Specific ICCPR rights and disability

The various civil and political rights contained in the ICCPR can be divided into four clusters:⁴ (a) rights that refer to human existence, (b) liberty rights, (c) associational rights and (d) political rights. All categories are of relevance to disabled people. As we know from the two reports produced by United Nations human rights bodies on disabled persons,⁵ all these rights are frequently violated in the case of persons with disabilities.

1 For example the Declaration on the Rights of Disabled Persons, 1975. See Gerard Quinn, “The International Covenant on Civil and Political Rights”, Human Rights and Disabled Persons, T.

Degener and Y. Koster-Dreese (eds.) (Doredrecht, Martinus Nijhoff, 1995), p. 81.

2 Ibid., p. xii.

3 Ibid. p. 81.

4 Ibid. p. 83.

5 SeePrinciples, Guidelines and Guarantees for the Protection of Persons Detained on Grounds of Mental Ill-Health or Suffering from Mental Disorder, report by Mrs. Erica-Irene Daes, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, 1986, United Nations publication, Sales No. E.85 XIV.9; see also Human Rights and Disabled Persons, report by Leandro Despouy, Special Rapporteur of the Sub-Commission on Prevention of

(a) ICCPR rights - protecting human existence and the integrity of the person in the context of disability

The most fundamental right in the first group is the right to life (article 6). In developing countries the mortality rate of disabled children is often higher because they are the last to be fed or taken care of. In developed countries the right to life is affected by “euthanasia” practices such as withholding life-saving treatment from a newborn child with disabilities. Another important right in this context is the right to freedom from torture and other cruel, inhuman or degrading treatment and

punishment (article 7). In particular, this article prohibits medical or scientific

experimentation without free consent. Gerard Quinn has identified four circumstances in which these rights are relevant to disability.⁶ First, disability is often a result of human rights violations such as war crimes, torture or degrading or cruel treatment and punishment. Second, services for disabled persons provided by or under the auspices of the State may violate article 7 because they are degrading or inhumane.

For example, a violation may occur if disabled persons are “warehoused” in institutions. Gerard Quinn even argues that:

a deliberate policy to treat persons with disabilities under separate arrangements simply for the sake of administrative convenience might amount to second class citizenship and is thus at least arguably “degrading” as per article 7.”⁷

Third, article 7 may be violated if disabled persons are placed in an inappropriate environment, for instance subjected to an ordinary prison regime as a convicted person. Inaccessibility of sanitary facilities or the impossibility of leaving a cell may amount to degrading treatment. Lastly, article 7 rights are relevant in the context of medical treatment and research. Disabled persons are often the target of medical or scientific experimentation. The requirement of free and informed consent is often ignored in practice. Persons with intellectual impairments, who are sometimes deemed unable to give consent, are a particularly vulnerable group. The “Principles for the protection of persons with mental illness and the improvement of mental health care” adopted by the United Nations General Assembly in 1991⁸ give valuable

guidance for the interpretation of article 7 in the context of institutionalized disabled persons. The Principles prohibit certain kinds of treatment such as sterilization and psychosurgery and other forms of irreversible medical “therapy” in the case of involuntary patients. They give detailed information on instances in which free and informed consent for medical treatment is necessary.

(b) ICCPR liberty rights and disability

The right to liberty and security of person (article 9) is relevant in the context of civil commitment of the mentally ill. Under what circumstances may disabled or mentally ill persons be committed to a mental health facility? If the commitment is involuntary, what procedures should be followed? Is it enough for a certified doctor to decide that Discrimination and Protection of Minorities, United Nations, 1993, United Nations publication, Sales No. E.92.XIV.4.

6 Degener and Koster-Dreese, Human Rights and Disabled Persons, p. 84.

7 Ibid. p. 84.

8 General Assembly resolution 46/119 of 17 December 1991. In this connection, see the Daes report (footnote 5 above).

commitment is medically necessary or should a judge be involved? What constitute legitimate grounds for the infringement of liberty rights? Are therapeutic arguments sufficient or should it first be established that the person to be committed presents a danger to him/herself or to others? Again, the “Principles for the protection of persons with mental illness” provide invaluable guidance. They require involuntary admission decisions to be taken by qualified mental health practitioners who are monitored and controlled by judicial or other independent and impartial review bodies. Legitimate grounds for involuntary commitment are immediate harm to the individual or others, or a serious deterioration in his/her condition.⁹ In addition, the Principles strictly regulate legal capacity decisions and standards of care and treatment.

