The Long and Winding Road to Equality and Inclusion for Persons with Disabilities: The United Nations Convention on the Rights of Persons with Disabilities(74 Human Rights Research Series)

This book examines several aspects of the equality and non-discrimination norms in the UN Convention on the Rights of Persons with Disabilities (CRPD). In the first instance, the book provides an interpretation and critical analysis of the legal meaning of the principles of equality and non-discrimination in the context of the CRPD. It analyses the extent to which the concepts of equality and non-discrimination contained in the Convention fit within the various theoretical models of disability and conceptions of equality that have been elaborated to date by scholars. It also compares the theoreotical framework of equality in the CRPD to that contained in other international human rights treaties which preceded the Convention.In addition, States' obligations under the Convention are teased out. A particular focus throughout this book is on the manner in which the equality and non-discrimination norms in the CRPD can increase participation and inclusion in society of persons with disabilities. This book also examines in detail an integral component of the equality norm, namely the duty to reasonably accommodate persons with disabilities and, in particular, its outer limits.In that regard, the book analyses whether the balancing and sharing of burdens inherent in the accommodation duty can teach us lessons about the overall balancing of burdens and interests implicit in many Convention rights subject to progressive realisation.Following on from that, this book devises a framework for review of measures adopted by States in the overall context of the progressive realisation of disability rights, with a particular emphasis on how the CRPD's equality norm might strengthen the realisation of socio-economic rights for disabled people. That framework of review criteria is then applied to the right to education and the accessibility obligation incumbent on States under the CRPD.Finally, this book investigates how the equality and non-discrimination norms in the Convention have already influenced, and can potentially influence, the crucial shape of disability equality case law and policy. In that connection, a case study is carried out on the Council of Europe mechanisms, in order to assess whether the CRPD is having an influence on disability law and policy at the regional level.This book demonstrates the fact that the CRPD holds enormous promise for the future application of the equality and non-discrimination norms in relation to the rights of persons with disabilities. Notwithstanding this, significant challenges lie ahead in the realisation of de facto equality for persons with disabilities.

Table of Contents:
con t en ts Acknowledgments ... v List of Abbreviations ... xix Chapter 1. Introductory Chapter ... 1 1. Introduction ... 1 2. Research Objectives and Research Questions ... 3 3. Methodology ... 5 3.1. Normative Analysis: Treaty Interpretation ... 5 3.1.1. The Vienna Convention on the Law of Treaties ... 7 3.1.2. The Purpose of Treaty Interpretation ... 8 3.1.3. Approaches to Treaty Interpretation in the VCLT ... 10 3.1.3.1. The Literal (Textual) Interpretative Approach ... 10 3.1.3.2. The Systematic (Contextual) Approach ... 10 3.1.3.3. The Teleological (Functional) Approach ... 12 3.1.3.4. The Historical Interpretative Approach ... 12 3.2. Traditional Doctrinal Methodology ... 13 3.3. Comparative Methodology... 14 4. Structure ... 15 5. Existing Research Gaps ... 17 6. Research Limitations ... 18 7. Conclusion ... 19 Chapter 2. Disability Equality: An Evolving Journey ... 