Upholding Disability Rights in the Americas: the Role of the Inter-american Institutions

• Citation: Vol. 50 No. 3
• Publication year: 2022

Upholding Disability Rights in the Americas: The Role of the Inter-American Institutions

Dr Ying Chen^* & Dr Paul McDonough^**

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TABLE OF CONTENTS

I. INTRODUCTION.....................................................................................601

II. DISABILITY RIGHTS IN THE INTER-AMERICAN SYSTEM.........................604

III. INTER-AMERICAN ENFORCEMENT MECHANISMS: THE IACHR AND THE IACTHR.......................................................................................609

A. Trends in Numbers of Remedies for Disability Rights Violations (2011-2020)..........................................................................611
B. Jurisprudence.......................................................................620

i. Rights to life and humane treatment................................622
ii. Social rights....................................................................626
iii. Due process rights..........................................................631

IV. KEY CHALLENGES..............................................................................633

V. CONCLUSION: A LONG WAY AHEAD....................................................637

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ABSTRACT

This Article studies how the adjudicative institutions created by the Inter-American Convention on Human Rights (ACHR) have worked to uphold the rights of persons with disabilities. It argues that those institutions, the Inter-American Commission on Human Rights (the Commission or IACHR) and the Inter-American Court of Human Rights (the Court or IACtHR), have begun to construct a regime of enforceable rights of persons with disabilities by applying international rules and interpretations to fill gaps in a relatively sparse Inter-American disability rights treaty framework. To buttress general principles of equality and non-discrimination with specific rights, the Commission and the Court have turned to the United Nations (UN), and occasionally other international sources of law, to aid in interpreting concepts and terms relating to disability rights. A watershed moment was the adoption of the Convention on the Rights of Persons with Disabilities (CRPD) in 2008, which provided a detailed definition of disability rights that was (and remains) lacking in the Inter-American disability rights treaty, the 2001 Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities (CIADDIS).

Only a small fraction of the complaints and cases before the Commission and the Court raise disability rights. However, as the Article shows by canvasing their case law through 2020, the overall activity of the Commission and the Court is increasing and may further accelerate as procedures and resources are adapted to process a significant backlog of cases. In lieu of an overarching set of disability rights in the Inter-American treaties, a few specific streams of jurisprudence have developed. These streams attach disability rights to the ACHR's provisions regarding the rights to life and humane treatment, and to the progressive realization of economic, social, and cultural rights. Cases have focused mainly on treatment of persons held in state institutions, and on extending access to health care and public education. Recent rulings seem to indicate a fusion of due process rights of redress to these substantive rights, in principle, expanding access to judicial remedies for persons with disabilities. The Article concludes that the Court and the Commission will likely continue to build out their framework of enforceable disability rights, but there are severe practical limits to what they can accomplish. Even when states willingly engage with the Court's and the Commission's effort, economic factors constrain governments' responses.

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I. INTRODUCTION

The Inter-American human rights system is an institutional outgrowth of the Organization of American States (OAS).¹ At the supranational level, the system consists of a set of treaties among OAS states² and institutions for the study, promotion, and enforcement of human rights, most prominently the Inter-American Commission (the Commission or IACHR)³ and Inter-American Court of Human Rights (the Court or IACtHR),⁴ which have adjudicative as well as advisory competences.⁵ In disability rights protection, the system incorporates international instruments, but its regional foundation is the 1969 American Convention on Human Rights (the Convention or ACHR)⁶ and the 2001 Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities (CIADDIS).⁷ The United States of America has participated in the Inter-American system to a very limited degree. For example, they decline to participate in the contentious jurisdiction of the Court and rarely engage with

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the Commission in its inquiries.⁸ As a result, the system has evolved largely as a regional human rights regime for Latin America.⁹

The Inter-American institutions and the OAS member states have made considerable efforts to improve the protection of disability rights,¹⁰ and the Inter-American system has begun to evolve toward a rights-based model of disability.¹¹ Nevertheless, much remains to be done to protect the 85 million persons with some form of disability in Latin America.¹² Persons with disabilities in most Latin American countries are essentially excluded from significant social spheres of life.¹³ They are "isolated, stigmatized, mistreated, and marginalized"¹⁴ and viewed "as subjects of pity, in need of a medical cure or charity . . . not as human beings entitled to political, social, and civil rights."¹⁵ This is reflected in the widespread public policies and practices in

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the Americas that treat support extended toward persons with disabilities as an act of charity rather than a matter of legally enforceable rights.¹⁶

Inter-American disability jurisprudence has centered mainly on ensuring equal access for persons with disabilities to basic human rights and to due process of law.¹⁷ Insofar as the Inter-American institutions have engaged specifically with disability rights, they have concentrated on the right to receive necessary health care based on disability¹⁸ and on the prohibition of capital punishment of persons with mental disabilities.¹⁹ Otherwise, the work of the Inter-American Court and, in its adjudicative role, the Commission has focused mainly on ensuring that persons with disabilities have access to the rights and services available to other citizens and are not mistreated while in institutional custody.²⁰ The Inter-American human rights system does not declare a comprehensive system of disability rights. Instead, using the discretion its statute affords it to consider international as well as Inter-American sources of human rights law, the Court has fashioned lines of case law that establish discrete disability rights across the Inter-American

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system.²¹ Since 2008, Inter-American jurisprudence has increasingly developed against the background of the Convention on the Rights of Persons with Disabilities (CRPD),²² an international human rights treaty, incorporating several of its standards.²³

This Article examines the implementation of disability rights in the Inter-American human rights system of the Organization of American States (OAS). Its analysis centers on the two main Inter-American human rights bodies: The Inter-American Commission and Court of Human Rights. Guarnizo-Peralta's Disability Rights in the Inter-American System of Human Rights: An Expansive and Evolving Protection²⁴ presented the main outlines of the Commission's and the Court's disability-related jurisprudence to 2017. This Article builds on that work by looking at 2018-2020 cases empirically to show how disability rights doctrines have continued to develop from principles of health care as a human right, non-discrimination, and equal access to rights and public services. Part II of the Article describes the Inter-American legal framework governing disability rights, both in itself and in relation to its international counterpart. Part III traces some main trends in disability related case law, highlighting how the Commission and the Court have applied both international and Inter-American legal sources to develop a unique regional jurisprudence. Part IV of the Article explores practical challenges facing the Inter-American system, such as its procedural inefficiency, state reluctance to accept adverse rulings of the Inter-American bodies, and the key issue of economic constraints. A brief conclusion then assesses the Inter-American system's development and highlights remaining concerns regarding its effectiveness and accessibility.

II. DISABILITY RIGHTS IN THE INTER-AMERICAN SYSTEM

The Inter-American human rights system began with the American Declaration of the Rights and Duties of Man (American Declaration) in

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Bogotá, Colombia, in April of 1948.²⁵ The Declaration recognizes disability as a challenge to self-sufficiency, giving rise to a compensating right to social security.²⁶ The OAS has adopted several further instruments that protect the rights of persons with disabilities. Some, notably the OAS Charter (the Charter)²⁷ and the ACHR,²⁸ do not specifically pronounce disability rights, but their Preambles emphasize equality and inclusion. The Charter strives to "provide for the betterment of all, in independence, in equality and under law."²⁹ The Convention calls for "a system of personal liberty and social justice based on respect for the essential rights of man"³⁰ to supplement protections of national laws.³¹ A protocol to the Convention, the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (the Protocol of San Salvador), commits states to make best efforts to advance economic, social or cultural rights, without discrimination.³²

It is well established in the Inter-American system that...