The proliferation of human rights standards at the international level in the last sixty years has been a striking feature of the development of international human rights law. In addition to the development of substantive norms, many bodies and procedures have been established to promote the enforcement and implementation of those norms. While within the European Convention system there has been an enforcement procedure for fifty years (and for even longer within the International Labour Organization), the elaboration of international procedures to promote the implementation of human rights standards has come about in the last twenty five years.
Since disability specific instruments are in the form of ‘soft law’ – instruments such as declarations, guidelines, etc. -- there has been no disability-specific supervisory or enforcement mechanism developed within the United Nations human rights system or its specialised agencies. The adoption of a United Nations convention on the human rights of persons with disabilities seems likely in the near future, and this will very likely contain one or the other monitoring procedures. However, even under the existing international human rights system, there are opportunities to draw on the existing
Page 216
international procedures to support battles to ensure the human rights of persons with disabilities.
The purpose of this chapter is to provide an overview of international procedures which could be utilised by disability rights advocates to advance the human rights of persons with disabilities at the national level. The task of utilising international standards and procedures to advance disability rights in India is a challenging one for a number of reasons, in particular (a) the lack of disability-specific treaty norms by which India is bound (thus necessitating the use of general human rights norms and procedures); and (b) the limited number of international human rights supervisory procedures which India has accepted Nevertheless, the discussion below shows that there are a number of international procedures which India has accepted and which permit at least some scrutiny of the extent to which the human rights of persons with disabilities in India are enjoyed and which can be used by disability advocates in their struggles.
The chapter emphasises those procedures which are available (or might possibly become so) to those working in this area in India, but it also includes reference to other procedures of international and regional protection. Although these may not be directly used to address violations of human rights in India (though some may be in the future), the jurisprudence of these systems and its potential use in the context of Indian advocacy make it useful to refer to them.
The major focus of this chapter is the use of international procedures to advance human rights claims of particular importance to persons with disabilities. One of the most important ways of using international law to advance rights at the domestic law is, of course, the deployment of international standards in domestic litigation or other fora. However, as that topic is covered elsewhere in this manual, it is not addressed in this chapter. The chapter discusses the following:
Although this chapter focuses on a number of procedural and substantive aspects of international human rights practice, it does not do so out of any belief that international human rights law and procedures have a talismanic quality. Even the strongest supporters of the international human rights ‘system’ and its myriad procedures recognise the limitations of the system and, although there are many concrete cases in which it can be seen to have made a difference, it is frequently difficult to evaluate the importance of the role played by the deployment of international procedures. The assumption that the effort put in at the international level is a cost-effective use of time and resources is to some extent an article of faith among international human rights activists.
The most helpful way to approach the question of utilisation of international human rights mechanisms is to view them as one of a number of ways in which pressure can be exerted on governments or others in
Page 217
order to achieve the specific goal of promoting the enjoyment of human rights by persons with disabilities is concerned. In order to be most effective, resort to international procedures must form part of a broader political strategy. Recourse to international bodies and procedures may provide some additional leverage to a campaign at the national level. Indeed, in some circumstances the appeal to an international forum and the invocation of international standards may even be counter-productive if the political regime is not open to international procedures.
Using international human rights procedures involves the invocation not just of an international law discourse but of a rights discourse as well. Many of the concerns about appeals to rights which have been expressed in national contexts are applicable to the international level as well. In the international context one may pursue a much broader range of rights claims than is often possible under domestic legal systems, at least if one is trying to utilise a national judicial or quasi-judicial procedure. The whole gamut of economic, social and cultural rights as well as the traditional catalogue of civil and political rights may, depending on the forum, be invoked. That said, it is still the case that the strongest international enforcement procedures of a judicial or quasi-judicial nature are those which relate to the privileged civil and political rights catalogues.
While it is not necessarily the case that all the claims which persons with disabilities might wish to advance can be accommodated with the international ‘human rights framework’, this chapter proceeds on the basis that the rights framework and the internationalisation of a claim as a human rights claim may provide assistance in pursuing one's goals. This chapter advocates an essentially instrumentalist approach to the deployment of international human rights law and procedures. In some cases existing doctrine can be useful in achieving goals, in other cases there appear to be good prospects of moulding the doctrine in that direction. In other cases, the use of international procedures may not offer much assistance.
A decision on whether to have recourse to an international procedure is therefore most effectively made in the context of an overall strategy for addressing the particular human rights violation or issue with which an individual or group is concerned. In order to decide whether recourse to an international procedure should be incorporated as part of one’s strategy and the means of pursuing it, one will normally have to consider the following matters :
Before describing in detail the range of international human rights procedures that are available, it may be useful for the reader first to consider two hypothetical cases involving the human rights of persons with disabilities as a background to that discussion. The reader may wish initially to identify what rights violations might be involved, and what national strategies might be adopted to address them. Then, as the reader works through the following sections, he or she may wish to consider whether any of these issues might be raised under any of the international procedures described below, how that would be done, and the likelihood of a favourable outcome.
Page 219
Case No 1
Assume that there is a State election coming up in two months. A number of citizens who are blind object to the fact that the official election material and the material distributed by all candidates in elections is available only in printed format, and that there is no requirement that it be made available in accessible formats for those who have a visual impairment. In addition, nearly all the polling booths in the State capital are inaccessible to persons who use wheelchairs. Assume that attempts by the citizens affected to lobby the legislature to adopt legislation to remedy this have been unavailing, as have appeals to the Electoral Commission and the High Court.
