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ICESCR Training Guide - Module 2: International Human Rights Instruments

Facilitator Overview

Introduction

This module will provide a basic overview of international human rights instruments allowing participants to understand their application.

Description

  • 2.1 Glossary of Terms (5 minutes)
  • 2.2 International Human Rights Standards and Treaties (10 minutes)
  • 2.3 International Human Rights Standards and Instruments (15 minutes)

    • Rights in Action Activity
  • 2.4 National and Provincial Human Rights Instruments (15 minutes)

Time: 45 minutes

Participant Overview

Objectives

This module will provide a basic overview of international human rights instruments allowing participants to understand their application. By the end of this section participants should:

  • Have a basic understanding of the human rights instruments that protect the rights of people with disabilities and the ways that they can be applied
  • Be familiar with some ways disability rights are protected and promoted both in Canada and by the United Nations

Description

  • 2.1 Glossary of Terms (5 minutes)
  • 2.2 International Human Rights Standards and Treaties (10 minutes)
  • 2.3 International Human Rights Standards and Instruments (15 minutes)

    • Rights in Action Activity
  • 2.4 National and Provincial Human Rights Instruments (15 minutes)

Time: 45 minutes

Section 2.1 – Glossary of Terms

Facilitator Information

  • Point out the glossary section which defines terms used throughout this section.
  • Discuss the meaning of terms as they arise throughout the module.

Time: 5 minutes

Glossary of Terms

Note
When a word is marked with an asterisk (*), it is defined in this glossary.
accession:
when a State ratifies* a treaty* that has already entered into force.
adoption:
the formal approval or acceptance of an agreement, such as a treaty*, that has been negotiated within an inter-governmental organization (e.g. the UN General Assembly). Formal approval may be through a majority vote or consensus without a vote. After adoption, the treaty* is opened for signature* and ratification* by States.
compliance:
fulfillment or conformity (e.g. compliance with the terms of a treaty*).
convention:
an agreement between States requiring them to abide by the agreed upon terms. This term is used interchangeably with ‘treaty*’ and ‘covenant*. A convention is the term normally used in United Nations practice to designate a treaty* involving more than two countries.
covenant:
a covenant is a written agreement between two or more States requiring them to abide by the agreed upon terms. It is used interchangeably with “treaty*” and “convention*”.
customary international law:
rules of international law that are based on the consistent practice or ‘custom’ of States (i.e. what States actually do) and which require States to continue to act in this way.
declaration:
a resolution or statement of a body of an inter-governmental organization, accepted by a majority vote or consensus without a vote, setting out important principles or commitments to which the member States have agreed. In the context of human rights, a declaration is normally a text adopted by an organization setting out standards or norms which are not in themselves binding under international law.

Sometimes states make “declarations” about their understanding of an issue or the interpretation of a particular provision in a treaty*. Unlike reservations*, which are discussed below, declarations only clarify the state’s position and are not intended to exclude or modify the legal effect of a treaty*. Declarations* are usually made when a state signs* or ratifies* a treaty*.

