Abstract
In recent years the Inter-American Human Rights System has moved in the direction of increasingly protecting the rights of persons with disabilities. Although the Inter-American singular instrument dealing with disability rights (CIADDIS) does not provide a strong tool for the analysis of individual claims in cases of violations of these rights, both the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights have relied on an expansive interpretation of the Inter-American treaties, particularly the American Convention on Human Rights (ACHR), in order to protect them. The purpose of this article is to trace the evolution of Inter-American jurisprudence and practice with regard to the protection of the rights of persons with disabilities. In its first decisions on persons with disabilities, the Inter-American System took a general approach by simply recognising that persons with disabilities are entitled to the same rights as all persons; in its more recent decisions the Inter-American System has taken a proactive approach by interpreting those rights from a particular disability rights perspective. This article will argue that in doing so, the Inter-American System has, in some aspects, progressively caught up with international standards of protection regarding disability rights, while in others, it has developed a particular standard of interpretation that is in conflict with the CRPD’s standards. Inter-American jurisprudence is thus slowly becoming an internationally relevant actor for the interpretation of disability rights, one that should be taken into account.
Keywords
1. Introduction
Developments in International Law in the past 10 years have shown that there is an increasing concern with regard to the rights of persons with disabilities. At the United Nations (UN) level, the Convention on the Rights of Persons with Disabilities (hereinafter CRPD), which was adopted in 2006 and entered into force in 2008, 2 provides an international legal framework for the protection of persons with disabilities. At the Inter-American level, the Convention on the Elimination of all forms of Discrimination against Persons with Disabilities (hereinafter CIADDIS), adopted in 1999 and entered into force in 2001, 3 provides a regional framework for disability rights. Within the Inter-American System both the Inter-American Commission on Human Rights (hereinafter ‘the Commission’ or IACHR) and the Inter-American Court of Human Rights (hereinafter ‘the Court’ or IACtHR), have progressively protected the rights of persons with disabilities in their case law.
Despite the existence of specialised treaties on the rights of persons with disabilities within the Inter-American System, the Commission and the Court have both relied mainly on the American Convention on Human Rights (hereinafter the ‘American Convention’ or ACHR) and, more recently, the Protocol of San Salvador (hereinafter the ‘Protocol of San Salvador’) in order to protect the civil, political, economic, social and cultural rights of persons with disabilities.
This article will describe the approaches used by both the Commission and the Court in the protection of disability rights. It will argue that, despite the lack of a particular mechanism to protect the rights of persons with disabilities, and the low interest of the system to engage in a deep analysis about disability rights in its first cases, the Inter-American system is slowly including a disability rights perspective in its case law. In doing so, the Inter-American system is developing its own voice and becoming a relevant actor in the definition of international standards on disability rights, a voice that should be taken seriously into account.
In the first Section, the article will present the instruments on disability rights that frame the protection of these rights within the Inter-American System and will compare them with those established in the United Nations system. The second Section will present the case law on the rights of persons with disabilities within the Inter-American Commission on Human Rights, distinguishing the analysis by rights and emphasising the role of precautionary measures. The third Section will do the same for the case law of the Inter-American Court of Human Rights, illustrating the introduction of disability standards in cases related to health, access to a fair trial, and to education. The fourth Section will put forward the points that should be developed by the jurisprudence of the Inter-American System, if it wants to keep engaging with disability rights in the future. The fifth Section will develop some general conclusions.
2. Disparate beginnings: Differences in the understanding of disability rights between the CRPD and CIADDIS
In 2001, the CIADDIS, the Inter-American System’s Instrument protecting the rights of persons with disabilities, came into force, becoming the first international instrument of its kind. The definition of disability under the CIADDIS focuses on the impairments of a person to perform daily activities, and views economic and social contexts as aggravating factors to the effects of disability. According to CIADDIS: The term “disability” means a physical, mental, or sensory impairment, whether permanent or temporary, that limits the capacity to perform one or more essential activities of daily life, and which can be caused or aggravated by the economic and social environment.
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The United Nations CRPD entered into force in 2008, seven years after the CIADDIS. Its definition of disability relies more strongly on a social approach and defines it as ‘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.’ 6 This understanding of disability focuses on the social and relational dimension. According to this new paradigm, problems related to disability do not focus on the medical issue of disability but on the social response to it.
As CIADDIS’ focus is on the protection against any form of discrimination, it does not establish further protection with regard to other rights. It understands discrimination as: any distinction, exclusion, or restriction based on a disability, record of disability, condition resulting from a previous disability, or perception of disability, whether present or past, which has the effect or objective of impairing or nullifying the recognition, enjoyment, or exercise by a person with a disability of his or her human rights and fundamental freedoms.