Several other liberty rights under the ICCPR are important in civil commitment cases or in criminal cases in which the accused is disabled. Article 10 stipulates that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” Article 14 states that “[a]ll persons shall be equal before the courts and tribunals.” Both article 14 and article 15 recognize

important rights in the context of criminal proceedings such as the right to a fair hearing, including “to have the free assistance of an interpreter if he cannot understand or speak the language used in court” (article 14(3)(f)).

Another important human right for disabled persons is contained in article16:

“Everyone shall have the right to recognition everywhere as a person before the law.”

This is a key due process right in the context of both civil and criminal commitment.

Disabled persons, whether legally competent or incapacitated, must not be treated as mere objects in any official proceedings. In addition, article 16 may serve, in the area of bioethics, as a “safety net” for the protection of the human rights of disabled persons. There seems to be a danger of redefining the “person” in the context of euthanasia in such a way as to exclude severely disabled persons.¹⁰

Two further liberty rights recognized in the ICCPR demonstrate that more is at stake than detention issues. Freedom from slavery and servitude (article 8) is an important right for disabled persons both within and outside institutions. The United Nations Sub-Commission on the Promotion and Protection of Human Rights¹¹ has established a Working Group on Contemporary Forms of Slavery that deals with human organ trafficking, the sale of women and children and the international sex trade.¹² Disabled persons are among the victims. Violations of article 8 may also occur in “sheltered workshops”, which offer employment to persons with disabilities. Disability groups have claimed that the working conditions in such facilities and the lack of legal protection for employees amount to conditions of slavery.¹³ Useful human rights

9 Principles 16 and 17.

10 See Helga Kuhse and Peter Singer, Should the Baby Live? The Problem of Handicapped Infants (New York, Oxford University Press, 1985).

11 A subsidiary body of the United Nations Commission on Human Rights.

12 For information on the Working Group on Contemporary Forms of Slavery see http://www.unhchr.ch/html/menu2/i2slavwg.htm.

13 See Susanne von Daniels, Theresia Degener et.al. (eds.) Krüppel-Tribunal:

Menschenrechtsverletzungen im Sozialstaat (Cologne, Pahl-Rugenstein, 1983).

standards for sheltered workshops which could serve as interpretative guidelines for article 8 have been developed by the International Labour Organization (ILO).¹⁴ Lastly, the right to liberty of movement (article 12) includes the right to move around freely within a State and freedom to choose one’s residence. To implement this human right for their disabled citizens, States parties may need to reconsider their public transportation and housing policies. The provision of such transport is not an ICCPR but an ICESCR issue. It highlights the interdependence and indivisibility of the two sets of rights, especially in the disability context.

(c) ICCPR associational and other rights in the context of disability Social cooperation rights are rights that protect the need of all human beings to cooperate, to live in a community with others and to live as members of a social group. Freedom of association (article 22), family rights (article 23), the right to be protected as a child (article24) and the right to privacy (article 17) fall within this cluster. It is open to debate whether the right to privacy really belongs in the group of social cooperation rights if it is interpreted as a right to be left alone. However, article 17 also covers privacy within the family and home and protects a person’s honour and reputation, all of which are relevant to social life.

The right to privacy is a human right that is often neglected in the context of

disability. Disabled persons frequently have to accept the involvement of many others in their private lives (doctors, therapists, personal assistants, etc.). The right to privacy is therefore difficult to protect, especially in an institutional setting. As it is based on the assumption of respect for autonomy and human dignity, it may be argued that article 17 of the Covenant is of special importance to disabled individuals.