Are there any violations of internationally guaranteed human rights involved here? If yes, are there any international procedures to which the aggrieved citizens might have recourse? How would that recourse relate to any available moves on the national or State level?
Case No 2
Rajeev is a 12-year old boy who has an intellectual impairment, and who also suffers form epilepsy. The local public school, with the concurrence of the district education authorities, has excluded him from classes because ‘he is disruptive and hard to teach – the school is simply not set up for students like Rajeev with special needs. He needs to attend a special school for children like him.’ The only schools available for students with special needs are schools in which the students do not receive a regular curriculum but are essentially babysat all day. Rajeev’s parents are determined to see that he receives a decent education. So far their efforts to lobby the local education authorities have been unsuccessful (they say that they have insufficient money to provide the individualised care that ‘children like Rajeev need’). The State High Court has rejected a petition on the grounds that it is not appropriate for it to second guess budgetary decisions by the executive authorities.
Are there any violations of internationally guaranteed human rights involved here? If yes, are there any international procedures to which the aggrieved citizens might have recourse? How would that recourse relate to any available moves on the national or State level?
Case No 3*
The State Girls’ Home is an institution where young women and girls with an intellectual disability are accommodated. Most have been placed in the institution by their parents because the parents have felt unable to cope with bringing them up at home. The State authorities have decided that each of the women at the institution should undergo a hysterectomy. The justification offered for this is that it would allow for ‘easy management of menstruation’, since even though they had tried their best, the Class IV employees (cleaners and sweepers) were unable to handle the mess that was created as a result of the women’s inability to deal with their periods. The operations will be carried out by an eminent surgeon who will be using a relatively new but perfectly safe technique. The parents of the women have been informed by letter, and no objection has been received from them.
Page 220
A local women’s group hears of the proposed operations and seeks unsuccessfully to dissuade the State health authorities from going ahead. The High Court refuses on procedural grounds to hear the case. The women’s group seeks your advice on the possibility of further avenues they may pursue.
Are there any violations of internationally guaranteed human rights involved here? If yes, are there any international procedures to which the aggrieved citizens might have recourse? How would that recourse relate to any available moves on the national or State level?
At the international and regional level there is a wide range of bodies and procedures which provide avenues for raising human rights grievances. The mandates, the composition of the bodies, the types of complaints which may be brought, the procedures which are followed, and the possible outcomes vary widely. These mechanisms have been described and discussed in many works and only a broad outline of the various types of procedures is attempted here.
In examining the range of international procedures for monitoring human rights one can conveniently distinguish between complaint and non-complaint procedures. Complaint procedures expressly permit or contemplate the submission of complaints of rights violations by individuals or groups of individuals to a body for consideration by that body. The nature of that consideration varies according to the nature of the procedure, in particular whether the procedure is a complaint-recourse or a complaint-information procedure. Examples of complaint-recourse procedures are the individual complaint procedures established under the First Optional Protocol to the ICCPR, and similar procedures under the European Convention on Human Rights, and the American Convention on Human Rights. Examples of complaint-information procedures include the Resolution 1503 procedure established by the UN Economic and Social Council and the communications procedure of the UN Commission on the Status of Women (‘communications’ is UN jargon for ‘complaints’).
Maxime Tardu has formulated the distinction between a complaint-recourse procedure and a complaint-information procedure in the following way:
Under complaint-recourse procedures, the competent international organ is legally bound to take a decision on each and every case brought before it, be it only on admissibility. The goal of the procedure is the redress of specific grievances. The plaintiff is entitled -- to various extents -- to participate in the proceedings. Such procedures are meant to approximate -- however loosely --
Page 221
the judicial model of domestic law. . . .
Complaint-information schemes seek not the redress of individual grievances, but the identification of human rights problems affecting whole populations -- e.g., Apartheid or Forced Disappearances -- in order to define remedial strategies. Under such procedures, petitions are received only as elements of information. Even if well-founded, the complaint may be discarded if it does not bring fresh data. Accepted petitions loose their individuality, merged into a mass of data. The author has none of the entitlements pertaining to ‘a party’, often not even the right to be informed of the fate of his communication.
The variety of international procedures available today defies any tidy categorisation and there are a number of complaint procedures which have both a recourse and information component. These hybrid procedures include the so-called ‘thematic mechanisms’ of the UN Commission on Human Rights, which include the Special Rapporteurs appointed by the Commission. These Special Rapporteurs are empowered not only to investigate the extent and nature of particular problems (ranging from summary or arbitrary executions to trafficking in children) to contribute to policy development in the area, but they may also raise individual cases of alleged rights violations with governments as part of their work. This capacity can be particularly valuable, since it is one of the few procedures under which an individual case may be raised with a government on an urgent action basis, something which can be of considerable importance in averting a threatened violation or stopping an existing one. The discussion below shows that these procedures, which can be invoked against any member State of the United Nations (including India), offer significant opportunities for raising individual cases and situations in which there are violations of the human rights of persons with disabilities, as well as contributing to the development of international law and policy on these issues.
Non-complaint procedures are procedures before bodies which do not have an explicit mandate to consider complaints about violations of human rights, but which may nonetheless receive such complaints as a matter of practice on a formal or informal basis. While not competent to investigate allegations in a (quasi-) judicial mode, they may nonetheless act on the information with which they have been provided. These procedures include the reporting procedures under the major UN human treaties, but also the work of the more politicised (though independent) bodies (such as the Sub-Commission on the Promotion of Human Rights) and even the overtly political bodies (such as the Commission on Human Rights), which may consider the human rights situations in individual countries.