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Another difference between CIADDIS and the CRPD is that the CIADDIS includes a very weak enforcement mechanism for the rights it protects. Unlike the American Convention, which establishes a system of analysis of individual petitions of communications, to be decided first by the Commission and then by the Court, 16 CIADDIS does not establish such a system of individual petitions, letting the rights established on it stand without a judicial tool of enforcement. Instead, it refers to a very generic duty for States to cooperate with one another in preventing and eliminating discrimination against persons with disabilities 17 , and to collaborate in scientific and technological research on the prevention and rehabilitation of disabilities. 18 It also establishes a system of periodic reports every four years 19 which should be submitted to the ‘Inter-American Committee for the Elimination of All Forms of Discrimination against Persons with Disabilities’ (hereinafter CEDDIS). The CEDDIS is composed of 19 representatives, each appointed by a State Party. 20 However, it has not been effective in protecting the rights contained in the Convention. By September 2017 the CEDDIS had held only eight meetings and five special meetings. 21 This reality reflects its limited impact on the development of policies for disabled persons in the region. 22
By contrast, the CRPD includes concrete obligations for States Parties in order to secure the compliance of the rights it protects. It obliges States to provide appropriate information in the form of statistical and research data in order to undertake appropriate and effective measures to promote international cooperation among States, and to designate focal points and administrative mechanisms to promote, protect and monitor the implementation of the Convention. The CRPD also established a Committee on the Rights of Persons with Disabilities which is in charge of analysing the reports submitted by the States Parties 23 . In those cases where the State Party has ratified the Optional Protocol to the Convention on the Rights of Persons with Disabilities, the Committee can decide on the communications presented by individuals or groups. 24 The Committee is composed of 18 independent experts who serve in their individual capacity and are elected from a list of persons nominated by the States. As of September 2017, the Committee has issued recommendations to several States and examined fourteen individual petitions. 25
A final difference between the two instruments is in the number of ratifications and recent support from State Parties. As of September 2017, only 19 out of the 35 Member States of the Organisation of American States (OAS) have ratified or adhered to the CIADDIS. After the last ratification, coming from Haiti in 2009, the efforts to extend the ratification have stalled. In contrast, as of September 2017, 174 countries have ratified the CRPD. As recently as 2016, seven UN member States ratified the CRPD, illustrating the increasing acceptance of this instrument. In the Americas all countries except the United States are State Parties of the CRPD, indicating a quicker ratification of the CRPD in the region when compared to the CIADDIS.
These differences in terms of the understanding of disability, the scope of the rights protected, the mechanisms of protection and the support from States show the limitations of the CIADDIS for the adequate protection of persons with disabilities. In particular, the decision of the authors of CIADDIS to not allow the use of the individual petition system to protect the rights it establishes explains why both the Commission and the Court have referred to the American Convention and other Inter-American instruments, in order to protect the rights of persons with disabilities.
Sections 2 and 3 will analyse in detail how both the Commission and the Court have, by referring to these instruments, addressed the cases of persons with disabilities in their jurisprudence.
3. The increasing involvement of the Inter-American Commission on Human Rights in the protection of the rights of persons with disabilities
3.1. The timid first steps of the Inter-American Commission in the analysis of disability rights
Even before the entering into force of CIADDIS, the Commission had already dealt with one case in which the rights of persons with disabilities were under consideration. 26 In Victor Rosario Congo v. Ecuador the Commission began the analysis by applying the civil and political rights contained in the ACHR to the particular situation of persons with disabilities. In this case, a person with psychiatric problems, detained in an isolation cell, suffered several abuses from the security guards. The person died from dehydration due to a lack of medical and psychiatric attention. The Commission referred to the definition of mental disability adopted at the time by the United Nations, in order to consider the victim mentally disabled. 27 The Commission concluded that retaining a person suffering from a mental disability (and cholera), in custody without medical treatment, constituted a violation of his physical, mental and moral integrity under Article 5 ACHR. 28 However, the Commission did not detail what the particular rights that a person with a mental disability should enjoy while in custody, but merely stated the existence of a right (to access to medical care while in custody) without engaging in a deep disability rights analysis.
Following the entering into force of the CIADDIS in 2001, in some cases the Commission issued reports related to persons with disabilities, but again did not engage in a disability rights analysis. In Martinez Villareal v. Mexico, 29 for example, the Commission studied the case of a Mexican national on death row in the United Sates. The petitioners alleged that Mr. Martinez Villarreal suffered from mental illness and was incompetent to stand trial or to be sentenced to death. The Commission focused its analysis on the failure of the State to inform Mr. Martinez Villarreal of his right to consular assistance in connection with the right to life. However, it did not analyse the petitioner’s argument related to the mental capacity of the victim to stand trial, as it did in subsequent cases. 30
The only case since 2001 that directly addresses the rights of persons with disabilities is the friendly settlement of Maria Soledad Cisternas Reyes in 2003. 31 The petitioner, an attorney by profession and totally blind, asked for a reservation for air travel. The airline made the reservation on the condition that she did not travel alone but would be accompanied by another passenger or by a guide dog, and that she would cover the associated costs. In the friendly settlement the parties recognised that in order ‘to contribute to the progressive social integration of persons with disabilities, especially bearing in mind Law 19,284 of 1994 and the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities of the OAS […]’ 32 , the State should facilitate a meeting between the victim and the General Directorate of Civil Aviation, in charge of reviewing the legislation regarding the air travel of persons with disabilities, and that they should collaborate with her as an expert in the area of ‘vulnerable communities’.
As it is the first document in which a State explicitly refers to CIADDIS as a legal framework to define an agreement, it is an important step in the protection of the rights of persons with disabilities. However, as is common with friendly settlements, they rely on a common compromise between the State and the petitioner, and, in each case, do not develop an in-depth scope of the State’s duties. Consequently, this friendly settlement did not provide details about the particular changes that the Chilean legislation should undertake in order to be compatible with disability rights, thus leaving unresolved the question of how a disability perspective could be implemented in order to guarantee the personal mobility of persons with disabilities.
