Upholding Disability Rights in the Americas: The Role of the Inter-American Institutions
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.
Ying Chen and Paul McDonough,
Upholding Disability Rights in the Americas: The Role of the Inter-American Institutions,
Ga. J. Int’l & Compar. L.
Available at: https://digitalcommons.law.uga.edu/gjicl/vol50/iss3/2