The Outlines of Human Rights with Regards to Disability

The Outlines of Human Rights with Regards to Disability

Juhani Parkkari

This paper is an extract from a Social Commission publication "A Discussion on the Views on Human Rights of People with Disabilities" (out of print)

1. Introduction
2. Human rights in international law
2.1 The human rights regime
2.2 International human rights treaties
2.3 Regional human rights regimes
2.4 Other international human Rights instruments
2.5 The importance of international human Rights instruments
3. International human Rights instruments concerning people with disabilities and elderly people
4. Implementation of human rights
5. Strengthening of the civil society

1. Introduction
In line with the mainstream modern philosophy it is often thought that great projects have done their job and that the time of great narratives is over. In social debate, the focus is on erosion of the welfare state. In recent philosophical debates moral and ethical issues have risen to the fore. This trend easily permits discussion of human rights. It also gives us a chance to offer stimuli to the people with disabilities and elderly as individuals who might be willing to seize the opportunity and participate more than is currently the case. Society is composed of people of different ages who irrespective of age and according to their resources should be able to participate in the regular life of society.

2. Human rights in international law
2.1 The human rights regime
Traditionally in international law only sovereign states are recognized as its subjects. However, nowadays "the death of sovereignty" is a common proverb in current discourse dealing with international law. As new subjects are more and more recognized especially universal but also regional inter-governmental organizations. Nowadays also individuals and non-governmental organizations have been recognized more important status than before. The most important reason has been the human right discussion. On the basis of this discussion more commonly has been taken into consideration that sovereign states are not actually able to assume sole responsibility for their citizens every need.

Human rights are rights which are of particular or fundamental importance to human beings. Human rights belong to everybody. They are general and un-transferable. Human rights are firmly rooted in moral philosophy. They cannot be defined merely in, formal, legal terms. It was not until the existence of the United Nations (the UN) that it has become possible to implement a more comprehensive concept of human rights. This means that from the protection of certain groups of people a further step has been taken to focus measures on all people and to address abuse of any kind.

Three categories of human rights may be discerned:

civil and political rights,
economic, social and cultural rights, and
so-called collective rights, also referred to as a third generation of human rights.

The division of human rights especially into civil and political rights on one hand and into economic, social and cultural rights on the other was largely based on political expediency. Factually, this division is artificially. In Western countries, collective rights were not first included in human rights although the objectives inherent in them were recognized. On the contrary, in many Asian and African countries the emphasis of human rights discussion was especially in these collective human rights mainly for cultural reasons. Nowadays all human rights enjoy an established status in the human rights regime. Other factors that have influenced the concepts of human rights are cultural and religious views.

2.2 International human rights treaties
During the UN era the meaning of treaties as a source of international law has become more pronounced. Treaties create new international law and amend the existing law. The most important human rights treaties achieved within the UN system are the International Covenant on Civil and Political Rights (the ICCCPR) and the International Covenant on Economic, Social and Cultural Rights (the ICESC), which are adopted in 1966. Since, the network of UN human rights treaties has expanded. Especially the Convention on the Rights of the Child 1989 is a good example of a new strategy: besides protection also rights to full participation was granted. The work on International Labour Organization is very important in the field of economic and social rights. Nowadays there are nearly 200 ILO treaties and even more ILO recommendations.

2.3 Regional human rights regimes
In addition to global co-operation, rules on human rights have been developed in regional framework. So far the greatest advances have been made in Europe. The task has also been taken up on the American and African continents. In spite of a lively discussion on human rights and their position in Asian culture, any regional human rights treaty regimes have not yet been established in the Asian continent.

In the American Continent American Convention on Human Rights was made in 1969. Its amendment by Additional Protocol in the Area of Economic, Social and Cultural rights in 1988 has not yet entered into force, however. Article 17 of the Additional Protocol concerning with the protection of the elderly and article 18 the protection of people with disabilities.

In the African continent the African Charter on Human and People's Rights has been made in 1981 and it entered into force 1986. Article 18 para 4 states that the aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs.