entry into force:
process by which a legal instrument* comes to have legal force and effect. Usually, a provision in the instrument* will state the conditions that have to be met. For example, Article 45 of the CRPD states: “The present Convention* shall enter into force on the thirtieth day after the deposit of the twentieth instrument* of ratification* or accession*.” – that is, 30 days after the 20th country has ratified the treaty.
general comments or general recommendations:
documents produced by treaty* monitoring bodies* to clarify and provide detail on procedures related to a treaty* monitoring body’s work and also to explain the content of specific rights guaranteed under the treaty*. These statements are not legally binding on countries that have ratified the treaty in the way that convention* provisions are but they serve as very authoritative interpretations of the different aspects of conventions that they address.
individual complaints procedure:
a procedure by which individual persons or groups of individuals lodge a complaint alleging that a State has failed to respect the rights guaranteed by the treaty*.
legal instrument (or, instrument):
is a legal term used to refer to any legal written document passed by a competent legislative body in domestic or international law.
legally binding:
an instrument that is legally binding potentially has the force of law. These instruments can be called covenants*, conventions* or treaties* and are signed between states.
monitoring:
tracking and/or gathering of information on government practices and actions related to human rights; sometimes used interchangeably with “fact finding” and “investigation”.
not legally binding:
an instrument* that is not legally binding cannot be used as the only basis for an action in a court of law; but, it is still important because it lays out principles and objectives agreed to by governments and carries moral weight.
protocol:
a treaty* that modifies another treaty* usually by adding extra procedures or substantive provisions.
ratify, ratification:
process by which a State confirms its consent to be bound to a treaty* after signing* of the treaty*.
reservation:
a reservation is a statement made by a State through which the State intends to exclude or alter the legal effect of one or more provisions of a treaty* in their application to that State. A reservation enables a State to accept a treaty* as a whole while still avoiding the application of certain provisions with which it does not want to comply. Reservations can be made when the treaty* is signed*, ratified*or acceded* to. Reservations must not be incompatible with the object and the purpose of the treaty*. Furthermore, a treaty* might prohibit reservations or only allow for certain reservations to be made.
shadow report (also, parallel report):
a document that is prepared by a non-governmental organization* to report on government’s progress in implementing human rights treaty* obligations. Shadow or parallel reports are presented to treaty* monitoring bodies* for review at the same time as the government’s report (see “State reporting procedure” below).
signature:
where a human rights treaty* is subject to ratification, a State can sign the treaty* but not be legally bound* to its terms. Signature expresses the willingness of the state to continue the treaty*-making process and qualifies the state to proceed to ratify* the treaty*. Signature also creates an obligation to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty*.
State reporting procedure:
the procedure by which a State party* periodically reports to the treaty* monitoring body* about the action it has taken to comply with a treaty*.
State party:
a country that has indicated its willingness to be bound by the provisions of a treaty*, normally by ratification* or accession* to the treaty*.
treaty:
an international agreement between States in written form and governed by international law, whether the written agreement is embodied in a single instrument* or in two or more related instruments; treaties define rights and entitlements and reflect both what States have agreed to do and what individuals or groups can claim.
treaty monitoring body:
the committee responsible for supervising the compliance* of State parties* with a treaty*. For the ICESCR, it is the Committee on Economic, Social and Cultural Rights. For the CRPD, it is the Committee on the Rights of Persons with Disabilities.

Section 2.2 – International Human Rights Standards and Treaties

Facilitator Information

  • Ask a participant to volunteer to read the Lindqvist quote at the bottom of the page. Ask participants, why understanding these human rights instruments will be helpful for people with disabilities.
  • Review the chart on the following page outlining how a treaty comes into force

Time: 10 minutes

page 24

International Human Rights Standards & Instruments Negotiated by the Countries of the United Nations

Human rights standards are statements of rights and entitlements that have been agreed to by governments internationally, regionally and/or nationally. They are found in human rights documents or “instruments*” such as treaties*, covenants* and conventions*. Human rights standards are developed to protect people's human rights against violations by individuals, groups or nations. Human rights standards outline what individuals and groups can claim and make governments more accountable to people.

To take advantage of the new opportunities for disability rights advocacy, one must be familiar with the key international instruments that will support advocacy efforts. Internationally accepted human rights standards, as found in international treaties and declarations*, are useful tools for disability advocacy and for responding to injustice.

- Bengt Lindqvist, Co-Director DRPI and UN Special Rapporteur on Disability (1994-2002)

How a Treaty* Comes into Force

How a Treaty Enters Force and States Become Parties
Step Advocacy Points
Adoption
Test of the treaty* and any optional protocol* are adopted* by the UN General Assembly.
  