3.2. The Commission and the protection of the rights of persons with disabilities
It was not until 2009, with the adoption of the CRPD, that the Commission took a more decisive role in the protection of persons with disabilities by examining more cases related to persons with disabilities. As CIADDIS does not provide a complaint system for its enforcement, the Commission opted for enforcing the rights established to everyone in the ACHR and the American Declaration of Human Rights, in cases of violations of the rights of persons with disabilities. This strategy helped the Commission to increase the number of cases in this respect. Initially, it focused on the right to human treatment, then moved on to other rights, such as the right to a fair trial. A similar phenomenon happened at the European Court of Human Rights, which increased the number of landmark decisions on disability rights following the entry into force of the CRPD. 33
However, during this period the Commission did not necessarily apply a disability perspective in the analysis of these cases. The analysis made by the Commission in these cases merely declares that persons with disabilities enjoy the same rights as other persons. In most of the cases, the Commission does not detail how those rights should be exercised in order to fully meet the persons with disabilities’ needs. Only in one area, related to the ‘right to not be subjected to capital punishment’, does the Commission engage in a disability rights analysis. However, by doing so it distanced itself from the CRPD standards on the interpretation of the right to stand trial, as will be developed further below.
3.2.1. The right to human treatment in cases of persons with disabilities
From 2009 onwards, the Commission published several admissibility reports in cases where the victims experienced certain types of mental or physical disability. In some of the cases, the victims who suffered psychotic disorders or other types of mental problems did not receive the appropriated health care whilst being processed for a crime 34 or detained in a prison. 35 In other cases, persons living in mental health hospitals disappeared 36 or were subjected to ill-treatment, medical negligence and malpractice. 37 In some further cases, victims of labour exploitation 38 or abuse of power suffered from either serious physical or mental disabilities and did not have access to a prompt judicial remedy. 39 In all of these cases, the Commission found that the situation of a lack of medical attention, and/or of violence or ill-treatment experienced by the victims, could imply a potential violation of the right to personal integrity of these persons. However, in none of these cases did the Commission make concrete references to either the CIADDIS or the CRPD, or analyse them from a specific disability rights perspective. Although the analysis of the Commission at this stage of the proceedings was preliminary, the Commission could have included more references to the international disability rights instruments, and emphasised how the particular situation of disability affected the particular exercise of the victims’ human rights.
The only exception to this trend during this period is the case of Luis Fernando Guevara Diaz (2012), in which a person with a mental disability, who gained first place in an entry exam for a State job, was not hired, due likely to discriminatory practices. The Court found that the facts could imply a potential violation of the rights to a fair trial, to equal protection before the law, and to judicial protection, and stated in the analysis of the merits that the Commission should rely on the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (hereinafter ‘Protocol of San Salvador’) 40 and the CIADDIS for interpretative purposes. 41
3.2.2. The rights of persons with disabilities to a fair trial and not to be subjected to capital punishment
In 2013 and early 2014 the Commission published two merit reports in which it, for the first time, expressly analysed from a disability rights perspective the rights to a fair trial, to due process, and not to be subjected to capital punishment. However, it interpreted these rights in a way that clearly contrasts with the interpretation taken by the Committee on the Rights of Persons with Disabilities later in 2014. Both cases are related to the situation of persons with mental disabilities facing the death penalty in the United States. 42 In Clarence Allen Lackey et al, v. The United States (2013), the Commission examined the case of 16 victims who were executed whilst their cases were still pending before the Commission. Seven of the victims had some level of mental disability. The Commission read that within the American Declaration, Articles I and XXVI, relating to the right to life and the right not to receive cruel, infamous or unusual punishment, there is contained an implicit right of every person with a mental disability not to be subjected to capital punishment. 43 The Commission considered this to be a ‘principle of international law’ 44 for which it cited UN treaty-body decisions, 45 UN standards 46 and domestic cases. 47 In the view of the Commission, ‘persons with mental disability cannot be subjected to capital punishment, as these individuals are unable to comprehend the reason for or consequence of their execution’. 48
Likewise, in Edgar Tamayo Arias v. The United States (2014) 49 the Commission examined the case of a Mexican citizen executed in the United States who had a mental disability caused by an injury in his brain’s frontal lobe, and whose right to consular notification was apparently denied. The Commission reiterated that it is a principle of international law and a right given in Articles I and XXVI of the American Convention, that ‘persons with a mental and intellectual disabilities, either at the time of the commission of the crime or during trial, cannot be sentenced to the death penalty’. 50
In these two cases, the Commission analysed the cases from a disability rights perspective, which is clearly a step forward when compared to previous cases. However, in this line of cases, the Commission separates itself from other international standards on this topic. On the one hand, the analysis joins a growing understanding in international law, according to which persons with mental disability should not be subjected to the death penalty. 51 Although the facts exposed in the cases are an indication that the Commission contemplates certain gravity in the level of disability, the lack of qualification in the term ‘mental disability’ may imply that, for the Commission, all persons with mental disability, regardless of the level of seriousness, should enjoy this protection. This differs from the position of the UN Human Rights Committee in several cases 52 as well as the American Bar Association 53 and the UN Economic and Social Council in the Safeguards concerning the application of the death penalty, 54 which have supported the ban of the death penalty for those persons with a ‘severe mental illness’. The ‘severe mental illness’ standard is close to the idea that persons, even if mentally disabled, may have different levels of capacity depending on the level of understanding, also called the ‘functional approach’.