In 1950 the Council of Europe adopted the European Convention on Human Rights, which has later been amended with 11 additional protocols. By the 11th Additional Protocol the procedure in the European Court of Human Rights has been made more effective than before. The content of the European Convention on Human Rights resembles that of the ICCPR and, to a large extent, the rights guaranteed are civil liberties similar to those in the ICCPR. Economic, social and cultural rights were addressed in the European Social Charter, adopted in 1961, and in its Additional Protocol of 1988. The European Social Charter is amended by the Second Additional Protocol, which is giving to certain organizations right to apply against the states parties. A Revised European Social Charter was opened for signature on 3 May 1996; it is replacing the earlier Charter and the Additional Protocol. The Revised Charter introduces new provisions against discrimination and more effective provisions to guarantee the rights of the disabled people, in particular.

Human rights are not included in the founding treaties of the European Union. However, the European Court has considered since 1969 that human rights are included as principles in the European law. In 1977 the European Parliament, the Council and the Commission gave a joint Declaration of fundamental rights. Nowadays in article 6 of the Consolidated version of the Treaty on European Union (the Maastricht Treaty) as it is amended by the Amsterdam Treaty is made a reference to the European Convention on Human Rights and the Constitution of all member states concerning fundamental rights and human rights.

2.4 Other international human rights instruments
In the past few decades the sources of international law have expanded. In particular, decision-making processes of international inter-governmental organizations and inter-governmental conferences - especially international conferences on a number of topics organized by the UN - have produced a whole range of documents without legally binding obligations.

Several documents may have influenced or may in future influence the development of international law and thereby the formulation of binding customary norms of international law. It should be noted however that most of them contain only recommendations by the organizations to their member states. The Universal Declaration of Human Rights originally was formally "no more" than a recommendation aimed at the states. Nowadays it is recognized as an expression of binding international customary law, even an authentic interpretation of the UN Charter. This development is called a soft law process.

Although non-governmental organizations are increasingly being given greater possibilities to participate in conferences that used to be open only to government representatives, the meaning of resolutions from these organizations is still limited to political and moral effects.

2.5 The importance of international human Rights instruments
The Principle of equal rights means that the needs of all individuals have equal importance, that these needs must be taken as the foundation of planning in society and that all resources must be used to ensure that each individual has the same opportunities to participate as everyone else.

Discrimination is defined as placing an individual in a position inferior to that of other people on grounds that he or she belongs to a particular group of people or because of characteristics that he or she has. Through the ages, the most common ground for discrimination has been gender, religion, beliefs, racial origin or belonging to a minority.

Discrimination is a wider concept than equality before the law. The mere fact of being placed in a different position does not necessarily constitute discrimination: it may be justified to support some groups of people by positive measures because they are in a weaker position in the first place. The right not to be discriminated against is one of the most important human rights.

As independent rights, the right to equality and the right not to be discriminated against are contained in article 26 of the ICCPR. Article 14 of the European Human Rights Convention also contains the right to freedom from discrimination. American Convention on Human Rights and African Charter of Human and People's Rights have also corresponding treaty provisions. Other international instruments incorporating that right are the ICESC (article 2) and the European Social Charter (introduction); the latter also contains a number of separate provisions on equality.

The human rights instruments do not exclude old people or people with disabilities; in fact, several treaties specifically prohibit discrimination on the grounds of age and disability. Article 13 of the Consolidated version of the EC Treaty (the Treaty of Rome) as the Amsterdam Treaty amends it prohibits discrimination also on the grounds of disability and age. However, it is safe to assume that the drafting did not sufficiently address the position of these two vulnerable groups in all instances. The main principle is that persons with disabilities and the aged must have an equal right to exercise all civil, political, economic, social and cultural rights without discrimination of any kind. This is based to article 55 and 56 of the UN Charter and to article 25 of the International Declaration of Human Rights.

3. International Human Rights instruments concerning people with disabilities and elderly people
The position of people with disabilities has been the subject of attention at a host of conferences in the universal level in the UN and its specialized agencies as well as in other international organizations.

In regional level in the CSCE process the first time that issues relating to people with disabilities were discussed was the Moscow meeting in 1991. However, the opinion within the movement for the rights of the people with disabilities is that the development of the position of people with disabilities benefited little from the Moscow Document.