(TREATY-BASED PROCEDURES)
Disability advocates in India are considerably restricted in the international procedures that they may draw on because of India’s refusal to accept the full range of the available international complaint procedures. Nevertheless, as a result of its ratification of many international human rights treaties and by virtue of
Page 222
its membership of the United Nations and other international organisations, India is subject to a number of international supervisory procedures under which claims of a failure by the State to observe international human rights standards can be raised. In comparison with many other countries (including some in South Asia), India has not (yet) submitted itself to any of the quasi-judicial or inquiry procedures under the UN human rights treaties which permit individuals or groups to bring to a UN human rights treaty body allegations of violations of human rights. Nevertheless, there are opportunities to raise these issues before United Nations human rights bodies, both so far as human rights violations in general and the rights of persons with disability are concerned.
Table 11.1 sets out the major UN human rights treaties with supervisory mechanisms and the status of Indian ratification of those instruments, and indicates whether India has accepted the different supervisory procedures under those treaties. In sum, India is a State party to the ICCPR, the ICESCR, the CRC, the CERD Convention and the CEDAW Convention.. It has signed but not ratified the Torture Convention. It has not ratified any of the Optional Protocols to these instruments, or accepted any of the individual complaints or inquiry procedures under those conventions it has ratified. Accordingly, individuals and groups wishing to raise issues of implementation of these conventions by the Indian government before the UN human rights treaty bodies are limited to using the reporting procedure under each treaty (though a number of the committees have also developed urgent action or similar procedures to respond to serious situations in countries). Accordingly, the section describing the individual complaint procedures provides a brief overview of the procedures, the greater emphasis being on the use of reporting procedures and other communications mechanisms which are not treaty-based.
Table 11.1 India and Monitoring Mechanisms under the Principal UN Human Rights Treaties Treaty Is India a Party to the Treaty? Reporting procedure? (Is India Bound?) Individual Communications Procedures (Is India bound?) Inquiry Procedure Accepted by India? International Covenant on Civil and Political Rights Yes Yes (India bound) First Optional Protocol (India has not accepted the procedure) No -- International Convention on the Elimination of All Forms of Racial Discrimination, article 8 Yes Yes (India bound) Article 8 (India has not accepted the procedure) No --Individual complaint procedures under the principal UN human rights treaties
This section briefly describes the types of individual complaint procedures available internationally, followed by mention of some of the problems involved in using them. Under a number of the UN human rights treaties and within the framework of the European Convention on Human Rights and the American Convention on Human Rights, provision is made for the receipt of individual complaints by the monitoring body concerned. The United Nations Educational, Scientific and Cultural Organisation (UNESCO) has also established an individual complaint procedure for dealing with allegations of violations of human rights within its areas of competence. Furthermore, the International Labour Organisation has a number of procedures under which complaints of violations of workers' rights or ILO conventions can be considered, although these complaints cannot be directly lodged by individuals, but must be lodged through a workers' (or employers') organization, or by a delegate to the International Labour Conference.
At the United Nations level, individual communications procedures are available under the ICCPR, the CERD Convention, the Convention against Torture, the CEDAW Convention, and the Migrant Workers Convention. Inquiry procedures are also available under the CEDAW Convention and the Convention against Torture. While there is no complaints procedure under either the ICESCR or the CRC, there has been ongoing discussion about the adoption of a complaints procedure for both of these. If the United Nations adopts a convention on the human rights of persons with disabilities, there is a good possibility that an individual communications procedure and an inquiry procedure will be included in the convention. However, India has accepted none of the existing procedures, so the following discussion is at present somewhat academic so far as using those procedures to redress violations in India is concerned.
There is no formal complaint mechanism under existing UN human rights mechanisms established to deal with disability-specific complaints. However, such complaints may be raised under other complaint procedures (when the State concerned has accepted them or is otherwise bound by them). For example, a complaint of discrimination on the ground of disability in the enjoyment of almost any human right may be brought under Article 26 of the ICCPR, provided that the State concerned is a party to the First Optional Protocol to the Covenant. Similarly, a complaint of unjustifiable involuntary medical treatment of a person with disability could be brought both under the ICCPR or under the individual complaints procedure contained in the Convention against Torture – provided once again that the State concerned has accepted those procedures. As noted above, at the time of writing, India has not yet accepted any of the individual complaints procedures under the UN human rights treaties,
Page 225
although other South Asia countries have accepted some of them. This fact in itself may be an aspect which Indian human rights groups may wish to take up in their advocacy.
Procedural Matters: Admissibility Criteria, the Hearing and the Decision
In order for a complaint to be considered on the merits under one of the international communications procedures, admissibility criteria must be satisfied. These criteria normally prescribe the time limits for the lodging of complaints, the persons who may submit a complaint, requirements that domestic remedies be exhausted, and in some cases restrictions on considering complaints already considered, or currently being considered, under some other international procedure. Of course, the substantive coverage of the individual instruments is of considerable importance; any complaint lodged under one of these procedures may only be considered on the merits if it alleges a violation of one of the rights guaranteed by the governing instrument.
The procedures vary in the way in which a complaint is processed. Before the UN treaty bodies the hearing is on the papers, with both the complainant and the State concerned given the opportunity to respond to each other's submissions. (Under the European Convention and American Convention there may be opportunities for oral hearings at different stages of the procedure.) The decision adopted by the body examining the complaint is made public.
Unlike the judgements of the European Court of Human Rights and the Inter-American Court of Human Rights (which are binding on the State which is party to a case), the views adopted by the UN treaty bodies are not formally binding as a matter of international law. Nevertheless, they are given considerable weight by States and it has been said of the Human Rights Committee that ‘[N]ormally, it may be expected that States ratifying the Protocol will show themselves inclined to follow the opinion of the Committee, even when it goes against them.’
