Introduction: The Book
For a long time, the issue of disability was considered to fall outside the domain of human rights. Although the focus on this issue has gradually increased in the field of anti-discrimination law, it is still relatively low in the field of international human rights law. This lack of awareness reached a tipping point in 2006 with the adoption of the Convention on the Rights of Persons with Disabilities (CRPD).1 Disabled people have finally obtained their rightful place in international human rights law thanks to their own efforts at political mobilisation.
The CRPD has not just laid down all the rights of disabled people but also shed new light on the notion of human rights. Its significance for the whole field of international human rights law however remains quite uncharted. Without fully understanding the challenges posed by disability to international human rights law, not only the opportunity to capitalise on the adoption of the Convention is missed but also potential contradictions amongst international instruments threaten to keep hindering its implementation. Despite the attention that this Convention has attracted in recent years, there is still a long road ahead in order to deliver on its ambitions.
In 2002, Bengt Lindqvist, the Special Rapporteur on Disability of the Commission for Social Development, declared:
Disability is a human rights issue! I repeat: disability is a human rights issue. Those of us who happen to have a disability are fed up being treated by the society and our fellow citizens as if we did not exist or as if we were aliens from outer space. We are human beings with equal value, claiming equal rights.2
Taking this claim as point of departure, the book explores ways of integrating disability into field of international human rights law. It examines how the CRPD has transformed the very notion of human rights through its consideration for distinct forms of embodiment and how this consideration can spill over in the entire field. By grounding the issue of disability more deeply in the canon of human rights, the ultimate objective is that the issue is no longer addressed by a limited number of
1 Convention on the Rights of Persons with Disabilities 2006, 46 ILM 443.
2 Bengt Lindqvist, 19th Congress of Rehabilitation International, Rio de Janeiro, 25–30 August 2000 (cited in G. Quinn and T. Degener, The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability (Geneva: UN, 2002) 13).
10.1093/oso/9780198824503.003.0001
specialists but is fully taken into account by all human rights experts. While the Convention has been a milestone for protecting the rights of disabled people, the latter remain largely invisible in the international framework of human rights. This book defines what is needed in order to make disability an integral part of international human rights law.
Literature
Academic scholarship relating to the topic has very much expanded since the CRPD’s arrival. However, it continues to address issues related to disability separately from other issues pertaining to human rights, and therefore remains foremost located within the field of disability law.
On the side of disability, the emphasis lies on the Convention particularly in the light of its negotiation process. Several scholars have examined particular rights as well as the requirements for the fulfilment of the legal obligations pertaining to them. They have also shown how the Convention exceeds and even collides with the provisions of other human rights treaties. Despite all examination, there has been as yet no inquiry into what the Convention rights imply for the whole domain of human rights.
On the side of human rights, literature in the field of international human rights law has begun to focus more seriously on the issue of disability. It has given the rights of disabled people greater importance although still less so than those of other marginalised groups. If disability is considered in greater detail, it has usually been with regard to the prohibition of discrimination with some reference to the new elements in the CRPD. Those concerned with broader human rights issues generally treat disability as an afterthought if they have treated it at all
The last ten years a series of works concerning the CRPD has seen the light of day. This includes the volumes of Arnardóttir and Quinn (published by Martinus Nijhoff Publishers in 2012), Anderson and Philips (published by the Netherlands Institute of Human Rights in 2012), Sabatello and Schulze (published by the University of Pennsylvania Press in 2013), Blanck and Flynn (published by Routledge in 2016) and O’Mahony and Quinn (published by Clarus Press in 2015).3 Bantekas, Anastasiou and Stein have written a commentary on the Convention (published by Oxford University Press in 2018) which contains an
3 O. Arnardóttir and G. Quinn (eds), The UN Convention on the Rights of Persons with Disabilities. European and Scandinavian Perspectives (London/Boston: Martinus Nijhoff Publishers, 2009); J. Anderson and J. Philips (eds), Disability and Universal Human Rights: Legal, Ethical, and Conceptual. Implications of the Convention on the Rights of Persons with Disabilities (Utrecht: Netherlands Institute of Human Rights, 2012); M. Sabatello and M. Schulze (eds), Human Rights & Disability Advocacy (Philadelphia: University of Pennsylvania Press, 2013); P. Blanck and E. Flynn (eds), Routledge Handbook of Disability Law and Human Rights (Abingdon: Routledge, 2016); C. O’Mahony and G. Quinn (eds), Disability Law and Policy. An Analysis of the UN Convention (Dublin: Clarus Press, 2017).
article-by-article examination.4 Waddington and Lawson have furthermore considered the role of domestic courts in a volume which covers several jurisdictions (published by Oxford University Press in 2018).5 While such volumes offer helpful guidance in the implementation of the CRPD, they do not actually aim to research disability as an integral part of international human rights law.
Some scholars have provided in-depth discussions on specific issues or rights protected by the CRPD, including the present author. There are monographs on disability strategies by Flynn (published by Cambridge University Press in 2011), the right to legal capacity both by Gooding (published by Cambridge University Press in 2017) and by Arstein-Kerslake (published by Cambridge University Press in 2017) and the right to work by Harpur (published by Cambridge University Press in 2019).6 There are also volumes on independent mechanisms by de Beco (published by Martinus Nijhoff Publishers in 2013), on the right to work by Heymann, Stein and Moreno (published by Oxford University Press in 2014) and on the right to inclusive education by de Beco, Quinlivan and Lord (published by Cambridge University Press in 2018).7 Broderick and Ferri have issued a handbook with cases and materials on the CRPD (published by Cambridge University Press in 2019).8 A greater understanding of the rights of disabled people is indeed possible through a reading of the above-mentioned publications.
The works most relevant to the present book already from a few years ago are probably Kanter’s monograph on The Development of Disability Rights under International Law (published by Routledge in 2015) and Broderick’s monograph on The Long and Winding Road to Equality and Inclusion for Persons with Disabilities (published by Intersentia in 2015).9 Both of them not only consider the CRPD’s objectives including its understanding of disability but also focus on a number of
4 I. Bantekas, D. Anastasiou and M. Stein (eds), Commentary on the UN Convention on the Rights of Persons with Disabilities (New York: Oxford University Press, 2018).