On the other hand, the Commission also distances itself from the understanding on legal and mental capacity established by the Committee on the Rights of Persons with Disabilities in 2014. In General Comment No. 1, the Committee distinguishes between legal capacity - the ability to hold rights and duties, and mental capacity - the decision-making skills of a person. According to the Committee ‘perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity.’ 55 The Committee expressly rejects the functional approach and states that in those cases where the legal capacity of a person is removed because of an impairment in his or her decision-making skills, or because of a cognitive or psychosocial disability, Article 12 of the Convention does not permit a denial of legal capacity, but rather that the State should support the exercise of the individual’s capacity. 56 Although the Committee does not explicitly engage with the debate about the death penalty, the Commission’s reasoning in these cases, according to which ‘persons with mental disability cannot be subjected to capital punishment, as these individuals are unable to comprehend the reason for or consequence of their execution’, would be considered as patronising and discriminatory by the Committee. 57
In the discussion about the legal capacity of persons with disabilities to face the death penalty, the Commission seems to take a unique approach that clearly contradicts the standard of the Committee and which will have to be clarified in future cases.
3.3. The protection of the rights to health and education of persons with disabilities in the awarding of precautionary measures
Although the Commission’s reports are mainly focused on the enforcement of civil and political rights of persons with disabilities, precautionary measures have proved to be a very fruitful field of protection for all civil, political, economic and social rights for this group. The use of precautionary measures in cases of potential violations of the rights of persons with disabilities has been present since 2003. 58 However, it was not until 2012 onwards that the Commission started to increase the number of these measures awarded in favour of persons with disabilities. As with the admissibility and merits reports discussed previously, in these precautionary measures the Commission did not actually engage in a deep analysis of disability rights but generally stated that all persons, including persons with disabilities, are entitled to the same human rights.
In the cases Patients at the Neuropsychiatric Hospital v. Paraguay (2003) 59 and Federico Mora Hospital v. Guatemala (2012) 60 the Commission ordered precautionary measures in cases of widespread physical violence, ill-treatment, continuous use of isolation rooms, and sexual abuse. Although the Commission did not publish its reasoning on these measures, it is important to emphasise that in both cases the Commission was concerned not just with the most serious allegations of violence and abuse, for which it ordered the State to protect the lives and physical integrity of the victims, to restrict isolation cells and to prevent sexual abuse. The Commission was also concerned with the general conditions of the hospital, ordering the State ‘to improve the hygienic conditions of the hospital’ and ‘to provide proper medical care’. 61 The Commission considered all these situations to endanger the life and integrity of the patients in which can be considered an indirect protection of the right to health in connection with the right to human treatment. Although the cases do not distinguish themselves from other cases where the right to health - in connection with the right to human treatment - has been protected for persons in custody even without a disability, 62 the cases were relevant to the petitioners, giving them a legal tool to push the State’s work towards the protection of disability rights. 63
Precautionary measures have also been granted by the Commission to the protection of detained persons who suffered from a physical 64 or mental 65 disability and who cannot access adequate health services in their places of detention. In the cases William Alberto Pérez v. El Salvador (2014) and Julio Cesar Molina v. Cuba (2014), individual prisoners who suffered from health problems and some degree of mental disability, did not have access to appropriate health care in their detention facilities. In both cases, the Commission considered that the requirement of ‘urgency’ was filled as the illnesses and passing of time without proper and prompt health attention endangered their possibilities to stay alive. The Commission ordered each State to adopt the necessary measures to guarantee the life and personal integrity and ‘to provide specialised medical care needed’. 66 The case cites the CRDP when discussing the meaning of the term ‘reasonable accommodation’. 67 In none of these cases, however, did the Commission engage in a disability rights analysis. It declared that there is a State’s duty to provide appropriate health care, but it did not indicate how such services should be provided or how they should be adapted in order to meet the victims’ needs.
This trend of stating that persons with disabilities enjoy the same rights available to all persons, without detailing how the rights should be understood in order to fully meet their particular needs, was overcome in the case Irene v. Argentina (2016). 68 Irene was a girl with dystonic cerebral palsy and visual-auditory disorders caused by premature birth. The girl required a school therapeutic companion to help her integrate into the classroom, help her with her studies, and look after her general needs whilst at school. Although the State provided such assistance for some years, without warning it stopped the service, forcing the parents to pay for it until they could no longer afford to do so. Even though the case focused on the implications that a lack of special support would have for Irene’s rights to life and personal integrity, the Commission also recognised that such a lack of attention would likewise impact upon her education, thus providing indirect protection to the right to education.
Unlike the previous cases, where the Commission did not engage in a specific analysis from a disability rights perspective, in this one the Commission explicitly called for the recognition of a ‘model of social integration for persons with disabilities on equal terms and under the principle of non-discrimination’ 69 and suggested that ‘the way to achieve the psychophysical development of persons with disabilities is based on inclusive education’. 70 When defining the meaning of ‘inclusive education’ the Commission applied a psychosocial perspective by citing the UNESCO’s definition of ‘inclusion’ which is ‘a process of addressing and responding to the diversity of needs of all learners through increasing participation in learning, cultures and communities, and reducing exclusion within and from education’. 71 As part of the measures, the Commission ordered the State to ‘preserve the life and integrity of Irene, taking into account its disability and health, in order to access to all the special support recommended by the specialist in the light of the international standards.’ 72
The measures were awarded just a few months before the CRPD published its General Comment No. 4 on the right to inclusive education. 73 However, the decision incorporated a clear disability perspective by referring to the UNESCO’s definition of inclusion which is also incorporated in General Comment No. 4. The case became an important precedent in the protection of the right to education of persons with disabilities and in the definition of ‘inclusive education’. Moreover, it shows that the Commission is open not only to dealing with cases of persons with disabilities and recognising that they enjoy the same rights that all persons possess, but also to engaging in an analysis that takes into account their specificity as individuals with particular needs.