21 1. Introduction ... 21 2. Theoretical Models of Disability ... 22 2.1. Introduction to Theoretical Models of Disability: The Medical Model versus the Social Model ... 22 2.2. A Consideration of Theoretical Models of Disability ... 25 2.2.1. The Minority Rights Approach to Disability ... 25 2.2.2. The Universalist Approach to Disability ... 26 2.2.3. The Human Rights-Based Approach to Disability... 26 2.2.4. The Capabilities Approach... 28 3. Theoretical Models of Equality and their Relationship to Disability Rights ... 31 3.1. Introduction to Theoretical Models of Equality ... 31 3.2. Formal Equality ... 31 3.2.1. Formal Equality and the Medical Model of Disability ... 33 3.2.2. The Shift Away from Formal Equality Towards Substantive Equality ... 34 3.3. Substantive Equality ... 35 3.4. Transformative Equality (Equality as Transformation) ... 36 3.5. The Objectives of Substantive and Transformative Equality Models. 38 3.5.1. Equality of Opportunity ... 38 3.5.2. Equality of Results (Outcome) ... 40 3.6. The Development of the Equality Norm in International Human Rights Law: Substantive Difference versus Substantive Disadvantage Equality ... 41 3.6.1. Substantive/Specific Difference Equality ... 42 3.6.2. Substantive Disadvantage (Diversity) Equality ... 44 3.7. Conclusion on Theoretical Models of Equality ... 46 4. The International Framework for the Protection of Disability Rights ... 46 4.1. Disability Rights in Soft-Law Human Rights Instruments (1945-1980) ... 46 4.2. Disability Rights in Soft-Law Human Rights Instruments (1980-1990) ... 49 4.3. Disability Rights in Soft-Law Human Rights Instruments (1990-Present Day) ... 51 4.4. The Protection of the Rights of Persons with Disabilities under Binding International and Regional Human Rights Law before the Adoption of the CRPD ... 56 4.4.1. The Protection of Disability Rights under the Core International Human Rights Treaties ... 56 4.4.2. The Regional Framework for the Protection of the Rights of Persons with Disabilities ... 61 4.5. The Final Steps in the Journey towards the Adoption of the CRPD ... 63 5. The Link between 'Equality' and 'Participation and Inclusion' in Society for Persons with Disabilities ... 68 5.1. Introduction to the Concepts of Participation and Inclusion in Society for Persons with Disabilities: Their Link to the Equality Norm ... 68 5.2. The Dilemma of Difference: Inclusion versus Integration in Society . 71 6. Conclusion ... 73 Chapter 3. Treaty Interpretation: The Equality and Non-Discrimination Provisions in the CRPD ... 75 1. Introduction ... 75 2. Research Methodology ... 76 3. The Conceptual Understanding of Disability in the CRPD ... 77 3.1. The Social-Contextual Model of Disability ... 77 3.2. The Human Rights-Based Understanding of Disability ... 79 4. Legal Interpretation of Article 5 of the CRPD ... 80 4.1. The Tripartite Typology of States' Obligations under International Human Rights Law ... 80 4.2. Article 5(1) of the CRPD ... 82 4.2.1. The Guarantee of 'Equality Before the Law' and 'Equal Protection of the Law' Without Discrimination ... 83 4.2.2. The Requirements of 'Equality Under the Law' and 'Equal Benefit of the Law' ... 86 4.3. Article 5(2) of the CRPD ... 90 4.3.1. Introduction to Article 5(2) of the CRPD ... 90 4.3.2. The Definition of Discrimination in the CRPD ... 90 4.3.2.1. Enjoyment of Rights 'On an Equal Basis with Others' ... 92 4.3.2.2. Direct versus Indirect Discrimination ... 95 4.3.2.3. Discrimination 'on the Basis of Disability' ... 96 4.3.3. The Prohibition of Disability-Based Discrimination ... 98 4.3.4. The Guarantee of 'Equal and Effective Legal Protection against Discrimination' ... 