5 L. Waddington and A. Lawson (eds), The UN Convention on the Rights of Persons with Disabilities in Practice: A Comparative Analysis of the Role of Courts (Oxford: Oxford University Press, 2018).
6 E. Flynn, From Rhetoric to Action: Implementing the UN Convention on the Rights of Persons with Disabilities (Cambridge: Cambridge University Press, 2011); P. Gooding, A New Era for Mental Health Law and Policy: Supported Decision-Making and the UN Convention on the Rights of Persons with Disabilities (Cambridge: Cambridge University Press, 2017); A. Arstein-Kerslake, Restoring Voice to People with Cognitive Disabilities. Realizing the Right to Equal Recognition Before the Law (Cambridge: Cambridge University Press, 2017); P. Harpur, Ableism at Work: Disablement and Hierarchies of Impairment (Cambridge: Cambridge University Press, 2019).
7 G. de Beco (ed), Article 33 of the UN Convention on the Rights of Persons with Disabilities: National Structures for the Implementation and Monitoring of the Convention (Leiden/Boston: Martinus Nijhoff Publishers, 2013); J. Heymann, M. Stein and G. Moreno (eds), Disability and Equity at Work (New York: Oxford University Press, 2014); G. de Beco, J. Lord and S. Quinlivan (eds), The Right to Inclusive Education in International Human Rights Law (Cambridge: Cambridge University Press, 2019).
8 A. Broderick and D. Ferri, International and European Disability Law and Policy: Text, Cases and Materials (Cambridge: Cambridge University Press, 2019).
9 A. Kanter, The Development of Disability Rights under International Law. From Charity to Human Rights (Abingdon: Routledge, 2015); A. Broderick, The Long and Winding Road to Equality and Inclusion for Persons with Disabilities. The United Nations Convention on the Rights of Persons with Disabilities (Mortsel: Intersentia, 2015).
Convention rights. What they fail to do is to harvest the gains that can be derived from this Convention from the perspective of international human rights law, with the result that they remain more or less confined to the field of disability law. There are no works that seek to study the issue of disability within the broader framework of international human rights.
Also worth mentioning is the significant number of articles on the CRPD the totality of which cannot be listed in this introduction. A closer look at these shows a gradually evolving perspective on the Convention. While earlier articles underline the Convention’s actual benefits for disabled people in the wake of its entry into force,10 more recent articles either emphasise the shift in thinking regarding what the Convention has come to represent in the field or provide a critical account of its fundamental premises which may include downright criticism.11 Other articles express particular views on CRPD rights, some of which will play a central role in setting out the argument defended in the present book (in particular in Part II).12
Aims and Method
The unique feature of this book lies in its objective of developing a theoretical framework which explicitly integrates disability into international human rights law. In order to meet this aim, it provides a thorough examination of the innovations the CRPD has introduced in the field as well as a critical evaluation of its repercussions
10 R. Kayess and P. French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8 Human Rights Law Review 1; A. Dhanda, ‘Constructing a New Human Rights Lexicon: Convention on the Rights of Persons with Disabilities’ (2008) 5 International Journal on Human Rights 43; P. Bartlett, ‘The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law’ (2012) 75 Modern Law Review 752–78; P. Harpur, ‘Embracing the New Disability Rights Paradigm: The Importance of the Convention on the Rights of Persons with Disabilities’ (2012) 27 Disability & Society 1.
11 F. Mégret, ‘The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights’ (2008) 30 Human Rights Quarterly 494; F. Mégret, ‘The Disabilities Convention: Towards a Holistic Concept of Rights’ (2008) 12 International Journal of Human Rights 261; K. Johnson, ‘The UN Convention on the Rights of Persons with Disabilities: A Framework for Ethical and Inclusive Practice?’ (2013) 7 Ethics & Social Welfare 218; S. Arduin, ‘Taking Metaregulation to the United Nations Human Rights Treaty Regime: The Case of the Convention on the Rights of Persons with Disabilities’ (2019) 41 Law & Policy 411; B. Byrne, ‘Dis-Equality: Exploring the Juxtaposition of Disability and Equality’ (2018) 6 Social Inclusion 9; G. de Beco, ‘The Indivisibility of Human Rights and the Convention on the Rights of Persons with Disabilities’ (2019) 68 International & Comparative Law Quarterly 141; J. Grue, ‘Inclusive Marginalisation? A Critical Analysis of the Concept of Disability, Its Framings and Their Implications in the United Nations Convention on the Rights of Persons with Disabilities’ (2019) 37 Nordic Journal of Human Rights 3.
12 A. Dhanda, ‘Universal Legal Capacity as a Universal Human Right’ in M. Dudley, D. Silove and F. Gale (eds), Mental Health and Human Rights: Vision, Praxis and Courage (Oxford: Oxford University Press, 2012) 177; B. Byrne, ‘Hidden Contradictions and Conditionality: Conceptualisations of Inclusive Education in International Human Rights Law’ (2013) 28 Disability & Society 332; E. Albin, ‘Universalising the Right to Work of Persons with Disabilities: An Equality and Dignity Based Approach’ in V. Mantouvalou (ed), The Right to Work. Legal and Philosophical Perspectives (Oxford: Hart Publishing, 2015) 61.
on the concept of human rights. While the book does revolve around the CRPD, it pays as much attention to the international instruments and explores how both the Convention is intricately bound up with these instruments. It does so both by studying the relationship between the Convention rights and those protected by other human rights treaties and by examining the cross-pollination between these rights and the overall objectives of the UN. The book thus explores how disability can be integrated into international human rights law in a way that yields benefits for all individuals. This integration is anchored in the idea of the disabled subject— coined in Chapter 4—which proceeds from the fact that all individuals encounter disability-related issues in one or the other way in the course of their lives. Through its acknowledgement of disability as a universal experience, the disabled subject is a construct helping to move away from the traditional legal subject that is defined in international human rights law as a fixed and distant figure. It paves the way towards the adoption of a universal approach which provides the basis for an explicit integration of disability into the field of international human rights law. While the first part of the book sets out how this disabled subject assumes importance and how it relinquishes any group-based approach, the second part of the book shows what are the implications of bringing the disabled subject to bear upon a number of rights and what are the lessons of the Convention for the implementation of human rights treaties. Behind the book lies the postulate that the consideration of disability can advance the field of international human rights law itself.