Opening for Signature and Ratification
Treaty* and any optional protocol* opened for signature* and ratification* by states* are...
  • Can call for states to take a leading role by signing on the day that the treaty opens for signature (e.g. 44 states, including Canada, signed the CRPD when it was opened for signature on 30 May, 2007.
Signature
States decide whether they want to sign* a treaty and any optional protocol(s). States can decide to sign the optional protocol(s) at a later time.
  
Ratification (Reservation, Declaration)
After signing, States decide whether they want to ratify* the treaty and any optional protocol(s). A state can decide to sign only the treaty but not the optional protocol(s). States can decide to sign the optional protocol(s) at a later time. When ratifying, the State can decide whether or not to file any reservations* or declarations*. Reservations and declarations can be withdrawn by the State at a later time. After ratifying, States are considered parties* to the treaty.
  • Call for states to ratify the treaty AND any optional protocol(s) as soon as possible.
  • Call for states to ratify without any reservations. Note that declarations can be desireable, reinforcing positive aspects of the treaty.
  • If a state enters a reservation, call for the state to withdraw it.
  • If a state ratifies the treaty but not the optional protocol(s), continue efforts to have the state ratify the optional protocol(s) .
Entry into Force
The treaty will stipulate the number of ratifications required before the treaty enters into force*. For example, the CRPD required 20 countries to ratify.
  • Before the treaty comes into force, can argue that state should take a leading role, being one of the first "x" states to ratify.
Accession
States that ratify the treaty after it comes into force are said to accede* to the treaty.
  • After the treaty comes into force, continue to call for states that have not yet ratified to ratify.

Section 2.3 – International Human Rights Standards and Instruments

Facilitator Information

  • Briefly describe each human rights instrument and how it appeals to disability, advise participants to read sections more thoroughly in the future to get a better understanding of these instruments.
  • Ask participants to discuss one of the three questions in the Activity over the break and report back to the group.

Time: 15 minutes

Applying to all Persons with Disabilities

At the international level, there are many human rights instruments* of importance to people with disabilities but there are two instruments* that were created to apply specifically to people with disabilities.

  1. Convention on the Rights of Persons with Disabilities (CRPD)

    The Convention on the Rights of Persons with Disabilities (CRPD) was adopted* by the UN General Assembly in 2006 and came into force* in May, 2008. The CRPD is legally binding* on all states that have ratified* it. People with disabilities, disability organizations and their allies played an active role in drafting the CRPD.

    The CRPD does not create new rights for persons with disabilities. Instead, it explains what existing civil, cultural, economic, political and social rights mean in the context of disability. The CRPD calls for more attention to be paid to people with disabilities within the international human rights system, by governments and by society.

    Canada has ratified the the CRPD. A copy of the CRPD is found in Appendix E.

    A continuously updated list of the countries that have ratified* the CRPD can be found at: United Nations Treaty Collection - Convention on the Rights of Persons with Disabilities.

  2. Standard Rules for the Equalization of Opportunity for People with Disabilities (Standard Rules)

    In 1993, the UN General Assembly adopted* the Standard Rules. There are 22 main rules and additional subrules and guidelines outlining a policy of integration and participation. Coming before the CRPD, the Standard Rules played an important role in shifting the understanding of disability from a problem of the individual to something created by society and an issue of human rights.

    The Standard Rules provide direction to governments and address government responsibility. While not legally binding*, they hold moral weight.

    A full copy of the Standard Rules can be found at the University of Minnesota Human Rights Library.

Applying to Everyone (including persons with disabilities)

There are also a number of important human rights instruments* agreed to by the countries of the United Nations that recognize and protect the right of all people, including marginalized groups like people with disabilities, to the full enjoyment of all human rights. These are:

  1. Universal Declaration of Human Rights (UDHR)

    The Universal Declaration of Human Rights (UDHR) was adopted* by the General Assembly of the United Nations in 1948. It was the first listing of universal human rights ever agreed to by states. The UDHR declares that everyone has equal and undeniable entitlement to all types of rights - economic, social, cultural, civil and political. While not legally binding*, the UDHR holds significant moral weight. Some experts consider that it is now part of customary international law*. Many laws and legal documents in countries around the world are based on the principles set forth in the UDHR.

