provisions.
Article 21 of the International Covenant on Civil and Political Rights deals with the right of peaceful assembly. It introduces some provisions due to the necessity to protect a democratic system, the interest of national security or public safety, public order, health, morals, and protection of the rights or freedom of others. Article 22 of the text reiterates the right to freedom of association, and provides for the right to join trade union. It emphasizes the role of trade unions in the defence of the workers and the prevention of all kinds of disabilities due to working conditions.
Article 15 of the Convention on the Rights of the Child provides that States shall assure the right to express their views freely and in all matters affecting the disabled, especially disabled children. Their views should be given due weight, in accordance with their maturity, in cases of mental disability. Article 15 recognises their right of assembly and association. No restrictions are allowed, except as imposed by law.
Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedom provides everyone the right of peaceful assembly and association, and to protect his / her interests. However, it does not explicitly tackle the right to take part in the Government of his / her country, or the right of equal access to public service.
Article 15 of the American Convention on Human Rights states the right of peaceful assembly and forbids any restrictions as far as it is not imposed in conformity with the law. Article 16 states the right of association for any purpose, and with the exception of legal restrictions necessary in democratic societies.
Article 11 of the African Charter on Human and Peoples' Rights provides for the same right of assembly, but it introduces in the list of restrictions one provision about the interest of ethics which is an important first step towards the recognition of the rights of persons with disabilities.
Some deliberately inflicted forms of punishment and other such treatments are a major cause of disability. They belong to the kind of practices that are identified as serious violations of international law, including human rights. One can discern the following practices, which are serious violations: amputation as punishment, institutional abuse, forced sterilisation, castration and female circumcision, and blinding of detainees.
No religious tenet or any other cultural practice can justify or excuse such acts. They are contrary to basic human rights, and obviously to the right to equal individual worth and human dignity, as well as to the integrity of the body. Therefore, certain punishments, which are deliberately intended to disable the individual, are contrary to international human rights and humanitarian law.
The right is protected by the following instruments:
Article 7 of the International Covenant on Civil and Political Rights states that cruel, inhuman or degrading treatment or punishment is prohibited at all times in all circumstances. Article 4 of the Universal Declaration of Human Rights and article 8 of the International Covenant on Civil and Political Rights prohibit slavery, servitude and slave trade, and article 8 forbids forced or compulsory labour. All these texts relate to disability issues.
Article 5 of the Universal Declaration of Human Rights forbids torture and cruel, inhuman or degrading treatment or punishment. So does article 7 of the International Covenant on Civil and Political Rights, which further forbids medical and scientific experiments against one's will. The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment is of great importance to determine what constitutes cruel or unusual treatment. Article 2 defines this as, "...any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person."
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media. It also includes the right to freedom of thought, conscience and religion. It deals also with freedom to change one's religion or belief and to engage in the teaching, practice, worship and observance, either in public or private, alone or in community. Disabled persons have the same right to freedom of expression as any other person.
Article 19 of the Universal Declaration of Human Rights provides for the liberty of opinion and expression, and consequently the liberty to hold opinions without any interference. To avoid any interference, with this right the article prohibits the inequality of treatment in the exercise of this rights.
Article 19 of the International Covenant on Civil and Political Rights reiterated this statement. Article 20 sets out an international law limitation on freedom of speech. It asks States to forbid any kind of propaganda constituting an incitement to discrimination, hostility or violence. Disability is not included in the grounds of the article that prohibits advocacy of national, racial or religious hatred, but the prohibition of discrimination obviously concerns this issue.
Rule 1 of The Standard Rules on the Equalization of Opportunities for Persons with Disabilities provides that States "...should initiate and support information campaigns concerning persons with disabilities." It reiterates that persons with disabilities are citizens with the same rights and obligations as others. It justifies, consequently, measures to remove all obstacles to full participation. Rule 12 deals with freedom of religion and asks States to encourage measures for equal participation by persons with disabilities in the religious life of their communities. It also prohibits any kind of discrimination based on the physical aspect to become a priest or a monk in any religion.
Article 14 (1) of the Convention on the Rights of the Child states the right of the child to freedom of thought, conscience and religion. And furthermore, article 14 (2) deals with the rights and duties of the parents to provide directions to the child in the exercise of their rights and freedoms, in a manner consistent with the evolving capacities of the child.