By exploring what the CRPD rights imply for the whole domain of human rights, the present book provides an agenda-setting analysis for all human rights experts by inviting them to appreciate the benefits of placing disabled people at the heart of international human rights law. It explores how the Convention enriches the notion of human rights and reveals its capacity to act as a catalyst for uniting the human rights community.
In addition to the above-mentioned publications, the book relies on the general literature in the field of international human rights law. It draws upon the preparatory works of the CRPD as well as the recommendations of treaty bodies. The latter include not only the CRPD Committee, which has already issued seven general comments to date,13 but also the other treaty bodies so as to reveal how all human rights treaties are interlinked.
In order to highlight the actual conditions in which disabled people live, this book draws upon the reports of UN agencies, starting with the one published by the World Health Organisation (WHO) and the World Bank published in 2011.14 Other agencies that have shaped the rights of disabled people include the Office of the UN High Commissioner for Human Rights (OHCHR) and the United Nations
13 They are available here: https://www.ohchr.org/EN/HRBodies/CRPD/Pages/GC.aspx.
14 World Health Organization (WHO) and World Bank, World Report on Disability (Geneva: WHO, 2011).
Children’s Fund (UNICEF) as well as the International Labour Organisation (ILO). The book also leans on evidence from disabled people’s organisations (DPOs) on the challenges experienced by disabled people. While it does not emphasise the role of the courts as such, it makes references to case law where relevant, including that of the European Court of Human Rights.
The method used in the present book is first and foremost doctrinal. It is however impossible to assess the CRPD’s normative underpinnings without bringing to bear concepts proper to a number of related disciplines. Among the latter are not only the burgeoning field of disability studies, which has informed current views of disability, but also the more traditional legal and political theory, which will provide assistance in developing the purported theoretical framework.
Throughout its various chapters, the book concentrates on two transversal themes. First, it deals with the indivisibility of human rights, which is at the core of the CRPD much more so than in any other human rights treaty. Bridging civil and political and economic and social rights as it does, the Convention questions some of the dichotomies of international human rights law, such as its division into two sets of rights. Second, the book pays special attention to the question of intersectionality, which likewise is a prominent feature of the Convention. The question of intersectionality is essential in understanding disability because it further attests to the heterogeneity of disabled people. By factoring in characteristics other than disability the road also remains open for establishing deeper connections with the other human rights treaties. The two transversal themes will perform an essential function both in the conceptual part of the book and in the analysis of particular rights the choice of which shows how the Convention inter-mixes both sets of rights.
In contrast to most academic scholarship relating to the topic, the book targets not so much students, although they could find it useful at an advanced level but rather a broad range of stakeholders. The latter include not only human rights experts, both within and outside academia, but also international organisations, NGOs, national human rights institutions, public administrations, lawyers and consultants not to mention DPOs themselves. This book will appeal to both those with a particular interest in the rights of disabled people, even if only superficial, and those willing to make human rights more of a reality for vulnerable groups generally.
The world since starting this book has experienced high levels of anxiety following the outbreak of the Covid-19 pandemic. The crisis has led to extreme forms of hardship particularly for disabled people, who are more likely to live in institutions where rates of infection are higher and who are often the first ones to be negatively affected.15 This book was in its final stages when the crisis started, so it
15 UN, A Disability-Inclusive Response to Covid-19, May 2020, https://www.un.org/sites/un2.un.org/ files/sg_policy_brief_on_persons_with_disabilities_final.pdf.
was impossible to change course in order to properly address all the implications emanating from it. It is quite clear though that any progress towards giving effect to the CRPD has been temporarily halted due to the consequent worsening of their lives. Much of society will have to be rebuilt, and it is hoped that the insights provided in this book will be of use to all those pushing in that direction.
As far as terminology is concerned, both ‘disabled people’ or ‘persons with disabilities’ are widely accepted terms often used interchangeably. The first term, ‘disabled people’, stresses that disability is a product of societal organisation as underscored by the social model of disability; the second term, ‘persons with disabilities’, which is the one used in the CRPD, highlights that the people in question are ‘persons first’. While both terms have their value, the book will always refer to ‘disabled people’. The reason for this, as will be explained, is that it employs a social model lens on disability even if it concedes that the Convention has not adopted this model entirely. The book uses this term in order to draw attention to the social dimension of disability that this term brings to mind.
Structure
The book itself is divided into three parts: Part I is about concepts (I. Concepts: The Integration of Disability into International Human Rights Law), Part II concerns standards (II. Standards: Human Rights for Disabled People and Beyond) and Part III deals with implementation (III. Implementation: From Rights to Reality). This division is not only one that is normally used in the field of international human rights law but also one that by itself reflects the CRPD’s main innovative features. While any chapter can be read individually, the chapters within the three parts (Chapters 1–4, Chapters 5–8 and Chapters 9–10) follow a similar internal pattern and provide a consistent and coherent argumentation when taken together, as can been seen from the sub-headings.
Part I addresses the general background of disability in international human rights law. It examines not only the evolution that the CRPD represents but also what its approach to disability reveals about the notion of human rights. It further highlights how this Convention elevates the very concept of human rights by appreciating the entire range of human differences. Bringing in the idea of the disabled subject, it argues in favour of the adoption of a universal approach that regards disability as a universal experience.
Chapter 1 starts by outlining the steps towards the adoption of a human rights treaty for disabled people. Chapter 2 explores not only the shift in focus with regard to disability and the social model’s impact on the CRPD’s drafters but also the extent to which disability has been brought into the mainstream. Chapter 3 goes on to discuss theories of justice, including social contract theory, which several disability scholars have criticised with regard to disability, as well as capability and
recognition theories, both of which can prove useful in order to facilitate the inclusion of disabled people. Chapter 4 investigates how international human rights falsely dressed up the legal subject and how the CRPD has retrieved it from its disembodied conception before calling upon vulnerability theory to show its relevance for advancing the idea of the disabled subject.
