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| [discom60.htm] |
The following fall under the category of hard law and are legally binding on those States, which sign and ratify the treaties.
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. The treaties guarantee certain protections, which are essential for persons with disabilities, which are outlined below.
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 on Economic, 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 disabled persons.
Without prejudging in any manner when the life could begin, the right to life, in the strict sense, constitutes the most fundamental right to the extent that it is a precondition of all other human rights guarantees. Article 6 of the International Covenant on Civil and Political Rights speaks of the "…inherent right to life…" which "…shall be protected by law…" so that no one can be arbitrarily deprived of his / her life. A disabled person has the same right to life as any other human being. For example, one can not decide a death penalty, or refuse the right to life to someone just because they do not possess the same physical or mental abilities as others.
The protection of the right to life from arbitrary deprivation is obviously the most important of the non-derivable rights, enumerated in article 4 (1). However, the guarantees stated in article 14, are not included among these non-derivable rights: the right to life as stated in the article 6 is not absolute, and in times of emergency, when protection of the right to life is most critical, death sentences can be imposed following summary procedures. Knowing that such states of emergency are among the greatest causes of disability, it is frightening, in order to preserve the right to life of wounded people, for instance, in times of war.
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." This provision is extremely important for disabled persons because Governments do not always provide adequate recognition of their rights, and rarely do they provide special measures to help the disabled take action against violations of those rights.
Article 7 reflects what is also customary law and relevant to the area of the prevention of disabilities. It states that "…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." Both torture and medical experimentation are a major cause of disability today; therefore, article 7 must be strictly enforced in order to prevent disabilities.
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 mentally disabled persons 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." This article may be relevant for mentally disabled persons who are committed to institutions and whose right to privacy, family and home are infringed.
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 6 of the International Covenant on Economic, Social and Cultural Rights provides that States parties recognise "…the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts…". Article 7 (a) refers to the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular, fair wages and equal remuneration for work of equal value without distinction of any kind and a decent living for workers and their families. Therefore, where disabled persons are paid less for doing the same work as non-disabled persons, this will constitute a violation of article 7 (a) and article 2 (2).
Article 10 (2) states that "…special protection should be accorded to mothers during a reasonable period before and after childbirth." Such protection is important for the prevention of disabilities, as many disabilities occur as a result of problems associated with pregnancy and childbirth.
Article 11 (1) provides that "States Parties recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions."
Article 12 (1) concerns the "…right of everyone to the enjoyment of the highest attainable standard of physical and mental health." In relation to disabled persons, this right may be violated when necessary measures are not taken to prevent malnutrition; when appropriate medical care and rehabilitation services are not provided for disabled persons; when immunisation campaigns to prevent diseases are not carried out; and when people live in overcrowded conditions not conducive to mental health.
Article 13 (1) provides that "States Parties recognise the right of everyone to education." Therefore, disabled persons must have effective access to education, which is appropriate to their abilities.
Article 15 (1) (a) recognises the "…right of everyone to take part in cultural life." This right is violated, for example, when access to facilities in which cultural activities take place is inappropriate, like for cinemas, theatres, libraries, sports stadiums, museums etc. or when disabled persons are excluded from participating in cultural life on account of prejudices.
The Convention on the Rights of the Child is concerned with protecting children from injury and providing disabled children adequate protection. Article 2 states that the rights set forth in the Convention must be applied "…without discrimination of any kind, irrespective of (¼) disability¼" (emphasis added) and furthermore article 4 concerns the right to life. Article 19 provides for the protection of "…the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse¼".
The central provision of this Convention concerning the rights of disabled children is article 23. Article 23 (1) provides that "States Parties recognise that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self reliance and facilitate the child’s active participation in the community." Article 23 (2) concerns the right of the disabled child to special care. Article 23 (3) provides that assistance to the child and those responsible for his or her care "…shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conductive to the child’s achieving the fullest possible social integration and individual development¼". Services for disabled children should, wherever possible, be provided free of charge (article 23 (3)). Article 23 (4) states that States Parties shall promote "¼the exchange of appropriate information in the field or preventative health care and of medical, psychological and functional treatment of disabled children¼". Article 24 (2) (d) of the Convention is relevant to the prevention of disabilities in that States Parties undertake to ensure appropriate prenatal and post-natal health care for mothers.
The Convention on the Elimination of All Forms of Discrimination against Women is relevant as disabled women may be victims of discrimination on the grounds of their sex in addition to discrimination on the grounds of their disability. The Convention sets out internationally accepted principles on the rights of women, which are applicable to all women in all fields and prescribes the measures to be taken to ensure that women everywhere can enjoy equal rights with men.
The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment contains universally applicable standards, which are greatly relevant to disabled persons, as torture can lead to disabilities. Therefore, the prevention of torture will help to reduce the incidence of disabilities. Pursuant to article 2 (1), States Parties undertake to adopt effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Article 2 (2) provides that no exceptional circumstances whatsoever may be invoked as a justification for torture. Therefore, under no circumstances may any order from a superior officer, or circumstances in a state or threat of war, or internal political instability be a justification for torture.
Article 14 of the Convention concerns the provision of compensation for victims of torture. States Parties must ensure legal remedies to victims of torture whereby victims may obtain redress and compensation, including the means for as full rehabilitation as possible. Therefore, persons disabled as a result of torture must be provided with legally enforceable rights to compensation to assist their rehabilitation.
Article 1 of the Convention against Discrimination in Education guarantees equal access to education of all types and levels and prohibits the limitation of any person or group of persons to education of an inferior standard. Therefore, disabled persons must be provided with equal access to education, which is of a comparable standard to that available to non-disabled persons.
The Convention relating to the Status of Refugees provides in Article 24 (1) that States Parties shall "…accord to refugees lawfully staying in the territory the same treatment as is accorded to nationals in respect of (...) (b) social security (legal provisions in respect of (...) disability¼)." Thus, disabled refugees should be provided with disability pensions where such pensions are provided to nationals.
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."
As violations of international humanitarian law may cause or aggravate disabilities, it is necessary to mention 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. 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 don 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.
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