Article 12 of the American Convention on Human Rights deals with the Freedom of Conscience and Religion. It states the same right as the Universal Declaration of Human Rights does, at a regional level. Limitations to the freedom to manifest one's religion and beliefs are not allowed, except for those that are prescribed by law in order to protect public safety, order, health or morals, or the rights of other people.
The African Charter on Human and Peoples' Rights states in article 9 the right of every individual to receive information, and to express and disseminate his/her opinions within the law.
The Universal Declaration of Human Rights is a resolution, which is recognised as binding under customary international law. It also identifies and clarifies some of the human rights guaranteed to all by the charter. Article 1 of the Universal Declaration of Human Rights states that "...all human beings are born free and equal in dignity and rights." (emphasis added). Article 2 provides that "...everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind such as (...) sex..." (emphasis added). Article 7 states: "All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination" (emphasis added). Article 16 speaks of the equal right of men and women to marry. Article 23 (2) states that "...everyone, without any discrimination, has the right to equal pay for equal work." (emphasis added). Article 25 (1) is of particular importance for disabled women: "Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, and medical care and necessary social services, and the right to security in the even of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control." (emphasis added). Article 25 (2) states that the mother and child are entitled to special assistance. Article 26 provides a right to education for all. And Article 27 provides a right to cultural life in the community for all.
Article 2 (2) of the International Covenant on Economic, Social and Cultural Rights provides that States Parties have a duty to guarantee the rights enunciated in the present Covenant "...without discrimination of any kind as to race, colour, sex, (...) or other status." Therefore, the following rights must be available to all persons without discrimination due to of disabilities:
Thus, article 2 (2) provides substantial protections against discrimination for persons with disabilities in the field of employment.
The Convention concerning Vocational Rehabilitation and Employment (Disabled Persons) guarantees that disabled persons are not subjected to discrimination at work. Article 4 of the Convention states: "The vocational rehabilitation and employment policy shall be based on the principle of equal opportunity between disabled workers and workers generally (...) special positive measures aimed at effective equality of opportunity and treatment between disabled workers and other workers shall not be regarded as discriminating against other workers."
The ILO also adopted the Convention concerning Discrimination in Respect of Employment and Occupation, which deals with discrimination against persons with disabilities in employment. Article 1(1) of the Convention contains a definition of the term discrimination.
The Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources also contains a non-discrimination clause in article 1 (5). Another ILO agreement, which is legally binding, is the Recommendation concerning Vocational Rehabilitation and Employment (Disabled Persons). Paragraph 7 of this instrument provides that "...disabled persons should enjoy equality of opportunity and treatment in respect of access to, retention of and advancement in employment which, wherever possible, corresponds to their own choice and takes account of their individual suitability for such employment." Furthermore, paragraph 4 states that "...vocational rehabilitation measures should be made available to all categories of disabled persons."
Paragraph 2 of the Declaration on the Right of Disabled Persons provides that persons with disabilities shall enjoy the right of the declaration related to employment "... without distinction or discrimination (...) either to the disabled person himself or herself or to his or her family." Paragraph 10 consists of a positive duty of a Member State to adopt necessary measures to protected disabled persons: "Disabled persons shall be protected against (...) all treatment of a discriminatory, abusive or degrading nature."
Paragraph 6 of the Declaration on the Rights of Mentally Retarded Persons states that mentally retarded persons have "... the right to protection from (...) abuse and degrading treatment." This may also include a commitment to the Member States to eliminate any form of discrimination as mentioned above.
Moreover, The Standard Rules for the Equalization of Opportunities for Persons with Disabilities provides important guidance in the area of discrimination against disabled persons in employment. Rule 7 (1) provides that: "Laws and regulations in the employment field must not discriminate against persons with disabilities and must not raise obstacles to their employment."
Paragraph 63 of the Vienna Declaration and Programme of Action states that all human rights are universal and that "...every person is born equal and have the same right to (...) work (...) any direct discrimination or other negative discriminatory treatment of a disabled person is therefore a violation of his or her human rights." The Declaration also refers to The Standard Rules on the Equalization of Opportunities for Persons with Disabilities.
The main objectives of the World Programme of Action concerning Disabled Persons are to promote effective measures for the realisation of the goals of full participation and equality for persons with disabilities. To accomplish these goals, due regard must be paid to education, training and work opportunities. Under the headline Employment, paragraph 128 of the Programme outlines that Member States should ensure that persons with disabilities "... have equal opportunities for productive and gainful employment in the open labour market." Although the term discrimination is not mentioned the goal of equal opportunity means the elimination of all forms of discrimination.