Part II offers an analysis of particular rights which together not only provide an overall snapshot of the rights of disabled people but also reflect upon the new emphasis that the Convention places on all human rights. It examines the four rights for this purpose: the right to legal capacity; the right to inclusive education; the right to work and; the right to political participation. While the said rights have roots that predate the CRPD, they bring to the fore elements which are left aside by previous human rights treaties and which offer a fresh perspective on the field of international human rights law.
Chapter 5 analyses the right to legal capacity by focusing on the need to provide support for the exercise of legal capacity particularly by the strengthening of social relationships. Chapter 6 investigates the right to inclusive education that results from the incorporation of the goal of inclusive education into international human rights law. Chapter 7 examines the right to work including the aim to ensure equal employment opportunities for disabled people through the transformation of the labour market. Chapter 8 analyses the right to political participation by stressing the importance of fostering inclusion into political life to achieve political participation at large.
Part III turns to the implementation of human rights treaties by addressing two inter-related issues which are crucial to its achievement, namely participation and monitoring. It not only surveys the involvement of civil society organisations but also delves into the functioning of national human rights institutions (NHRIs). It thereby shows the essential role of both issues (participation and monitoring) in translating rights into reality.
Chapter 9 addresses the participation of disabled people, which reached a peak in the CRPD’s negotiation process, and the manner in which the Convention has strengthened ‘participatory rights’ in general. Chapter 10 examines the role of independent mechanisms, including the requirements of independence and pluralism as well as the reference to the Paris Principles’ consequence for NHRIs.
The book finishes first with a short summary of all the chapters. It further explains the manner in which the CRPD has moved away from the nondiscrimination norm while it absorbed it and what further action is needed in order to make disability an integral part of international human rights law.
1 Historical Background: Towards a Human Rights Treaty for Disabled People
This chapter follows the path towards the enactment of the CRPD (1.1 The Adoption of the CRPD). It looks at the preceding international instruments on disability as well as the steps taken to elaborate a legally binding international instrument. It goes on to evaluate the way in which the Convention distinguishes itself from other human rights treaties (1.2 Disabled People and Human Rights Treaties). It not only discusses the role of the prohibition of discrimination with regard to disabled people as well as its potential to address their marginalisation but also analyses any resemblances between the CRPD and the Convention on the Rights of the Child (CRC). It moreover examines how the CRPD has improved human rights protection generally by advancing the principle of substantive equality.
1.1 The Adoption of the CRPD
The present book takes as a starting point the International Year of Disabled Persons in 1981.1 The International Year of Disabled Persons led to subsequent events that facilitated the drafting of the CRPD, and its overall purpose gave direction to all the rights of disabled people as we know them today. The International Year of Disabled Persons was preceded by the adoption of a number of other nonlegal binding international instruments on disability. These international instruments, which include the Declaration on the Rights of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons, adopted in 1971 and 1975, respectively,2 recognised human rights for disabled people. Nonetheless, they persisted both in granting disabled people a lower social status and in depicting them as dependent and inferior.3 Such international instruments were relying on the dominant medical model of disability (explained in Chapter 2).4 The shift in focus,
1 GA, International Year of Disabled Persons, 8 December 1981, A/RES/36/77.
2 GA, Declaration on the Rights of Mentally Retarded Persons, 20 December 1971, A/RES/26/2856; GA, Declaration on the Rights of Disabled Persons, 9 December 1975, A/RES/3447 (XXX).
3 A. Kanter, The Development of Disability Rights under International Law. From Charity to Human Rights (Abingdon: Routledge, 2015) 31–2.
4 M. Stein, ‘Disability Human Rights’ (2007) 95 California Law Review 75, 88.
Disability in International Human Rights Law. Gauthier de Beco, Oxford University Press. © Gauthier de Beco 2021. DOI: 10.1093/oso/9780198824503.003.0002
which was necessary to enable disabled people to be treated with equal consideration and to be recognised as subjects of rights, had yet to come.
The Resolution declaring 1981 the International Year of Disabled Persons was the first step towards such a shift in focus. Its theme, as expressed by the General Assembly, namely ‘[f]ull participation and equality’,5 still represents the primary goal of international human rights law with regard to disability. The Resolution stressed ‘the continuing need to promote the realization of the right of disabled persons to participate fully in the social life and development of their societies and to enjoy living conditions equal to those of other citizens’.6 This International Year of Disabled Persons was an initial response to the marginalised position of disabled people around the world. It encouraged steps taken towards developing what would become the World Programme of Action for Persons with Disabilities in 1982. Despite its emphasis on the prevention of disability and efforts towards rehabilitation,7 the World Programme of Action for Persons with Disabilities would represent another milestone in the affirmation of the human rights of disabled people. Distancing itself from the medical model of disability,8 the Programme stressed the importance of ‘activities related to equalization of opportunities for disabled persons’ and enumerated a series of measures in order to achieve it.9 The World Programme of Action for Persons with Disabilities also required that States regularly report on its implementation to the UN Secretary General. It is noteworthy that this international instrument is still in action, and therefore works in parallel with the CRPD. The UN subsequently launched the International Decade of Disabled Persons, which took place from 1983 to 1992.10 The Principles for Protection of Persons with Mental Illness and the Improvement of Mental Health Care further provided for standards to protect people with a mental health condition regardless of whether they lived in institutions.11 The aforementioned international instruments thus paved the way for the human rights treaty that would later become the CRPD. They are proof that seeing disability as a human rights issue had started to gain ground before its adoption.
The Vienna Declaration and Programme of Action (VDPA), adopted in 1993,12 paid particular attention to disabled people. This attention was significant, not only because this is a generic human rights document but also given the importance it would acquire in the coming decades. The VDPA spelled out what was the new
5 GA, International Year of Disabled Persons, Preamble.
6 Ibid.
7 Ibid, paras 3, 10, 15, 16 and 17.
8 A. Rimmerman, Disability and Community Living Policies (Cambridge: Cambridge University Press, 2017) 32.
9 GA, World Programme of Action for Persons with Disabilities, 3 December 1982, A/RES/37/52.
10 GA, International Decade of Disabled Persons, 23 November 1984, A/RES/39/26.
11 GA, Principles for Protection of Persons with Mental Illness and the Improvement of Mental Health Care, 17 December 1991, A/RES/46/119.