3.4. Preliminary conclusions on the role of the Commission in the analysis of disability rights
The protection of disability rights in the case law of the Commission has significantly increased in the last few years. Besides the restrictions of CIADDIS in the understanding of disability and the limited list of protected rights, as well as the procedural difficulty of having to enforce disability rights throughout an explicit connection with the Inter-American instruments, the Commission has managed to bring these cases to the Inter-American system of Human Rights, thus providing a window of opportunity for the protection for persons with disabilities in the Americas.
In order to integrate a disability perspective into their considerations, the Commission has relied not only on the analysis of individual cases, but also on the award of precautionary measures. In both situations, the Commission has increasingly taken disability cases into account. When analysing these cases, the Commission has relied on the binding force of the ACHR, citing international standards on disability more frequently than before.
Moreover, the Commission has evolved in their disability rights analysis. In the first cases the Commission limited itself to stating the existence of specific rights in cases related to persons with disabilities without detailing in which form and under which circumstances should these rights be implemented in order to fully meet the needs of a disabled person. In the more recent cases related to the death penalty and the precautionary measures on the right to education, the Commission moved forward by incorporating clear disability rights standards. Such standards have sometimes followed the CRPD standards, like in the inclusive education cases, but in others it has been clearly contradictory to them, like in the death penalty cases. Thus, the Commission is showing that it is progressively moving forward in the inclusion of international standards on disability rights, but at the same time developing its own voice in the interpretation of disability rights standards.
The work of the Commission has certainly prepared the path for the Inter-American Court to decide on these cases. The next Section will describe the involvement of the Court on disability rights and the strategies used to deal with them.
4. The role of the Inter-American Court: A progressive expansion of the ACHR and the increasing inclusion of universal standards
Mirroring the Commission’s strategy, the Court has referred to Inter-American treaties in order to engage in the analysis of the rights of persons with disabilities. By doing so, the Court has declared not just the violation of the rights established in the American Convention in cases experienced by persons with disabilities, but also the rights to non-discrimination and to education established in other Inter-American instruments.
When interpreting the rights contained in the Inter-American treaties the Court has increasingly referred to specialised treaties, particularly CIADDIS and the CRPD, as well as to soft law standards. This follows an already existing practice of the Court to refer to international treaties 74 as well as to soft law documents 75 when interpreting certain rights. Such practices do not necessarily mean that the Court applied a disability rights perspective in all its case law, but it certainly shows an evolution in the analysis. The next Section will provide an overview of the rights protected, and the concept of disability developed by the Court in its case law.
4.1. Protection of the right to health to all persons, including persons with disabilities
In the case of Ximenes Lopes v. Brasil (2006), the first case decided by the Court on persons with disabilities, a mentally ill person was interned at the Casa de Reposo Guararapes (Guararapes Rest Home) to undergo psychiatric treatment. 76 However, the hospital’s conditions were inhuman and degrading. Ximenes Lopes died of his injuries after being been beaten by officers. There was no investigation of the facts which led to impunity.
In this case, the Court protected some dimensions of the right to health of persons with disabilities by indirectly linking them with the rights to life and human dignity. This follows a line of jurisprudence already established by the Court that allows the protection of the right to health, even though the right to health is not directly enforceable in the Inter-American system. 77 The Court recognised that the right to life implies not only the right of every person not to be arbitrarily deprived of his life, but also establishes positive duties for the State, 78 particularly in terms of the provision of health services to everyone.
In terms of disability rights, the case is relevant as it allows the Court to emphasise that the States’ duty to guarantee the provision of effective health care services to all persons also includes to persons with a mental illness. 79 Such duty includes access to basic health care for every individual, as well as the promotion of mental health. 80 The Court concluded that both the operating conditions of the rest home and the medical treatment were precarious, and therefore the conditions of the Casa de Reposo Guarapes did not respect the rights to life and personal integrity of people with disabilities, as established in articles 4 and 5 of the ACHR. 81
The recognition that all persons - including persons with disabilities - should have access to appropriate health care services, is relevant for the jurisprudence as it made visible the situation of a group of persons that was never before included in the Inter-American jurisprudence. However, the Court’s statement is limited in terms of the development of disability rights. The Court did not go as far as detailing the State duties in the provision of health services required by persons with disabilities specifically because of their disability. 82 For example, the Court did not explain what the particular services were that these persons with mental disabilities should enjoy while staying in these centres, or whether they should be allowed to stay there at all. Thus, the case is relevant as it opens the discussion of access to health services to persons with disabilities in the Inter-American System, but does not necessarily develop the case from a disability rights perspective. Although further developments on the right to health of persons with disabilities will be made in other cases, it is still a right that needs to be developed by the Court in the light of disability rights.
