Extracts from the Reports of the Experts of the 2003 Commission on Human Rights

Under Agenda Item 10: Economic, social and cultural rights

Extract from the report of the Special Rapporteur on the right to education, Katarina Tomaševski, E/CN.4/2003/9
(submitted pursuant to Commission on Human Rights resolution 2002/23)

22. The Special Rapporteur has continued working on rights-based indicators (E/CN.4/2002/60, paras. 27-29). The Commission's focus on the elimination of discrimination "on the basis of race, colour, descent, national, ethnic or social origin, sex, language, religion, political or other opinion, property, disability, birth or other status" (resolution 2002/23, para. 4 (b)) has prioritized mapping out the existing pattern of discrimination so that it can be properly addressed and effectively eliminated. This has revealed the complete absence of quantitative data at the global level and their paucity in most countries. The process of generating education statistics based on the internationally prohibited grounds of discrimination has started. It constitutes a considerable challenge, which can best be met through close cooperation between education and human rights professionals at all levels, from local to global.

27. In cooperation with the UNESCO, Asia and Pacific Regional Bureau for Education in Bangkok, the Special Rapporteur has further operationalized rights-based education. A joint Regional Workshop on Universalizing the Right to Education of Good Quality: A Rights-Based Approach to Achieving Education for All, held in Manila, from 29 to 31 October 2002, marked the end of the first phase of cooperation. The Special Rapporteur was prevented from physically attending that meeting by bad weather conditions that kept her stranded at Schiphol Airport those three days. The continuation of cooperation includes a summarized guide on core international human rights standards in education aimed at education professionals and rights-based benchmarks for the quality of education. Education statistics present children as numbers, with school places matching the intake, or the ratio between teachers and pupils conforming to the established standards. The diversity of the intake moves the spotlight in a different direction, to recognizing each child's different identity, ranging from age, sex, race, religion or ethnicity, to ability and disability, to the importance of the child's family environment (or the lack of thereof), the distance which the child has to walk to school, other requirements upon the child that may interfere with the learning process. Fierce intellectual debates about the meaning of "quality" or "relevance" among educationists and educators demonstrate the immense progress towards clarifying the purposes and objectives that education should have. The advantage of defined ends and means of education in human rights constitute an opportunity for making a useful contribution.

28. The realization of the right to education is a continuing process. Progress can be depicted through two broadening concentric circles, the first showing a gradual extension of the right to education, and the second an incremental inclusion of those previously excluded. The extension of the right to education to the previously excluded categories can be described by highlighting four main stages:

(a) The first stage involves recognizing education as a right. Where the right to education is recognized, non-citizens are often explicitly excluded. Domestic servants or children without identity documents may be implicitly excluded, especially where such documents are required for enrolment;

(b) Once education is recognized as a human right, the second stage involves segregation, whereby girls, indigenous people, children with disabilities, or members of minorities, are given access to education but confined to separate, routinely inferior schools;

(c) The third stage involves shifting from segregation through assimilation towards integration. Categories newly admitted to mainstream schools have to adapt, abandoning their mother tongue or religion, or their usual residence if they are enrolled in boarding schools. Girls are admitted to schools whose curricula were designed for boys, indigenous and minority children placed in schools that provide instruction in an alien language and, often, teach them history that denies their very existence. This process may be underpinned by inclusionary goals, but these tend to be interpreted differently. Assimilation entails imposition of uniformity; integration acknowledges diversity but only as a departure from the "norm". Hence, newcomers have to adjust to the "norm", which routinely extrapolates key features of the earliest, self?granted, bearers of rights - favouring male over female, or speakers of the dominant national language over those speaking a vernacular;

(d) The fourth stage necessitates adaptation to diversity. The previous requirement upon children to adapt themselves to whatever education was available is being replaced by adapting education to the best interests of each child.

Extract from the report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination, Miloon Kothari, E/CN.4.2003/5
(submitted in accordance with Commission resolution 2002/21)

10. In further promoting progressive realization of rights relevant to the mandate of the Special Rapporteur, it is apparent that more policy coherence is needed at the global level, not only within the United Nations system, but also among intergovernmental mechanisms, as well as nationally at the interministerial level. Thus, the Special Rapporteur reiterates the recommendation made in his first and second reports that he be allowed to report to the General Assembly, particularly in view of the MDGs and the global commitments that emerged from the conferences that are relevant to his mandate. He would also welcome opportunities to address other functional commissions of the Economic and Social Council, particularly the Commission on the Status of Women, the Commission on Social Development and the Commission on Sustainable Development, respectively on the rights of women to adequate housing and the rights of persons with disabilities to adequate housing (see section III.D below), and to participate in the follow-up to WSSD in the context of the Water, Energy, Housing, Agriculture and Biodiversity (WEHAB) framework.