12 World Conference on Human Rights, Vienna Declaration and Programme of Action, 25 June 1993, A/Conf.157/23.
vision of human rights at the international level. It famously proclaimed that ‘[a]ll human rights are universal, indivisible and interdependent and interrelated’.13 Reaffirming ‘that all human rights and fundamental freedoms are universal and thus unreservedly include persons with disabilities’, the VDPA declared that ‘[t]he place of disabled persons is everywhere’.14 It further considered that ‘[p]ersons with disabilities should be guaranteed equal opportunity through the elimination of all socially determined barriers, be they physical, financial, social or psychological, which exclude or restrict full participation in society’.15 This recommendation was a predictive sign of how international human rights law would articulate the rights of disabled people in the future. It already reflected the idea that these rights entail the removal of obstacles created by society.
This being said, prior to the CRPD, none of the existing human rights treaties referred to disability, with one notable exception. The CRC, adopted in 1989,16 not only listed disability in its general non-discrimination clause, unlike these human rights treaties, but also devoted a separate article to disabled children.17 Article 23 of the CRC provides that disabled children must ‘enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community’.18 The CRC can be seen as the ‘cousin’ of the CRPD, as both human rights treaties share resemblances, including their focus on disabled children, as explained further below. Considering that the former treaty chronologically precedes the latter treaty, it is possible that more lessons can be learned from the CRC that can benefit the CRPD than the other way around.19 However, the CRC has a number of limitations with regard to disability, such as its focus on ‘special care’ for disabled children, which should be ‘subject to available resources . . . appropriate to the child’s condition’ and for which ‘assistance . . . shall be provided free of charge, whenever possible’.20 This wording implies that disability remains a question of welfare and that the need to protect the rights of disabled people is subordinate to the protection afforded to others.
While neither the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) nor the International Covenant on Economic, Social and Cultural Rights (ICESCR) make explicit reference to disability,21
13 Ibid, para 5.
14 Ibid, paras 63–4.
15 Ibid, para 64.
16 Convention on the Rights of the Child 1989, 1577 UNTS 3 (CRC).
17 Articles 2 and 23, CRC.
18 Article 23(1), CRC.
19 See, however, R. Sandland, ‘Lessons for Children’s Rights from Disability Rights’ in E. Brems, E. Desmet and W. Vandenhole (eds), Children’s Rights Law in the Global Human Rights Landscape: Isolation, Inspiration, Integration? (Abingdon: Routledge, 2017) 109.
20 Article 23(2) and (3), CRC.
21 Convention on the Elimination of All Forms of Discrimination against Women 1979, 1249 UNTS 13 (CEDAW); International Covenant on Economic, Social and Cultural Rights 1966, 993 UNTS 3 (ICESCR).
both the Committee on the Elimination of Discrimination against Women (CEDAW Committee) and the Committee on Economic, Social and Cultural Rights (CESCR Committee) issued general recommendations/general comments in relation to disabled people. In its General Recommendation on the situation of disabled women, the CEDAW Committee asked States Parties to provide information regarding disabled women in its reports on the implementation of CEDAW,22 although it later on highlighted their particular needs in the context of health.23 The Committee on Economic, Social and Cultural Rights (CESCR) (CESCR Committee) carried out a more in-depth examination of the rights of disabled people in its General Comment on the situation of disabled people.24 It thereby set out one of the first key sets of recommendations on the issue. In that General Comment, it not only urged States Parties to the ICESCR to take steps so that disabled people can ‘overcome any disadvantages, in terms of the enjoyment of the rights specified in the Covenant, flowing from their disability’ but also provided a definition of discrimination on the basis of disability that included a failure to provide reasonable accommodation.25 The CESCR Committee was therefore the first treaty body to recognise that such failure amounted to a form of discrimination on the basis of disability. The Committee further clarified that disability was covered by ‘other status’ in the general non-discrimination clause of the ICESCR,26 a clarification which has not been provided as yet by the Human Rights Committee in relation to the general non-discrimination clause of the International Covenant on Civil and Political Rights (ICCPR).27
In the late 1980s, two countries, namely Italy and Sweden, proposed to begin to negotiate a human rights treaty for disabled people, but their respective proposals were dismissed by the General Assembly.28 The time was not ripe for such a human rights treaty, especially since the CRC was being drafted at that point. The
22 CEDAW Committee, General Recommendation No 18: Disabled Women, 30 January 1991, A/46/38.
23 CEDAW Committee, General Recommendation No 24: Women and Health, 5 February 1999, A/ 54/38. The Beijing Declaration Platform for Action also paid particular attention to disabled women (Fourth World Conference on Women, Beijing Declaration and Platform for Action, 15 September 1995, A/CONF.177/20, paras 60(a), 81(a), 106(c), 124(m), 175(d), 178(j), 195(a) and 206(k)).
24 CESCR Committee, General Comment No 5: Persons with Disabilities , 9 December 1994, E/1995/22.
25 Ibid, paras 5 and 9.
26 Ibid, para 5. The CESCR defined discrimination on the basis of disability as ‘any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights’ (Ibid, para 15).
27 International Covenant on Civil and Political Rights 1966, 999 UNTS 171 (ICCPR). On this issue see F. Mégret, ‘The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights’ (2008) 30 Human Rights Quarterly 494, 502; M. Jones and L. Basser Mark, ‘Law and the Social Construction of Disability’ in M. Jones and L. Basser Mark (eds), Disability, Divers-Ability and Legal Change (The Hague: Martinus Nijhoff Publishers, 1999) 3, 21.