    A copy of the UDHR can be found on the United Nations website.

  2. International Covenant on Economic, Social and Cultural Rights (ICESCR)

    The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted* by the UN General Assembly in 1966 and entered into force* in 1976. The ICESCR is legally binding* on all states that have ratified* it. The Covenant* further develops the economic, social and cultural rights set out in the UDHR.

    The body that is responsible for monitoring* compliance* with the ICESCR is the Committee on Economic, Social and Cultural Rights. In 1994, the Committee issued its General Comment* No. 5 which reviews and emphasizes some of the ways in which issues concerning persons with disabilities arise in connection with the obligations contained in the ICESCR. General Comment No. 5 explicitly refers to the Standard Rules on the Equalization of Opportunities for Persons with Disabilities as a “valuable reference guide”. (para. 7) (See the section above on the Standard Rules.) The CRPD had not yet been enacted. The General Comment includes an explicit requirement that ”States Parties ensure the full participation of persons with disabilities.” The General Comment says that “disability-based discrimination may be defined as including any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing recognition, enjoyment or exercise of economic, social and cultural rights.” (para. 15)

    Canada has been a party to the ICESCR since 1976.

    A copy of the ICESCR is found in Appendix B. A copy of General Comment No. 5. is found in Appendix D.

The Committee on Economic, Social and Cultural Rights states that:
The obligation in the case of such a vulnerable and disadvantaged group is to take positive action to reduce structural disadvantages and to give appropriate preferential treatment to people with disabilities in order to achieve the objectives of full participation and equality within society for all persons with disabilities. This almost invariably means that additional resources will need to be made available for this purpose and that a wide range of specially tailored measures will be required. (para. 9)
Note
Also see General Comment No. 20 (Right to non-discrimination in Economic, Social and Cultural Rights) (para 28). Available from the OHCHR Website.
  1. International Covenant on Civil and Political Rights (ICCPR)

    The International Covenant* on Civil and Political Rights (ICCPR) was adopted* by the UN General assembly in 1966 and entered into force* in 1976. The ICCPR is legally binding* on all states that have ratified* it. The ICCPR further develops the civil and political rights set out in the UDHR.

    Canada has been a party to the ICCPR since 1976.

    A copy of the ICCPR can be found on the OHCHR website.

    Many of the world’s countries have agreed to the UDHR, ICCPR and ICESCR, making these instruments* very important. All three instruments* apply to all people, including people with disabilities. Sometimes the three instruments* are referred to as the “International Bill of Rights”.

  1. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (CAT)

    The CAT was adopted* by the UN General Assembly and entered into force* in 1984. It is legally binding* on all states that have ratified* it. People with disabilities and especially those who live in institutionalized settings, are particularly vulnerable to torture and other forms of cruel, inhuman or degrading treatment.

    Canada has been a party to the CAT since 1987.

    A copy of the CAT can be found on the OHCHR website.

  2. International Convention for the Protection of all Persons from Enforced Disappearance (Convention against Enforced Disappearance) (not yet in force*)

    The Convention against Enforced Disappearance was adopted by the UN General Assembly in 2006. It will come into force* when it is ratified* by 20 States. The Convention aims to prevent enforced disappearances, establish the truth when this crime occurs, punish the perpetrators and provide reparations to the victims and their families. It applies to all people, including people with disabilities.

    Canada has not signed or ratified the Convention against Enforced Disappearance yet.

    A copy of the Convention against Enforced Disappearance can be found on the OHCHR website.

Applying to all Women and Girls (including women and girls with disabilities)

  1. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

    The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted* by the UN General Assembly in 1979 and came into force* in1981. It applies to all women and girls, including women and girls with disabilities and covers all categories of rights – economic, social, cultural, civil and political. The CEDAW is legally binding* on all states that have ratified* it.

