Protection of Disabled Person under International Law

 

Khushal Suryawnshi

 

3rd Year Student, Hidyatullah National Law University, Raipur(C.G)

 

 

INTRODUCTION:

There are 650 million men, women and children in the world who live with either mental or physical disabilities.¹ Most of them live in the developing world. The UN estimates that there are 500 million persons with disabilities in the world today. This number is increasing every year due to factors such as war and destruction, unhealthy living conditions, or the absence of knowledge about disability, its causes, prevention and treatment. They suffer from discrimination and lower standards of living. They are very often denied the basic human rights. They are denied basic human rights. They are denied basic educational oppurtunities and often given menial or poorly paid jobs. Social attitudes exclude them from cultural life and normal social relationship. This article has been written to know the concept and provisions protecting the rights of disabled persons under international law. Person with disabilities includes those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.² Persons with disabilities are entitled to exercise their civil, political, social, economic and cultural rights on an equal basis with others. Disability "summarizes a great number of different disabled by physical, intellectual or sensory impairment, medical conditions or mental illness. Such impairments, conditions or illnesses may be permanent or transitory in nature."³ (Standard Rules on the Equalization of Opportunities for Persons with Disabilities). Different expressions are used when referring to persons with disabilities. For example, the term "differently-able persons" indicates that disability is not perceived as a deviation from the norm. The term "disabled persons" might be misinterpreted to imply that the ability of the individual to function as a person has been disabled.

 

Historical background of convention on rights of disabled person

The process to create obligation on the states to protect the rights of disabled persons at international level began with the drafting of  the Convention on rights of person with disability began in December 2001, when the government of Mexico sponsored a General Assembly resolution calling for the establishment of an Ad Hoc Committee (AHC) “to consider proposals for a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities, based on the holistic approach in the work done in the fields of social development, human rights and nondiscrimination and taking into account the recommendations of the Commission on Human Rights and the Commission for Social Development.”⁴ The UN General Assembly unanimously adopted the CRPD on December 13, 2006, making it, as UN Secretary General Kofi Annan noted, the most rapidly negotiated treaty of its type in the history of international law.⁵

 

 

It was opened for signature on 30 March 2007. Following ratification by the 20th party, it came into force on 3 May 2008. As of December 2012, it has 155 signatories and 127 parties, including the European Union (which ratified it on 23 December 2010 to the extent responsibilities of the member states were transferred to the European Union)⁶. The Convention is monitored by the Committee on the Rights of Persons with Disabilities. Like all international human rights treaties, the Disabilities Convention imposes three distinct types of legal obligation on States: obligations to respect, protect and fulfil the rights contained in the Convention. The CRPD consists of 50 articles addressing the full array of civil and political, economic, social, and cultural rights. The Convention does not seek to create new rights for disabled persons, but rather elaborates and clarifies existing obligations for countries within the disability context. It establishes a committee of experts to monitor its implementation at the international level, and it also provides for the operation of independent national level monitoring mechanisms. The CRPD is also joined by an Optional Protocol that recognizes “the competence of the Committee on the Rights of Persons with Disabilities to receive and consider communications from or on behalf of individuals or groups of individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of the provisions of the Convention⁷.” The CRPD is therefore comprehensive not only in terms of its substantive content, but also in the manner in which monitoring and implementation at all levels is addressed. As the first comprehensive international legal instrument specifically for persons with disabilities, the provisions of the CRPD reflect global consensus and are an authoritative commentary on the manner in which countries should fulfill their obligations towards persons with disabilities. As noted by Secretary General, Kofi Annan, “We have already learnt from experience, in countries that have implemented legislation related to disability, that change comes more rapidly when laws are in place.⁸” It is therefore anticipated that the CRPD will both prompt as well as guide the passage and reform of domestic legislation ensuring substantive equality and non-discrimination for persons with disabilities.

 

Relevant provisions of the disabilities convention

The UNCRPD’s stated purpose is to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity⁹.” It reaffirms the existing human rights of disabled people and sets out the practical action that is required to remove barriers and put in place the support to make the human rights of persons with disabilities an everyday reality. The key articles for understanding the right to independent living as enshrined by the Convention are Articles 3, 4 and 19. The effect of these three crucial provisions is summarized below.

 

Article 3 of the Convention sets out a number of general principles which are intended to guide States in their interpretation of the subsequent provisions of the treaty. These include:

• Respect for the inherent dignity, individual autonomy (including the freedom to make one’s own choices), and independence of persons;

• Non-discrimination;

• Full and effective participation and inclusion in society;

• Respect for difference and acceptance of persons with disabilities as part of   human diversity and humanity.

 

Article 4 of the Convention sets out the range of obligations which are assumed by States which choose to ratify the Disabilities Convention.¹⁰ The general obligations set out in Article 4 are extensive. Significantly, they explicitly recognize that States are under an obligation to take positive actions in order to comply with the Convention.

 

Article 19 of the Convention is a key provision: it deals with living independently and being included in the community and is of such importance to this inquiry that we set it out in full:

“States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:¹¹

 

a)      Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

b)      Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community.

c)      Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.”

 

Article 19 has been interpreted as a logical extension of the right to equal recognition before the law in Article 12 of the Convention, in the sense that recognition of legal capacity restores the “power of persons with disabilities to decide about their own lives, while the right to independent living paves the way for persons with disabilities to choose how to live their lives.”¹² Article 19 can be seen as what lawyers call a “lex specialis”, that is, a more specific or concrete expression of a general underlying norm when that norm is given effect in a particular context. It gives more specific meaning to the general rights to liberty and security of person and to private and family life in the particular context of disabled people and their living arrangements. Of particular importance is the elimination of living arrangements that segregate and isolate people with disabilities (e.g. institutionalization), unless that choice is made by the disabled person. Article 19 thus requires States Parties to ensure that people with disabilities are able to live in the community with accommodation options equal to others, and that these options support the inclusion and participation of people with disabilities in the life of the community. Article 19 requires that States ensure that disabled people have the opportunity to choose with whom they live on an equal basis with others.

