At present there are seven core UN human rights treaties:

• The International Convention on the Elimination of All Forms of Racial Discrimination 1965 (ICERD);
• The International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR);
• The International Covenant on Civil and Political Rights 1966 (ICCPR);
• The Convention on the Elimination of All Forms of Discrimination against Women 1980 (CEDAW);
• The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT);
• The Convention on the Rights of the Child 1989 (CRC); and
• The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990 (ICRMW).
  

Some of these treaties also have optional protocols under which States parties to assume additional obligations, either substantive or related to monitoring.

Functions of the Treaty Bodies

The treaty bodies have three primary functions:

1. Reviewing State Reports on compliance with a particular treaty, and issuing concluding comments or observations about the report.
2. Issuing General Comments, which are interpretations of the content of the rights.
3. Considering individual complaints.

In addition, some treaty bodies, for example the Committee on the Rights of the Child, hold awareness raising activities, such as Discussion Days on important issues.

One of the initial arguments used against adopting a new thematic treaty on the human rights of persons with disabilities was that the existing treaty system already adequately addressed disability rights. However, a study commissioned by Mary Robinson, when she was the UN High Commissioner for Human Rights, has shown that the system has not done enough to highlight disability rights. This study is entitled Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability. (See http://www.ohchr.org/english/issues/disability/study.htm for complete version.) Based on the findings of the Study, the following outlines in general how disability has been treated in the context of the functions of the treaty bodies:

1. Reporting
States Parties do not regularly report on the enjoyment of the relevant treaty rights by persons with disabilities. If they do indeed report, disability still tends to be framed as a social welfare issue. The Convention on the Rights of the Child in the only convention that has a specific article on disability (article 23 on children with disabilities), so States report specifically on children with disabilities. Nevertheless, the guidelines that the Committee on the Rights of the Child has drafted to help States report place disability in a section called “basic health and welfare”. As a result, most reports focus on the health and welfare of children with disabilities, and children with disabilities are rarely referred to under the other articles, such as non-discrimination and participation. The problem is compounded in that the treaty bodies tend not to raise the issue of disability and if it is considered by the treaty body it is again from a welfare perspective. NGOs participate in the treaty body process by submitting reports and participating in meetings, where that is possible. However, the Study found that disability NGOs continue are not very engaged in the reporting process, whether at the national level when State Reports are being compiled, or at the international level when the reports are being considered. The Study also found that disability organizations tend to lack the expertise and knowledge needed to interact constructively with the treaty monitoring bodies. The process of negotiation for a Disability Rights Convention has stimulated a high degree of engagement from DPOs and other organizations working on disability rights. No doubt this level of engagement will continue when the Disability Rights Convention becomes part of the core human rights framework.

The following document is a compilation of excerpts Concluding Observations/Comments issued by six of the seven UN Treaty Bodies: the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination Against Women, the Committee Against Torture, and the Committee on the Rights of Child. The available Concluding Observations/Comments for States Parties for the period 2000-2005 have been reviewed for their coverage of the disability rights. In reviewing this jurisprudence, we included references to “disability”, “handicapped” and “vulnerable groups”, which, in the UN context, frequently includes people with disabilities.

The following is a break down of the number of available concluding comments by each treaty body, which had such references:

• Human Rights Committee: a total of 10 out of 82 reports
• Committee on Economic, Social and Cultural Rights: a total of 41 out of 70
• Committee on the Elimination of Racial Discrimination: a total of 11 out of 134
• Committee on the Elimination of Discrimination Against Women: a total of 8 out of 40
• Committee Against Torture: a total of 4 out of 79
• Committee on the Rights of Child: a total of 121 out of 154

The rights of persons with disabilities remains one of the most neglected areas in national and international law. Although the twenty first century was marked by a significant break through in highlighting the rights for people with disabilities by initiating the Draft Disability Rights Convention, people with disabilities are still the subject of discrimination and are frequently excluded from political, social or cultural life. This is compounded by governments’ lack of awareness of disability as a human rights issue. Moreover, as the treaties, with the exception of the Convention on the Rights of the Child, do not specifically mention disability, this issue is often overlooked by the governments and the treaty bodies themselves.

The data collected in this survey indicates that despite regular violations, the rights of people with disabilities are still not given due attention. For example, the Concluding Comments on the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), show limited references to people with disabilities is and primarily cover violations in the areas of employment, social security benefits and health.

Although some slight progress can be seen in terms of inclusion of the rights of people with disabilities into some domestic legislation and National Action Plans, the treaty bodies have noted that discrimination remains pervasive, particularly in the fields of employment, health, provision of good and services and accommodation.

CEDAW’s concluding comments indicate that women do not enjoy equal rights, equal opportunities and equal responsibilities. Moreover, there is a great concern expressed with regard to different forms of violence against women with disabilities. At the same time it is worth noting that there are some positive steps undertaken to strengthen current policies and measures to combat such violence and guarantee that groups of women who are particularly at risk are considered to be of a primary concern.

A survey of CAT’s recommendations indicates that much more attention should be given to the improvement of poor living conditions for people with psycho-social disabilities in homes and hospitals. In addition, CAT has suggested that legislative amendments are required to prevent involuntary placement of people with psycho-social disabilities in such institutions and ensure that judicial appeal and review procedures are properly followed up.