    General Comment No. 5 of the Committee on Economic, Social and Cultural rights recognizes that the situation of women with disabilities is often neglected and needs to be given high priority in the future implementation of economic, socials and cultural rights-related programmes (para. 19)

    While the CEDAW does not explicitly refer to women with disabilities, the body that monitors* the CEDAW, that is, the Committee on the Elimination of Discrimination Against Women, has issued General Recommendation No. 18 regarding women with disabilities. The Committee:

    Recommends that States parties provide information on disabled women in their periodic reports, and on measures taken to deal with their particular situation, including special measures to ensure that they 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.

    Canada has been a party to the CEDAW since 1981.

    A copy of the full Convention can be found on the OHCHR website.

    A copy of General Recommendation No. 18 can be found on the UN Division for the Advancement of Women website.

Applying to all Children (Girls and Boys) (including children with disabilities)

  1. Convention of the Rights of the Child (CRC)

    The Convention on the Rights of the Child (CRC) was adopted by the UN General Assembly in 1989 and entered into force in 1990. The CRC is legally binding* on all states that have ratified* it.

    Children with disabilities are entitled to equal enjoyment of all rights found in the CRC. The convention* covers all categories of rights – economic, social, cultural, civil and political. The equal application of CRC rights without discrimination is guaranteed in Article 2 and includes an explicit prohibition of discrimination on the basis of disability. In Article 23, the CRC explicitly refers to children with disabilities stating that States must ensure each child with a disability has “effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities.” Children with disabilities are frequently denied these rights because of physical barriers and lack of supports.

    Canada has been a party to the CRC since 1991.

    A copy of the CRC can be found at: the University of Minnesota Human Rights Library.

Note
Also see Committee on the Rights of the Child – General Comment No. 9 for further discussion of this convention. Available from the OHCHR website.

Applying to all Members of Racial Groups and/or Minorities (including members of racial groups and minorities with disabilities)

  1. International Convention on the Elimination of All Forms of Racial Discrimination (CERD)

    The CERD was adopted* by the UN General Assembly in 1965 and entered into force* in 1969. The CERD is legally binding* on all states that have ratified* it. It is applicable to people with disabilities who suffer discrimination as members of a racial group or minority, that is, double discrimination based on race and disability.

    Canada has been a party to the CERD since 1970.

    A copy of the CERD is available on the OHCHR website.

Applying to all Migrant Workers and their Families (including all migrant workers and their family members who have disabilities)

  1. International Convention on the Protection of the Rights of All Migrant Workers and their Families (CRMW)

    The CRMW was adopted* by the UN General Assembly in 1990 and entered into force* in 2003. The CRMW is legally binding* on all states that have ratified* it. It is applicable to persons with disabilities who are migrant workers or who are family members of migrant workers.

    Canada has not signed or ratified the CRMW yet.

    A copy of the CRMW is available from the OHCHR website.

Activity: Rights in Action

Part A: Small Group Discussion

  1. Choose one of the Conventions* above and discuss how the rights it guarantees apply in your own life?
  2. Choose one of the Conventions* above. Discuss how you see the Convention relating to the broad groups of rights and human rights principles: Social Rights, Economic Rights, Cultural Rights, Civil Rights, Political Rights
  3. Choose one of the Conventions* above. Discuss how you see the Convention relating to the human rights principles: Dignity, Autonomy, Participation, Inclusion & Accessibility, Non-discrimination & Equality, Respect for difference

Section 2.4 – National and Provincial Human Rights Instruments

Facilitator Information

  • Briefly review how, in Canada, human rights protections are found in the Constitution, legislation, regulations and policies.
  • Ask participants to discuss and answer questions about the case study in small groups, over the break, and report back.

Time: 15 minutes

National Human Rights Instruments

When a country agrees to a human rights instrument* like the CRPD, they promise to make sure that the laws of their country respect the rights set out in the instrument*.

