An evaluation of how disability issues are handled in the dialogue between the HRC and States parties

the Covenant from a medical or welfare angle. A minority of reports (38 per cent) adopt an approach based more on civil and political rights.

An outstanding example of good practice is the third periodic report of Australia, which provides a comprehensive overview of federal and state disability

discrimination law and which also refers to disabled Australians in connection with nine substantive rights covered by the ICCPR.⁷² The report deals extensively with such matters as anti-discrimination law in the context of disability, the relationship between abortion law and disability, mental health legislation, civil and criminal commitment, medical research and scientific experiments, jury service, protection of legal personality, support measures for families with disabled children, and disability discrimination in the area of education, voting rights, public employment and staff selection.

The report reflects an awareness that legislation alone is not sufficient for the

realization of human rights. Australia’s third periodic report gives an admirably clear picture of the situation and refers candidly to problems such as the exclusion of disabled persons from jury service.

4.3.3 An evaluation of how disability issues are handled in the dialogue

discrimination), 13 summary records (3 per cent) made explicit reference to issues relating to disabled persons. The subjects dealt with were capital punishment, voting rights, welfare benefits and support services for disabled family members,

sterilization, legal protection, status of disabled persons in society, abortion law, detention and corporal punishment, disabled children, amputation as criminal punishment, and scientific and medical experiments.

HRC members rarely request detailed information about involuntarily

institutionalized disabled persons. Nor do they tend to initiate a dialogue with State representatives regarding circumstances in which there seems to be no “court control of the detention” (General Comment No. 8). HRC members seem to be reluctant to enforce General Comment No. 25, which states that disabled persons should have equal voting rights and that voting assistance should be truly independent. General Comment No. 25 has much untapped potential in the context of disability. The issue of disabled persons seems to be brought into the dialogue more often by State representatives than HRC members. Sometimes the summary records contain no comments by members even where the reports themselves reveal discrimination, as in the case of immigration laws prohibiting disabled persons from immigration. We wish to emphasize that none of the above is due to any lack of interest on the part of HRC members but, more probably, to the weight of other competing priorities.

It is laudable that HRC members often mention disabled persons in the context of article 26 of the Covenant (non-discrimination). These initiatives are welcome. But the summary records also show that the dialogue between the Committee and States parties tends not to focus on positive examples of cases in which disability

discrimination or mental health laws adhere to human rights principles. Such a dialogue might give HRC members a deeper insight into disability matters and it could usefully alert States parties to innovative thinking.

The review of available summary records showed that the HRC not only asked

questions but also expressed explicit concern regarding the enjoyment of human rights by disabled persons in four cases. When considering the third periodic report of Cyprus, the HRC expressed concern about a law under which the use of force against an intellectually disabled person was not deemed to be a punishable offence.⁷⁵ During its consideration of Japan’s fourth periodic report, HRC members welcomed the abolition of a law on the compulsory sterilization of disabled women. However, the Committee was concerned that the Government had not yet paid compensation to approximately 16,000 disabled women who had been sterilized between 1949 and 1995.⁷⁶ When reviewing the initial report of the United States, the HRC raised concerns about the execution of intellectually disabled persons.⁷⁷

(c) Disability issues in HRC concluding observations

Purely as a matter of fact, disability issues do not figure prominently in the concluding observations of the HRC.

75 CCPR/C/SR.1648, para. 20.

76 CCPR/C/SR.1716, para. 30.

77 CCPR/C/SR.1405, para. 56.

Of 153 reviewed documents, only 10 (7 per cent) mentioned the human rights of disabled persons. The countries referred to were Australia,⁷⁸ Austria,⁷⁹ Canada,⁸⁰ the United Kingdom (on Hong Kong),⁸¹ Ireland, Japan, Korea⁸², Lithuania⁸³, Netherlands and the United States. Of these nine concluding observations, five welcomed the disability laws or measures adopted by the respective State. Four (3 per cent) included critical statements or recommendations. With respect to the United States, for

example, the HRC expressed concern that in some States non-therapeutic research was undertaken involving incapacitated persons. In addition, it expressed regret that in some cases there appeared to have been a lack of protection of the mentally retarded from the death penalty.⁸⁴

With regard to Ireland’s second periodic report, the HRC recommended that further action should be taken to ensure

the full and equal enjoyment of Covenant rights by disabled persons, without discrimination, in accordance with article 26 ... ⁸⁵

With regard to Japan’s fourth periodic report, the Committee,

while acknowledging the abolition of forced sterilization of disabled women, regrets that the law has not provided for a right of compensation to persons who were subjected to forced sterilization, and recommends that the necessary legal steps be taken. ⁸⁶

Great concern was expressed by the HRC regarding euthanasia and medical research in the context of the third periodic report of the Netherlands:

(d) The Committee, having taken full note of the monitoring task of the review committee, is also concerned about the fact that it exercises only an ex post control, not being able to prevent the termination of life when the statutory conditions are not fulfilled.

The State party should re-examine its law on euthanasia and assisted suicide in the light of these observations. It must ensure that the procedures employed offer adequate safeguards against abuse or misuse, including undue influence by third parties. The ex ante control mechanism should be strengthened. The application of the law to minors highlights the serious nature of these concerns. The next report should provide detailed information as to what criteria are applied to determine the existence of a "voluntary and well-considered request",

"unbearable suffering" and "no other reasonable alternative". It should further include precise information on the number of cases to which the new Act has been applied and on the relevant reports of the review committee. The State party is asked to keep the law and its application under strict monitoring and continuing observation.

78 Official Records of the General Assembly, Fifty-fifth Session, Supplement No. 40 (A/55/40), vol I, paras. 498 – 528.

79 CCPR/C/79/Add.103.

80 CCPR/C/79/Add.105.

81 CCPR/C/79/Add.57.

82 CCPR/C/79/Add.114.

83 CCPR/C/79/Add.87.

84 CCPR/C/79/Add.50, paras. 286 ff and para. 281.

85 Official Records of the General Assembly, Fifty-fith Session, Supplement No. 40 (A/55/40), vol I, para. 450.

86 CCPR/C/79/Add.102, para. 31.

6. The Committee is gravely concerned at reports that new-born handicapped infants have had their lives ended by medical personnel.

The State particularly should scrupulously investigate any such allegations of violations of the right to life (article 6 of the Covenant), which fall outside the law on euthanasia. The State particularly should further inform the Committee on the number of such cases and on the results of court proceedings arising out of them⁸⁷.

The HRC thus adopted a different and much more critical standpoint on the issue than the Council of Europe.

4.4 Disability as a human rights issue in the complaints procedures