The Tallinn Guidelines for Action on Human Resources Development in the Field of Disability state that "... when a disabled candidate and non-disabled candidate are equal qualified, the disabled candidate should be chosen."
It has often been argued that the right to legal assistance is the cornerstone for all other human rights. The right to legal assistance exists within the broader mandate of the right to a fair trial. The right to legal assistance is also grounded on broader principles of international human rights law. Even though there is no explicit provision in human rights treaties discussing access to courts as a principle of international human rights law, the concept has been found to be implicit in the statement that "all persons shall be equal before the courts and tribunals", found in all major human rights treaties.
Article 14, para. 3 (d) of the ICCPR states that all persons has the right
"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, or 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."
In addition to the treaties and the international criminal tribunals, the United Nations has been active in adopting detailed standards in the criminal area, primarily through the work of the United Nations Crime Prevention and Criminal Justice Program.
The most important documents with provisions relating to legal services for the poor are the following:
Principle 3 of the U.N. Basic Principles on the Role of Lawyers provides that:
"Governments shall ensure the provision of sufficient funding and other resources for legal services to the poor and, as necessary, to other disadvantaged persons. Professional associations of lawyers shall co-operate in the organization and provision of services, facilities and other resources."
Article 21 of the Universal Declaration of Human Rights provides that everyone has the right to take part in the Government of his country, either directly or indirectly, through freely chosen representatives. Periodic and genuine elections shall be open to every citizen of the country, with universal and equal suffrage. Voting stations shall be fully accessible to disabled people.
Article 25 of the International Covenant on Civil and Political Rights states that every citizen has the right without unreasonablerestrictions to take part in the conduct of public affairs, and to vote and be elected at genuine periodic elections. It also requires equal access to public services in the country.
Article 23 of the American Convention on Human Rights states the right to participate in Government that belongs to every citizen of the country. Article 23 (2) deals with the law regulation of the exercise of this right, only on the basis of age, nationality, residence language, education, civil and mental capacity. Mentally disabled people cannot be legally denied the right to participate in the Government, following this Convention.
Article 13 of the African Charter on Human and Peoples' Rights states that every citizen shall have the right to participate freely in the Government of his country.
A right to freedom of religion is contained in the Universal Declaration of Human Rights. Article 18confers that everyone shall have the right to freedom of religion. This right includesfreedom to change one's religion or belief, and freedom to manifest one's religion or belief. Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms confers the right to freedom of religion as well as article 12 of the American Convention on Human Rights and the African Charter on Human and Peoples' Rights which guarantees free practice of religion(article 8).
A right to religion is contained also in the International Covenant on Civil and Political Rights (article 18). This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
Article 14 of the Convention on the Rights of the Child grants a right to freedom of religionfor children. Freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedom of others.
Paragraph 48 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty states thatevery juvenile should be allowed to satisfy the needs of his or her religious and spiritual life.
Rule 12 of The Standard Rules on the Equalization of Opportunities for Persons with Disabilities provides that States must encourage measures for equal participation by persons with disabilities in the religious life of their communities.
Paragraph 136 of the World Programme of Action concerning Disabled Persons provides that States must ensure that persons with disabilities are able to fully participate in the religious life of the community.
The Universal Declaration of Human Rights states in article 19 states that the right to freedom of expression and especially provides the extensive right to receive information. This right is one of the biggest issues that persons with disabilities have to face, because they often have problems accessing current information and the current media.
Article 19 of the International Covenant on Civil and Political Rights states this right, also saying that the exercise of the rights included in the Article carries with it special duties and responsibilities.
Article 13 of the American Convention on Human Rights deals with this right, and 13 (2) prohibits prior censorship and imposes liability. It forbids "...indirect methods or means such as the abuse of government or private controls over any equipment used in the dissemination of information."It emphasizes the prohibition to impede the communication and circulation of ideas and opinions. Consequently, it means that every person, even those with disabilities, shall have equal access to information.
Principle 13 of the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, which deals with the rights and conditions in mental health facilities recognizes the right of the patients to purchase or receive items for daily living, recreation and communication. It includes communication as the basic need of persons with disabilities.