4.2. Protection of the right to sexual and reproductive health of all persons, including persons with disabilities
In Artavia Murillo v. Costa Rica (2012), the Court moves forward the interpretation of the duty to provide access to health care services to all persons, including persons with disabilities, by also recognising their right to access sexual and reproductive services. The decision also emphasises the application of a social model in the understanding of disability, which would be later used as the base for the interpretation of other cases. The case is related to the total ban on the practice of in vitro fertilisation (IVF) in Costa Rica after the Constitutional Section of the Supreme Court of Justice prohibited it in 2000. Following the precedent established in Ximénes Lopez, the Court recognised that all persons, including persons with disabilities, have a right to access free or affordable health care. Moreover, citing the CRPD, 83 it also recognised that such a right includes access to services in the area of sexual and reproductive health.
The Court follows the line of argument used in previous cases protecting particular rights that are not directly justiciable in the Inter-American System through an expansive interpretation of the rights contained in the ACHR. The Court stated that the decision to have biological children using assisted reproduction techniques stems from the rights to personal integrity, personal liberty, private and family life and to the right to raise a family, all rights included in the ACHR. 84 According to the Court, these rights can be restricted by the State as long as the restriction is not arbitrary, is established by law, pursues a legitimate aim, and complies with the requirements of suitability, necessity and proportionality. 85 To the Court, the total ban on IVF had a disproportionate effect on those couples for whom access to IVF is the only way to have children. 86 Therefore, the Court ordered Costa Rica to modify its legislation by suppressing the prohibition and allowing couples access to IVF treatment without interference. 87
The case is particularly relevant for persons with disabilities as it further confirms the Court’s application of a social model for the definition of disability by referring to the elements of the World Health Organisation (WHO) in the International Classification of Functioning, Disability and Health (ICF) 88 as well as the definition of the CRPD and CIADDIS. According to the ICF model ‘[disability] entails one or more of the three levels of difficulty in human functions: a physical-psychological impairment; a limitation of activity owing to an impairment (activity limitation), and a participation restriction owing to an activity limitation.’ 89 Following the ICF model of disability and citing the expert opinion of Paul Hunt, former Special Rapporteur on the Right to Health, the Court stated that ‘involuntary infertility is a disability’. 90 It also expressed that infertility ‘is a functional limitation recognised as a disease’ 91 and therefore, persons who suffer from this should come under the protection of persons with disabilities.
To the Court, the ICF model, also known as the ‘bio-psycho-social model’, is compatible with the definitions of disability offered by the CRPD and CIADDIS, as they all highlight the social element of disability, according to which disability is the result from the interaction between the impairment and environmental barriers. 92 The express recognition of the social model of disability and the application of the ICF definition is an important step in the understanding of disability as an evolving concept, in which disability is not an attribute of the person but rather the result of an interaction.
Both the Ximénes López and the Artavia Murillo cases open the analysis of the right to access to health, including sexual and reproductive rights, for all persons - including persons with disabilities - within the Inter-American system. The indirect recognition of these rights by linking them with the rights to life, human dignity, and others is an important step forward in the protection of this right for several reasons. On the one hand, as the right to health is not directly established in the ACHR, it required an additional argumentative effort by the Court that was adequately made in these cases. Additionally, by emphasising persons with disabilities are entitled to these rights, the Court made visible the situation of a group of persons that was not recognised by the Inter-American jurisprudence before. On the other hand, however, if the Court wants to truly engage with a disability rights analysis, further cases dealing with this right will have to develop more in-depth and defined state duties in the provision of health services required by persons with disabilities specifically because of their disability, and not just as mere holders of the rights that every person is entitled to.
4.3. The right of access to a timely remedy for all persons including persons with disabilities
Another right that has been enforced by the Inter-American Court in regard to persons with disabilities is the right to access to a timely remedy. In Sebastián Furlán and Family v. Argentina (2012) the Court focused on the enforcement of the civil and political rights directly established in the ACHR. In this case, the Court recognised the rights of persons with disabilities to a timely remedy in those cases where legislation has established a monetary compensation or some type of benefit in their favour. The Court analysed the situation of Sebastián, who at the age of 14 suffered an accident at a military field, hitting his head with a heavy beam. As a result, Sebastián developed difficulties in speaking and in the use of his upper and lower limbs. 93 His father filed a suit against the State in the civil courts, claiming compensation for damages resulting from the accident. 94 After several years of delay, the case was finally settled, ordering the State to pay compensation as either a deferred payment in cash or the cashing in of consolidated bonds issued for sixteen-year terms. The father chose to acquire the consolidated bonds in local currency which in fact represented less money.
The Court analysed the case from the perspective of the rights of children with disabilities. For the first time in its jurisprudence, the Court expressly referred to the CIADDIS and the CRPD in order to underline the social model of disability that these conventions defend, according to which disability is ‘not only defined by the presence of a physical, mental, intellectual or sensory impairment, but is interrelated with the barriers or limitations that exist socially for persons to exercise their rights effectively.’ 95 The Court thus emphasised the social features of the definition of disability in the CIADDIS, in order to make it compatible with the CRPD.
