Theresia Degener
4.3 An evaluation of the operation of the ICCPR in the context of disability
4.3.2 An overview of State party reports and disability under the ICCPR Of the 114 State party reports reviewed, 76 (67 per cent) made some reference to
disability issues. This surprisingly positive result becomes less impressive if one takes a closer look at the content of the references.
The majority of State party reports (57 per cent) mention disabled persons in
connection with three or fewer articles of the ICCPR. Only 7 per cent refer to disabled persons in connection with seven or more of the twenty-seven human rights protected by the Covenant.
The most frequently cited provisions are article 23 (family rights) and article 24 (children’s right to protection). Some 43 per cent of State party reports refer to these provisions. However, the reference hardly ever contains information about disabled persons’ right to marry and procreate, or disabled children’s right to mainstream education45 or to protection from exploitation. The references commonly contain information about family benefits for disabled children or similar social welfare issues. The next most frequently cited provisions of the Covenant with respect to disabled persons are articles 2 and 26 (equality and non-discrimination). A further 32 per cent of reports state that equality laws have been adopted under which disabled persons are also or exclusively protected.
This finding matches our earlier research on disability reform laws globally.46 It was found that more than forty countries adopted disability discrimination laws during the last decade or earlier. Twenty-four of these countries mentioned the fact in their State party reports to the HRC. Not many reports contained detailed information about the new laws and their implementation. Examples of good practice in this regard are the reports of Australia,47 Canada,48 Finland,49 China (on Hong Kong Special
Administrative Region),50 the United Kingdom,51 and the United States.52 These State party reports contain useful information about the goals of modern anti-discrimination laws on disability, the areas covered and their implementation.
44 Standard Rules, chap. IV: “Monitoring mechanism”, para. 7.
45 With the notable exception of the initial report of Zimbabwe (CCPR/C/74/Add.3).
46 T Degener and G. Quinn, “A survey of international, comparative and regional disability law reform”, forthcoming in Disability Rights: Transforming National and International Law, Disability Rights Education Defense Fund (DREDF) (ed.), (NY: Transnational).
47 Third periodic report (CCPR/C/AUS/98/3).
48 Fourth periodic report (CCPR/C/103/Add.5).
49 Fourth periodic report (CCPR/C/95/Add.6).
50 Initial report (CCPR/C/HKSAR/99/1/Add.1).
51 Fifth periodic report (CCPR/C/United Kingdom/99/5.
52 Initial report (CCPR/C/81/Add.4).
The majority of State party reports (54 per cent) refer briefly to disabled persons as one among several groups, usually together with women and children. Only 30 per cent of the reviewed State party reports include statements relating exclusively to disabled persons.
Other than addressing social welfare measures and equality laws, State party reports tend to refer to disabled persons in connection with civil commitment and the compulsory treatment of mentally ill or intellectually impaired persons, treatment of disabled defendants and prisoners, voting rights, marriage and divorce law,
immigration law and medical experimentation.
With respect to civil commitment and (compulsory) treatment of disabled persons, State party reports reflect an awareness that very serious human rights issues are at stake. Thus, most reports that raise issues under article 7 (torture/inhuman treatment), article 9 (liberty and security of person) or article 10 (detention) cite mental health legislation that provides some kind of procedural safeguard. However, State party reports often merely cite the laws without giving any information on how the procedure is actually implemented (e.g. whether judicial review is applicable or whether detention and compulsory treatment decisions are left to the discretion of doctors).53 There is a considerable amount of good practice in the system. The State party reports of Denmark,54 the United Kingdom (on Hong Kong),55 Israel,56 the Netherlands,57 and the United States,58 are notable for the human rights approach adopted to civil commitment legislation.