63. The non-discrimination principle of human rights views all people as holders of rights, including persons with disabilities. The United Nations estimates that over 600 million people, or approximately 10 per cent of the world's population, have some form of disability. CESCR General Comment No. 4 on the right to adequate housing provides that disadvantaged groups, including persons with disabilities, must be accorded full and sustainable access to adequate housing resources, and that housing law and policy should take fully into account the special housing needs of such groups (para. 8 (e)). In the Habitat Agenda, 33 out of 241 paragraphs address persons with disabilities. Housing should not only be physically and economically accessible to persons with disabilities, but they should also enjoy effective participation in the life of the community where they live. Significantly, CESCR General Comment No. 5 reaffirms that the right to adequate housing includes accessibility for persons with disabilities. [1]

64. The normative framework of human rights, together with the United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities, offers much guidance in shaping housing policies and programmes around the world towards creating more-inclusive societies. In this context, the Special Rapporteur welcomes the adoption of General Assembly resolution 56/168, establishing an Ad Hoc Committee to consider proposals for a comprehensive and integral convention to promote and protect the rights and dignity of persons with disabilities. He is following closely with interest the work of the Ad Hoc Committee, which convened its first session in August 2002, and stands ready to contribute to its work. Pursuant to relevant Commission resolutions, most recently 2002/61, this Special Rapporteur will place a special focus on the rights of persons with disabilities to adequate housing in his future work, including country missions and examination of good practices, and also pay particular attention to all forms of disabilities resulting from conflict, violence, forced eviction, dispossession and other cases of violation of housing rights.

65. At this critical juncture of his mandate, the Special Rapporteur has attempted to provide a comprehensive summary of activities undertaken since his appointment and highlighted emerging issues that require the attention of the Commission and the human rights community worldwide. In seeking further guidance, the Special Rapporteur recommends that the Commission:
(K) Request the Special Rapporteur to place an additional focus on disability issues and to contribute to the work of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities;

Extract from the study by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination, Miloon Kothari, Report on Women and adequate housing, E/CN.4/2003/55
(in accordance with Commission resolution 2002/49)

29. Women with disabilities. The United Nations estimates that over 600 million people, or approximately 10 per cent of the world's population, have some form of disability. While all persons with disabilities must be accorded full and sustainable access to adequate housing resources, there is a need to study the particular needs of women with disabilities so that they can be reflected in housing legislation and policies in an appropriate manner so as not to prevent any discrimination or marginalization.

Extract from the report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, E/CN.4/2003/58
(submitted in accordance with Commission resolution 2002/31)

13. Significantly, recent resolutions of the Commission, including on access to medication (2002/32) and disabilities (2002/61), have articulated the right to health, reaffirming its status as a human right. In addition, the Commission has adopted important resolutions containing provisions that bear closely upon the right to health (see annex II).

45. Ill health causes poverty by destroying livelihoods, reducing worker productivity, lowering educational achievement and limiting opportunities. Because poverty may lead to diminished access to medical care, increased exposure to environmental risks, the worst forms of child labour and malnutrition, ill health is also often a consequence of poverty. In other words, ill health is both a cause and a consequence of poverty: sick people are more likely to become poor and the poor are more vulnerable to disease and disability.

59. The Special Rapporteur proposes to focus on issues related to discrimination and stigma in the context of the right to health as a second key theme. Discrimination on grounds of gender, race, ethnicity and other factors is a social determinant of health. Social inequalities, fuelled by discrimination and marginalization of particular groups, shape both the distribution of diseases and the course of health outcomes amongst those afflicted. As a result, the burden of ill?health is borne by vulnerable and marginalized groups in society. At the same time, discrimination and stigma associated with particular health conditions such as mental disabilities and diseases, like HIV/AIDS, tend to reinforce existing social divisions and inequalities.

60. Non-discrimination is among the most fundamental principles of international human rights law. According to CESCR, ICESCR "proscribes any discrimination in access to health care and underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation and civil, political, social or other status, which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health". [2]

63. Effectively promoting the right to health will require identifying and analysing the complex ways in which discrimination and stigma impact on the enjoyment of the right to health of those affected, with particular attention to women, children and marginalized groups such as racial and ethnic minorities, indigenous peoples, persons with disabilities, people living with HIV/AIDS, refugees and the internally displaced and migrants. This will require gathering and analysing data with a view to better understanding the relationship between various forms of discrimination as determinants of health, recognizing the compounding effects of multiple forms of discrimination, and documenting how discrimination and intolerance affect access to health and health care services. It will also require a careful balancing of the need to address discrimination and stigma in relation to health by encouraging the publication of disaggregated data and the development of policies and strategies to combat discrimination, while ensuring that publication of such data does not serve to perpetuate stigma.

