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International legal framework for disability

The Declaration of the Rights of the Disabled Persons (General Assembly Resolution 3447 (XXX)) of 9th Dec 1975 U.N High Commission for Human Rights states that:

"Disabled persons have the inherent right to respect for their human dignity. Disabled persons, whatever their origin, nature of seriousness of their disabilities have the same fundamental rights as their fellow citizens which implies first and foremost the right to enjoy a decent life as normal and full as possible.”

But in reality, persons with disability are often excluded from mainstream society due to physical and social barriers.

Till date there is no international convention dealing exclusively with the rights of disabled persons. However there are a number of international instruments which form the basis of the international bill of rights which affords extends to and affords protection to violation of the rights of the disabled.

International treaties that are binding

International instruments that are non-binding

Application of International Law

Role of domestic courts

International treaties that are binding

The core United Nations Human Rights Conventions that are binding on States that have ratified them are:

• International Covenant on Civil and Political Rights;
• International Covenant on Economic, Social and Cultural Rights;
• Convention on the Elimination of All Forms of Racial Discrimination
• Convention on the Elimination of all Forms of Discrimination against Women
• Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment
• Convention on the Rights of the Child;
• International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families

There are also some international and regional human rights conventions that protect the rights of persons with disabilities specifically, or have provisions concerning persons with disabilities. These include:

• ILO Convention concerning Vocational Rehabilitation and Employment (Disabled Persons)
• Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities
• Convention on the Rights of the Child (article 23)
• African Charter of Human and People’s Rights (article 18 (4));
• The African Charter on the Rights and Welfare of the Child (article 13);
• European Social Charter (article 15) and
• Protocol of San Salvador (Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights) (article 6 & 9)

While only the convention on the rights of the child specifically includes reference to the rights of the children with disabilities, there should be no doubt that all these conventions apply to people with disabilities as other members of the community. Any doubt about the application of these conventions to people with disabilities has been put to rest by the World Conference on Human Rights. Para 63 of the Geneva Declaration & Programme of Action states that:

“The World Conference on Human Rights affirms that all human rights & fundamental freedoms are universal and thus unreservedly include persons with disabilities. Every person is born equal and has the same right to life and welfare, education & work, living independently and active participation in all aspects of society. Any direct discrimination or other negative discriminatory treatment of a disabled person is a violation of his or her rights. The World Conference on Human Rights calls upon Governments, where necessary to adopt or adjust legislation to assure access to these & other rights for disabled persons”.

Besides international conventions, there are a number of declarations, guidelines and Acts emanating from the UN, which deal specifically with a range of issues relating to disability.

International human rights treaties are binding on State parties that have ratified the instruments. Some universal instruments, such as the Universal Declaration of Human Rights, and some specific provisions, such as the principle of non-discrimination, have become part of customary international law and are considered binding on all States, even those that have not ratified a human rights treaty that embodies norms of customary law.

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International instruments that are non-binding

International instruments, such as declarations, resolutions, principles, guidelines and rules, are not technically legally binding. They express generally accepted principles and represent a moral and political commitment by States. They also can be used as guidelines for States in enacting legislation and formulating policies concerning persons with disabilities.

General policy instruments, such as the outcome documents of world summits and conferences, are applicable to persons with disabilities. These instruments include, for example, the Copenhagen Declaration and Programme of Action adopted at the World Summit for Social Development (6-12 March 1995), and the Millennium Declaration and the Millennium Development Goals adopted at the United Nations Millennium Summit in September 2000.

Several disability-specific non-binding international instruments have been adopted at the international level. The instruments include:

• Declaration of the Rights of Mentally Retarded Persons
• Declaration on the Rights of Disabled Persons,
• World Programme of Action concerning Disabled Persons
• Tallinn Guidelines for Action on Human Resources Development in the Field of Disability
• Principles for the Protection of Persons with Mental illness and the Improvement of Mental Health Care
• Standard rules on the Equalization of Opportunities for Persons with Disabilities;
• ILO Recommendation concerning Vocational Rehabilitation of the Disabled
• ILO Recommendation concerning Vocational Rehabilitation and Employment (Disabled persons)
• Sundberg Declaration on Actions and Strategies for Education, Prevention and Integration adopted by the UNESCO World Conference on Actions and Strategies for Education, Prevention and Integration Malaga (Spain), 2-7 November, 1981
• Salamanca Statement and Framework for Action on Special Needs Education adopted by the UNESCO World Conference on Special Needs Education: Access and Quality.

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Application of International Law

States that are parties to an international convention are legally bound to implement the provisions contained in the convention within their country. International law leaves it to the countries to adopt legislative and other measures that are consistent with their constitutional processes to give effect to the convention and to ensure that any person whose rights are violated have access to effective remedies before independent courts. There are three main methods available to implement international legal instruments in domestic law: -

1. Direct incorporation of rights recognised in the international instrument into what may be termed a “bill of rights” or fundamental rights of citizens in a country.
2. Enactment of different legislative measures in the civil, criminal and administrative laws to give effect to the rights recognised in international legal instruments
3. Self-executing operation of international legal instruments in the national legal order.

In relation to economic, social and cultural rights, implementation will differ from one country to another, depending on their level of development. Yet, all countries require major programme efforts. The obligation of States Parties in the international human rights instruments to promote progressive realisation of the relevant rights to the maximum of their available resources clearly requires Governments to do much more than merely abstain from taking measures which might have a negative impact on persons with disability.

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Role of domestic courts

Direct application of international law by domestic courts also can play an important role in implementing international human rights norms applicable to persons with disabilities by means of compliance with relevant international standards and citing precedents in other jurisdictions.

Furthermore, judicial interventions can force the executive and the legislature to act with regard to drafting, enforcing and evaluating disability legislation. Judicial interventions in Public interest litigation in India have been particularly useful in this regard.

Dissemination of information is also an important tool. The greater the extent to which international norms on disability are widely known, the greater the possibility of domestic courts complying with these norms. This allows courts to play a major role in interpreting and developing international norms and standards, by applying international standards in domestic issues of disability.

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