Where decisions are rendered against a State under one of these procedures, many States, but by no means all, take steps to bring their domestic law and practice into conformity with the international law position as determined by the relevant supervisory body. There are, of course, always exceptions and in some cases the steps taken by a State party to rectify inconsistencies will not always adopt the most generous approach to remedying the defects identified by the international body, but overall the record of compliance is reasonably encouraging.
The opportunity to bring an individual complaint before a body which will consider it within the framework of a quasi-judicial model is one that can be valuable in some cases and that has a particular appeal from a legal perspective because of the possibility of a clear result. Despite a number of drawbacks (such as the length of time required to exhaust domestic remedies and for the international procedure itself to run), the judicious use of these procedures does offer possibilities both for bringing about remedies in individual cases, promoting systemic change, and developing an international jurisprudence that will help to advance the human rights of persons with disabilities.
Page 226
Under all the major UN human rights treaties a system of reporting by States parties is provided for. States parties are required to report on a regular basis to the responsible supervisory body on the steps which they have taken to implement their obligations and the difficulties they have experienced in doing so. These reports are then examined by the relevant treaty body in the presence of representatives of the State concerned. All the committees receive information informally from non-governmental organisations which they may use in their questioning of States. Following a discussion with the State party, the Committees adopt concluding observations or concluding comments in which they set out their summary of the progress made, the principal areas of concern, and specific recommendations to the State for more effective implementation of the treaty.
The functions of the UN treaty reporting procedures have been described in the following terms:
The reporting procedure may serve a number of objectives – it offers ‘an occasion for each State party to:
The reporting process should also ‘encourage and facilitate, at the national level, popular participation, public scrutiny of government policies and constructive engagement with civil society conducted in a spirit of cooperation and mutual respect, with the aim of advancing the enjoyment of all of the rights protected by the relevant convention.’ The reporting procedure provides a forum for ‘the Committee, and the States parties as a whole, to facilitate the exchange of information among States and to develop a better understanding of the common problems faced by States and a fuller appreciation of the type of measures which might be taken to promote effective realization of each of the rights contained in the [relevant treaty].
Page 227
Of course, there are many factors which influence the effectiveness of the system – including the willingness of States to submit reports – and the system has been under considerable strain for some time.
The treaty bodies have had a mixed record to date in addressing disability issues; while it seems unlikely that they will be able to devote the attention to the issue which a specialist committee would be able to, there are nevertheless many opportunities for disability issues to be brought before the treaty bodies. The discussion in the earlier chapters of this manual has indicated the way in which the guarantees in the various human rights treaties can be drawn on in relation to disability issues – it is important in dealing with each of the different treaty bodies to ensure that the information provided and the violations alleged are framed in terms of the particular treaty.
The examination of a State's report under a treaty can provide an occasion for exerting international pressure on the State. If members of a supervisory body are strongly critical of a State or express the view that the State has not carried out its obligations under the treaty, this can serve to put some pressure on a government, particularly if the proceedings receive international or national publicity. The consideration of a State’s report by the monitoring body generally depends on the submission of a report by that State. Many States have fallen well behind in fulfilling their reporting obligations (and some have even failed to submit any reports under individual treaties). It is also a matter of chance whether a State is scheduled to appear before a treaty body which will be considering the substantive issues that one may wish to raise before it. Add to this the fact that the meetings of these bodies are held in Geneva or New York and the cost of sending people to brief members may quickly become prohibitive.
However, Indian disability rights advocates are more fortunate in relation to the potential use of reporting procedures to highlight violations of the human rights of persons with disabilities and to put pressure on the government to bring about change, than they are in relation to using individual communications procedures. As a State party to five of the seven principal UN human rights treaties, India has accepted an obligation under each of those treaties to report on a regular basis to the committee of independent experts established by or under the treaty in question. A report to those committees by the Indian government can provide an important opportunity to generate public discussion at the national level over issues of concern to persons with disability which fall within the scope of rights covered by the particular report. However, India, like many other countries is also behind in the submission of its reports, so one necessary part of any campaign to use the reporting procedures would be encouraging the Indian government to submit those reports which are overdue, as well perhaps as exploring the possibility of persuading one or more treaty bodies to schedule India for hearing in the absence of a report where the report is well overdue. (At the same time, it may be possible to raise disability issues under the thematic procedures of the Commission on Human Rights, which are described below).
Page 228
Despite these difficulties, with a certain amount of preparedness, the proceedings before the treaty bodies can be used quite effectively. Information about reporting obligations and whether States have submitted or are overdue with their reports is now readily available on the Internet. Treaty bodies are very receptive to the receipt of material from non-governmental organisations – a number of the committees allow non-governmental organisations to address both pre-sessional working groups which draw up the list of questions for States to answer, and the plenary meetings of the committees. Informal discussions with committee members are also welcomed by many committee members, and these are facilitated in many cases by international NGOs which regularly and closely follow the proceedings of the committee.
The successful use of the reporting procedure involves a number of steps:
(NON- TREATY-BASED PROCEDURES)
In addition to the procedures described above under the UN human rights treaties, as well as within the ILO and UNESCO, there are a number of other procedures for the reception and consideration of complaints, not as part of a process leading to a resolution or adjudication of the individual complaints themselves but as a source of information on the human rights situation in individual countries or for policy development along thematic lines. These can nevertheless bring political pressure to bear on governments and may contribute to change in this way.
