COMPILATION OF INTERNATIONAL NORMS
AND STANDARDS RELATING TO DISABILITY
Part I. National Frameworks. 4/5   
3. Remedies for Rights Violations
Every state has the primary responsibility within its territory to ensure human rights
are guaranteed to all members. By signing and ratifying human rights conventions,
governments at national and local levels must commit to avoiding any actions that would
violate or lead to a violation of human rights. In addition, most treaty obligations
require the government to take positive steps to adopt affirmative measures, to ensure or
protect the enjoyment of human rights. They may also require enacting and enforcing
legislation or adopting other appropriate measures to ensure that individuals and other
entities respect human rights. Many countries create human rights enforcement
systems, which may include a human rights commission to investigate claims and special
adjudicative bodies to hear cases. Also, human rights claims may be heard
through regular course of a civil or criminal case. Finally, ad hoc or permanent
commissions may be established to monitor and write reports on immediate or ongoing
issues.
To ensure enforcement of human rights obligations, various mechanisms exist at
national, regional and international levels. At the international level, most of these
mechanisms provide vehicles for monitoring compliance. Some offer petition procedures
which allow individuals to challenge breaches by the state of their human rights
obligations. In some cases mechanisms are linked to constitutions and national
legislation, in others to human rights treaties and in still others to specialized
agencies of the UN charged with the enforcement of specific rights, such as labour refugee
and health rights. Mechanisms linked to national constitutions and legislation may
offer more concrete and enforceable remedies and should usually be tried first, before
turning to international petition procedures.
3.1 Due Process
The concept of procedural due process refers to the process by
which all rights are implemented by the State. Most of the formal protections of due
process are linked to the conduct of a fair hearing. All persons are, according to
the International Covenant on Civil and Political Rights, entitled to a fair and public
hearing, and at trial stage, to be informed promptly and in a language in which he / she
understands the nature of the charge (article 14). These norms are relevant in the
context of disability in three respects. Firstly, they are critically relevant in the
civil commitment context. Secondly, they are obviously relevant in the context of ordinary
criminal proceedings against individuals who happen to have disabilities. Thirdly, they
are relevant in the sense of affording a right to the court to vindicate other rights.
Thus, the right to a court might be used offensively to establish and vindicate rights.
International law also recognises that a person is entitled to certain minimum
standards of due process in judicial proceedings. Article 10 of the Universal Declaration
of Human Rights stipulates that: "Everyone is entitled in full equality to a fair and
public hearing by an independent and impartial tribunal, in the determination of his
rights and obligations and of any criminal charge against him."
3.2 Locus Standi
Most of the international recourse procedures require from the petitioner prima facie
personal involvement in the matter. The claim of being a victim is a condition laid down
in most of the conventions that provide for remedies. However, the Human Rights Committee
has agreed to consider communications submitted on behalf of alleged victims by others,
when the victim has been unable to submit the complaint himself. This opens the complaint
system of the Covenant to a vast number of victims who cannot contact a lawyer. The
petitioner must show authority to act on the behalf of the victim; in practice the
Committee has opened the door only for persons showing a close family connection. The American
Convention on Human Rights recognises explicitly actio popularis in its
article 44, stipulating that: "Any person or group of persons, or any
non-governmental entity legally recognised in one or more Member States of the
Organization, may lodge petitions with the Commission containing denunciations or
complaints of violations of this Convention by a State Party."
Individuals whose rights have been violated are victims and, therefore have the right
to vindicate their rights in courts or other relevant judiciary bodies. However, persons
with disabilities may lack the possibility of effectively pursuing their rights. The rules
of locus standi can be radicalised to broaden access to courts to those who
hitherto could not come before the court due to poverty or social or physical disability.
This can be done by extending standing to any member of the public or social action group
to bring an action on behalf of the person or group of persons to whom the harm was
caused. In order to circumvent the time consuming and expensive writ petition, claimants
could perhaps be permitted to address a letter to the court in order to commence action.
3.3 Recourse Procedures at the National Level
Persons with disabilities may lack resources required to hire legal aid. The
Declaration on the Rights of Disabled Persons, paragraph 11, states that
"…disabled persons shall be able to avail themselves of qualified legal aid when
such aid proves indispensable for the protection of their persons and properties."
The States should provide legal aid to persons with disabilities, as well as for
other vulnerable sections of society. Persons with disabilities may have difficulties in
financing the costly lawyers' fees. One solution to this problem could be a socialisation
of legal services where the lawyers would be obliged to handle certain cases of important
social nature at a considerably reduced fee.
