Gerard Quinn, Theresia Degener
The Commission recognizes that any violation of the fundamental principle of equality or any discrimination or other negative differential treatment of persons with disabilities inconsistent with the United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities is an infringement of the human rights of persons with disabilities.
United Nations Commission on Human Rights resolution 1998/31 on the human rights of persons with disabilities
3.1 The United Nations human rights treaty system
As noted in the previous chapter, the United Nations Commission on Human Rights has urged the treaty monitoring bodies to take due account of the rights of persons with disabilities in their activities under each of the six core human rights treaties.
This is of tremendous importance since it acknowledges the need to harness the potential of the various “hard law” international legal instruments for the benefit of people with disabilities. The purpose of Part 2 of this study is to evaluate how or whether this is being done. Here we briefly outline what the six core human rights treaties are and indicate how relevant developments under them may be tracked.
Each treaty or convention has a treaty monitoring body whose task is to enforce or monitor implementation of the treaty in question. As primary legal responsibility rests with the States parties, the main job of the treaty bodies is to monitor domestic implementation of the treaties. This is done through the examination of periodic State party reports on which the treaty monitoring bodies eventually issue concluding observations, concluding comments or conclusions and recommendations. The United Nations has produced a useful guide to State party reporting entitled Manual on Human Rights Reporting (HRI/PUB/91/1 (Rev.1), Geneva, 1997).
Some of the treaties allow for a right of individual complaint to the treaty monitoring bodies, which has led to a considerable volume of jurisprudence or case law. It has become an increasingly common practice for the treaty monitoring bodies to issue
“general comments” which purport to be authoritative – though not legally binding – interpretations of the treaties. Such general comments may provide valuable guidance on the application of the treaties in the context of disability.
The two core human rights treaties are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICCPR provides protection for a range of civil and political rights. It seeks to underpin the freedom of the individual and to ensure that he/she is enabled to exert influence over the political life of the polity. The ICESCR seeks to ensure that freedom is buttressed by appropriate social rights and social provision. These two themes of freedom and appropriate social support for freedom are crucial for people with disabilities.
The ICCPR and ICESCR were negotiated during the 1950s and the two Covenants were formally adopted and opened for signature and ratification in 1966. As of 8 February 2002, a total of 148 States had ratified the ICCPR and a total of 145 had ratified the ICESCR. The relevant monitoring body under the ICCPR, the Human Rights Committee, monitors the implementation of the treaty by States parties through the examination of periodic State party reports. The corresponding monitoring body for the ICESCR is the Committee on Economic, Social and Cultural Rights, which also monitors domestic implementation in the light of State party reports. An Optional Protocol to the ICCPR allows individuals to lodge complaints with the Human Rights Committee provided that the relevant State party has ratified the Protocol. A draft protocol to the ICESCR has been proposed by the Committee on Economic, Social and Cultural Rights which, if adopted, would enable individuals to lodge similar complaints under the ICESCR. The Committee on Economic, Social and Cultural Rights adopted an important and farsighted general comment on disability in 1995 (General Comment No. 5).
Four other core United Nations human rights treaties have been adopted. One of them deals with the very specific human right to freedom from torture: the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
This Convention is of obvious importance to, among others, the millions of persons with disabilities who are institutionalized. It was adopted and opened for signature and ratification in 1984. As of 8 February 2002, it had been ratified by 128 States.
The Committee against Torture monitors domestic implementation by examining periodic State party reports. Individual complaints may also be considered by the Committee against Torture provided that the State party in question has recognized the Committee’s competence in that regard. Inter-State complaints and “inquiries”
may also be considered by the Committee under certain circumstances.
The three remaining treaties deal with particular groups or categories of persons who are at risk of discrimination: the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the 1989 Convention on the Rights of the Child (CRC) and the 1966 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). These treaties generally serve two purposes.
First, they establish the principle of non-discrimination with respect to the enjoyment of all human rights for the categories of persons covered. Secondly, and to the extent required, they add specificity to the general ICCPR and ICESCR rights, tailoring them more directly to the circumstances of the groups covered.
These group-specific conventions are of obvious importance in the context of double discrimination. Thus, people with disabilities may suffer discrimination not only because they are disabled but also because they belong to other groupings or
minorities such as children, racial groups or women. It is of the utmost importance to extract the maximum protection from these treaties for the groups concerned.
An Optional Protocol to CEDAW allows individual complaints to be lodged with the Committee. As of 8 February 2002, there were 168 States parties to the Convention.
The CEDAW Committee has issued a General Recommendation to the effect that States parties should include references to women with disabilities in their reports.
The Convention on the Rights of the Child (CRC) was adopted and opened for signature in 1989. Unlike the other human rights treaties, it contains a very specific article on the rights of disabled children (article 23). The inclusion of this disability-specific article does not, of course, imply that other CRC rights are not applicable in the case of disabled children. The Committee on the Rights of the Child held a very useful general discussion day on children with disabilities in 1997 and this seems to have had a positive impact on its approach to the Convention in the disability context.
As of 8 February 2002, there were 191 States parties to the CRC, which makes it the most ratified United Nations human rights treaty. There is no complaints procedure under the Convention.
The International Convention on the Elimination of all Forms of Racial
Discrimination (ICERD) was adopted and opened for signature in 1965. ICERD is highly relevant to those who suffer double discrimination on grounds of race and disability. The Convention provides for inter-State and individual complaints procedures. As of 8 February 2002, there were 161 States parties to ICERD.
3.2 Navigating the United Nations human rights treaty system
The treaty bodies database on the web site (www.unhchr.ch) of the Office of the High Commissioner for Human Rights (OHCHR) contains detailed information on the operation of the United Nations human rights treaty bodies.
The “Highlights” section of the OHCHR home page provides up-to-date information on important world conferences with a bearing on human rights. The “Site Map” on the home page provides a fast entry point to the texts of the treaties. It also contains information about all United Nations human rights bodies, including the Commission on Human Rights and the Third Committee of the General Assembly, a thematic listing of contemporary human rights issues and details of the workings of the OHCHR.
The “Site Map” also provides links to the treaty monitoring bodies and, crucially, to databases covering their activities. There are also links to other databases, including the “Charter-based bodies database”, i.e. bodies based on the Charter of the United Nations such as the Economic and Social Council.
The “Treaty bodies database” is of vital importance in helping people to keep track of relevant developments in each of the six core treaties. It can also be accessed by clicking on “Documents” on the OHCHR home page. The left-hand column of the treaty bodies database page provides links to the names of current committee members, relevant documents, the reporting status of individual States parties under
each treaty and the current status of ratification (including information on declarations and reservations).
The “Documents” section of the treaty bodies database is of critical importance. It can be used to access State party reports, general comments, lists of issues sent to States parties by the relevant treaty monitoring body, replies to the lists by the
relevant Government, summary records of meetings between Governments and treaty bodies, and the treaty bodies’ concluding observations or comments and
recommendations. The “Documents” section also contains information on the case law or jurisprudence of treaty bodies that can consider individual or other types of complaints.
The section is searchable by country, language, symbol, treaty or type. To track a particular State’s record, for example, one searches the database by country. To obtain an overview of how a treaty works, one searches it by treaty.
There are few general publications on the operation of the treaties in the context of disability. One such work is: T. Degener and Y. Koster-Dreese (eds.), Human Rights and Disabled Persons (Dordrecht, Martinus Nijhoff, 1995).