The Resolution 1503 procedure
Within the UN system the longest established of these is the Resolution 1503 procedure, the first major procedure for the consideration of individual complaints which took effect within the UN human rights framework; also of interest is the communications procedure of the Commission on the Status of Women.
The procedure for the receipt of communications laid down under ‘the Resolution 1503 procedure’ is intended to identify situations in which there appears to be a consistent pattern of gross and reliably attested violations of human rights so that appropriate action may be taken by the Commission on Human Rights. Originally adopted in 1970, the procedure was revised by the Economic and Social Council (ECOSOC) in 2000. The procedure has a number of stages: after receipt by the secretariat and culling of any clearly inadmissible communications, there is an initial examination of communications by the five-member Working Group on Communications of the Sub-Commission on the Promotion of Human Rights (meeting in closed session) to select those communications which appear to reveal a consistent pattern of gross violations. These are then referred to the Working Group on Situations of the Commission on Human Rights, which consists of five government members of the Commission. This Working Group, which also meets in closed session, may close the file, decide to keep the situation under review, or forward the matter to the Commission with recommendations for action. The Commission may decide to keep a situation under review, appoint an independent expert, decide to discontinue the matter, move the matter from the confidential 1503 procedure to the public procedure of the Commission, or make recommendations to the Economic and Social Council. The first formal public statement of which countries are under review will generally occur after the Commission has considered the situations before it, when the Chairperson announces at a public meeting the countries examined under the procedure and those no longer dealt with under the procedure.
Communications must satisfy admissibility criteria. These have been summarised in the following terms:
Page 230
A major drawback of the procedure is that those who submit communications play no formal role in the process after their communications have been submitted: they are not provided with details of the government’s replies to the allegations, nor are they informed of decisions taken by the two Working Groups. It will only be once a public statement on the matter is made that the complainants will formally learn of any progress in the matter.
While the 1503 procedure was an important step forward when it was adopted over twenty years ago, there has been much criticism of the way in which it has operated and of its limitations for providing timely and effective responses to gross violations of human rights. The development of the wide variety of alternative mechanisms for dealing with complaints since the adoption of the 1503 procedure now means that there may be more effective and more transparent alternative procedures that could be utilized, notwithstanding the streamlining of the procedure in the year 2000. So far as addressing issues of the human rights of persons with disabilities are concerned, it does not appear that the Resolution 1503 procedure has yet made a significant contribution.
The Communications Procedure of the Commission on the Status of Women
The UN Commission on the Status of Women also has the power to receive communications relating to the status of women, which would include communications relating to the status of women and girls with disabilities. This procedure is not as well-known as the procedures of the Commission on Human Rights and has been used less extensively. The communications are received as a source of information for the Commission on which it can draw in its own policy-making and its recommendations to the ECOSOC, and is not intended as a means for the redress of individual complaints or even as a
Page 231
monitoring mechanism for situations in which there are gross violations of women’s rights. The communications are considered by the five government members of the Working Group on Communications of the Commission, which reports to the Commission on the trends and patterns of discrimination against women revealed by the communications; the objective is to bring to the attention of the CSW ‘a consistent pattern of reliably attested injustice and discriminatory practices against women.’ The proceedings are confidential and the persons who submit the communications have no role in their consideration (and until recently, were not even informed of any recommendations the Commission might have made in response to the communications received). It has not made a major contribution to the policy-making work of the Commission and does not appear to have provided an avenue for redress of specific grievances. Nevertheless, it may be one forum in which policy issues relating to women with disabilities might be pursued, though the adoption of the Optional Protocol to the CEDAW Convention and the establishment by the Commission on Human Rights of the position of Special Rapporteur on violence against women – each of which is occupied by independent experts -- provide other options for addressing individual cases and situations. This is not to say, however, that more creative and effective use of the procedure would not be possible, though the report of the Commission in some years does not appear to go beyond a simple and repetitive listing of the most common categories of communication received, with nothing in terms of specific recommendations addressed to individual countries.
The Commission on Human Rights has developed two additional types of procedures: thematic procedures and country procedures. The thematic procedures – involving individual Special Rapporteurs or specialist Working Groups -- focus on particular types of violation (such as torture, violence against women, or freedom of expression), while the country-specific procedures take as their focus the situation in a particular country. It is the thematic procedures which are of greatest relevance here, as there is no country mechanism relating to India (or indeed to any other South Asian country). While there has not been a general concern across these procedures with issues of disability, there have been some cases raised under those procedures which involve disability issues, a number of the mechanisms have addressed the relevance of disability to their mandate, and there is potential under a number of the procedures to raise matters of concern to the disability community.
Working Group on Disappearances and Working Group on Arbitrary Detention
The Commission on Human Rights has established two thematic working groups comprising five independent members (one form each of the UN regions), which in effect have a complaint-recourse
Page 232
function. The Working Group on Enforced or Involuntary Disappearances was established in 1979 and was the first of the thematic mechanisms established by the Commission. The Working Group on Arbitrary Detention was established in 1991. While the mandate of neither of these procedures explicitly includes disability-specific violations, these avenues could be used for such cases if they involved disappearances or arbitrary detention (a concept which covers detention at all stages of the criminal process, including post-sentencing).