The Court also held that States have the duty to provide special protection to those who are in a ‘vulnerable position’, including persons with disabilities. This implies that the State should implement positive measures in order to actively promote these persons’ social inclusion, and adopt affirmative measures in order to remove barriers. 96 Taking into account this framework, the Court emphasised the strengthened obligations that States have regarding children with disabilities, as established in Article 7 of the CRPD, 97 as well as the duty of States to ensure effective access to justice for persons with disabilities on an equal basis with others in accordance with Article 13 of the CRPD, thus making concrete links with the universal instrument on disability rights. 98
Having established this framework, the Court contrasted the facts of this case with the related obligations to guarantee the rights to a fair trial and equal judicial protection contained in Articles 8 and 25 of the ACHR. Unlike the previous cases on the right to health, the connection was easier to make as these rights are directly established in the ACHR and do not need further argumentation to be protected. After shifting the standard of proof, the Court considered that the State had not demonstrated that the delay of more than 12 years in the proceedings was not attributable to the authorities. 99 It also found that the delay in the proceedings and, therefore in the compensation requested, had a significant impact on the victim as it did not allow him to access the necessary treatment that would have provided him with a better quality of life. 100 Therefore, the Court concluded that such an act constituted a violation of the rights to fair trial (Article 8(1)) and the rights of the child (Article 19(1)), to the detriment of Sebastián.
The Court also expressed that by not having heard Sebastián at any stage of the proceeding, his right to be duly heard was not respected. 101 Moreover, the fact that the judicial authorities did not notify the Juvenile Defender while Sebastián was a minor or when the experts revealed his disability, denied him an opportunity of additional legal protection, which taking into account the context of poverty that his family faced, would have allowed him to access the judicial guarantees required in his case. 102 As the rights to be duly heard and to have access to judicial guarantees are enshrined in Article 8 of the ACHR, the Court concluded that there was a violation of the right to a fair trial (Article 8) in relation to the rights of the child (article 19).
By referring for the first time to the CRPD in order to protect the rights of persons with disabilities to access to judicial protection and a timely remedy, the Court ratified its interest in the protection of these rights. Also, by referring to the ‘social model’ of disability as the interaction between an impairment and the barriers or limitations that exist socially for persons to exercise their rights, it moved forward in the application of the disability model established in the CRPD. The case went even further by detailing how the right to access to justice should be exercised by persons with disabilities. It recognised the right of persons with disabilities to be heard in legal proceedings, something that is also recognised in the definition of the right to access to justice in the CRPD, and that in order to fully exercise their rights, children with disabilities may require the counselling or intervention of public officials.
Although the Court does not develop how this counselling or representation should take place in that particular context, it stated that such support should be provided in order ‘to reinforce the guarantee of the principle of the best interests of the minor’. 103 This statement may reveal a difference with the concept of legal capacity defended by the Committee on the Rights of Persons with Disabilities whom, in its General Observation No.1, rejected the principle of ‘best interest’. According to the Committee, in those cases where a person with disabilities requires support in order to exercise its legal capacity, the principle of ‘best interpretation of will and preferences’ must replace the ‘best interest’ determinations’. 104 This difference about the understanding of ‘legal capacity’ was already developed in Section 3.2.2. of this article, and shows a clear field of conflict with the CRPD, one that both the Commission and the Court will have to clarify in its case law.
4.4. The right not to be subjected to discrimination in the access to education and its implications for persons with disabilities
One last decision in which the Court engaged in a case that, although it did not deal directly with the situation of a person with disabilities, has implications in the protection of their rights, was in the Case González Lluy v. Ecuador (2015). In this case, the Court provided a base to protect the right to education from discriminatory treatment based on a medical condition. 105 In this case, a girl was infected with HIV in a blood transfusion carried out by a private institution with State authorisation. Following the transfusion, the girl was not allowed to stay in the school she attended, and was rejected by several other schools where her mother tried to register her.
Similar to the Furlan Case, the Court declared the violation of rights already established in the Inter-American instruments; however, it focused on a different instrument. For the first time in its jurisprudence, the Court recognised a direct violation of a right stated in the Protocol of San Salvador. 106 Since it entered into force, the Court had never recognised the violation of the right to education recognised in this Protocol. In this regard its recognition in the González Lluy v. Ecuador case is itself a step forward in the protection of socio-economic rights for everyone.
From a disability rights perspective, the case is relevant as it provides a base to protect the rights to health and education from discriminatory treatment based on a medical condition. To do that, the Court first considered that ‘HIV is a condition that falls under the term “any other social condition” based on which discrimination is prohibited, as established in article 1(1) of the American Convention’. 107 The Court cites several international human rights treaties for which HIV is a reason for which discrimination is prohibited. 108 To the Court, this implies that any measures based on the HIV status of a person will require a higher level of scrutiny in order to be considered non-discriminatory.
