BECOMING HUMAN RIGHTS DEFENDERS

Gerard Quinn continues his discussion of the continuum between international principle and domestic reform in the context of justice and human right. Professor Gerard Quinn, NUI Galway

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Despite its seeming complexity, the world of international law is easily understandable and usable. International human rights law rests essentially on four connected basic human values: dignity, autonomy, equality and social solidarity. These values lie at the very basis of the legitimacy of our state. They animate a system of freedom—a system that provides protection against power, but also space to assume power over one’s own life. Thinking about these values in the context of intellectual disability—human dignity means that people are to be valued because they are people—not because they are economically or otherwise useful. This can be quickly forgotten in our utilitarian age. Autonomy means creating space for the flourishing of the human spirit. We have to constantly stress that this spirit lies within all of us, regardless of the difference of intellectual or other disability. Equality means creating a society that treats all equally and makes due and positive allowance for difference, including the difference of intellectual disability. Solidarity means helping those who cannot help themselves or whose capacity to do so is greatly diminished. Solidarity exists not to make us feel good—nor to dispense charity without any actual involvement—it exists because the system of freedom needs a substantive underpinning to allow people to use their capacities.

A whole web of legal instruments protect civil rights against undue state encroachment. These legal instruments protect political rights, including the rights of the media, and, crucially, they also include economic, social and cultural rights.

Two or three topical issues demonstrate the closeness between international developments and contemporary topics in the Irish domestic disability scene. The UN Covenant on Economic, Social and Cultural Rights has been ratified by Ireland since 1989. The relevant body applying that treaty draws up ‘general commentaries’ on what the treaty obligations mean in specific contexts. General Comment No.5 (1994) deals specifically with the rights of persons with disabilities. In part, it says:

[The Covenant] … clearly requires governments to do much more than merely abstain from taking measures which might have a negative impact on persons with disabilities. The obligation in the case of such a vulnerable and disadvantaged group is to take positive action to reduce structural disadvantage and to give appropriate preferential treatment to people with disabilities in order to achieve the objectives of full participation and equality …. This almost invariably means that additional resources will need to be made available for this purpose and that a wide range of especially tailored measures will be required.

General Comment No.5 refers in even more specific terms to the right ‘to have access to and to benefit from those medical and social services … which enable people with disabilities to become independent … and support their social integration.’ Big deal, one might think. Well, it is a big deal.

If the disability rights revolution is a revolution, then Annie Ryan must stand as one of the heroes of that revolution. Largely through the efforts of Annie Ryan, the relevant treaty committee took Ireland to task in the entire disability field in 1999. In its ‘concluding observations’ (1999) on Ireland’s Report, the UN Committee concluded that the equality provision in our Constitution was not up to the job required of the relevant non-discrimination provisions under the Covenant. This strongly fortifies the call of many disability non-governmental agencies for a referendum to change the equality clause in our Constitution; its deficiencies were shown up glaringly in the 1997 Supreme Court decision which struck down the disability parts of the Employment Equality Bill. The UN committee also specifically referred to the lack of legislation dealing with the rights of citizens with intellectual disability. These conclusions are embarrassing, to say the least, and should figure prominently in our campaigns. To do this, we must gear up to make the appropriate policy arguments.

Again on the subject of economic, social and cultural rights—on 4 November 2000, Ireland signed and ratified the Revised European Social Charter, a legal treaty concluded within the Council of Europe. The updated Article (15) dealing with disability is excellent, and it is useful. Ireland also ratified an Additional Protocol that enables NGOs, under certain circumstances, to lodge collective complaints with the Strasbourg system. Since the enjoyment of services and supports is a main area of our concern, this should be of direct relevance to us. There is also much debate within the UN system about drafting an Optional Protocol to the UN Covenant on Economic, Social and Cultural Rights, to make them enforceable through a kind of court mechanism. I strongly suggest that we become active in this debate through our international affiliates.

Most people are familiar with the Article 5 case law of the European Court of Human Rights concerning the right to liberty and due process in the civil commitment context. The non-discrimination part of the ECHR was expanded and deepened about two years ago, under Protocol 12. European disability non-governmental organisations missed a golden opportunity to have disability included as one of the prohibited grounds of discrimination then—we mustn’t allow such a chance to be missed again.