For example, the Working Group on Arbitrary Detention has taken up disability issues to some extent. The Working Group consists of five independent members and receives communications against any member State of the United Nations alleging that a person has been detained arbitrarily. The Working Group has an ‘urgent action’ procedure for contacting governments in cases in which it considers that continued detention may pose a threat to a person’s life or in other appropriate circumstances. It also seeks clarification of cases from governments, expresses its opinion in the light of any government response on whether the detention in a particular case is arbitrary or not, and calls on the government concerned to take appropriate action if it finds that the detention is arbitrary. The Working Group has also undertaken a number of country visits. In addition, the Working Group has adopted a number of ‘Deliberations’, statements ‘on matters of a general nature involving a position of principle in order to develop a consistent set of precedents and assist States, for purposes of prevention, to guard against the practice of arbitrary deprivation of liberty.’ These have included Deliberations on house arrest, deprivation of freedom for purposes of rehabilitation through labour, and other matters. ‘By means of these ‘deliberations’ it defines the criteria on the basis of which deprivation of freedom linked with such situations may become arbitrary.’
The Working Group’s mandate is not restricted to pre-trial detention, but also extends to reviewing detention following a conviction or other final order of a court. It applies not only to detention in the criminal context, but also to administrative detention, including the detention of immigrants and asylum-seekers.
The Working Group has set out its standards for determining whether a detention is arbitrary. In its view, deprivation of liberty is arbitrary if a case falls into one of the following three categories:
On its face, the scope of the Working Group’s mandate would potentially apply to deprivations of liberty of persons with disability in various contexts, for example, the forced institutionalisation of persons with disabilities.
The potential of the Working Group procedure and the Group’s interest in issues of disability is shown by a number of recent statements by the Working Group in relation to detention of persons on the ground of intellectual disability or mental illness. In its report to the 2005 Commission on Human Rights, the Working Group included its Deliberation No 7, which addresses a number of aspects of the situation of persons held in ‘psychiatric detention’. While the Deliberation appears to conflate the situation of persons with an intellectual impairment and persons who may be suffering from mental illness, and uses problematic terminology such as ‘persons of unsound mind’, the statement is an important recognition of the fact that detention of persons with an intellectual disability and persons suffering from mental illness cannot simply be detained because of their impairment or condition; such detention must satisfy the conditions laid down in the ICCPR. While much more needs to be done to ensure the interpretation and application of these standards in a manner which does not rest on stereotypical assumptions, the Working Group may be a useful forum for addressing some of the clearer cases of detention of persons with disabilities of this sort.
Thematic Special Rapporteurs
An important development in the Commission on Human Rights over the last fifteen years has been the development of the mechanism of the thematic Special Rapporteur. As of 2004 the Commission had appointed fourteen special rapporteurs with mandates including summary and arbitrary executions, torture, religious intolerance and the sale of children, and violence against women.
The functions of the Special Rapporteurs have been described in the following terms:
133. The functions of the individual Rapporteurs vary according to the different mandates granted to them by the Commission. They include the collection of information about the observance or
Page 234
violation of specific rights, the receipt and forwarding to Governments of communications received from individuals or organizations alleging violation of the rights which fall within the relevant mandate (in some cases as a matter of urgent action), reporting on the extent and practice of the violations of the relevant rights, formulating policy recommendations and, in some cases, visiting individual countries at the invitation of those countries.
134. The report of each Rapporteur to the Commission on Human Rights is a public document that contains summaries of communications and of replies from Governments, as well as more general material. The Rapporteurs do not adjudicate on the accuracy of the allegations contained in material which they receive from individuals and organizations or from Governments in reply.
A number of the rapporteurs could provide a useful avenue for claims of violations of human rights of persons with disabilities to be made. Relatively little use of these procedures has been made to advance disability rights issues. However, in a series of resolutions adopted since 1998, the Commission on Human Rights has invited all its Special Rapporteurs ‘in carrying out their mandates, to take into account the situation and human rights of persons with disabilities.’ This should provide encouragement to Rapporteurs and to advocates to take up disability issues which fall within the mandate.
Many of the thematic procedures permit allegations of individual violations to be raised with governments by the Special Rapporteur concerned (country visits with the agreement of the country concerned are also possible). In general, the procedures deal with allegations of violations in two ways: (a) through urgent action letters or urgent appeals in cases in which irreparable harm might result if action is not taken immediately; and (b) allegation letters, by which the allegations are drawn to the attention of the government and a response is requested from it.
There are a number of important aspects of the special thematic procedures that distinguish them from the treaty-based procedures discussed earlier. Under the thematic procedures allegations can be raised against any member State of the United Nations – it is not necessary as with a treaty-based procedure for a State to have ‘accepted’ the competence of the mandate to subject its actions to scrutiny. The thematic rapporteurs exercise the power to issue ‘urgent appeals’ to governments, which are not in anyway dependent on the likelihood satisfaction of admissibility criteria that might limit the power of treaty bodies to request interim measures. Thirdly, recourse to the thematic procedures does not require the exhaustion of domestic remedies (though the failure to exhaust available and potentially effective remedies may mean that the rapporteur is unable to pursue the case very far).
While the processing of allegations forms a larger part of the work of some mandates than others, the following are the procedures under which allegations can be sent to thematic rapporteurs for forwarding to governments in appropriate cases. The allegations must obviously relate to the subject matter of the mandate, but if that is so, then violations of the rights of persons with disabilities in those areas would fall within those procedures.
Page 235
Some Special Rapporteurs have taken up cases of persons with disabilities whose rights are alleged to have been violated, and some have also referred to or addressed disability issues as relevant to the development of their mandate.