100 4.3.4.1. The Requirement of 'Equal and Effective Legal Protection against Discrimination' under the CRPD: An Analogy with Similar Obligations in the Core Human Rights Treaties and Observations from the Drafting History of the CRPD ... 100 4.3.4.2. The Obligation to Protect against Discrimination in the Private Sector ... 103 4.3.4.3. Equal and Effective Protection against Discrimination 'on all grounds' ... 104 4.4. Article 5(3) of the CRPD ... 105 4.4.1. Introduction to Article 5(3) of the CRPD ... 105 4.4.2. The Elements of the Duty to Accommodate ... 107 4.4.2.1. What is Meant by the Term 'Accommodation?' ... 107 4.4.2.2. The Limitation to the Duty to Accommodate: 'Disproportionate or Undue Burden' ... 109 4.4.2.3. The Duty to Accommodate as Part of the Equality and Non-Discrimination Norms in the Convention .. 111 4.4.3. The Objective of the Duty to Accommodate ... 112 4.4.3.1. The Duty to Accommodate and the Promotion of Equality ... 113 4.4.3.2. The Duty to Accommodate and the Elimination of Discrimination ... 115 4.5. Article5(4) of the CRPD ... 115 4.5.1. Introduction to Positive Action Measures under Article 5(4) of the CRPD ... 115 4.5.2. General Observations on Special Measures in the Core Human Rights Treaties ... 117 4.5.2.1. Temporary versus Permanent Special Measures ... 117 4.5.2.2. The Importance of a Clear Delineation of the Types of Measures Adopted by States ... 117 4.5.2.3. 'Specific Measures:' An Exception to the Equality and Non-Discrimination Norms? ... 120 4.5.2.4. The Participation of Marginalised Groups in the Adoption of Specific Measures ... 121 4.5.3. Observations from the Drafting History of Article 5(4) of the CRPD ... 122 4.5.4. Comparison of the Positive Action Clause in the CRPD with CERD and CEDAW ... 125 4.5.5. Examples of Temporary and Permanent Specific Measures under the CRPD ... 128 4.5.6. Positive Action under the CRPD: Obligatory or Optional? ... 130 4.5.6.1. The Nature of Temporary Specific Measures under the CRPD ... 131 4.5.6.2. The Nature of Permanent Specific Measures under the CRPD ... 134 4.5.7. Conclusion on the Interpretation of Article 5(4) of the CRPD... 135 5. The Model of Equality in the CRPD: A Theoretical and Comparative Perspective ... 136 5.1. A Consideration of the Theoretical Framework of Equality in the CRPD ... 136 5.1.1. A Substantive Conception of Equality ... 136 5.1.2. A Transformative Approach to Equality ... 138 5.1.3. Substantive Disadvantage Equality ... 140 5.2. The CRPD's Approach to Disability ... 141 5.3. A Comparative Perspective on the CRPD's Equality Provisions ... 142 6. Conclusion ... 148 Chapter 4. The Duty to Accommodate Persons with Disabilities ... 151 1. Introduction ... 151 2. The Duty to Accommodate ... 152 2.1. The Origins and Theoretical Underpinning of the Duty to Accommodate ... 152 2.2. What is Meant by the Term 'Accommodation?' ... 154 3. The Duty to Accommodate in the CRPD ... 154 3.1. The Key Strengths of the Duty to Accommodate in the CRPD ... 154 3.2. The Weaknesses of the Duty to Accommodate as a Facilitator of Substantive Equality ... 156 4. The Outer Limits of the Duty to Accommodate in the CRPD ... 158 4.1. Introduction to the Outer Limits of the Duty to Accommodate ... 158 4.2. The Outer Limits of the Duty to Accommodate in the CRPD: The Concept of 'Reasonableness' ... 158 4.3. The Outer Limits of the Duty to Accommodate in the CRPD: The Requirements of Necessity and Effectiveness ... 159 4.4. The Outer Limits of the Duty to Accommodate in the CRPD: A Consideration of the Objective of the Accommodation Duty and the Inherent Dignity of Persons with Disabilities ... 162 4.5. The Outer Limits of the Duty to Accommodate in the CRPD: The Defence of 'Disproportionate or Undue Burden' ... 163 4.5.1. Financial and Other Resource Considerations ... 