Disability as prohibited grounds of discrimination

in other human rights treaties

The Universal Declaration of Human Rights, the International Covenant on Eco-nomic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, all protect individuals from discrimina-tion. Discrimination on the basis of disability is covered in their articles 2 under “other status”:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (Universal Declaration)

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, reli-gion, political or other opinion, national or social origin, property, birth or other sta-tus (International Covenant on Economic, Social and Cultural Rights)

The International Convention on the Elim-ination of All Forms of Racial DiscrimElim-ination, the Convention on the Elimination of All Forms of Discrimination against Women, the Conven-tion on the Rights of the Child, the InternaConven-tional Convention on the Protection of the Rights of All

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Migrant Workers and Members of Their Fam-ilies also set out States’ obligations to combat and eliminate discrimination. Of these, only the Convention on the Rights of the Child explic-itly mentions “disability” among the prohibited grounds of discrimination:

States Parties shall respect and ensure the rights set forth in the present Con-vention to each child within their jurisdic-tion without discriminajurisdic-tion of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, col-our, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. (art. 2)

The Committee on Economic, Social and Cultural Rights, in its general comment No.

20 (2009), explained that “other status” cov-ered among other things:

• Disability

• Age

• Nationality

• Marital and family status

• Sexual orientation and gender identity

• Health status

• Place of residency

• Economic and social status.

Its general comment No. 5 (1994) provides a definition of discrimination against per-sons with disabilities. The Committee against Torture includes “mental or other disability”

among the grounds for discrimination in its general comment No. 2 (2007). The Com-mittee on the Elimination of Discrimination against Women, in its general recommen-dation No. 18 (1991), points out the prob-lem of “double discrimination” affecting women with disabilities. In the preamble to

the Convention on the Rights of Persons with Disabilities it is recognized that “children with disabilities should have full enjoyment of all human rights and fundamental free-doms on an equal basis with other children”

and recalled that “obligations to that end undertaken by States Parties to the Conven-tion on the Rights of the Child”.

The International Labour Organization’s Convention No. 159 (1983) concerning Vocational Rehabilitation and Employment (Disabled Persons) addresses equal opportu-nity, equal treatment and non-discrimination.

The United Nations Educational, Scientific and Cultural Organization’s Convention against Discrimination in Education also deserves attention, particularly if complemented with the principles of inclusive education adopted at the 1994 World Conference on Special Needs Education: Access and Quality.

Some relevant regional instruments are the Inter-American Convention on the Elimi-nation of All Forms of DiscrimiElimi-nation against Persons with Disabilities of the Organization of American States, the Council of Europe’s Convention on the Recognition of Qualifi-cations concerning Higher Education in the European Region and its Action Plan to pro-mote the rights and full participation of peo-ple with disabilities in society: improving the quality of life of people with disabilities in Europe (2006–2015).

The Convention on the Rights of Persons with Disabilities is a new tool to make the fight against discrimination on the basis of disability more informed and determined. If a specific State has not yet ratified the treaty, it still has obligations to prohibit discrimina-tion against persons with disabilities under other human rights treaties that it has ratified.

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Introduction

The Convention on the Rights of Persons with Disabilities provides for the establish-ment of national mechanisms and institutions for the implementation and monitoring of the Convention both at the international and at the national level.

National implementation and monitor-ing mechanisms, the focus of this module, are set out in article 33 of the Convention.

These are:

Focal points. Article  33, paragraph 1, introduces domestic implementation through the designation of a focal point or focal points within the Government. The Conven-tion does not specify who could act as focal point (a ministry, a department in a ministry, a single person and so on). At the very least, having a focal point means that the Conven-tion should not remain only in the ministry of foreign affairs, as an international issue, but should have a dedicated entity focused on national implementation.

Coordination mechanism. The same para-graph requires States to give due consideration to the establishment or designation of a coor-dination mechanism within the Government to facilitate action related to the implementation of the Convention. Although optional, such a coordination mechanism could be beneficial.

Traditionally, disability issues have been dealt

with by one ministry, such as the ministry of health or of social affairs. The risk has been that the education of children with disabili-ties was sometimes dealt with by the ministry of social affairs rather than that of education.

Such an arrangement tends to exacerbate exclusion and promote segregation. The Con-vention spans all rights and, therefore, a range of ministries should have responsibilities such as the ministry of the interior, of justice, of edu-cation, of labour and so on. A coordination mechanism can help ensure that the Conven-tion does not remain stuck in one ministry but that responsibilities are shared.

Independent implementation and moni-toring mechanism. Article 33, paragraph 2, on the other hand, focuses on establishing a structure to oversee the implementation of the Convention. It requires States to maintain, strengthen, designate or establish one or more independent mechanisms to promote, protect and monitor implementation of the Convention. Importantly, in setting up such mechanisms, States have to take into account

“the principles relating to the status and func-tioning of national institutions for protection and promotion of human rights”, otherwise known as the Paris Principles. These are dealt with in greater detail below. At this stage, it is important to highlight the relevance of these Principles to ensuring a truly indepen- dent and well-functioning national indepen- dent monitoring mechanism as required by the Convention.

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The Convention also stipulates that civil society, particularly persons with disabili-ties and their representative organizations, should participate fully in all aspects of this monitoring process, just as they are to be involved in the development and implemen-tation of policies, programmes and legisla-tion to implement the Convenlegisla-tion, in line with article 4.

This reference to civil society raises at least two issues:

(a) Civil society, in particular persons with disabilities and their representative organizations, should be involved in the monitoring process undertaken by the independent monitoring mechanism established under article 33 (and ideally also in the work of focal points and coor-dination mechanisms);

(b) Civil society itself has a role to play in mon-itoring the Convention, independently of the other mechanisms established under article 33.

In addition to the specific monitoring, promotion and protection framework set up under the Convention, parliaments as well as national courts and tribunals can also play a key role in promoting and protecting the rights in the Convention. Other relevant mechanisms include labour inspectorates, school inspec-tors and any other mechanisms that have a role in monitoring rights. They should monitor the rights of persons with disabilities as part of their general monitoring functions.

The inclusion of an article  detailing national implementation and monitoring structures and their functions continues a trend in human rights treaties towards strengthen-ing the national monitorstrengthen-ing of human rights.

Prior to the Convention on the Rights of Per-sons with Disabilities, the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also required State parties to set up national preventive mechanisms.