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How are Persons with Disabilities defined in International Law?

This post is based on a part of my master’s thesis, “Forgotten Victims of Armed Conflict: Challenges Faced By Persons With Disabilities” in International Human Rights Law at the Faculty of Law, Lund University, defended in 2017. The full thesis (including citations) can be found here:

All conventions related to the human rights cover and protect persons with disabilities at the same level as persons without disability. However, there is no settled definition made at the level of international law for persons with disabilities. Persons with disabilities were not specified within the original international human rights instruments but are assumed to have the same protections as those guaranteed to persons without disabilities under International Human Rights and Humanitarian Law. This post introduces three main international and regional conventions that specifically characterize, state or refer to persons with disabilities and are the main sources of law during armed conflicts. These conventions are:

  • The Geneva Conventions,

  • The European Convention on Human Rights, and

  • The United Nations Convention on the Rights of Persons with Disabilities

The Geneva Conventions

The four Geneva Conventions and their additional protocols have been considered the bedrock of modern international humanitarian law since they were declared in 1949. The authors were trying to regulate warfare and attempting to limit the barbarities that occur during war. The most relevant parts of the conventions that include the term ‘disability’ are Geneva Convention (IV), related to the Protection of Civilian Persons in Time of War; the Additional Protocol to the Geneva Conventions; and Protocol I relating to the Protection of Victims of International Armed Conflicts.

Geneva Convention IV of 1949 contains 159 articles and is concerned with the protection of civilian populations during war, particularly civilians in enemy-occupied areas. Most of the articles deal with the status and treatment of civilians and specifically spell out the obligations of an occupying power towards these populations, and its obligations to provide humanitarian relief in occupied areas.

The AP I stipulated in Article 8(a) that: “the terms ‘wounded’ and ‘sick’ mean persons … who, because of … physical or mental disability, are in need of medical assistance or care … and other persons who may be in need of immediate medical assistance or care, such as the infirm”.

European Convention on Human Rights

The Council of Europe drafted the European Convention on Human Rights (ECHR) in 1950 and it entered into force on September 3, 1953. While disability is not explicitly mentioned in the ECHR, Article 14 prohibits discrimination and although the discriminatory grounds listed in the article do not specify disability, the list is not exhaustive. Based on the decisions of the European Court of Human Rights (ECtHR), disability is considered discriminatory grounds.

The United Nations Convention on the Rights of Persons with Disabilities

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol, which was adopted in 2006 and entered into force in 2008, can be considered the main international instrument covering and stating the rights of persons with disabilities. Based on Article 1 of the CRPD, the purpose is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” The rights of persons with disabilities are asserted across different subjects, including health, education, work, and right to life. The Convention promotes positive attitudes and behaviors towards persons with disabilities and challenges prejudice, negative stereotypes, stigma and harmful practices. As of July 2020, 181 countries worldwide have signed the Convention.

Disability is characterized non-exhaustively as those “who have long-term physical, mental, intellectual or sensory impairments, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” The UN has expressed that “this minimum list of persons who may claim protection under the Convention does not exhaust the categories of the disabilities, which fall within it nor is intended to undermine or stand in the way of a wider definition of disabilities under national law (such as persons with short-term disabilities)”.

The Optional Protocols state that persons with disabilities have an equal right to petition the courts for any violations of the rights contained within the Convention.

The Committee on the Rights of Persons with Disabilities was established to monitor the implementation of the Convention, examine any individual complaints, and receive regular reports submitted by state parties to provide suggestions and general recommendations.

European Union and the CPRD

The European Union became a party to an international human rights convention for the first time in its history by ratifying the CPRD in 2009. The ECtHR has created new jurisprudence in light of the CRPD and the CRPD has become a key instrument in EU countries for re-examining perceptions of persons with disabilities and promoting domestic legal reform.

Based on the articles and standards contained in the CRPD, the ECtHR has positively pushed the issue of discrimination and intolerance against persons with disabilities in two recent cases. The first is Glor v Switzerland (2009), regarding a man required to pay a tax for exemption from military service, even though his diagnosis of diabetes meant that he was unable to carry out compulsory military service. The court said that “The European Court of Human Rights has held that discrimination against a person living with diabetes constituted discrimination on the ground of disability” in conjunction with Article 8. In the second case, Alajos Kiss v Hungary (2010), a man with manic depression was excluded from voting due to being under a “partial guardianship”. Although the applicant did not make a specific claim of discrimination, the court acknowledged that persons with mental disability suffered discrimination in the past. It concluded that “an indiscriminate removal of voting rights, without an individualized judicial evaluation and solely based on a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote.” This was accepted as a groundbreaking decision by observers.

Chavia Ali #chaviaali

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