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In many cases, application of the principle of formal equality will not result in equality of result. Therefore, affirmative action may be necessary in order to ensure equality of result. The following provisions require States Parties to take positive action in order to obtain equality of result:
Rule 6 (6) (c) of The Standard Rules on the Equalization of Opportunities for Persons with Disabilities requires States Parties to provide quality materials, ongoing teacher training and support teachers to ensure that the education of persons with disabilities is an integral part of the educational system.
Article 2 of the Sundberg Declaration provides that economic and practical support must be given to actions aimed at the educational needs of disabled persons.
Article 3 (5) of the World Declaration on Education for All - Meeting Basic Learning Needs states that steps need to be taken to provide equal access to education for all disabled persons.
The Standard Rules for the Equalization of Opportunities for Persons with Disabilities: Rule 7 World Programme of Action concerning Disabled Persons: Paragraph 129 Recommendation concerning Vocational Rehabilitation and Employment (Disabled Persons): Paragraphs 9-11 Tallinn Guidelines for Action on Human Resource Development: Paragraphs 35 - 37 Recommendation concerning Vocational Rehabilitation of the Disabled: Paragraphs 28 - 31 European Social Charter: Article 15
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 (even using drugs), forced sterilisation, castration and female circumcision, and blinding of detainees. One can also mention the apartheid system, which caused many disabilities because of the living conditions of the vast majority of the coloured population, the lack of drinking water, malnutrition, poor sanitation, constant oppression and permanent violence.
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 could be related obviously 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 which comportment is aimed at the forbidden treatment. Article 2 is helpful in defining what to forbid and what to accept as a human treatment: "…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person." The convention deals with the definition of this word and with the recognition of the element of mental pain and suffering in case of torture and of the rule of public officials in torture.
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 commonly subject to compulsory detention. The word arbitrary is questionable to the extent that a detention or a death penalty lawfully authorised is not submitted to this article and so, some abuses can be done without any appeal. Furthermore, the prohibition of slavery and servitude written in article 8 of the International Covenant on Civil and Political Rights is linked to this point. The formulation "…except on such ground and in accordance with such procedures as are established by law…" can be a problem regarding the disabled persons issues, because a legal text can be held introducing provisions on certain human rights, and so discrimination can be the result of an established legal system operation. This must be avoided in order to protect the standard rights of disabled persons. In the same way, a mentally disabled person who is arrested or detained should benefit from the same rights as anyone else.
Such rights are expressed in the following instruments:
Article 9 of the Universal Declaration of Human Rights prohibits arbitrary arrest, detention or exile.
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 stay in their family surrounding as far as possible in order to keep a family security.
Article 9 of the Declaration on the Rights of Disabled Persons deals with the right to live with one’s own family and to benefit from the same treatment as everyone else, except for what is required by health conditions.
Articles 9 and 10 of the International Covenant on Civil and Political Rights develop the basic right to liberty, the conventional protection against arbitrary detention, and expose the conditions of living in the penitentiary system. They can be useful in order to underline those rights and to implement them.
Article 9, 20 and 25 of the Convention on the Rights of the Child:
Article 9 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.
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 saying 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.
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.
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. This right to seek asylum is recognised to persons fleeing from political danger. As war and armed conflicts are a main source of disability, this statement is of great importance regarding the disability issue. But this text does not confer a right to be granted asylum. Rule 14 of The Standard Rules on the Equalization of Opportunities for Persons with Disabilities says 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, at least, in article 33 (1), for the right of non-refoulement. States should ensure that disability aspects are included in all relevant policy-making and national planning.
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