Chapter Five: National legislation and the Convention - Incorporating the Convention into domestic law | Division for Inclusive Social Development (DISD)

It is a basic principle of international law that a State party to an international treaty must ensure that its own domestic law and practice are consistent with what is required by the treaty. In some cases, the treaty may give general guidance on the measures to be taken. In others, the treaty includes specific stipulations. The Convention on the Rights of Persons with Disabilities contains both kinds of provisions. Parliament thus has a critical role in ensuring that the legislative measures required by the Convention are adopted.

Many of the provisions contained in the Convention are similar in either wording or substance to the provisions of other human rights treaties to which a State is a party. It might be useful to examine how those treaties are put into effect in order to determine the steps required to implement the Convention on the Rights of Persons with Disabilities.

Uganda was one of the 82 signatories to the Convention on 30 March and the process towards ratification is ongoing. When the Convention is implemented, it will mark a significant paradigm shift to a human rights model of disability, embodying principles of dignity, non-discrimination, full participation, respect, equality and accessibility, and advance the rights and inclusion of all people with disabilities.

James Mwandha, former MP (Uganda)

INCORPORATING THE CONVENTION INTO DOMESTIC LAW

The meaning of signing and ratifying

Chapter 4 explains in detail the process and meaning of signing and ratifying the Convention and Optional Protocol. In examining legislative measures to implement the Convention, one should bear in mind that:

There is no time limit between signing the Convention or Optional Protocol and ratifying either instrument;
Signing the Convention or Optional Protocol obliges the State to refrain from acts that would defeat the object and purpose of either instrument; and
Ratifying the Convention or Optional Protocol indicates at least an obligation to be bound by these instruments and to perform such obligations in good faith.

One of the fundamental obligations contained in the Convention is that national law should guarantee the enjoyment of the rights enumerated in the Convention. Members of Parliament should thus consider the best way of giving effect to the rights guaranteed by the Convention in domestic law. The method selected will vary according to the constitutional and legal systems of individual countries:

In some countries, once it is ratified at the international level, the Convention may automatically form part of national law. In other words, the Convention would be directly enforceable by national courts and other implementing authorities.
In some other countries, the legislature might have to adopt an act of ratification at the national level. This may have the effect of incorporating the Convention into domestic law. However, even when parliaments ratify the Convention (national ratification), many provisions might still require legislative action before they come into force. This depends, in part, on how specific the Convention’s obligations are: the more specific the obligation, the less likely that implementing legislation will be needed.
In other cases, including many common-law countries, only those provisions of the treaty that are directly incorporated into national law will give rise to enforceable rights and duties.

ACTIONS TO ENSURE THAT NEW AND REVISED LAWS COMPLY WITH THE CONVENTION

Governments might benefit from having a newly established or already existing body, such as an equality commission, a national human rights institution or a disability commission, conduct a comprehensive review of legislation. This process should include:

Involving experts from government institutions and ministries, civil society, and persons with disabilities and their representative organizations;
Establishing and monitoring time frames for the completion of the review; and
Establishing a parliamentary committee to oversee the process and systematically scrutinize any legislative proposal to ensure consistency with the Constitution.

Incorporation through constitutional, legislative and regulatory measures

Except in the rare case that the laws in a country already conform fully to the requirements of the Convention, a State party will normally have to amend existing laws or introduce new laws in order to put the Convention into practice.

Ideally, there should be a comprehensive and unequivocal legal statement of the rights of persons with disabilities, and detailed legislation to make those guarantees real in practice. It is critically important that the recognition and protection of the rights of persons with disabilities be enshrined in the supreme law of the country, that is, in the national constitution or in basic laws. This will ensure the highest possible legal protection and recognition. Doing so might involve introducing disability as one of the grounds on which discrimination is prohibited; or explicitly protecting the rights of persons with disabilities in the national constitution, whether as part of a general guarantee of equality, or in the form of specific provisions relating to the rights of persons with disabilities.

Further, parliament may incorporate the entire Convention into domestic law. In this case, it might be useful to include in the relevant law a clear indication that the provisions of the Convention are self-executing, that is, that they are intended to be directly enforceable before domestic courts and tribunals. However, even where the Convention is incorporated into domestic law in its entirety, this will not normally be sufficient to give full effect to its provisions; implementing legislation will usually still be required, including detailed legislation in specific areas, such as a law prohibiting discrimination in employment.

In addition, it will not always be possible or appropriate for the legislature to set out in detail the rules and standards required to ensure equal enjoyment of specific rights by persons with disabilities. The State might have to adopt policy and regulatory initiatives, in addition to legislation, to comply with the many provisions requiring “appropriate measures” to be taken in areas such as physical accessibility to buildings and transport systems or information and communications technologies (article 4 of the Convention). While parliaments might not be enacting these detailed regulations, it might be appropriate to adopt legislation that allows for standards to be set in these areas and to request that those standards be presented to the legislature for information and/or approval.

CONSTITUTIONAL GUARANTEES OF EQUALITY FOR PERSONS WITH DISABILITIES

Section 15 of the 1982 Canadian Charter of Fundamental Rights and Freedoms provides: “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.”

Article 3 of the Constitution of the People’s Republic of China states that “disabled people enjoy the same rights as other citizens in respect of political, cultural and social aspects, as well as family life” and that “it is forbidden to discriminate against, insult or harass disabled persons.”

Article 3 of the Basic Law of the Federal Republic of Germany states that all persons shall be equal before the law and that no person shall be disfavoured because of disability.