For example, in addition to his exploration of the conceptual dimensions of the right to health, the Special Rapporteur on the Right to Health has forwarded details of allegations of violations of the right to health (including of persons with disabilities) to the governments concerned, sometimes in conjunction with
Page 236
other special rapporteurs. One example is the Special Rapporteur’s communication to the Government of Romania in 2004 in relation to the treatment to patients in a psychiatric hospital in which dozens of persons were alleged to have died as a result of malnutrition and hypothermia. The Government of Romania responded with the details of the steps it had taken or proposed to take; the Special Rapporteur visited the hospital on a mission to Romania and recommended continued monitoring of developments.
But overall, there is relatively little detailed reference to disability issues in many Special Rapporteurs’ reports. As they respond to information provided by non-governmental organisations, the challenge is clear – it is to bring more information about cases of alleged violations of disability rights to their attention so that they can take these cases up with the governments concerned.
In addition to the procedures which are either formally designated as complaint procedures or under which allegations of human rights violations may be taken to treaty bodies as part of their review of country reports, there are a number of other procedures available. They might be described as the ‘thematic’ and expert bodies, on the one hand and the political bodies on the other.
Within the UN system there are various bodies which are examining particular themes and which, although they may not have a specific mandate to consider complaints of human rights violations, may nonetheless receive these as part of their information-gathering. For example, the Working Group on Contemporary Forms of Slavery, a working group of the Sub-commission on Prevention of Discrimination and Protection of Minorities, is a body which considers among other issues trafficking in women and children. (Since there is no monitoring or enforcement mechanism provided for under a number of the major conventions dealing with prostitution and trafficking in women, this body has assumed something of that task.) In so doing it receives information and complaints from NGOs. Considerable use has been made of this forum in recent years by NGOs working in the field. Although taking a matter to this body essentially provides a forum for publicity, States referred to in NGO submissions frequently attend and respond to allegations of rights violations. The Working Group on Traditional Practices of the Sub-Commission played a similar role in investigating the existence and extent of various traditional practices affecting the health of women and children (which included female circumcision, son preference and similar practices). This work was
Page 237
continued in the form of the Special Rapporteur on Traditional Practices of the Sub-commission.
The Sub-Commission on Prevention of Discrimination and Protection of Minorities also provides a forum in which country-specific allegations of rights violations may be raised in public debate.
The ‘political’ organs of the UN, for example, also provide a forum for airing human rights grievances in public sessions. These may provide an opportunity to place the spotlight on abuses in an individual country and publicity is the major benefit to be gained from using such fora. In fairly egregious cases of rights violations it may be that such a body would be prepared to place additional pressure on a State by adopting a resolution ranging from expressions of concern to expressions of condemnation and even the establishment of a special mechanism to investigate the position in a country.
The main forum of this sort within the United Nations is the Commission on Human Rights, which meets annually early in the year. On its agenda is a wide range of issues and it considers allegations of human rights violations in individual countries and thematic issues.
The Commission on the Status of Women is also a forum that may be used. Of the same formal status as the Commission on Human Rights, the CSW meets once a year for a relatively brief period of two weeks. Interestingly, the CSW has not followed the path of the Commission on Human Rights in debating alleged violations of human rights in particular countries (although as mentioned above, it does consider these by way of its rather ineffectual confidential communications procedure). As Laura Reanda comments:
. . . there has been no concerted attempt to expand the role of the Commission [on the Status of Women] into a monitoring mechanism with powers of investigation, such as is the case with the Commission on Human Rights.. . .
Clearly, the problem of implementation of women's rights was posed differently from that of human rights. Policies were directed not at attempting to detect violations and ensure respect for basic rights, but rather at assisting governments in identifying needs and encouraging them to adopt enlightened social policies which would promote the 'advancement' of women.
The difficulties with using such procedures can be easily understood. The politicised nature of such bodies can make the merits of a complaint seem almost irrelevant and whether action of any sort is taken depends largely on success in building coalitions between various countries and regional groups. This requires presence at such meetings and familiarity with the procedures involved. Nonetheless, the use of a political forum may be one way of bringing a matter quickly to the international level.
Page 238
In 1978 UNESCO adopted a procedure for the consideration of individual communications submitted to it alleging violations by a member of UNESCO of human rights within UNESCO’s spheres of competence. India has been a member of UNESCO since 1946, so is subject to the procedure.
The procedure allows individual communications to be submitted by victims of alleged violations or by persons with reliable knowledge of the violations in relation to the following rights:
In addition, the following rights are also relevant:
Unlike the individual communications procedures under the UN human rights treaties or the regional conventions, UNESCO procedure is not intended to be a (quasi-)judicial procedure resulting in a finding of violation (or no violation) against the State concerned.
The aim of the procedure is
not to condemn the governments concerned, nor a fortiori to sanction them, but to improve the situation of the alleged victim. . .. [i]n exercising its mandate, the Committee [on Conventions and Recommendations] endeavoured, for humanitarian reasons, to establish a dialogue with the governments concerned in order to consider with them what might be done to promote human rights falling within the competence of UNESCO by seeking an amicable solution to cases brought to its attention.
A communication must satisfy a range of admissibility criteria for it to be considered by the Committee on Conventions and Recommendations. The procedure is a confidential one, and the complainant is informed of the outcome of the deliberations by the Committee (though is not given the opportunity to respond to information submitted by a government in response to a communication).
Assessment of the effectiveness of the procedure in bringing about positive outcomes for those who suffer violations of the rights concerned have varied – the relatively unknown status of the procedure, the fact that it is a committee made up of governments which considers the communications, the fact that the procedure is conducted confidentially and few details are available in the public domain of the specific outcome of cases (though overall statistics are made available by UNESCO), make its impact difficult to assess, and limit the impact that its outcome might have on the development of jurisprudence in this area.