164 4.5.2. Third-Party Benefits and Negative Impacts of the Requested Accommodation... 170 4.5.3. Non-Financial Considerations ... 174 5. Conclusion ... 175 Chapter 5. A Proposed Framework for the Assessment of the Progressive Realisation of CRPD Rights ... 177 1. Introduction ... 177 2. The Progressive Realisation of Human Rights ... 181 2.1. Introduction to the Concept of Progressive Realisation ... 181 2.2. The Immediate Duties of States Parties to the CRPD in the Realisation of Economic, Social and Cultural Rights... 182 2.2.1. The Obligation to 'Take Steps' to Achieve Progressively the Full Realisation of Rights ... 183 2.2.2. Deliberately Retrogressive Measures ... 185 2.2.3. The Obligation to Ensure Non-Discrimination in the Exercise of Economic, Social and Cultural Rights ... 187 2.2.4. The Obligation to Devote the 'Maximum of Available Resources' to Achieving Progressively the Full Realisation of Rights ... 187 2.2.5. Minimum Core Obligations ... 188 2.3. Equality Considerations in the Realisation of Socio-Economic Rights ... 190 3. Reasonableness Review of Socio-Economic Rights ... 191 3.1. Introduction to Reasonableness Review of Socio-Economic Rights ... 192 3.2. Reasonableness Review: The South African Approach to Progressive Realisation of Human Rights ... 192 3.2.1. South African Reasonableness Review: Delineation of the Test by the Constitutional Court ... 194 3.2.1.1. The Rationality Test ... 195 3.2.1.2. The Introduction of the Reasonableness Standard ... 195 3.2.1.3. The Criteria Inherent in the Grootboom Test ... 196 3.2.1.4. The Development of the Reasonableness Test: The Use of Available Resources, the Equality Limb and Participation of Affected Groups ... 200 3.2.1.5. Summary of the South African Approach to Reasonableness Review ... 204 3.3. Reasonableness Review: The Standard of Review at the International Level ... 206 4. A Proposed Framework for Review of the Progressive Realisation of Rights under the CRPD ... 209 4.1. Introduction to the Proposed Framework ... 210 4.2. A Proposed Framework for Review of the Progressive Realisation of CRPD Rights ... 210 4.3. Proposed Criteria for Assessment of Progressive Realisation under the CRPD ... 213 4.3.1. The Necessity and Effectiveness of Measures taken by States 213 4.3.2. Disproportionate Burden/Cost Considerations ... 215 4.3.3. Equality Considerations ... 220 4.3.4. Dignity Considerations ... 224 4.3.5. The Impact of Failure to Take Measures ... 228 4.3.6. Participatory Processes/Accountability ... 229 4.3.7. Third-Party Benefits ... 231 5. Conclusion ... 231 Chapter 6. The Accessibility Obligation in the CRPD ... 235 1. Introduction ... 235 2. The Accessibility Obligation: Article 9 of the CRPD ... 236 2.1. Introduction to Accessibility under Article 9 of the CRPD ... 236 2.2. The Objective of Article 9 of the CRPD ... 238 2.3. Accessibility and Access to Rights... 239 3. The Interrelationship Between Accessibility and Equality in the CRPD .. 241 3.1. The Nature of the Link between Accessibility and Equality ... 242 3.2. Inaccessibility as a Breach of the Non-Discrimination Norm?... 244 3.3. Accessibility and Reasonable Accommodation Measures ... 246 4. The Progressive Realisation of Article 9 of the CRPD ... 249 4.1. The Tripartite Obligations of States Parties under Article 9 of the CRPD ... 249 4.2. The Progressive Implementation of Disability Accessibility under the CRPD ... 250 4.3. The Obligation to Ensure Satisfaction of the Minimum Core of Article9 of the CRPD ... 252 4.3.1. Priority Areas of Disability Accessibility ... 252 4.3.2. The Obligation not to Create New Barriers ... 253 4.4. Relevant Considerations in the Implementation of Article 9 oftheCRPD ... 