In some cases, human rights protections are found in a country’s constitution. For example, in Canada, human rights guarantees are set out in the Canadian Charter of Rights and Freedoms (1982) (Charter) which forms part of the country’s constitution. The Charter guarantees certain civil and political rights to all people in Canada, including people with disabilities, restricting the policies and actions of all levels of government. A way in which the Charter extends into the realm of economic, social and cultural rights is through its Article 15 equality rights provision which states:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In addition to the protection from discrimination provided by section 15, the Charter also guarantees a number of other important rights to all people in Canada, including people with disabilities. These rights include:

Section 2: freedom of conscience, freedom of religion, freedom of thought, freedom of belief, freedom of expression, freedom of the press and of other media of communication, freedom of peaceful assembly, and freedom of association

Section 3: right to vote and to be eligible to serve as member of a legislature.

Section 6: right to enter and leave Canada, and to move to and take up residence in any province, or to reside outside Canada.

Section 7: right to life, liberty, and security of the person.

Section 10: right to legal counsel and the guarantee of habeas corpus.

Section 12: right not to be subject to cruel and unusual punishment.

Section 14: rights to an interpreter in a court proceeding.

Section 28: all Charter rights are guaranteed equally to men and women.

A full copy of the Charter can be found at Department of Justice Canada's Justice Laws website.

Human rights provisions are also found in legislation, regulations and/or policies enacted by different levels of government. A common form of legislation is a human rights code or act, focusing specifically on human rights protections. Some examples of human rights legislation in Canada includes:

  • Federal human rights legislation such as the Canadian Human Rights Act which prohibits discrimination by the federal government (e.g. all federal legislation, regulations, departments, agencies and Crown corporations) and federally regulated businesses and industries (e.g. banks, national airlines, interprovincial telephone companies and interprovincial transportation companies). “Disability” is included in Article 3 as a prohibited ground of discrimination.
  • Provincial human rights acts or codes which include prohibitions of discrimination on the ground of disability. Some examples include:

    • Ontario Human Rights Code provides protection from discrimination based “disability” including past, present and perceived conditions and in the areas of services, accommodation, employment and vocational associations.
    • BC Human Rights Code prohibits discrimination on the ground of “physical or mental disability” in the areas of accommodation, employment, membership in trade unions and associations, public services/facilities, purchase of property, tenancy and protection from hate publications.
    • Manitoba Human Rights Code prohibits discrimination based on ” physical or mental disability or related characteristics or circumstances, including reliance on a dog guide or other animal assistant, a wheelchair, or any other remedial appliance or device” in the areas of services, accommodation, facilities, goods, rights, licences, benefits, programs or privileges available or accessible to the public or to a section of the public, employment, membership in trade unions and associations, contracts, provision of insurance, accommodation, purchase of property and protection from hate publications.
    • Newfoundland and Labrador Human Rights Code provides protection from discrimination based on “physical disability” and “mental disability” in the areas of public services, accommodation, employment and protection from hate publications. (Note that this Code is being reviewed by the provincial government during 2009.)

Examples of other national acts include:

  • Disability Discrimination Act (UK- 1995) promotes protects people with disabilities from discrimination in the areas of education, employment, access to goods, facilities and services, buying and renting property and public transportation.
  • Americans with Disabilities Act (USA – 1990), prohibits discrimination against on the ground of disability in the areas of employment, public services, including public transportation, operated either by government or by private entities (e.g. restaurant, hotel, theatre, store, etc.).

Activity: Applying the Charter

Description of Case: Eldridge v. British Columbia (Attorney General)

In 1997 the Supreme Court of Canada affirmed that British Columbia must provide sign-language interpreters in provincial hospitals to people who are deaf in order to comply with equality rights guarantees in section 15(1) of the Canadian Charter of Rights and Freedoms.

Questions
  1. What does equality mean to you?
  2. How does providing sign language interpreters contribute to being treated as equal/unequal?
  3. Why do you think this case is important to disability rights?

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