28 G. Quinn, ‘Disability and Human Rights: A New Field in the United Nations’ in K. Krause and M. Scheinin (eds), International Protection of Human Rights: A Textbook (Turku: Åbo Akademi UniversityInstitute for Human Rights, 2009) 24, 252.
disability rights movement was perhaps also not ready to assist in elaborating a legally binding international instrument. Instead, the General Assembly adopted the Standard Rules for the Equalisation of Opportunities for Persons with Disabilities (Standard Rules) in 1993.29
The Standard Rules were the first international instrument to promote the participation of disabled people in society. They are still the most important international instrument on disability that was adopted prior to the CRPD. The terminology used in the Standard Rules reflects a remarkable change in approach to dealing with disability, as they focus on participation, equality and nondiscrimination. The Standard Rules enunciate with considerable precision the measures necessary to include disabled people in various areas of life, including education, employment, social security, family life and recreation. They also promote the involvement of disabled people’s organisations (DPOs) in the adoption of policies relating to disability.30 Despite their non-binding nature and continued medicalised perspective,31 the Standard Rules remain a point of reference for the human rights of disabled people. They have been a source of inspiration both for international monitoring mechanisms, including the treaty bodies, and for domestic actors, including the CRPD’s drafters themselves. Importantly, the Standard Rules foresee the appointment of a Special Rapporteur on Disability who has to report to the Commission for Social Development.32 Disabled people slowly started to find their rightful place in international human rights law.
Following the adoption of the Standard Rules, different voices called, once more, for the adoption of a legally binding international instrument on disability. A Consultative UN Expert Group met at the University of California, Berkeley, and recommended the negotiation of such an international instrument.33 Meanwhile, the Durban Declaration and Programme of Action had invited the UN to elaborate ‘an integral and comprehensive international convention to protect and promote the rights and dignity of disabled people’.34
The Office of the High Commissioner for Human Rights (OHCHR) subsequently commissioned a study on the protection of disabled people within the international human rights system by two prominent disability rights lawyers.35 The study examined the utility of existing human rights treaties for disabled people
29 GA, Standard Rules for the Equalisation of Opportunities for Persons with Disabilities, 20 December 1993, A/RES/48/96.
30 Rule 14(2), Standard Rules.
31 R. Kayess and P. French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8 Human Rights Law Review 1, 16.
32 Rule 6(2), Standard Rules.
33 Quinn, ‘Disability and Human Rights’, 253.
34 Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance Durban, 31 August–8 September 2001, A/Conf.189.12, para 180. It also encouraged stakeholders ‘to address the situation of persons with disabilities who are subject to racism’ (Ibid, para 57).
35 G. Quinn and T. Degener, The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability (Geneva: UN, 2002).
and the extent to which the international monitoring mechanisms were considering them in their work. Noting that both the treaty bodies and NGOs were paying little attention to such people, the study set out a series of potential remedies for this gap. Recognising that ‘a convention would mark a huge step forward and should not undermine but underpin the protections provided in the existing six human rights treaties’,36 this study eventually proved to be a decisive step towards the drafting of the new human rights treaty starting a few years later. In the end, the CRPD would go much further than that, as it would not just ‘underpin’ but strengthen the international human rights system, as is argued in the present book.
In 2001, the Mexican government put forward a proposal to the General Assembly to start the process of negotiating a ‘comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities’.37 The General Assembly, this time, mandated an Ad Hoc Committee to elaborate a draft for such a convention. The drafting took place over eight sessions, from July 2002 to August 2006, and, after its redaction by a Working Group, the Convention was negotiated twice by the Ad Hoc Committee in New York (since the Economic and Social Council (ECOSOC) acted as its secretariat and not as usual the OHCHR). A significant feature of the negotiation process was the active participation of disabled people through the International Disability Causus (IDC). While the number of DPOs involved was initially restricted, the IDC grew expansively during the various sessions of the Ad Hoc Committee, where disabled people acted as experts alongside governmental delegations.38 This negotiation process created a real momentum for civil society, and even a sense of ownership on the part of disabled people, that would persist after the entry into force of the Convention. Several other actors played an important role, such as national human rights institutions (NHRIs), academics as well as the European Union, not to mention the Chair of the Ad Hoc Committee during the last four sessions: Ambassador Don MacKay, from New Zealand.
After the Ad Hoc Committee had finished its work, the CRPD was adopted by the General Assembly on 13 December 2006,39 thereby creating the first legally binding international instrument on disability. An Optional Protocol was added to allow individuals, or groups of individuals, to lodge complaints on alleged violations of the Convention. The ‘comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities’ had, at last, been born. The CRPD entered into force on 3 May 2008, after its 20th
36 Ibid, 297.
37 GA, Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, 26 February 2002, A/RES/56/168.
38 S. Tromel, ‘Personal Perspective on the Drafting History of the United Nations Convention on the Rights of Persons with Disabilities’ in G. Quinn and L. Waddington (eds), European Yearbook of Disability Law (Antwerp: Intersentia, 2009) 115, 117–18.
39 GA, Convention on the Rights of Persons with Disabilities, 13 December 2006, A/RES/61/106.
ratification. By January 2021, there were 182 ratifications for the Convention and 97 ratifications for the Optional Protocol.40 The CRPD introduced a high number of innovations that opened up new horizons in the field of international human rights law, a point that will be elaborated on throughout this book.
The CRPD itself is divided into three parts. The first part consists of transversal provisions (Articles 1–9). This part includes: the general principles of the Convention (Article 3); the general obligations imposed upon States Parties (Article 4); the right to equality and non-discrimination (Article 5); a separate article on disabled women (Article 6); a separate article on disabled children (Article 7); as well as provisions on awareness-raising (Article 8) and accessibility (Article 9). It is worth stressing that Article 4(3) of the CRPD provides that ‘[i]n the development and implementation of legislation and policies’, States Parties should ‘closely consult with and actively involve persons with disabilities’.41 Importantly, the CRPD also provides that States Parties must ‘take all appropriate steps to ensure that reasonable accommodation is provided’, an obligation which applies to all the rights protected by the Convention.42 The second part of the CRPD sets out an exhaustive catalogue of civil, political, economic, social and cultural rights (Articles 10–30). This includes: the right to life (Article 10); the right to equal recognition before the law (Article 12); the right to access to justice (Article 13); the right to liberty and security (Article 14); freedom from torture or cruel, inhuman or degrading treatment or punishment (Article 15); freedom from exploitation, violence and abuse (Article 16); the right to live independently and be included in the community (Article 19); freedom of expression and opinion and access to information (Article 21); the right to privacy (Article 22), respect for home and the family (Article 23); the right to education (Article 24); the right to health (Article 25); the right to habilitation and rehabilitation (Article 26); the right to work (Article 27); the right to social protection (Article 28); and participation in cultural life, recreation, leisure and sport (Article 30). Although all of those rights are equally important for disabled people, several of these rights will the subject of in-depth discussions in Part II for the purposes of the argument made by the book. The third part deals with implementation and monitoring (Articles 31–40). After addressing data collection (Article 31) and international co-operation (Article 32), it prescribes the creation of national mechanisms for implementation and monitoring (Article 33) and establishes the Committee on the Rights of Persons with Disabilities as well as a Conference of States Parties (Article 40). It is particularly interesting to note here that the Ad Hoc Committee decided to provide for both
40 See https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter= 4&clang=_en and https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15a&chapter=4&clang=_en.