254 4.4.1. The Requirement to Adopt Legislation to Ensure Implementation of Article 9 of the CRPD and the Drafting of Accessibility Standards ... 254 4.4.2. The Obligation to Monitor the Realisation of Disability Accessibility ... 255 4.4.3. The Provision of Effective Legal Remedies ... 255 4.4.4. The Provision of Disability Accessibility Training for Stakeholders ... 256 4.4.5. Accessibility as Part of the Educational Curriculum ... 257 4.4.6. The Continuous Obligation to Improve Conditions of Accessibility ... 257 4.4.7. The Obligation to Abstain from Taking Deliberately Retrogressive Measures in Realising Disability Accessibility ... 257 4.4.8. Privatisation of Goods, Products and Services: The Impact on States Parties' Accessibility Obligations ... 258 4.5. The Criteria for Assessment of Measures taken by States in the Progressive Realisation of Article 9 of the CRPD ... 258 4.5.1. Disproportionate Burden/Cost Considerations ... 259 4.5.2. The Obligation to Use the Maximum of Available Resources: Resource Prioritisation and Resource Optimisation Efforts of States ... 260 4.5.3. The Necessity and the Effectiveness of Measures Taken by States ... 261 4.5.4. Equality Considerations ... 263 4.5.5. Dignity Considerations ... 265 4.5.6. Participation and Inclusion: The Requirement to Involve Persons with Disabilities in all Aspects of the Implementation and Monitoring of Disability Accessibility .. 266 4.5.7. The Impact of Failure to Take Measures to Ensure Disability Accessibility ... 268 4.5.8. Benefits to Third Parties ... 269 5. Conclusion ... 271 Chapter 7. The Right to Education for Persons with Disabilities ... 273 1. Introduction ... 273 2. The Right to Education in International Human RightsLaw ... 275 2.1. The Right to Education in International Human Rights Law and the Development of the Right to Inclusive Education ... 275 2.2. The Normative Content of the Right to Education in International Human Rights Law ... 278 3. The Right to Inclusive Education: Article24 of the CRPD ... 281 3.1. The Concept of Inclusive Education ... 281 3.2. A Legal Interpretation of Article 24 of the CRPD ... 284 3.3. The Obligations of States under Article 24 of the CRPD ... 289 3.3.1. Non-Discrimination in Education ... 289 3.3.2. Reasonable Accommodations and Other Individualised Support Measures ... 293 3.3.3. Appropriate Forms of Communication, Training for Teachers and Lifelong Learning ... 294 4. Assessment by the CRPD Committee of the Measures Taken by States under Article 24 of the CRPD ... 296 4.1. Disproportionate Burden/Cost Considerations ... 296 4.2. Equality Considerations ... 299 4.3. Dignity Considerations ... 300 4.4. The Necessity and Effectiveness of Measures Taken to Ensure the Right to Inclusive Education ... 301 4.5. Participation of Persons with Disabilities in the Provision of Inclusive Education ... 301 4.6. Third-Party Benefits ... 302 5. Emerging Trends in Inclusive Education Provision in States Parties to the CRPD ... 303 5.1. Good Practices in Inclusive Education Provision ... 303 5.2. Bad Practices in Inclusive Education Provision ... 305 6. Conclusion ... 308 Chapter 8. Case Study: The Influence of the CRPD on the Council of Europe ... 311 1. Introduction ... 311 2. Case Study Part 1: The Influence of the CRPD on the Interpretation of the ECHR ... 313 2.1. Introduction to the Case Study (Part I) ... 313 2.2. The Relevance of the CRPD to the Interpretation by the European Court of Human Rights of the ECHR ... 313 2.3. The Interpretation of the Equality Norm in the ECHR ... 316 3. Case Study Part I: The Influence of the CRPD on the Interpretation of ECHR Rights ... 320 3.1. A Heightened Standard of Scrutiny of Disability Rights at the ECtHR: The 'Vulnerable Groups Approach' ... 