Having established the standard against which to analyse the discriminatory effect of the State’s decision, the Court considered that in this particular case, the State’s justification was based exclusively on the health condition of the minor. The denial of access to education services had been justified by the Third Contentious Court of Cuenca with the argument that the girl suffered from the HIV virus, aggravated by a particular diagnosis that highlighted the risk of excessive bleeding, signifying a possible risk of contamination for the other students of the school. 109 Therefore, according to the Court of Cuenca, allowing the girl to study in the same school with other non-HIV children implied a conflict of interest between the right to education of the girl and the right to life of the rest of the children. For this domestic Court, such conflict should be solved by protecting the right to life of the larger group of children, over the right to education of the one minor. 110
The Court applied a strict test of proportionality to the judge’s reasoning to conclude that the judge disregarded medical evidence that proved a low risk of HIV transmission while trusting general testimonies about the consequences of the illness. 111 Therefore, it concluded the State’s decision was aimed to the protection of a legitimated objective, which is the protection of the right to life of children. However, the arguments used were not based on scientific evidence appropriated but based on stereotypes and preconceptions about the characteristics of those living with HIV, therefore constituting a discriminatory decision. 112
The Gonzáles Lluy Case is important as it provides a base from which to analyse whether the denial of health or education services, based on a medical condition, is discriminatory. This criterion will be relevant not just for HIV-positive persons facing discriminatory treatment, but also to any person with a health condition, in which persons with a physical or mental condition could be included. Moreover, the case is relevant as it also developed the notion of attitudinal barriers experienced by the minor in her educational environment, which can be also useful for the analysis of discriminatory treatment of persons with disabilities. In the view of the Court, the school should adapt ‘the educational environment to her condition as a child with HIV’. 113 In justifying such a duty, the Court referred to the General Comment No. 13 of the Committee on Economic, Social and Cultural Rights on ‘The Right to Education’, as well as to the General Comment No. 1 of the Committee on the Rights of the Child on ‘the aims of education’. 114 It also recognised that the school did not make any efforts to combat the prejudices related to the girl’s condition 115 or to adopt the necessary biosafety measures required to prevent the transmission of illnesses in any school. 116 The case provides a powerful statement for the recognition of a State duty to guarantee the adaptability of schools to changing conditions of children and to guarantee reasonable accommodation in the educational environment. 117 Such duty is crucial for the protection of the right to education of everyone, but particularly to those that face any medical condition, including not only persons with HIV but also persons with a disability.
5. The way forward in the protection of disability rights in the Inter-American System
In 2003 Arlene Kanter described the globalisation of disability rights law. 118 This process can be seen in the multiplication of domestic disability discrimination laws, the adoption of disability legislation both in the OAS and the Council of Europe, 119 as well as the ‘final’ appointment of an Ad Hoc Committee of the UN General Assembly to draft a covenant on the rights of persons with disabilities. Almost fifteen years later, this process has been consolidated. The CRPD was finally adopted in 2006 and entered into force in 2008. At the regional level there has also been an expansion of the protection of disability rights. In Europe, the Council of Europe adopted a Disability Action Plan (2006-2015). 120 In the OAS, both the Court and the Commission on Human Rights have increased the number of decisions and reports related to persons with disabilities, by applying the ACHR and other Inter-American treaties.
Despite the fact that CIADDIS does not provide strong tools for the implementation of disability rights, both the Court and the Commission have managed to make these rights effective by referring to the Inter-American treaties and interpreting them in the light of international standards on disability, including, but not exclusively, the CRPD. This shows the interest of the Inter-American system in developing a case law on disability rights.
Such case law has certainly evolved in its level of engagement with disability rights. While in the first cases both the Commission and the Court limited themselves to stating that people with disabilities are entitled to the same rights that all persons without fully explaining how such rights can be exercised by this group in order to fully meet their needs, in the most recent cases both bodies have engaged in an authentic analysis of disability rights. 121 In doing so, the Inter-American system has proved to be receptive to the international standards developed by the UN Committee, and has also developed its own view, setting new standards in the interpretation of disability rights. In recent years, the Inter-American system has been showing itself as a new voice in the definition of standards on disability rights, which deserves to be taken seriously. For example, regarding the definition of disability, the case law of the Inter-American System has increasingly supported a social understanding of disability, which understands it not as an attribute of the person, but as a social interaction between the impairment and the environmental barriers. 122 In doing so, the Inter-American Court has relied not just on the definition of the CRPD, but has also cited the WHO, showing the Court’s openness towards international standards beyond the CRPD and its own view on the topic.
In other areas related to education, such as in the definition of ‘inclusive education’ or in the identification of the attitudinal barriers experienced by a minor in her educational environment, the Inter-American organisation has also applied the international standards set in the CRPD and developed by the Committee.
However, in other rights areas, there are certainly differences within the CRPD standards. For example, in the establishment of a right to not being subjected to the death penalty there is certainly a different understanding of the concept of legal capacity for persons with disabilities when compared with the CRPD. 123 Differences in the idea of legal capacity are also clear when discussing the type of counselling or representation that persons with disabilities may need when accessing educational services. 124 In both cases, the Inter-American jurisprudence seems to take a more protective approach that favours the well-being of the person with disabilities, even over their own mental capacity, will or desire. In this point, the Inter-American system will have to develop a deeper level of argumentation if they want to stand as a relevant voice in the definition of legal capacity.
6. Conclusion
The Inter-American System has proved itself as a relevant mechanism for the protection of disability rights in the region. Despite the fact CIADDIS does not provide strong tools for the implementation of disability rights within the Inter-American system, both the Commission and the Court have managed to expand the classic interpretation of the ACHR and other Inter-American treaties in the light of disability rights by referring to universal standards on the topic. Moreover, the Inter-American System has deepened its analysis of disability rights, going from the mere recognition that persons with disabilities are entitled to universal rights to a more detailed analysis of the way in which those particular rights could be exercised in order to comply with their specific needs. Although in certain areas the Inter-American system has followed the interpretation of Committee’ standards, in some others it has shown an original analysis that sometimes goes beyond the Committee and in others competes with it.
The Inter-American System is thus slowly showing itself as a relevant actor in the definition of the standards on disability rights in the world. The recent creation of a Unit on Persons with Disabilities within the IACHR 125 confirms its interest to keep working on the promotion of disability rights in the region. It will be up to the Inter-American System to keep realising this potential for an effective protection of these rights, and up to the States to implement the standards promoted.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.