Article 13 of the Convention on the Rights of the Child also states this right, linked with the right to freedom of opinion and expression. This right to receive or impart information through any media of the child's choice does not suffer any discrimination, except for legal obligations.
Persons with disabilities shall be given some specific rights in order to receive the same equal treatment as others. The right of access to information unreservedly includes persons with disabilities. Consequently, the Vienna Declaration and Programme of Action calls on Governments to adopt or adjust legislation to assure access for disabled people. There shall be available services and programs for persons with disabilities, and provision of information adequate to needs.
Principle 11 of the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care deals with the consent to treatment for mentally disabled people. The patient has to be informed of his / her treatment in order to giveinformed consent. Informed consent is a consent obtained freely, without threats or improper inducements, after appropriate disclosure to the patient of adequate and understandable information in a form and language understood by the patient on:
Article 16 of the Universal Declaration of Human Rights states that men and women of full age are entitled to marry and found a family and are entitled to equal rights to marry. The family is proclaimed as the " natural and fundamental group unit of society". The state and the society shall protect it. The right to marry cannot be limited for reasons due to race, nationality or religion. Article 16 (2) states that spouses have to give their free and full consent to the marriage.
Article 23 of the International Covenant on Civil and Political Rights reaffirms these rights; furthermore, it assures the rights of the children in a case of dissolution.
Article 17 of the American Convention on Human Rights reiterates these statements, adding that the right is recognised if they meet the conditions required by domestic laws, insofar as such conditions do not affect the principle of non-discrimination established in this Convention. Article 11 states the right to privacy for everyone and the right to have one's dignity recognised. Article 11 (2) prohibits any arbitrary or abusive interference with the private life, the home, or the correspondence.
Article 18 of the African Charter on Human and Peoples' Rights states the same right, saying in article 18 (3) that the State shall ensure the elimination of every discrimination against women or children.
Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states the right to respect for private and family life. Article 8 (2) deals with the fact that a public authority cannot interfere with the exercise of the right, except in accordance with the law or the principles of a democratic society. Article 12 states the right to marry, which is universal and cannot be denied to any person because of one's disabilities.
Article 16 of the Convention on the Rights of the Child guarantees the same rights to the children, whether or not they are disabled, and guarantees a stronger protection of the law because of their weakness.
Principle 7 of the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care underlines the role of community and culture, saying that every patient shall have the right to be treated and cared for, as far as possible, in the community in which he or she lives.
Everyone has the right to freedom of movement and residence within the boarders of each State, the right to leave any country and to return to any country, and to seek and enjoy asylum from persecution in other countries.
The drafters of the International Covenant on Civil and Political Rights considerably watered down its provisions on this question because of a lot of States implicated in practices that were against this freedom. Article 12 restricts this right of movement, and consequently of residence, to persons "...lawfully within the territory of a State..." and introduces restrictions when "...provided by law, necessary to protect national security, public order, public health or morals on the rights and freedom of others."
Article 3 of the Universal Declaration of Human Rights stipulates this main right to freedom of movement. But it says nothing about the way to implement it and to make it respected, particularly regarding disabled persons.
Article 10 of the Convention on the Rights of the Child states that a child or his / her parents, is allowed to enter or leave a state for the purpose of familial reunification. And it underlines, above all, the right to maintain on a regular basis, direct contacts with both parents who reside in different states.
Article 14 of the Universal Declaration of Human Rights assures that everyone has the right to seek and enjoy asylum from persecution in any other country. Deportation for reason of disability cannot be accepted anywhere and from any country or Government. But this text however, does not confer a right to be granted asylum. Rule 14 of The Standard Rules on the Equalization of Opportunities for Persons with Disabilities states that the needs and concerns of persons with disabilities should be incorporated into general development plans and not be treated separately. Article 15 states that everyone has the right to a nationality, and prohibits anyone from being arbitrarily deprived of it or being denied the right to change it. It means that even adults with intellectual impairments must be allowed to hold passports.
The Convention Relating to the Status of Refugees provides, in article 33 (1), for the right of non-refoulement.
Article 23 of the Vienna Declaration and Programme of Action, dealing with asylum issues, reaffirms that "...everyone is entitled to the right to seek and to enjoy in other countries asylum from persecution , as well as the right to return to one's own country." Human rights violations, particularly during armed conflicts, are a major cause of disabilities.