Reports usually address the subject of disabled defendants in judicial proceedings under article 14 (equality before the courts). A significant number of State party reports display an overprotective attitude in that legal representation is mandatory for disabled defendants, regardless of whether they are able to defend themselves.59 Very few State party reports address the issue of the human rights of disabled prisoners or the treatment of disabled defendants. Notable examples of good practice in this regard are the reports of the Czech Republic, Denmark and the United
Kingdom. The initial report of the Czech Republic and the second periodic report of Ireland60 frankly acknowledge that State prisons are unable to accommodate disabled prisoners.61 Denmark reports that the State has established a training programme for police officers on how to deal with disabled persons.62 In the United Kingdom a
53 See, for example, the fourth periodic report of Poland (CCPR/C/95/Add.8), paras. 60 ff.
54 Third periodic report of Denmark (CCPR/C/64/Add.11).
55 Fourth periodic report of the United Kingdom (Hong Kong) (CCPR/C/95/Add.5), para. 123.
56 Initial report of Israel (CCPR/C/81/Add.13), paras 227 ff.
57 Third periodic report of the Netherlands (CCPR/C/NET/99/3) paras. 54 to 57 and paras. 77 to 81.
58 Initial report of the United States (CCPR/C/81/Add.4), paras. 172 ff., paras. 247 ff. and paras. 280 ff.
59 Initial report of Slovakia (CCPR/C/81/Add.9), para. 49.
60 CCPR/C/IRL/98/2, para. 408. This report is unique in that the information about inaccessible prisons comes from NGOs that are cited in the State party report.
61 CCPR/C/CZE/2000/1, para. 209.
62 Fourth periodic report of Denmark (CCPR/C/DNK/99/4). para. 73.
common standard of conduct has been laid down for all staff working in prisons which also refers to disabled inmates.63
A minority of State party reports mention disabled persons’ right to vote under article 25 (right to vote, access to public service). However, not all of these reports reflect an understanding that disabled persons are citizens with equal political rights. Thus, some merely state that people with intellectual impairments are denied the right to vote.64 Others seem to find it sufficient to permit physically disabled voters to bring along their own assistants or demand that persons needing adjustments in the voting process notify the electoral board.65 Only four State parties report positive action taken by the federal or local government to make the voting process accessible to disabled persons.66 One reports that such affirmative measures are limited to people who are unable to walk, while blind, deaf or otherwise disabled persons have to bring their own assistants.67
Where State party reports mention disabled persons in the context of their domestic immigration laws under article 12 (rights of aliens), it is usually to state that disability is a legal ground for denial of permission to immigrate. The small number of States that admit to such judicial discrimination against disabled persons tend not to perceive such discrimination as a human rights issue.
Three State party reports – those of Australia, the Netherlands and the United States - address the issue of scientific or medical experimentation. While Australia’s third periodic report states that “in principle” such interventions are only carried out on persons who can give informed consent,68 the initial report of the United States reveals that (non-therapeutic) medical or scientific experimentation has been carried out on persons without their consent. These practices are described as illegal and are said to be under investigation.69 The third periodic report of the Netherlands states that, under certain circumstances, non-therapeutic experimentation may be carried out on persons incapable of giving informed consent.70
One State party report – the fourth periodic report of Finland – treats the right to use sign language as a human rights issue under article 27 of the Covenant (minority rights) and notes that the Finish constitution was amended accordingly in 1995.71 Overall, the review of 114 State party reports to the HRC shows that the majority of States (63 per cent) still tend to approach the human rights of disabled persons under
63 Fourth periodic report of the United Kingdom (CCPR/C/95/Add.3), para. 131.
64 See, for example, the fourth periodic report of the United Kingdom (Dependent Territories (Guernsey) CCPR/C/95/Add.10), para.19.
65 See, for example, the third periodic report of Venezuela (CCPR/C/VEN/98/3), para. 386 and the initial report of the former Yugoslav Republic of Macedonia (CCPR/C/74/Add.4), para. 542.
66 Fourth periodic report of Canada (CCPR/C/103/Add.5) paras. 244 ff.; initial report of Israel (CCPR/C/81/Add.13) para. 808; initial report of the United States (CCPR/C/81/Add.4) para. 754;
fourth periodic report of Italy (CCPR/C/103/Add.4) para. 195.
67 Fourth periodic report of Italy (CCPR/C/103/Add.4), para. 195.
68 CCPR/C/AUS/98/3, para. 383.
69 Initial report of the United States (CCPR/C/ 81/Add. 4), paras. 178 ff.
70 CCPR/C/NET/99/3.
71 CCPR/C/95/Add.6, para. 118.
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