Article 14, para 3 (d) ICCPR states that "To be tried in his presence, and to
defend himself in person or through legal assistance of his own choosing; to be informed,
if he does not have legal assistance, of his right; and to have legal assistance assigned
to him, in any case where the interests of justice so require and without payment by him
in any such case if he does not have sufficient means to pay for it."
The European convention on Human Rights states in article 6, para 3 (c) that
"… to defend him self in person or through legal assistance of his own choosing,
or if he has not sufficient means to pay for legal assistance, to be given it for free
when the interests of justice so require".
Many advocacy organizations, including several outside European countries
rely on the human rights case of the European Court, Airey v. Ireland.[30] In Airey, the Court found that the obligation of states to
make access to the courts possible and effective includes a right to free legal assistance
in civil matters when the procedure involved is so complex as to require legal assistance
in order to ensure access to the court. The Airey precedent, and decisions that followed
it, have led to extensive reform of European domestic law in order to protect access to
the courts for the indigent in civil legal matters.
Another barrier to seek recourse in a court of law can also be the formal structure of
the courts. The atmosphere should be encouraging and humanising for its clients.
Participation in the legal process and the formal court procedure is often one of the most
fundamental human rights.
Controversial disability matters, such as the sterilisation of mentally retarded
children, might fall within the jurisdiction of special family courts. These courts are
aimed at providing informal and speedy relief in family law matters. Family court
counselling staff may assist in the process. Out of court settlements are encouraged.
Conciliation and mediation are other informal methods of dispute settlement.
3.4 National Courts
Human rights, in the first instance must be enforced through domestic
courts. The reasons are:
- While most human rights treaties provide for independent supervisory and
implementing procedures and organs, few states -perhaps with the exception of the
parties to the European Convention for the Protection of Human Rights and
Fundamental Freedom- have accepted the optional clauses or protocols concerning the right
of individuals to have recourse before such organs (The American System, however, is
different).
- Secondly, even where contracting parties have allowed such individual rights, the role
of domestic courts remains critical, since, as a general rule, the route to international
remedies remains blocked until full exhaustion of domestic remedies has occurred.
Most states have some type of laws protecting human rights guarantees. Countries that
are signatory to regional and international human rights documents are obligated to abide
by their provisions. At times national laws directly refer to human rights and many
states copy international and regional guarantees virtually word for word into their
national law. Many countries create human rights enforcement systems, which may
include a human rights commission to investigate claims and special adjudicative bodies to
hear cases.
Mechanisms linked to national constitutions and legislation may offer more concrete and
enforceable remedies and usually should be tried first, before turning to international
petition procedures. At the national level the weight of the nations legal system can be
brought to bear on the enforcement of human rights.
The types of mechanisms and procedures vary from country to country. For example, human
rights commissions exist in some countries while they are unheard of in others. Similarly,
constitutional courts exist in some countries but not in others. States may also
establish administrative bodies to monitor and carry out compliance with international and
regional agreements.
The greater the extent to which international norms on disability are widely known, the
greater the possibility of domestic courts complying with these norms. National courts
could become a promoter and protector of international human rights of persons with
disabilities. Furthermore, judicial initiatives can propel the executive and legislative
branches of Government to reform the law.
The domestic court system serves an important function in ensuring the rights of
persons with disabilities. Aggrieved disabled persons may bring an action when their
rights are violated. They may sue for damages where appropriate. The court may then decide
whether the rights of the claimant have been infringed. Judgements of the court can be
enforced by ordinary means. Courts also may bring matters to legislative attention and
encourage various interest groups to take up action on certain issues. National human
rights systems can be important for two reasons:
- They are more easily accessible to large numbers of persons with disabilities and
advocacy groups in each country;
- Where jurisdiction for human rights claims lie with a superior court (such as the High
Court, Court of Appeals or Supreme Court) a decision in favour of disability rights
establishes law that can, in turn, be used by other persons with disabilities whose rights
are violated. This is the doctrine of judicial precedent- a common law rather than a civil
law, approach.
International and regional human rights law can be used in national human rights
mechanisms in different ways including:
- Basing the human rights claim on international or regional law, where such law is part
of national law or has otherwise been incorporated into national law.
- Using the international and regional human rights law as an aid to the interpretation of
national law provisions. Judges in many countries can and have been guided by
international law in their interpretation of specific legal provisions.
