Introduction to the International Human Rights System
The human rights movement grew out of the disasters of World War II and is at the basis of international law theory and practice.
The international rule of exhaustion of local remedies before taking to international remedies is one of the basic rules in international law. The object of the rule is to enable the respondent State the first opportunity to correct the harm and to make redress. The application of the rule of domestic remedies to the protection of human rights depends on conventional provisions.
A person whose rights have been violated should make use of domestic remedies to right a wrong, rather than first address the issue to an international committee, court or other tribunal. Access to an international organ should be available, but only as a last resort, after the domestic remedies have been exhausted. A person should seek redress from domestic remedies because these are normally quicker, cheaper and more effective than the international ones.
If no domestic remedies are available or there is unreasonable delay on the part of national courts in granting a remedy, clearly, a person should have recourse to international remedies. The rule of local remedies should not constitute an unjustified impediment to access to the international remedies.
1.2 Disability Rights at the International Level
This section reviews the six core United Nations Conventions (International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on All Forms of Discrimination against Women (CEDAW), Convention on the Rights of the Child (CRC), Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT) and International Labour Organisation (ILO) conventions) followed by a discussion of other United Nations Conventions which have a bearing on the rights of persons with disabilities.
In some cases, individuals have the right to complain directly about human rights violations to expert bodies established under the UN human rights conventions. Three such expert committees currently allow individual complaint procedures:
- ” The Human Rights Committee under the Optional Protocol to the ICCPR
- ” The Committee on the Elimination of Racial Discrimination under Article 14 to CERD; and
- ” The Committee Against Torture, under Article 22 of CAT.
All of these procedures are contingent upon the state parties recognizing the competence of the expert committee to hear individual complaints. The procedure under the ICCPR has been the most visible and effective of the complaint procedures administered by human rights treaty bodies since the optional protocol entered into force in March 1976, over 500 cases have been registered under the procedure.
The international community lacks the constitutionally institutionalised machinery of law-making typical to domestic legal orders. Legal provisions on the international level are enacted in accordance with the 1969 Vienna Convention on the Law of Treaties. It codified customary rules related to treaties; hence, at large, the same body of rules apply to both Parties and non-parties to the Vienna Convention. A majority of States have ratified the convention. For States not Parties to the Vienna Convention, the legislative process is governed by customary international law. The Vienna Convention governs only treaties concluded between States.
The Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations applies to treaties concluded between States and international organisations, or between international organisations. However, this Convention has not been accepted by the international community (adopted in 1986, but not entered into force), contrary to the 1969 Vienna Convention.
There are no human rights treaties, which apply solely to persons with disabilities, but the treaties will apply to disabled persons via the anti-discrimination clauses provided within each treaty and are legally binding on those States which ratify those conventions.
The ICCPR and the ICESCR came into force in 1976 and together are the most comprehensive international code of binding legal provisions in the human rights area. They develop and supplement the provisions of the Universal Declaration of Human Rights (UDHR) and together these three instruments form the International Bill of Human Rights.
Neither the ICCPR nor the ICESCR contain provisions specifically related to disability. Nevertheless, the general human rights guarantees as embodied in the Conventions apply to all persons; therefore, equal attention should be given to the protection of these rights and their application to disabled persons. Thus, the provisions of both Conventions may be invoked for the protection of the rights of persons with disabilities.