The Asymmetries of Disability Rights Protection in the Inter-American System

Abstract

Introduction 1 Regional instruments: between the CIADDIS and the CRPD 2.1 CIADDIS and CRPD: significance and limits 2.2 The OAS Programs of Action and the emerging concept of 'inclusive sustainability' 2 Country situation 2.1 North America 2.2 South America 3 Enforcing disability rights via the IAComHR and IACtHR 3.1 Sources: systemic limits and methodology 3.1 Jurisprudence Conclusion section examines the four largest countries by population in the region, notably, the United States of America (US), Mexico, Brazil and Colombia. 6The third section explores the enforcement of disability rights via key cases before the Inter-American Commission on Human Rights (IAComHR) and the Inter-American Court of Human Rights (IACtHR). The purpose is providing a comprehensive understanding of disability rights in the region and identifying key regulatory problems and ways forward.1 Regional instruments: between the CIADDIS and the CRPD CIADDIS and CRPD: significance and limitsAmerican States are subject to disability regulation, on the one hand, via instruments under general international law, and, on the other, via regional instruments adopted in the context of the OAS. Since 1948, the OAS has promoted inter-State cooperation, particularly via the General Assembly, and rights-enforcement, particularly via the IAComHR and IACtHR. The principal regulatory instrument of the OAS in the area of fundamental rights is the 1969 American Convention on Human Rights (ACHR: Pact of San José), 7 which is complemented by the 1988 San Salvador Protocol on Economic, Social and Cultural Rights (SSP) 8 and spells out in detail the 1948 American Declaration on the Rights and Duties of Man (ADRDM). 9 The main regulatory instrument promoted by the OAS in the area of disability is the 1998 CIADDIS, whilst the principal general instrument on disability under international law to which American States adhere is the 2006 CRPD.The purpose of the CIADDIS is affording more specific protection for people with disabilities as compared to general human rights instruments adopted in the context of the OAS. Persons with disabilities indeed represent a specific vulnerable group and, although fundamental rights also address disabled persons, they do not address their particular needs. 10 The Convention is an OAS instrument and most American States are parties to the CIADDIS, which entered into force in 2001, following the requested number of ratifications, with the notable exceptions of Canada and the US. 11 The CIADDIS is a short text including fourteen articles, exclusively focusing on the elimination of discrimination against persons with disabilities, aiming to foster integration in society (Article II). Under Article I, 'disability' is defined as 'a physical, mental, or sensory impairment, whether permanent or temporary, that limits the capacity to perform one or more essential activities of daily life', which 'can be caused or aggravated by the economic and social environment.' Under the same provision, 'discrimination' is defined as 'any disti...