The major achievement of the International Year of the Disabled in 1981 was the adoption of World Programme of Action 1983-1992 concerning Disabled Persons in 1982 by the UN General Assembly decision 37/52. Both the International Year and the Programme stressed the right of persons with disabilities to equal opportunities with other citizens and to a fair share of improved living conditions resulting from economic and social development. For the first time handicap was defined as a function of the relationship between disabled persons and their environment.

The implementation of the World Programme of Action produced greater awareness and more information on disability, stressed the role of the persons with disabilities and appropriate organizations, and helped to improve and expand legislation concerning persons with disabilities. However, further measures are needed to ensure equality for citizens with disabilities and their full participation as well as to prevent disabling circumstances and to provide rehabilitation.

In 1987 the first worldwide meeting of experts was held in Stockholm to review the implementation of the World Programme of Action. The meeting proposed the formulation of a philosophy to elucidate the priorities for the coming years. This philosophy should be based on the recognition of the rights of persons with disabilities. The meeting also recommended the drafting of a convention on the elimination of all forms of discrimination against persons with disabilities. The UN General Assembly did not reach consensus on the need for such a convention, because a number of state representatives held that the existing instruments guaranteed persons with disabilities equal rights. At the 47th Session of the UN General Assembly special sessions were devoted to issues relating to disability.

Instead of a convention, the UN decided that a different international instrument be drawn up. The UN Economic and Social Council authorized the Commission for Social Development to produce Standard Rules on the Equalization of Opportunities for Persons with Disabilities. These Standard Rules were adopted and proclaimed be the UN General assembly resolution 48/96 in 1993. The Standard Rules were elaborated on the basis of the experience gained during the UN Decade of Disabled Persons 1983-1992. The moral and political foundation of the Standard Rules lies not only in the World Programme of action but also in international human rights instruments, especially in the Universal Declaration of Human Rights, the ICCPR, the ICESC, the Convention on the Rights of Child and the Convention of All Forms of Discrimination against Women. The Standard Rules embody disability aspects as interpreted in the human rights treaties and other international instruments. Although expressed in a resolution adopted by the UN General Assembly, the Standards Rules are not binding norms of international law as such. In future, they may become customary laws, because they reiterate a large number of provisions already existing in several human rights treaties. They are a typical example of soft law. The Standard Rules effectively mean that states have assumed a strong commitment to equalize the opportunities for persons with disabilities. The Standard Rules may even be seen preferable to a convention, in the sense that they apply to all 185 of the UN member states, whereas a convention would only apply to its parties. Another advantage is that, in addressing the entire spectrum of policy-making by states, they provide a more dynamic instrument to influence thinking relating to persons with disabilities. The Standard Rules require states to ensure that disability aspects are included in all relevant policy-making and national planning.

In Vienna in 1982 a UN special conference on old age was held, which adopted the first worldwide Program of Action on old age. This Program was adopted and proclaimed be the UN General Assembly resolution 37/5 in 1982. UN reports on the implementation of the Program were published in 1985, 1989, 1993 and 1997. The Next report is due for publication in 2001. The UN has proclaimed the year 1999 as the International Year of old people.

The UN General Assembly adopted and proclaimed resolution 46/91 in 1991 in which is included Declaration of principles concerning old people. These principles are independency, participation, care, self-realization and dignity. In the UN General Assembly Session 1992 four special sessions were devoted to issues relating to old people. In this UN General Assembly a new Program of Action 1993-2001 was adopted by a UN General Assembly resolution 47/5. The status of old people has been on the agendas of many international conferences.

Rehabilitation International Assembly in London in September 1999 approved a "Charter for the Third Millennium" which includes as a key point:

This Charter calls on Member States to support the early promulgation of a United Nations Convention on the Rights of People with Disabilities, as a key strategy to achieve these goals.

The reason for this call is that the supposed inclusiveness of the general human rights instruments in reality has not worked for people with disabilities in many parts of the world, and the multiplicity of lesser calls for people to be given their rights, which have come from the host conferences, do not have the power or simple overarching significance that a UN Convention would have.

4. Implementation of human rights
International law is establishing to states obligations, which they have to fulfill. To these may also in the field of human rights include obligations that are dealing with the intervening to the internal matters of states. In the field of human rights article 2 para 7 of the UN Charter cannot be interpreted so that it prevents intervening in matters which are essentially within the domestic jurisdiction of states. On the contrary human rights violations are concerning all states.