Legal instruments that protect against violations of bodily and psychic integrity are of great concern. The Council of Europe’s Convention on the Prevention of Torture, Inhuman and Degrading Treatment was ratified by Ireland in 1996 put in place a preventive mechanism in the form of a Committee on Torture (CAT). It has the right to visit (sometimes unannounced) all places in which people are deprived of their liberty by a public authority. Arguably this remit is too narrow, since many people stay in residential settings without the imprimatur of any pubic authority. The committee routinely visits psychiatric institutions and it might be urged to visit a particular institution here. It last visited Ireland in August/September 1998 when it visited Irish prisons and the Central Mental Hospital in Dundrum. It made many interesting observations and recommendations. The Irish government responded with its own report later which either reported on or promised progress. The important point is that the CAT is available as an independent mechanism for evaluating the quality of life of inmates in psychiatric institutions and can be used to highlight deficiencies. I sense that its potential in the intellectual disability field has not yet been fully exploited right across Europe.

Even the European Union is now involved in disability law and policy. The recent non-discrimination directives do not yet have direct significance to this sector, but it would be shortsighted to ignore such developments, just because they do not yet yield direct dividends for us. They represent a trend within EU law—a trend toward marrying power with principle. Recently the heads of government proclaimed a Charter of Fundamental Rights (Nice, December 2000) which specifically mentions the rights of persons with disabilities. Admittedly, the particular section is not well drafted, but its significance resides in the fact that it is there at all—something unthinkable even ten short years ago. At present this charter has political significance only, but its status will be reviewed again in 2004, during an IGC on the future of the Union. Watch that space closely.

And there is ‘soft law’—law which is not legally binding. Everyone in the broad disability sector is familiar with the UN Standard Rules on the Equalisation of Opportunities for People with Disabilities (1993)—the Bible for our own Commission on the Status of People with Disabilities. Most are aware of the UN Principles on Mental Health 1992). Less well known is the Council of Europe’s landmark Recommendation on Principles Concerning the Legal Protection of Incapable Adults (1999) which is a remarkable and forward-looking document. It exists because there is a European-wide problem in this area which requires reasonably uniform European solutions. It is all the more important given that our own Law Reform Commission will be looking at the whole reform of Irish law in this field. Such reform is badly needed.

Soft law is one thing—hard law is the more useful. Toward the late 1980s there was a great clamour for a full treaty on the rights of persons with disabilities, although it failed to gain support within the UN system. For the last few years, Ireland has been piloting a resolution on the rights of persons with disabilities through the UN Commission on Human Rights. Last year, under the inspired leadership of the Human Rights Unit in the Department of Foreign Affairs, under John Rowan, the Irish mission in Geneva inserted a simple clause to the effect that the time was right for the UN to begin evaluating the need for a convention and to begin drafting work. That passage was resisted by some states, and the resolution was eventually passed without it. But the same issue will come up again in 2002—we need to follow this closely. The road will be rocky, but a full treaty is inevitable—eventually. When it does come, it will form the centrepiece of international law as it applies to disability and form a key departure point in Irish policy. It is desperately important that it should include intellectual disability along with physical disability. It is equally important that it includes not just civil liberties, but also economic, social and cultural rights The Department of Foreign Affairs would welcome our support, and so would the Irish mission in Geneva, under our Ambassador Anderson and Eamonn MacAodha—we must get involved.

Conclusions
  • About two years ago, Mary Robinson succeeded in getting the UN machinery to pass a famous resolution on the protection of human rights defenders—people who put themselves on the line daily in the struggle for justice. That is how we must primarily see ourselves—as human rights defenders.
  • There is a slogan that one should think globally and act locally, but sometimes you have to act globally in order to be able to act effectively locally. This means getting involved in higher-level debates. And we must grab our democratic right to help shape the terms of the debate. Domestic debate will increasingly be set by international standards. We need to make more of the fact that a UN body has found the equality clause in the Irish Constitution to be unfit to sustain the kinds of modern law needed to respect our international obligations across the disability sector.
  • We must learn from others. The disability plan of the Bush administration in the US appears, on face value, to be excellent. A new national US Mental Health Commission is to be established. It will be interesting to see how its powers and functions compare with our own proposed mental Health Commission, and how learning disability issues will be addressed within it. And the new US administration promises to speed up enforcement of the US Supreme Court Olmstead decision which held that persons with intellectual disability have a right to placement in the ‘least restrictive environment’. A close watch should be maintained on how this decision is enforced.
  • We must use the new institutions and mechanisms to the full, and forge alliances with broad social movements and other civil rights NGOs. We can learn from them—and they can learn from us. We owe it to each other to network effectively.
  • Finally, we must have confidence in ourselves. Antonio Gramsci (a fighter against Fascism in Italy in the 1930s) said that an intellectual is one who participates in the world and who therefore shares in some conception of the world and has the capacity to help shape and re-shape that conception. We can be such ‘intellectuals’ and we can be agents for democratic change. Through our daily actions we can remind this republic that it was born to cherish all the children equally. We can contribute to the definition and achievement of justice in our society. We must be human rights defenders.