Section 38 of the Fiji Constitution (Amendment Act) 1997 provides that “a person must not be unfairly discriminated against, directly or indirectly, on the ground of his or her actual or supposed characteristics or circumstances including … disability.”

The 1995 Constitution of Uganda was drawn up with the participation of many different groups in the community, including persons with disabilities. That participation is reflected in a number of constitutional provisions guaranteeing and promoting equality for persons with disabilities.

Article 21 provides that a person “shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability.”

Article 32 (1) provides that the State “shall take affirmative action in favour of groups marginalized on the basis of gender, age, disability or any other reason created by history, tradition or custom, for the purpose of redressing imbalances which exist against them.”

Article 9 of the Constitution of South Africa states that “… to promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.”

Types of equality and non-discrimination legislation

The obligation to prohibit all discrimination on the basis of disability and to guarantee equal and effective protection to persons with disabilities (article 5 of the Convention) requires both that the prohibition be included in national laws and, preferably, also in national constitutions, and that detailed legislative provisions covering discrimination in all fields of public and private life be adopted. The exact form that these provisions should take will depend on existing laws and the particular legal system of a State party.

Some countries have comprehensive, general anti-discrimination laws covering multiple grounds of prohibited discrimination; others have individual laws dealing with different forms of discrimination, such as those based on sex, age or marital status, or covering discrimination in specific areas, such as in employment.

One option is to enact a disability discrimination law that prohibits discrimination on the ground of disability, in general, but that also provides detailed regulations of specified areas of public and private life.

Another option might be to enact a disability-equality law, similar to the gender-equality laws adopted by some States. Laws of this kind do not limit themselves to prohibiting discrimination, but address a wide range of issues relating to persons with disabilities. For example, in India the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act (1995) sets out a broad policy framework for addressing disability issues, establishes a number of bodies at the national and state level to do this, addresses prevention and early detection of disability, equality in employment and education, including affirmative action, social security, accessible transport and buildings, the recognition of institutions for persons with disabilities, research into disability issues, and other matters.

Even a wide-ranging disability-equality law will probably not address some issues relating to equality for persons with disabilities. Given the need for greater specificity on the issues of social security and social support, workers’ compensation, transport standards, building standards, and others, it might be more appropriate to address these topics in other laws.

Where legislation prohibiting other forms of discrimination already exists, it might be appropriate to amend the existing legislation to incorporate disability as a ground of prohibited discrimination. At a minimum, it is important to ensure that the Convention’s understanding of “disability” and definition of “discrimination on the basis of disability” are fully reflected in a general anti-discrimination law. Where existing legislation applies only to some of the areas covered by the Convention, then new legislation will be required to ensure that protection against discrimination on the ground of disability applies to all areas. It might also be appropriate to assign responsibility for monitoring and enforcing the law under the new legislation to existing institutions, provided that persons with disabilities are or become involved as members of those institutions and that the institutions have sufficient expertise in disability issues.

VARIOUS APPROACHES TO LEGISLATION ON DISCRIMINATION

At least 40 countries have adopted legislation addressing the rights of persons with disabilities. Some of this legislation prohibits discrimination as its primary goal; other laws address the positive duty of the State and the community to ensure the welfare of persons with disabilities and their access to social support. Many countries have both types of legislation.

The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities in employment, public services and transport, and places of public accommodation. In the employment context, the ADA essentially prohibits discrimination against qualified individuals with a disability who can perform the functions of the position held or desired, with or without reasonable accommodation, which does not impose an undue hardship on the employer. ¹

In India, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995 adopts a more wide-ranging approach: it uses both non-discrimination language in a number of areas and also supports positive discrimination in favour of persons with disabilities through a quota system, reserving a certain number of places for persons with disabilities in the training and employment programmes of public- and private-sector entities. It also provides incentives to establishments that promote the employment of disabled persons and preferential treatment through tax concessions, subsidies and grants. ²

In 1996, Costa Rica adopted Law No. 7600 on Equality for Persons with Disabilities. This law imposes clear obligations on the State to advance the rights of persons with disabilities, and guarantees equality in areas such as education, health and work.

Footnotes

1 Taken from DESA compilation: http://www.un.org/esa/socdev/enable/discom102.htm#19#19
2 Taken from DESA compilation: http://www.un.org/esa/socdev/enable/discom102.htm#19#19

WHAT PARLIAMENT CAN DO TO ENSURE THAT THE CONVENTION IS INCORPORATED INTO NATIONAL LAW

Recognize the civil, cultural, economic, political and social rights of women, men and children with disabilities in the supreme law of your country (constitution or basic law):
- Revise existing provisions in the constitution or basic law and the protection granted to persons with disabilities;
- Include a general guarantee of equality;
- Prohibit the use of disability as a ground of discrimination;
- Include specific provisions on the rights of persons with disabilities;
- Revise language used to refer to persons with disabilities.
Adopt a national law incorporating the content of the Convention, or even its entire text, specifying that the law is enforceable before the courts.
Adopt additional implementing legislation. Depending on existing legislation, your country might adopt or amend:
- A comprehensive, general discrimination law, including the prohibition of using disability as a ground of discrimination in public and private life;
- Non-discrimination laws in different sectors, such as work, education and access to justice, including disability as a prohibited ground of discrimination; and/or
- Disability-equality law, prohibiting discrimination based on disability and establishing a broad framework to address disability.
Ensure that there is a mechanism for consulting with persons with disabilities, and/or their representative organizations, at the law-making level.
Revise language used to refer to persons with disabilities in all existing and new legislation.