- Reminding the state that if it has, through ratification of a treaty, freely assumed an
obligation, national enforcement mechanisms should be under a duty to interpret national
law so as not to conflict with the state’s international or regional obligations.
- Using international human rights law as the minimum standard of protection which
national law should attain. Advocacy for law reform and responsive judiciaries can
endeavour in the first instance to bring national law in line with internationally
accepted standards for the protection of disability rights.
National Laws and mechanisms can be used to advance disability rights by
examining:
- Which provisions of the constitution or basic laws protect disabled persons rights and
what provisions of other legislation are important for disabled persons rights
- Are there special constitutional or other legal provisions covering the right to
non-discrimination and or to equality?
- Which human rights conventions has the country agreed to enforce? When did the
convention come into force in the country?
- Are human rights treaties " self –executing"? That is, do they
automatically form part of the local law as soon as they are signed or must supplemental
legislation be passed?
- What direct mechanisms exist to protect human rights: constitutional courts, offices of
civil rights, human rights commissions, ombudspersons, etc.? Do any of these bodies have
officers focusing specifically on women?
- Have advocates raised international human rights claims in national courts in the past?
If yes, how did the judges respond? Would your local judges take notice of
international norms even though they may not be directly applicable.
In certain jurisdictions like Chile, a number of judicial precedents show that Chilean
courts have tended to rely on international law in deciding a case, thus. There are also
important cases in which the automatic incorporation of customary international law has
been recognised by the courts and applied accordingly. There are also cases where the
courts have upheld domestic law above international law. This is particularly the case
when the conflict arises between a treaty and a subsequent contradictory statute, since
the court may be inclined to apply the rule enacted later in time. This is yet another
consequence of having assigned a treaty the same legal hierarchy as a domestic statute.
If the conflict arises between a rule of international law and a provision of the
Constitution, the situation will be further complicated by the fact that courts will
generally approach the question with added caution. This, of course, is not a peculiarity
of the Chilean case, but of many other legal systems, as well. There is no question that
from the viewpoint of international law, the argument that constitutional provisions
prevail over treaties would not stand. From the point of view of a constitutional court,
however, it is most probable that the Constitution will be upheld, unless its very clauses
might provide for the supremacy of the international rule.
In Germany, international human rights and fundamental rights guaranteed in the Basic
Law overlap to a large extent. The Basic Law begins with a catalogue of fundamental rights
which opens in article 1 paragraphs 1-3 with a pledge of the German State to respect and
protect individual rights: "The dignity of man shall be inviolable. To respect and
protect it shall be the duty of all State authority." The German people, therefore,
acknowledge inviolable and inalienable human rights as the basis of every community, of
peace and of justice in the world. In Germany, international law stemming from non-treaty
sources is introduced into the German legal system via article 25 of the Constitution of
the Federal Republic of Germany, which contains the following incorporation clause:
"The general rules of public international law shall be an integral part of federal
law. They shall take precedence over the laws and shall directly create rights and duties
for the inhabitants of the federal territory." This means that no additional
implementing legislation is required. These general rules are accorded a rank above all
other domestic laws in the hierarchy of norms. In litigation, where doubts arise about the
existence of a general rule of international law, this issue can be solved by way of
reference to the Federal Constitutional Court.
In Japan, treaties have the force of law and override statutes by the Japanese
parliament. Because treaties have such a privilege status in Japan, it is extremely wary
of acceding to a human rights treaty. Although Japan has not ratified many human rights
conventions, it has ratified some of the most important ones within the last fifteen
years. Upon ratification of these treaties, Japan revised its laws extensively to bring
them into conformity with the requirements of the treaties.
Even though international law has domestic legal force in Japan, those international
human rights instruments, which lack a legally binding character are not regarded as
having the force of law. Binding character under international law is a prerequisite
for the domestic force of law.
The drawbacks of the national system:
National human rights systems can also have significant limitations. Common limitations
of national human rights systems may include:
- Dependency on the political environment. In countries where the government of the day is
oppressive and does not protect human rights, it is unlikely that the national human
rights mechanisms will effectively protect such rights;
- Where national laws are discriminatory or do not protect other aspects of women’s
human rights, the national mechanisms may offer no redress for the violation;
Where courts or other agencies do not function properly, are corrupt and/ or where
officers are not sensitive to human rights issues, there may not be any redress at the
national level.
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[30] ECHR Decision of 11 September 1979, Series A no. 32.
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