ICCPR general comments and disability

Unlike the ICESCR Committee, the HRC has no specific general comment on disabled persons. Each general comment addresses a specific article of the Covenant.

Some more recent comments have replaced older ones. The following four make some mention of disabled persons:

- General Comment No. 8 of 1982 on the right of liberty and security of person (article 9);³⁰

- General Comment No. 19 of 1990 on protection of the family, the right to marry and the equality of spouses (article 23);³¹

- General Comment No. 20 of 1992, which replaces General Comment No. 7 concerning the prohibition of torture and cruel, inhuman or degrading treatment or punishment (article 7);³² and

- General Comment No. 25 of 1996 on the right to take part in the conduct of public affairs, the right to vote and to be elected, and the right to equal access to public service (article 25).

(a) ICCPR General Comment No. 8 (liberty and security of person) and disability

General Comment No. 8 stresses that article 9, paragraph 1 (the right to liberty and security of person):

is applicable to all deprivations of liberty, whether in criminal cases or in other cases such as, for example, mental illness, vagrancy, drug addiction, educational purposes, immigration control, etc. It is true that some of the provisions of article 9 ... are only applicable to persons against whom criminal charges are brought. But the rest, and in particular the important ...

right to control by a court of the legality of the detention, applies to all persons deprived of their liberty by arrest or detention. Furthermore, States parties have ... also to ensure that an effective remedy is provided in other cases in which an individual claims to be deprived of his liberty in violation of the Covenant.

In paragraph 4, the HRC addresses preventive detention:

Also if so-called preventive detention is used, for reasons of public security, it must be controlled by the same provisions, i.e. it must not be arbitrary, and must be based on grounds and procedures established by law, ... information of the reasons must be given ... and court control of the detention must be available ... as well as compensation in the case of a breach.

General Comment No. 8 contains no reference to disability-specific human rights instruments that could offer guidance in interpreting the applicability of article 9 to detained persons with disabilities. A cross-reference to two other soft-law

30 See “Compilation of general comments and general recommendations adopted by human rights treaty bodies“ (HRI/GEN/1/Rev.5).

31 Ibid.

32 Ibid.

instruments, the 1971 Declaration on the Rights of Mentally Retarded Persons³³ and the 1975 Declaration on the Rights of Disabled Persons,³⁴ might have proved useful.

Although they have no direct bearing on the interpretation of the Covenant, both refer to the ICCPR in their preambles and contain useful paragraphs on the restriction of human rights by detention.³⁵

(b) ICCPR General Comment No. 19 (family, marriage) and disability While General Comment No. 19 does not explicitly refer to a disabled person’s right to marry and found a family, paragraphs 4 and 5 make some useful statements in this regard:

4. ... States parties’ reports should indicate whether there are restrictions or impediments to the exercise of the right to marry based on special factors such as degree of kinship or mental incapacity. ...

5. The right to found a family implies, in principle, the possibility to procreate and live together. When States parties adopt family planning policies, they should be compatible with the provisions of the Covenant and should, in particular, not be discriminatory or compulsory.

...

The issue of the right to marry is a real one for many persons with disabilities, especially women with intellectual impairments.³⁶ The wording of General Comment No. 19 is therefore useful, but a clear statement that disability per se should never be regarded as a legitimate ground for sterilization and restrictions on marriage would have been even more helpful.

It is noteworthy that none of the twelve general comments adopted by the HRC during the United Nations Decade of Disabled Persons (1982-1993) refers specifically to the rights of disabled persons.

(c) General Comment No. 20 (torture) and disability

General Comment No. 20 relating to torture and cruel, inhuman or degrading treatment or punishment makes no explicit mention either of disabled persons but includes some statements that are of importance to them.

2. The aim of the provisions of article 7 of the International Covenant on Civil and Political Rights is to protect both the dignity and the physical and mental integrity of the individual. It is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity.

...

33 General Assembly resolution 2856 (XXVI) of 20 December 1971, reproduced in Degener and Koster-Dreese, Human Rights and Disabled Persons, pp. 371 ff.

34 General Assembly resolution 3447(XXX) of 9 December 1975 reproduced in Degener and Koster-Dreese, Human Rights and Disabled Persons, pp. 373 ff

35 Paras. 6 and 7 of the 1971 Declaration and paras. 4, 10 and 11 of the 1975 Declaration.

36 See T. Degener, “Disabled women and international human rights”, Women and International Human Rights Law, Kelly D. Askin and Dorean M. Koenig (eds.), vol. 3, (Ardsley NY, Transnational, 2001), pp. 267 – 293.

7. Article 7 expressly prohibits medical or scientific experimentation without the free consent of the person concerned. The Committee notes that the reports of States parties generally contain little information on this point. More information should be given to the need and means to ensure observance of this provision. The Committee also observes that special protection in regard to such experiments is necessary in the case of persons not capable of giving valid consent, and in particular those under any form of detention or imprisonment.