320 3.1.1. A Positive Step in the Direction of Substantive Equality ... 322 3.1.2. A Heightened Standard of Scrutiny of Disability Rights ... 323 3.1.3. A Failure to Recognise Systemic Disadvantage ... 324 3.1.4. Further Evidence of a Heightened Standard of Scrutiny ... 326 3.1.5. The Social-Contextual Approach - Steps in the Direction of the SocialModel of Disability? ... 328 3.1.6. Conclusion: Two Steps Forward - One Step Back ... 332 3.2. De Facto Reasonable Accommodation Duties under the ECHR in Limited Circumstances... 334 3.2.1. De Facto Reasonable Accommodation Duties in Prison Settings: Pre-CRPD... 335 3.2.2. Post-CRPD Case Law on Disabled Prisoners ... 337 3.2.2.1. A Marked Absence of Reference to the CRPD in the ECtHR's Case Law on Disabled Prisoners ... 337 3.2.2.2. Increased Recognition of the CRPD in the ECtHR's Case Law on Disabled Prisoners ... 338 3.2.2.3. The Vulnerable Groups Approach: An Obligation to Take 'Reasonable Steps' ... 341 3.2.2.4. An Inconsistent Approach to International Law as an Interpretative Guide to ECHR Rights ... 344 3.2.3. Conclusion on De Facto Reasonable Accommodations in Institutional Settings ... 346 4. Case Study Part I: The Potential Influence of the CRPD on the Interpretation of the Right to Equality for Persons with Disabilities under the ECHR ... 347 4.1. The Explicit Recognition of a Duty to Accommodate under the ECHR's Non-Discrimination Provision? ... 348 4.2. The Vulnerable Groups Approach as a Facilitator of Substantive Equality in the Context of Disability Rights? ... 350 4.3. Social-Contextual Analysis and the Social Model of Disability as a Potential Pre-Cursor to a Mainstreaming Approach in the Interpretation of the ECHR? ... 354 5. Case Study Part II: The CRPD, General Disability Policy of the Council of Europe and the Revised European Social Charter ... 356 5.1. The CRPD and Council of Europe Policy Instruments on Disability 356 5.1.1. Pre-CRPD: The Council of Europe Disability Action Plan ... 356 5.1.2. Post-CRPD: Committee of Ministers' Recommendations on Disability ... 358 5.1.3. Post-CRPD: Council of Europe Issue Papers on Disability ... 363 5.2. The CRPD and the Revised European Social Charter ... 366 5.2.1. The Right to Education for Persons with Disabilities under the Revised European Social Charter ... 369 5.2.2. Pre-CRPD Collective Complaints on the Right to Education . 369 5.2.3. Post-CRPD Collective Complaints on the Right to Education 372 6. Conclusion ... 374 Chapter 9. Concluding Chapter: Findings, Conclusions and Recommendations ... 377 1. Summary of Book's Objectives ... 377 2. Main Findings and Conclusions ... 378 2.1. Introduction ... 378 2.2. Methodology ... 378 2.3. Findings and Conclusions ... 379 2.3.1. The Gaps in the Protection of the Rights of Persons with Disabilities Pre-CRPD ... 380 2.3.2. The Legal Meaning of Equality in the CRPD - A Theoretical and Comparative Framework ... 380 2.3.3. Lessons Drawn from the Outer Limits of the Duty to Accommodate ... 384 2.3.4. A Proposed Framework for the Progressive Realisation of Rights in the CRPD ... 385 2.3.5. The Interrelationship between the Accessibility Obligation and the Equality Norm ... 388 2.3.6. The Right to Education for Persons with Disabilities ... 389 2.3.7. The Influence of the CRPD on Council of Europe Disability Law and Policy ... 391 3. Main Recommendations ... 393 3.1. Recommendations for the CRPD Committee ... 393 3.2. Recommendations at the National Level (EU and beyond) ... 394 3.3. Recommendations for the Council of Europe Mechanisms ... 394 4. Concluding Remarks ... 395 Summary in English ... 397 Valorisation Addendum ... 411 Curriculum Vitae ... 415 Bibliography ... 417