The UN Convention on the Rights of Persons with Disabilities: A Commentary 9780198810667

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OXFORD COMMENTARIES ON INTERNATIONAL L AW General Editors: Professor Philip Alston, New York University, and Laurence Boisson de Chazournes, University of Geneva

The UN Convention on the Rights of Persons with Disabilities

The UN Convention on the Rights of Persons with Disabilities A Commentary

Edited by ILIAS BANTEKAS MICHAEL ASHLEY STEIN DIMITRIS ANASTASIOU

3

3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The Several Contributors 2018 The moral rights of the authors have been asserted First Edition published in 2018 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2018946136 ISBN 978–​0–​19–​881066–​7 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Summary Contents Preface Editors’ Biographies Contributor Biographies Abbreviations Table of Treaties and International Instruments Table of Cases Tables of Legislation

xxxi xxxiii xxxv xlix lix lxxvii lxxxix

Preamble1 Janet E Lord

Article 1: Purpose

35

Article 2: Definitions

63

Article 3: General Principles

84

Emily Kakoullis and Yoshikazu Ikehara Anna Nilsson

Sarah Arduin

Article 4: General Obligations

106

Article 5: Equality and Non-​Discrimination

140

Article 6: Women with Disabilities

171

Article 7: Children with Disabilities

198

Article 8: Awareness-​Raising

229

Article 9: Accessibility

258

Article 10: Right to Life

287

Article 11: Situations of Risk and Humanitarian Emergencies

314

Article 12 CRPD: Equal Recognition before the Law

339

Andrea Broderick

Jessica Lynn Corsi

Roxanne Mykitiuk and Ena Chadha Ilias Bantekas

Francisco Bariffi Anna Lawson

Smitha Nizar

Stephanie Motz

Lucy Series and Anna Nilsson

vi

Summary Contents

Article 13: Access to Justice

383

Article 14: Liberty and Security of the Person

402

Article 15: Protection against Torture and Cruel or Inhuman or Degrading Treatment or Punishment

426

Article 16: Freedom from Exploitation, Violence, and Abuse

466

Article 17: Protecting the Integrity of the Person

494

Article 18: Liberty of Movement and Nationality

508

Article 19: Living Independently and Being Included in the Community

530

Article 20: Personal Mobility

559

Article 21: Freedom of Expression and Opinion, and Access to Information

582

Article 22: Respect for Privacy

604

Article 23: Respect for Home and the Family

628

Article 24: Education

656

Article 25: Health

705

Article 26: Habilitation and Rehabilitation

734

Article 27: Work and Employment

764

Article 28: Adequate Standard of Living and Social Protection

801

Article 29: Participation in Political and Public Life

834

Article 30: Participation in Cultural Life, Recreation, Leisure, and Sport

863

Eilionóir Flynn

Michael Perlin and Eva Szeli

Phil Fennell

Amanda Keeling

Francesco Seatzu Lawrence Mute

János Fiala-​Butora, Arie Rimmerman, and Ayelet Gur Lalin Kovudhikulrungsri and Aart Hendriks Eliza Varney

Molly Land, Anthony Giannoumis, Aga Kitkowska, and Maria Mikhaylova János Fiala-​Butora

Dimitris Anastasiou, Michael Gregory, and James M Kauffman Penelope Weller

Jerome Bickenbach and Dimitrios Skempes

Ilias Bantekas, Facundo Pennilas, and Stefan Trömel Kevin Cremin

Ilze Grobelaar Du Plessis and Jehoshaphat Njau

Ilias Bantekas, Pok Yin Stephenson Chow, Stavroula Karapapa, and Eleni Polymenopoulou



Summary Contents

vii

Article 31: Statistics and Data Collection

924

Article 32: International Cooperation

955

Article 33: National Implementation and Monitoring

978

Mads Pedersen and Federico Ferretti

Janet E Lord and Michael Ashley Stein Valentin Aichele

Article 34: Committee on the Rights of Persons with Disabilities

1012

Article 35: Reports by States Parties

1038

Article 36: Consideration of Reports

1060

Article 37: Cooperation between States Parties and the Committee

1084

Article 38: Relationship of the Committee with Other Bodies

1105

Article 39: Report of the Committee

1119

Article 40: Conference of States Parties

1135

Article 41: The Secretary-​General of the United Nations Shall Be the Depositary of the Present Convention

1145

Article 42: Signature

1150

Article 43: Consent to Be Bound

1156

Article 44: Regional Integration Organizations

1162

Article 45: Entry Into Force

1171

Article 46: Reservations

1175

Article 47: Amendments

1188

Article 48: Denunciation

1198

Katherine Guernsey Arlene Kanter

Helene Combrinck Kris Gledhill

Ilias Bantekas

Mary Pat Treuthart Ilias Bantekas

Ilias Bantekas Ilias Bantekas Ilias Bantekas

Jacob Katz Cogan Ilias Bantekas Ilias Bantekas

Konstantinos Magliveras Ilias Bantekas



viii

Summary Contents

Article 49: Accessible Format

1204

Article 50: Authentic Texts

1214

Optional Protocol to the Convention on the Rights of Persons with Disabilities

1218

Index

1257

Eliza Varney

Ilias Bantekas

Tina Stavrinaki



Detailed Contents Preface Editors’ Biographies Contributor Biographies Abbreviations Table of Treaties and International Instruments Table of Cases Tables of Legislation