 

In order to realize these freedoms, States Parties are obliged to ensure that disabled people have access to a range of support services that they may require in order to live freely in the community, and to avoid isolation and segregation from the community. The Convention also requires that steps are taken to ensure that mainstream community services and facilities must be available to disabled people on an equal basis with others and responsive to their needs. There are other provisions which talks about protection of women¹³ and children¹⁴ with disabilities.

 

OPTIONAL PROTOCOL TO THE CONVENTION ON RIGHTS OF PERSONS WITH DISABILITIES

The Optional Protocol to the Convention on the Rights of Persons with Disabilities is a side-agreement to the Convention on the Rights of Persons with Disabilities. It was adopted on 13 December 2006, and entered into force at the same time as its parent Convention on 3 May 2008.¹⁵ As of October 2012, it has 90 signatories and 73 parties.¹⁶

The Optional Protocol establishes an individual complaints mechanism for the Convention similar to those of the International Covenant on Civil and Political Rights, Convention on the Elimination of All Forms of Discrimination against Women and Convention on the Elimination of All Forms of Racial Discrimination. But this Protocol also accepts individual rights on economic, social and cultural rights like Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. Parties agree to recognize the competence of the Committee to consider complaints from individuals or groups who claim their rights under the Convention have been violated.¹⁷ The Committee can request information from and make recommendations to a party.¹⁸

Several countries such as the Australia, India, the United Kingdom and the USA have passed and implemented national anti-discrimination laws, guaranteeing full participation in society by persons with disabilities.

 

CONCLUSION:

In the end I conclude with some severe points first is that the majority of persons with disabilities live in less developed countries where people lack access to essential services such as health care. Moreover, there exists a clear relationship between poverty and disability. The risk of impairment is greater for a family that lives in poverty, while and at the same time, a disabled family member places higher demands on the family's resources.  Second is that, among the persons with disabilities, the following form particularly vulnerable groups that face discrimination based on two grounds: women, children, elders, victims of torture, refugees and displaced persons, and migrant workers. For instance, women with a disability are discriminated against because of their gender and also because of their disability. For this certain steps to taken by the government to resolve or solve this problem. The Convention on the rights of disabled person does not seek to create new rights for disabled persons, but rather elaborates and clarifies existing obligations for countries within the disability context. It establishes a committee of experts to monitor its implementation at the international level, and it also provides for the operation of independent national level monitoring mechanisms. The binding treaties that can be used to force governments to respect the treaty provisions that are relevant for the human rights of persons with disabilities. The non-binding instruments, such as declarations and resolutions, can be used in relevant situations to embarrass governments by negative public exposure; governments who care about their international image may consequently adapt their policies.

 

REFERENCE:

1.       Report of the U.N department of public information (2004).

2.       Article 1 of the convention on the rights of the person with disabilities adopted on December 13, 2006.

3.       H.O Agarwal, International law and human rights,17th edition, Central  law  agency 2010.

4.       GA Res 56/168. It should be noted that the Commission on Human Rights no longer exists, and has instead been replaced by the Human Rights Council as part of initiatives to reform and improve the effectiveness of UN human rights bodies.

5.       Secretary General Hails Adoption of Landmark Convention on Rights of People with Disabilities,” Official Statement of the UN Secretary General, SG/SM/10797, 13 December, 2006. http://www.un.org/News/Press/docs/2006/sgsm10797.doc.htm accessed on 28-7-12 at 6:20 pm.

6.       http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en.

7.       Optional Protocol to the Convention on the Rights of Persons with Disabilities, Article 1(1).

8.       Secretary General Hails Adoption of Landmark Convention on Rights of People with Disabilities,” Official Statement of the UN Secretary General, SG/SM/10797, 13 December, 2006.http://www.un.org/News/Press/docs/2006/sgsm10797.doc.htm. accessed on 28-7-12 at 8;10 pm.

9.       Article 1 of the U.N convention.

10.     In a recent statement, the Children’s Commissioner has expressed concerns about the impact of the Welfare Reform Bill on children, citing Article 4 of the UN Convention on the Rights of the Child, which imposes similar obligations.

11.     http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/257/257.pdf.accessed on29-7-12 at 3:30 pm

12.     Study on challenges and good practices in the implementation of the UN Convention on the Rights of Persons with Disabilities, European Foundation Centre, October 2010.

13.     ----

14.     Article 7

15.     "Landmark UN treaty on rights of persons with disabilities enters into force" Scoop. 2008-05-05.

16.     UN Treaty Collection: Parties to the Optional Protocol to the Convention on the Rights of Persons with Disabilities “United nations.

17.     Optional Protocol to the Convention on the Rights of Persons with Disabilities, Article 1.

18.     Optional Protocol to the Convention on the Rights of Persons with Disabilities, Articles 3 & 5

 

BIBLIOGRAPHY

1.      Agarwal H.O, International law and human rights, 17th edition, Central law agency 2010.

 

WEBSITES REFFERED

1.      http://www.un.org/News/Press/docs/2006/sgsm10797.doc.htm.

2.      http://www2.ohchr.org/english/law/disabilities-convention.htm

3.      www.un.org/disabilities/default.asp?id=150

4.      www.hrea.org.

5.      www.un.org/disabilities/default.asp?id=150

6.      www.ideanet.org/cir/uploads/File/Law_Library_of_Congress.