The neglected shadow: enlightening the right to mental health under international human rights law

Thesis, Sukanya Deshraj, Public International Law, University of Utrecht
Thesis Supervisor: Dr. I. Boerefijn
August 2010

Thesis Summary

Mental health is a fundamental concern for international human rights law because individuals with mental illnesses and disabilities are amongst the most vulnerable and marginalised groups in society. The problem is that the right to mental health is ineffective because of the lack of conceptual and normative clarity. The research question is- how can the right to mental health under Article 12 ICESCR become an identifiable, operational, enforceable and justiciable human right? The added value of the CRPD has also been discussed.

Chapter 2 outlined the normative content of the right to mental health. Research was conducted to identify the necessary features of a definition. On the basis of General Comment 14 from the CESCR, the general legal obligations were identified and core obligations were extracted. This entailed an analysis of the nature of the obligations according to Article 2 ICESCR. Particular attention was given to the entitlement of mental health care and the principle of non-discrimination as a means of addressing the stigma towards mental illness.

Chapter 3 argued in favour of the justiciability of the right to mental health. The debate surrounding the justiciability of economic, social and cultural rights, was explored using the travaux préparatoires of the OP ICESCR. Justiciability can be achieved through effective domestic implementation, and through the interconnectedness of human rights as demonstrated by examples of successful judicial intervention. It is hoped that this research will provide guidance for CESCR when addressing alleged violations of the right to mental health under the communications procedure in Article 2 OP ICESCR.

Chapter 4 considered the ability of the CRPD to enrich the right to mental health under Article 12 ICESCR. The CRPD offers guidance on the concept of disability but it does not provide a definition for disability. There is a lacuna in that individuals with psychiatric illnesses who are not perceived as having a disability or do not want to be recognised as having a disability, cannot directly benefit from the CRPD. The standards contributing to the right to mental health were elaborated using the various declarations, resolutions and recommendations which shaped the CRPD. Furthermore, the complementary relationship between the obligations in the CRPD and the ICESCR were explained. As lex specialis, the CRPD has the advantage of addressing the specific problems experienced by individuals with psychiatric disabilities.

In the conclusion, the importance of the legal mechanism in Article 12 ICESCR was asserted. The normative framework researched is essential as it is the prerequisite for making the right to mental health identifiable, operational, enforceable and justiciable. States therefore need to have a comprehensive strategy to satisfy their obligations under the right to mental health. Central to making the right to mental health operational is to find a solution to the justiciability debate. Justiciability can be achieved by a commitment to the interconnectedness of human rights. Accordingly, the right to mental health needs to provide detailed guidance on the standard of treatment necessary, not just in psychiatric hospitals but for the population at large.

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