In principle a state has right to withdraw from its treaty obligations according to that treaty itself or according to the Vienna Convention on the Law of Treaties. However, states cannot withdraw from treaty obligations that consists of peremptory norms of general international law (jus cogens). Most human rights obligations that are customary international law are also peremptory norms of international law.

From the international law point of view it is immaterial how states are introducing their treaty obligations in their domestic legislation. It is essential that states fulfill their treaty obligations as soon as they have eg. ratified treaties. State responsibility according to international law is entering in force if a state violates its obligations. No state cannot validly withdraw from their international obligations on the basis of domestic legislation.

States have incorporated international law to their domestic legislations by two different systems: either adopting the monistic system or the dualistic system. In a monistic system international law and domestic legislation are parts of same legal system and treaties are in force and applicable directly in domestic law. In a dualistic system international law and domestic legislation are different, separate legal systems and therefore international law must be transformed to be a part of domestic legislation and only after these legal operations treaties are in force and applicable in domestic law.

There are available the following human rights implementation systems:

reporting systems,
inter-state complaints,
individual communication systems and
human rights ombudsmen.

In every human rights case must be followed the local remedies rule so that the local legal remedies must be exhausted before filing cases to international bodies. Sometimes it is possible to complain only to one international body, because they are excluding each others. Bodies concerning political and civil rights have interpreted in some treaty provisions so that they have some importance also in the field of social rights. Unfortunately the main rule still is that the social rights usually are not so comprehensively protected than political and civil rights are.

Reporting systems are the simplest remedy for implementing human rights obligations. States parties to human rights treaties have adopted obligations to give reports to international bodies established by the same treaties. Publicity is the most essential thing in reporting systems, because states have to explain their human rights policies in international public forums. Nowadays reporting systems have been developed so that also individuals are given possibility to be heard by the bodies. In these cases also non-governmental organizations have been given possibilities to give their opinion on cases dealt in state reports. It is very recommendable to the organizations of the disabled people or of the old people to participate to the hearings in reporting systems both in domestic and in international bodies.

A special implementation system is established in chapter IV of the Standard Rules. The purpose of the system is to help every state in order to evaluate the implementation of the Standard Rules. A special raporteur is elected for a period of three years by the UN commission on social progress. The special raporteur is asking information from states, UN bodies and non-governmental organizations of the disabled people. These international non-governmental organizations of the disabled people have to establish among themselves a panel of specialists from whom the special raportour may ask for an advice. The UN commission on social progress is giving needed recommendations to the UN Economic and Social Council.

5. Strengthening of the civil society
The importance of an active and effective civil society has been recently recognized widely both in international and national level. This has been made possible by granting individual persons more possibilities to participate in the work of both international organizations that previously were only for state representatives and domestic bodies also. Therefore in practice well working civil society with a network of active individuals in their non-governmental organizations would be more effective system than only developing new international implementation bodies. In these situations also people with disabilities and old people can influence already beforehand positively in their cases without so much need to turn to retroactive implementation that very often is effecting too late.

Domestic law can be amended towards a direction that is encouraging independent participation also by interpreting national legislation from the human rights point of view. However new legislation is often needed. Therefore everybody should more actively than nowadays take the human rights of people with disabilities and of old people into consideration when applying existing domestic law or when amending law. More information of human rights is needed to individuals and non-governmental organizations. Also other resources should be granted to them in order to keep civil society effective.

The purpose of the Standard Rules and other instruments is to give people with disabilities and old people and their organizations possibilities to full participation and equality as members of their society with equal rights and duties with other members of society. These instruments also give them possibilities to take part to decision making in all fields of society that are involving their status. In many of the societies of the world there are obstacles that make people with disabilities and old people impossible to participate actively in the activities of the society. The UN member states have obligation to eliminate these kinds of obstacles. The organizations of the people with disabilities and old people should take part to these procedures. The equalization of the opportunities of the people with disabilities and old people is a vital factor in general and universal efforts in order to make active human resources. It is very important that people with disabilities and old people are not left outside from the benefits of the information society. Especially for the old people should be given possibility to transfer their experiences in life and society for younger generations.