67. People living with disabilities are exposed to various forms of discrimination and social exclusion which prevent them from exercising their rights and freedoms and from participating fully in their societies. The discrimination they experience may range from the denial of health services, employment and educational opportunities, to exclusion and isolation deriving from physical and social barriers. Women with disabilities may be particularly at risk due to stigmas associated with both disability and gender, and are more likely to suffer from discrimination than able-bodied women or men with disabilities. [3]

74. Type III diseases - often termed very neglected diseases - are those that overwhelmingly or exclusively occur in developing countries, such as river blindness and sleeping sickness. According to a recent WHO report, Global Defence against the Infectious Disease Threat, the "health impact of these neglected diseases is measured by severe and permanent disabilities and deformities in almost 1 billion people… Their low mortality despite high morbidity places them near the bottom of mortality tables and, in the past, they have received low priority". [4] The report continues:

"The so-called 'neglected' diseases form a group because they affect almost exclusively poor and powerless people living in rural parts of low-income countries. While they cause immense suffering and often life-long disabilities, these diseases rarely kill and therefore do not receive the attention and funding of high-mortality diseases, like AIDS, tuberculosis, and malaria. They are neglected in a second sense as well. Confined as they are to poor populations all have traditionally suffered from a lack of incentives to develop drugs and vaccines for markets that cannot pay. Where inexpensive and effective drugs exist, demand fails because of inability to pay. Neglected diseases impose an enormous economic burden in terms of lost productivity and the high costs of long-term care… Neglected diseases can help to guarantee that the next generation remains anchored in poverty… The disabilities caused by most of these diseases are associated with great stigma." [5]

93. The Special Rapporteur is alarmed by the wide range of human rights violations that reportedly occur in some institutions designated for the care and treatment of persons with mental disorders. These violations include torture and other cruel, inhuman or degrading treatment, such as sexual exploitation. [6] The Special Rapporteur also notes the stigma and discrimination surrounding mental disorders, as well as the real or deemed incapacity of persons with mental disorders to take decisions on account of their illness - it is the combination of these interrelated issues that makes persons with mental disabilities particularly vulnerable to violations of their human rights.

Under Agenda Item 11: Civil and Political Rights

Report of the Special Rapporteur on the independence of judges and lawyers, Dato' Param Cumaraswamy, E/CN.4/2003/65
(submitted in accordance with Commission on Human Rights resolution 2002/43)

6. Several of the resolutions adopted by the Commission at its fifty?eighth session are also pertinent to the mandate of the Special Rapporteur and have been taken into consideration in examining and analysing the information brought to his attention with regard to various countries. These resolutions are:

(i) Resolution 2002/61 on the human rights of persons with disabilities, in which the Commission invited all special rapporteurs, in carrying out their mandates, to take into account the situation and human rights of persons with disabilities;

5.1 A judge shall be aware of, and understand, diversity in society and differences arising from various sources, including but not limited to race, colour, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status and other like causes ("irrelevant grounds").

Under Agenda Item 5: The Right to Self-determination

Extract from the report of the Special Rapporteur on the question of the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, submitted by Mr. Enrique Bernales Ballesteros, E/CN.4/2003/16
(pursuant to Commission resolution 2002/5)

10. A note verbale dated 28 June 2002 from the Permanent Mission of Cuba to the United Nations Office at Geneva contains extensive and important information as well as valuable comments that represent a significant contribution to the mandate of the Special Rapporteur. The Government of Cuba reports that mercenarism was made a crime in Cuba under the 1979 Penal Code, and that the definition of mercenarism is reproduced in article 119 of the 1998 Penal Code, which is currently in force. The Government also provides comprehensive information on the measures it has adopted to contribute to the prevention and elimination of international terrorism, and provides a systematic account of the terrorist acts committed against Cuba since 1959 in which mercenaries have been involved. Terrorist activities have cost the lives of 3,478 innocent people, a further 2,099 have suffered permanent disability; in addition there has been enormous material damage.

Under Agenda Item 12: The human rights of women, children, migrant workers, minorities and displaced persons

Extract from the report of the Special Rapporteur on the rights of migrant workers, Ms. Gabriela Rodr�guez Pizarro, E/CN.4/2003/85
(Submitted pursuant to Commission on Human Rights resolution 2002/62)

50. Often elderly people, persons with disabilities, pregnant women and ill people, including the mentally ill, are detained without any particular regard for their conditions and specific needs. It was reported that detention has a heavy impact on pregnant women and their children, as well as the elderly, disabled and mentally ill. Pregnant women, for example, need to have access to proper nutrition for the well-being of the baby and to medical and support service that are not available in detention facilities.

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1 Also see E/CN.4/2001/51, para. 27.

2 General Comment No. 14, para 18.

3 See, for example, Quinn and Degener, Human Rights and Disability: The Current Use and Future Potential of the United Nations Human Rights Instruments in the Context of Disability, OHCHR, 2002.

4 WHO, 2002, p. iv.

5 Ibid, p. 96.

6 See for example Not on the Agenda: Human Rights of People with Mental Disabilities in Kosovo, Mental Disability Rights International, 2002.

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