According to CERD’s findings, the cases of ill-treatment and discrimination against groups at risk still occur in societies. CERD’s mandate includes racial and ethnic minorities, and has made some comments on the placement of Roma children in schools and classes for the “mentally disabled” (see Hungary, the Czech Republic and Slovakia) and notes that separate schooling can result in discriminatory practices. However, none of the other treaty bodies have appeared to have picked up on the issue of segregated schooling for children with intellectual or other disabilities. In order to improve the existing situation, CERD has recommended that States parties redress the imbalance by allocating financial resources, providing impartial investigations and prioritizing social services for persons belonging to groups at risk.

The CRC is the only one, which has a separate provision devoted fully to the rights of children with disabilities. The CRC’s findings show discrimination on the basis of disability continues to be widespread. The lack of financial resources as well as lack of professional capacity often result in preventing disabled children from having equal access to education, housing and health care facilities. It also has its own detrimental effect on the national legislation, which is often proved to be ineffective in meeting the basic rights of children with disabilities. States parties are highly recommended to elaborate sufficient and comprehensive government policy to improve the living standards for children with disabilities and guarantee freedom from discrimination. There is also observed a lack of accurate disaggregated data to take necessary measures and develop programs to eradicate the existing problems experienced by children with disabilities.

Based on the above, as well as the relatively small number of disability related references in the most concluding observations/comments, it appears that most of the rights violations experienced by people with disabilities such as inadequate employment opportunity, poor health, education and living conditions, are still heavily overlooked. In addition, in large part the language used by the treaty bodies tends to be medically, rather than rights-based. (See for example, references to “mentally retarded” or “ill”.) It is also noteworthy that there has not been an obvious increase disability related reporting since the initiation of the process on the Draft Disability Rights Convention in 2002.

UN Human Rights Treaty Bodies: Concluding Observations/Comments Relating to Disability Rights (.DOC / Word 968 Kb)

2. General Comments
Although many of the general comments/general recommendations of the human rights treaty bodies are relevant to the issue of disability or refer briefly to disability, two focus specifically on the rights of persons with disabilities.
CESCR General Comment No. 5 (Persons with disabilities) spells out the relevance of economic, social and cultural rights in the context of disability. It includes:
• a definition of disability-based discrimination;
• a reference to the United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities as a “valuable reference guide” for the interpretation of the relevant obligations of States parties under the Covenant;
• a focus on equality and non-discrimination;
• a reference to the concept of reasonable accommodation as a way to reduce structural disadvantages and to give appropriate special treatment to persons with disabilities.

General Comment No. 5 also provides guidance for tailoring ICESCR provisions to the specific situation and needs of persons with disabilities.
General Comment No. 5 is excellent and an important step in the treaty bodies seeing disability as a human rights issue. However, because it was adopted by the Committee on Economic, Social and Cultural Rights it has implicitly reinforced the view that disability is a social policy issue.
CEDAW General Recommendation No. 18 (Disabled women) highlights the need to take measures (including temporary special measures) to ensure that women with disabilities have equal access to education and employment, health services and social security, and to ensure that they can participate in all areas of social and cultural life. States parties are also urged to provide information on the situation of women with disabilities in their reports.

This document shows where disability has been addressed in the General Comments.

Excerpts from Treaty Body General Comments Regarding Disability (.DOC / Word 116 Kb)

3. Individual Complaints
Four of the treaty bodies have optional individual complaints procedures (CERD, ICCPR, CAT and CEDAW). However, these have been rarely used to protect the rights of persons with disability. Four of the communications which have been considered by the Human Rights Committee (HRC) under the first Optional Protocol to the ICCPR address disability issues (at the merits stage):

• In Clement Francis v Jamaica (Communication No. 606/1994), the Committee concluded that the prolonged detention of the complainant on death row as well as the conditions of detention caused a serious deterioration of his mental health leading to a disability, and therefore amounted to cruel, inhuman or degrading treatment and a lack of respect for his dignity contrary to article 7 and 10 (1) of the ICCPR.

• In Hamilton v Jamaica (Communication No. 616/1995), the Committee found that the failure by prison authorities to take the complainant's physical his disability into account and make proper arrangement for him violated the victim’s rights under article 7 and 10 (1) of the Covenant.

• In C v. Australia (Communication No. 900/1999), the HRC found that the State party’s failure to address the complainant’s deteriorating mental health constituted a violation of his rights under article 7 of the Covenant (freedom from torture or cruel, inhuman or degrading treatment or punishment).

• In A v. New Zealand (Communication No. , the HRC found that the State Party’s detention of the complainant in a psychiatric institution was not an arbitrary deprivation of his liberty under article 9 of the Covenant.

4. Awareness Raising Activities
In 1997, the Committee on the Rights of the Child (CRC) devoted one day of its session to discussion of the theme of “The rights of children with disabilities,” to enhance understanding of the content and implications of the provisions of the Convention with regard to the situation and needs of children with disabilities.
The discussion focused on such issues as non-discrimination (article 2), the right to survival and development (article 6), self-representation and fullest possible participation of the child in decisions affecting him/her (article 12), the right of children with disabilities to equal access to education (article 28). The CRC adopted several recommendations on the basis of the discussion. A working group on the rights of children with disabilities was established in follow-up to the day, with the aim of developing a strategy for the implementation of the recommendations of the CRC. This led to the establishment in 2000 of the NGO “Rights of Disabled Children,” which provides regularly country-based information to the CRC on the situation of children with disabilities.

However, only the Committee on the Rights of the Child has held a Day of Discussion on Disability. As this served the important role of raising awareness within the Committee, it would be of value for all the treaty monitoring bodies to hold similar events.

For more information, see the Office of High Commissioner for Human Rights site relating to disability: http://www.ohchr.org/english/issues/disability/treaties.htm