Such persons should not be subjected to any medical or scientific experimentation that may be detrimental to their health.

General Comment No.20 thus raises two important points with regard to the meaning of article 7 for disabled persons.

First, and most importantly, States parties have a clear legal responsibility for

violations of human rights that occur in private institutions for disabled persons. This point is of great significance in the light of the trend toward privatization of such services worldwide. Second, disabled persons who are not capable of giving valid consent should be protected against any medical or scientific experimentation. Both points are important for the human rights protection of persons with disabilities.

The human rights of disabled persons can also be violated in the context of social service provision. Not only is it difficult to expose the perpetrators but the act itself is often not considered to be a human rights violation because the author is not a State official. General Comment No. 20 suggests that it is and offers valuable guidance in relation to the medical and scientific experimentation to which disabled persons are often subjected.

This subject was hotly debated in Europe when the European Convention on Human Rights and Biomedicine was adopted in 1997. Article 17 of this regional treaty allows non-therapeutic medical research to be carried out on persons incapable of giving valid consent. Disability groups in many European countries such as Germany³⁷ and the United Kingdom protested against the Convention. Some scholars have argued that the article 17 provision is incompatible with article 7 of the ICCPR, arguing that the latter prevails under international law.³⁸

(d) ICCPR General Comment No. 25 (voting, right to take part in public affairs) and disability

General Comment No. 25 is the first HRC comment that specifically addresses disabled persons – in three of its twenty-seven paragraphs:

4. Any conditions which apply to the exercise of the rights protected by article 25 should be based on objective and reasonable criteria. ... For example, established mental incapacity may be a ground for denying a person the right to vote or to hold office.

10. ... It is unreasonable to restrict the right to vote on the ground of physical disability or to impose literacy, educational or property requirements. ...

37 For an overview of the German debate see T. Degener, “Chronologie der Bioethik–Konvention und ihre Streitpunkte”,Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft,vol. 1 (1998), pp.7-33.

38 A. Hendriks, “Article 17 of the European Convention on Human Rights and Biomedicine:

incompatible with international human rights law?”, Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft,vol. 1 (1998), p. 116.

20. An independent electoral authority should be established to supervise the electoral process and to ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the Covenant. ... Assistance provided to the disabled, blind or illiterate should be independent. Electors should be fully informed of these guarantees.

These interpretations offer significant guidance for the inclusion of disabled persons in the electoral process. The Comment establishes that physical disability may never be a legitimate ground for restricting the right to vote. Neither may any intellectual disability be considered a reason for denying a person the right to vote or to hold office. Such action is permissible only in cases of established mental incapacity. The Comment further states that persons assisting disabled voters must be neutral, their only task being to preserve the independence of the voter. The same would hold true for technical adjustments such as ensuring accessibility and privacy of voting space.

These comments clearly have implications for the manner in which elections are run.

Sometimes disabled persons are denied the right to vote even though their functional limitation does not affect their decision-making. Voting assistance to disabled persons is sometimes given by family members or others on whom the disabled person

depends. This raises issues of privacy and autonomy and in any event leaves the disabled person susceptible to manipulation.

General Comment No. 25 fails to give detailed guidance on the kind of information that States parties should include in their reports and the degree of detail required. For example, are inaccessible polling stations a violation of article 25 of the Covenant?

Have blind people a right to receive voting material in Braille or on tape? Are deaf people entitled to sign language interpretation? Some statements in the Comment, however, may serve as arguments to respond to all these questions:

11. States must take effective measures to ensure that all persons entitled to vote are able to exercise that right. ...

12. ... Information and materials about voting should be available in minority languages.

Specific methods, such as photographs and symbols, should be adopted to ensure that illiterate voters have adequate information on which to base their choice. ...

Hence it may be argued that States need to ensure that disabled persons have access to polling stations. Sign language and Braille may even be considered minority

languages. If this argument is rejected on the grounds that disabled persons are not recognized as a minority within the meaning of article 27 of the Covenant, it could be argued that deaf and blind people are in a similar situation to persons using a minority language and are thus entitled to equal treatment. The reference to the “specific methods, such as photographs and symbols” that are needed to accommodate illiterate persons shows that States parties have a duty to adjust information and voting

materials to cater for different forms of communication.

General Comment No. 25 is silent on the meaning of article 25, subparagraph (c), of the Covenant for disabled persons. The right to equal access to public service may be read either restrictively or expansively. To date the HRC has read it restrictively as a right of equal access to public service positions in terms of “appointment, promotion, suspension and dismissal.”³⁹ While affirmative measures “may be taken in appropriate

39 General Comment No. 25, para. 23.

cases to ensure there is equal access to public service for all citizens”,⁴⁰ disabled persons are not specifically mentioned.

Access is one of the main subjects addressed in the Standard Rules⁴¹ - an instrument adopted by the General Assembly just three years before the HRC adopted General Comment No. 25. It would have been useful if the General Comment had taken them into account.