The same applies to family rights (article 23) such as the right to marry and found a family and equality rights between spouses. These rights are violated if disabled persons are prevented from marrying for eugenic reasons. Compulsory sterilization practices also violate article 23 rights. The Despouy report notes that disabled persons are victims of such human rights violations in some countries.¹⁵ Disabled parents (i.e.

disabled mothers) often experience discrimination and feel that States neglect them in their family programmes.¹⁶ The United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities adopted by the General Assembly in 1993¹⁷, which is one of the most important human rights instruments for disabled people, may be used as a source of interpretative guidance on article 23 in the context of disability. Rule 9 describes disabled persons’ requirements for equal rights to sexual relationships, marriage and parenthood. Article 24 of the Covenant states that the child has a right “to such measures of protection as are required by his status as a

14 See the ILO Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No.

159) and ILO Recommendation No 168 of 1983.

15 See the Despouy report (footnote 5 above).

16 See, for example, Michelle Wates and Rowen Jade (eds.) Bigger than the Sky: Disabled Women on Parenting (London, The Women’s Press, 1999); Gisela Hermes (ed. ) Krücken, Babies und Barrieren.

Zur Situation behinderter Eltern in der Bundesrepublik (Kassel, bifos e.V., 1998); Barbara Duncan, Rosangela Berman-Bieler (eds.) International Leadership Forum for Women with Disabilities. Final Report (New York, Rehabilitation International, 1997).

17 General Assembly resolution 48/96 of 20 December 1993.

minor, on the part of his family, society and the State”. The article also includes an anti-discrimination clause which, interestingly, does not cover disabled children.

The right to association (article 22) raises the issue of access to public and private places where people meet. Disabled individuals need to have the opportunity to join political, social or cultural associations and to form their own organizations. Rule 18 of the Standard Rules draws attention to the important role that disability

organizations play in the development of disability policy.

(d) ICCPR political rights in the context of disability

Last but not least, the ICCPR enshrines classical political rights, such as the right to freedom of thought (article 18) and freedom of opinion (article 19), the right of peaceful assembly (article 21), the right to take part in the conduct of public affairs (article 25) and equality rights (articles 2, 3 and 26).

Freedom of thought and freedom of opinion (articles 18 and 19) are commonly reduced to freedom of religion in the context of disability. While it is true that many disabled persons are religious, failure to consider disabled people as political citizens is a form of stereotyping. However, to become politically aware, it is essential to have access to general political debate in society. Media and lobby groups play an

important role in political discourse. Some persons with disabilities, such as deaf and blind persons, are often deprived of this opportunity because of communication barriers. Yet article 19 states that the right to freedom of expression includes

“freedom to seek, receive and impart information”.

The right of assembly (article 21) and the right to take part in public affairs (article 25) again raise issues of access to places where political life is played out. The right to vote (article 25), as a classic democratic right, is of central importance to the

realization of freedom of thought and expression. But if polling stations are

inaccessible to wheelchair users or if the election material is available in print version only, how can an election be considered to be held “by universal and equal suffrage and ... by secret ballot, guaranteeing the free expression of the will of the electors”?

Similar concerns arise in connection with laws that prohibit all mentally disabled persons from voting.¹⁸

Representation of disabled persons in political parties, parliaments and other bodies is another form of political participation, but it is still the exception.

The most important implication of article 25 for disabled persons may be that every citizen is entitled to “have access, on general terms of equality, to public service in his country”. Gerard Quinn notes that this right can be read in two ways: “One might read it in such a way as to ensure that all persons can partake equally of their civic

obligations which are associated with citizenship. The right to serve on a jury is one good example.¹⁹ One may also read it more expansively to guarantee a right of access

18 See Despouy report, para. 43.

19 See, for example, Donald Galloway v. Superior Court of the District of Columbia, 1993 US Dist.

LEXIS 3314, 16 March 1993.

to public services.”²⁰ The latter interpretation is an interesting one for countries that have not enacted anti-discrimination laws for disabled citizens containing a right of access to public services, places and buildings.

The right to equality is one of the oldest and most fundamental human rights norms.

The guarantee of equality is reflected in several provisions of the ICCPR but three clauses specifically address the issue: articles 2, 3 and 26. Article 3 requires gender equality and articles 2 and 26 prohibit discrimination on grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. While disability is not mentioned explicitly, there is a broad consensus that disabled persons are covered by the term “other status”.²¹ The right to equality is one of the most important human rights for disabled persons. During the United Nations Decade of Disabled Persons (1983 – 1992), the international disability community emphasized that discrimination is the main reason for the exclusion of disabled people from the mainstream of society and for their relative poverty.