Nevertheless, it may provide some opportunities for disability rights activists to raise issues when it has not been possible to make progress at the national level. Discrimination in the enjoyment of the rights to education (particularly of children, but not limited to them) would appear to be an obvious area, as might issues of accessibility (since this fundamentally affects the ability of persons to move about the community and to participate in cultural life).
Page 240
India has been a member of the International Labour Organisation (ILO) since the 1940s. As a member of the ILO India accepts certain fundamental principles relating to the rights of workers, in particular freedom of association and the right to bargain collectively. In addition, India has ratified over forty international labour conventions.
By virtue of its membership of the ILO, India is subject to a number of supervisory procedures, established in the Constitution of the Organisation or by its governing institutions. The first of these is the procedure relating to freedom of association under which an organisation of workers or employers may submit a complaint to the Committee on Freedom of Association to the Governing Body of the ILO. This committee, comprising independent experts, considers cases and adopts conclusion and recommendations on them.
In addition, India is subject to a number of other procedures in relation to the international labour conventions which it has ratified. A member State which has ratified a convention must report regularly to the ILO on the steps it has taken to implement the convention; these reports are reviewed by the Committee of Experts on the Application of Conventions and Recommendations (and in some cases may be reviewed by Conference Committee on the Application of Standards). Overall, the reporting procedure of the ILO and the follow-up and technical assistance provided by the organisation have meant that the implementation of most of the ILO conventions is considered very effective.
In addition to these regular supervisory procedures, there are a number of other procedures provided for the in the ILO Constitution which allow claims of a failure to give effect to a convention to be considered. Under Article 24 of the ILO Constitution any national or international workers' or employers' organisation may make a ‘representation’ claiming that a given member State has failed to apply an ILO Convention it has ratified The Governing Body considers whether an application is receivable and, if so, appoints a tripartite committee of three to consider the representation. The Governing Body considers the report of the Tripartite Committee, and may publish a report or initiate an Article 26 procedure.
Under Article 26 of the ILO Constitution an ILO member State which is party to a convention or any delegate of the International Labour Conference may lodge a complaint asserting that another member State which is also party to that convention is not securing the effective application of a convention. The Governing Body decides whether to appoint a Commission of Inquiry, which reports its findings to the Governing Body. The Committee of Experts may follow up any recommendations, while the State concerned may refer the matter to the International Court of Justice.
Quite apart form the fact that these complaint procedures are utilised relatively infrequently, in the case of India, the potential for raising issues of the human rights of persons with disabilities within the ILO framework is somewhat limited. India has not ratified the 1989 ILO Convention No.159 (Vocational
Page 241
Rehabilitation and Employment (Disabled Persons) Convention), and is accordingly, not obliged to report under that convention and thus it is not subject to the complaint procedures under the Constitution for any alleged failure to implement the convention.
While India has ratified ILO Convention No. 111 (Discrimination in Occupation and Employment), the definition of discrimination in that convention does not expressly cover discrimination on the ground of disability. It is open to States parties to the Convention to expand the range of grounds of impermissible discrimination at the national level. However, it is not clear whether the enactment of the Persons with Disabilities Act would have the effect of expanding the scope of India’s obligations under ILO Convention No. 111 to include taking the steps mentioned in Articles 2 and 3 of the Convention in relation to discrimination in employment and occupation on the ground of disability. If it had done so, then it would appear that India would be obliged to report on that subject in its reports under the Convention and would be potentially subject to complaints or representations under Article 24 or 26 of the ILO Constitution in relation to a failure to carry out its obligations under the Convention in respect of disability discrimination in employment.
Page 242
Case No 1
In this case the rights of the citizens to participate in public and political affairs (including the right to vote) under Article 25 of the ICCPR would be implicated.
There are a limited number of international procedures open to the persons affected in this case. If India were reporting to the ICCPR, then the matter could be brought before the Committee, but it is unlikely to bring about an urgent response (though it may contribute to a solution in the longer term). India is not a party to the First Optional Protocol to the ICCPR, so it is not possible to lodge an individual complaint. One might perhaps be able to argue that the citizens’ freedom of opinion and expression are implicated and invoke the assistance of the Special Rapporteur on Freedom of Expression, or conceivably lodge a communication under the UNESCO communications procedure. What other strategies might you employ?
Case No 2
There are a number of rights implicated here, above all Rajeev’s right to education and right not to be subjected to discrimination on the ground of his disability. These could be raised with the Committee on Economic, Social and Cultural Rights under the ICESCR, the Human Rights Committee under Article 26 of the ICCPR, and with the Committee on the Rights of the Child under the Convention on the Rights of the Child. This would, however, only be possible under the reporting procedure (since there is no available individual complaints procedure), which may not be timely. Other options would be the Special Rapporteur on Education, and the UNESCO communications procedure.
Are there other approaches you might adopt?
Case No 3
There is a variety of rights implicated here ranging from the right to integrity of the person, the right not to be subjected to torture or cruel, inhuman or degrading treatment, right ot privacy, right to health, and right not to be discriminated against on the basis of gender and disability. While these issues could be raised in one form or another under the reporting procedures of the ICCPR, ICESCR, CEDAW and CRC (and should be in order to ensure longer-term policy reform), more immediate action is required in the case. Available options would include a number of Special Rapporteurs of the Commission on Human Rights: torture, violence against women, and health are the most obviously ones. The women’s group might also wish to invoke the aid of an international NGO such as Amnesty International which works in the field of human rights.
Page 243