41 Article 4(3), CRPD.
42 Article 5(3), CRPD.
national and international monitoring mechanisms.43 Despite some innovative aspects, the international monitoring mechanisms are nonetheless essentially the same as those foreseen by other human rights treaties.44 One of the reasons is that the CRPD was being negotiated in the middle of discussions on reforming the treaty body system,45 and not much time was devoted to this aspect of the Convention.
1.2
Disabled People and Human Rights Treaties
Going back to the evolution of international human rights law, the CRPD has followed the move to adopt human rights treaties on specific issues of concern. While disability initially was not seen as a human rights issue, this evolution has allowed to give shape to the rights of disabled people. These rights were initially considered through the general non-discrimination clauses of the ICCPR and ICESCR.46 Both Covenants prohibit discrimination in the enjoyment of the rights protected by them on the basis of a non-exhaustive number of grounds.47 The ICCPR even includes an autonomous provision, which extends such prohibition to all rights, including economic and social rights,48 as recognised by the Human Rights Committee.49 It is also worth noting that the prohibition of discrimination creates not only negative obligations but also positive obligations, including ‘positive action’, which aims to remedy past disadvantages.50 In the absence of a legally binding international instrument on disability, disabled people therefore were – implicitly – protected by the general non-discrimination clauses of the foregoing Covenants.51
After the adoption of the ICCPR and ICESCR, States opted for the crafting of a number of group-specific human rights treaties. International human rights law
43 G. de Beco, ‘Article 33(2) of the UN Convention on the Rights of Persons with Disabilities. Another Role for National Human Rights Institutions?’ (2011) 29 Netherlands Quarterly of Human Rights 84.
44 M. Stein and J. Lord, ‘Monitoring the Convention on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, and Future Potential’ (2010) 32 Human Rights Quarterly 689.
45 OHCHR, Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, 22 March 2006, HRI/MC/2006/2.
46 The two Covenants together with the Universal Declaration on Human Rights (UDHR) form the International Bill of Human Rights.
47 Article 2(1), ICCPR; Article 2(2), ICESCR.
48 Article 26, ICCPR.
49 Human Rights Committee, General Comment No 18: Non-discrimination, 10 November 1989, HRI/GEN/1/Rev.6 at 146, para 12; Human Rights Committee, Broeks v The Netherlands, 9 April 1987, CCPR/C/29/D/172/1984, para 12.3; Human rights Committee, Zwaan de Vries v The Netherlands, 9 April 1987, CCPR/C/29/D/182/1984, para 12.3.
50 O. De Schutter, ‘Chapter Seven. Positive Action’ in D. Schiek, L. Waddington and M. Bell (eds), Cases, Materials and Text on National, Supranational and International Non-Discrimination Law: Ius Commune Casebooks for the Common Law of Europe (Oxford: Hart, 2007) 757, 759–61.
51 B. Saul, D. Kinley and J. Mowbray, The International Covenant on Economic, Social and Cultural Rights. Commentary, Cases, and Materials (Oxford: Oxford University Press, 2014) 1010–11.
thus gradually evolved towards the direction of explicit recognition of rights for a number of historically marginalised groups of people. The necessity for doing so stemmed from the fact that the two Covenants do not focus on such groups (although the rights enshrined in those Covenants are universal). The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) –actually predating the ICCPR and ICESCR52 – the CEDAW, the CRC and, ultimately, the CRPD were adopted in order to improve human rights protection for these groups.
The prohibition of discrimination has had the role of reaching out to a number of marginalised groups of people and served as a springboard for the adoption of the group-specific human rights treaties that have broadened this prohibition. These group-specific treaties, however, have done so inconsistently. The ICERD and CEDAW, which came first, elaborate on race and gender discrimination in provisions addressing civil and political rights and economic and social rights even though CEDAW provides for ‘temporary special measures’ to achieve de facto equality for women.53 The CRC and CRPD, which came later, provide for a whole series of rights relating specifically to children and disabled people. The fact that these international instruments go much further than merely prohibiting discrimination is what makes them proper human rights treaties, as their very names indicate.
The CRPD has borrowed extensively from and expanded particularly on the CRC. The CRC is indeed the human rights treaty that is the closest to the CRPD, which is why it is has been described earlier as being the ‘cousin’ of the CRPD. At the same time, the CRC itself draws particular attention to disabled children not only through its separate article on disabled children but also through its reference to disability in its general non-discrimination clause. Both human rights treaties (the CRC and CRPD), like the UDHR but unlike the ICCPR or ICESCR, moreover set out a full catalogue of civil, political, economic, social and cultural rights. The CRC thereby successfully bridged civil and political, and economic and social rights for the first time in a human rights treaty,54 a move that has been replicated subsequently in the CRPD. The CRPD’s Preamble further reaffirms ‘the universality, indivisibility, interdependence and interrelatedness of all human rights’55 (a reaffirmation which is not to be found in the CRC though), thereby echoing the VDPA.56
52 International Convention on the Elimination of All Forms of Racial Discrimination 1965, 660 UNTS 195 (ICERD).
53 Article 4(1), CEDAW.
54 R. Brett, ‘Rights of the Child’ in Krause and Scheinin, International Protection of Human Rights, 227, 229.
55 Preamble(c), CRPD. The CRC’s Preamble does not include such a clause.
56 World Conference on Human Rights, Vienna Declaration and Programme of Action, para 5.
The CRPD still perpetuates the distinction between civil and political and economic and social rights. As the ICESCR,57 it provides that ‘[w]ith regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources . . . with a view to achieving progressively the full realization of these rights’.58 A number of Convention rights are therefore subject to the duty of progressive realisation. The CRPD nonetheless specifies that this duty must give priority to ‘those obligations contained in the . . Convention that are immediately applicable according to international law’.59 Such is the case with regard to the ‘minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the [economic, social and cultural] rights’ in the view of the ICESCR Committee.60 As is the case with the ICESCR,61 the CRPD rights also create immediate obligations, which include the prohibition of discrimination.
The CRPD is in continuity with the CRC, which, likewise, has a provision on economic and social rights that set a precedent for the Convention’s drafters.62 It has been noted, however, that it is difficult to accurately define the content of this category with regard to most of the CRC rights,63 with the CRC Committee admitting that there is ‘no simple or authoritative division of human rights in general or of Convention rights into the two categories’.64 In fact, the CRPD has exacerbated the issue. It is impractical to try and determine which of the CRPD rights merely belong to economic and social rights, as the latter rights are intertwined with civil and political rights. The CRPD has actually blurred the distinction between the two sets of rights to the point where making such a distinction would deprive the Convention rights of real meaning.65 Even though the proposal to provide for the notion of progressive realisation was not disputed, an attempt to establish a list of all economic and social rights failed during the negotiation process.66
57 Article 2(1), ICESCR.
58 Article 4(2), CRPD.
59 Ibid.
60 CESCR Committee, General Comment No 3: The Nature of State Parties Obligations (Art. 2, par. 1), 14 December 1990, E/1991/23, para 10.
61 CESCR Committee, General Comment No 20: Non-Discrimination in Economic, Social and Cultural Rights (Art. 2, par. 2), 29 May 2009, E/C.12/GC/20, para 7; ‘Maastricht Guidelines on Violations of Economic, Social and Cultural Rights’ (1998) 20 Human Rights Quarterly 691, para 11.
62 Article 4 of the CRC provides that ‘[w]ith regard to economic, social and cultural rights, States Parties shall undertake all . . . measures to the maximum extent of their available resources . . . for the implementation of the rights recognized in the present Convention’.
63 M. Rishmawi, A Commentary on the United Nations Convention on the Rights of the Child, Article 4: The Nature of States Parties’ Obligations (Leiden: Martinus Nijhoff, 2006) 16.
64 CRC Committee, General Comment No 5: General measures of implementation of the Convention on the Rights of the Child, 27 November 2003, CRC/GC/2003/5, para 6.
65 G. de Beco, ‘The Indivisibility of Human Rights and the Convention on the Rights of Persons with Disabilities’ (2019) 68 International & Comparative Law Quarterly 141, 153–4.
66 B. Flóvenz, ‘The Implementation of the UN Convention and the Development of Economic and Social Rights as Human Rights’ in O. Arnardóttir and G. Quinn (eds), The UN Convention on the Rights of Persons with Disabilities. European and Scandinavian Perspectives (London/Boston: Martinus Nijhoff Publishers, 2009) 265–6.
Unable to resolve the problem, the Convention’s drafters simply decided that this Convention should follow the precedent set by the CRC.
Further similarities exist between the two human rights treaties. The CRC has four general principles, including the ‘best interest’ of the child, that were established by the CRC Committee.67 The CRPD also contains a series of general principles, which are not only more numerous but are also contained in the CRPD itself.68 While the large number of general principles enumerated in the Convention has been criticised,69 there is a benefit in having them codified so as to avoid any misinterpretation and guarantee their widest possible application. The CRC is furthermore the most ratified human rights treaty within the UN with ratifications in all countries except for one,70 while the CRPD likewise was ratified extremely rapidly reaching 182 States Parties at the time of writing.71 In view of this, it is not surprising that the CRC Committee supported the adoption of the new human rights treaty in its General Comment on the situation of disabled children.72 This General Comment was issued very soon after the CRPD was adopted (and elaborated by the CRC Committee at the same time as the CRPD was being drafted), and remains a point of reference in advancing the rights of disabled children generally.
The CRPD and CRC moreover stand out in insofar as they consider characteristics other than those associated with the categories they aim to protect. Both human rights treaties prohibit discrimination on the basis of multiple grounds, that is, beyond the grounds that characterise those who fall within their remit (namely age and disability),73 unlike the ICERD and CEDAW.74 While the CRPD prohibits discrimination ‘on all grounds’,75 the CRC does so on the basis of a non-exhaustive number of grounds.76 The CRPD’s Preamble also refers to an exhaustive number of grounds and even refers to ‘multiple or aggravated forms of discrimination’.77 Like the ICCPR and ICESCR, the CRPD and CRC, through their general nondiscrimination clause, therefore, protect people against so-called ‘intersectional
67 Article 3, CRC. The three other ones are: non-discrimination (Article 2); the right to life, survival and development (Article 6) and; respect for the views of the child (Article 12).
68 Article 3, CRPD.
69 L. Lundy and B. Byrne, ‘The Four General Principles of the United Nations Convention on the Rights of the Child: the Potential Added Value of the Approach in other Areas of Human Rights Law’ in Brems, Desmet and Vandenhole, Children’s Rights Law, 52, 64–6.
70 All States except the US ratified the CRC. See https://treaties.un.org/Pages/ViewDetails. aspx?src=IND&mtdsg_no=IV-11&chapter=4&clang=_en.
71 See https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter= 4&clang=_en.
72 CRC Committee, General Comment No 9: the Rights of Children with Disabilities, 27 February 2007, CRC/C/GC/9, para 2.
73 Article 2(1), CRC; Article 5(2), CRPD.
74 Article 1, ICERD; Article 1, CEDAW.
75 Article 5(2), CRPD.
76 Article 2(1), CRC.
77 Preamble(p), CRPD.