xxxi xxxiii xxxv xlix lix lxxvii lxxxix

Preamble

1

1. Introduction

3

Janet E Lord 2. Background and Travaux Préparatoires 2.1 Legal Effect of Preambles under Public International Law 2.2 The States Parties to the Present Convention 3.1 Paragraph  (a) 3.2 Paragraph  (b) 3.3 Paragraph  (c) 3.4 Paragraph  (d) 3.5 Paragraph  (e) 3.6 Paragraph  (f ) 3.7 Paragraph  (g) 3.8 Paragraph  (h) 3.9 Paragraph  (i) 3.10 Paragraph (j) 3.11 Paragraph (k) 3.12 Paragraph (l) 3.13 Paragraph (m) 3.14 Paragraph (n) 3.15 Paragraph (o) 3.16 Paragraph (p) 3.17 Paragraph (q) 3.18 Paragraph (r) 3.19 Paragraph (s) 3.20 Paragraph (t) 3.21 Paragraph (u) 3.22 Paragraph (v) 3.23 Paragraph (w) 3.24 Paragraph (x) 3.25 Paragraph (y)

4 7 8 8 9 10 11 12 14 16 17 18 19 19 20 21 22 23 24 25 27 27 28 29 31 31 32 32

Article 1: Purpose

35

1. Introduction

35

2. Background and Travaux Préparatoires 2.1 Purpose (Article 1, Paragraph 1) 2.2 Description of ‘Disability’ (Article 1, Paragraph 2)

39 40 44

Emily Kakoullis and Yoshikazu Ikehara

x

Detailed Contents

3. Paragraph  1 3.1 ‘The purpose of the present Convention’ 3.2 ‘to promote, protect, and ensure’ 3.3 ‘full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities’ 3.4 ‘to promote respect for their inherent dignity’

48 48 49

4. Paragraph  2 4.1 ‘Persons with disabilities’ 4.2 ‘include those who have long-​term physical, mental, intellectual or sensory impairments’ 4.3 ‘which in interaction with various barriers’ 4.4 ‘may hinder their full and effective participation in society’ 4.5 ‘on an equal basis with others’

53 54

Article 2: Definitions

63

1. Introduction

64

2. Background and Travaux Préparatoires

64

3. ‘Communication’

68

4. ‘Language’

69

5. ‘Discrimination on the basis of disability’ 5.1 ‘on the basis of disability’ 5.2 ‘which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise’ 5.3 ‘on an equal basis with others’ 5.4 ‘all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’ 5.5 ‘all forms of discrimination’

71 72

6. ‘Reasonable accommodation’ 6.1 ‘necessary and appropriate’ 6.2 ‘not imposing a disproportionate or undue burden’

78 80 80

7. ‘Universal design’

82

Article 3: General Principles

84

Anna Nilsson

Sarah Arduin



50 50

55 57 57 58

73 74 75 76

1. Introduction

84

2. Background and Travaux Préparatoires

85

3.

Paragraph  (a) 3.1 ‘Respect for inherent dignity’ 3.2 ‘Individual autonomy’ 3.3 ‘Independence of persons’

90 90 92 94

4. Paragraph (b)—​‘Non-​discrimination’

94

5. Paragraph (c)—​Full and Effective Participation and Inclusion in Society

96

6. Paragraph (d)—​Respect for Difference and Acceptance of Persons with Disabilities as Part of Human Diversity and Humanity

99

7. Paragraph (e)—​Equality of Opportunity

100

8. Paragraph (f)—​Accessibility

101

9. Paragraph (g)—​Equality between Men and Women

103

Detailed Contents

xi

10. Paragraph (h)—​Respect for the Evolving Capacities of Children with Disabilities and Respect for the Right of Children with Disabilities to Preserve their Identities

103

Article 4: General Obligations

106

1. Introduction

107

2. Background and Travaux Préparatoires

108

3. Paragraph  1 3.1 Ensure and Promote the Full Realization of All Human Rights and Fundamental Freedoms for All Persons with Disabilities 3.2 Without Discrimination of Any Kind on the Basis of Disability 4.1 Paragraph 1(a) 4.1.1  All Appropriate Legislative, Administrative, and Other Measures 4.2 Paragraph 1(b) 4.3 Paragraph 1(c) 4.4 Paragraph 1(d) 4.4.1  Public Authorities and Institutions 4.5 Paragraph 1(e) 4.6 Paragraph 1(f ) 4.7 Paragraph 1(g) 4.8 Paragraph 1(h) 4.9 Paragraph 1(i) 4.9.1 ‘Training of professionals and staff working with persons with disabilities’ 

116

5. Paragraph  2 5.1 Progressive Realization 5.2 Maximum of Available Resources

131 131 132

6. Paragraph  3

134

7. Paragraph  4 7.1 Provisions which are More Conducive to the Realization of the Rights of Persons with Disabilities 7.2 No Restriction upon or Derogation from

137

8. Paragraph 5: All Parts of Federal States

138

Article 5: Equality and Non-​Discrimination

140

1. Introduction

140

2. Background

142

3. Travaux Préparatoires

147

4. General Framework of Article 5

155

5. Paragraph  1

157

6. Paragraph  2

160

7. Paragraph  3

164

8. Paragraph  4

167

Article 6: Women with Disabilities

171

1. Introduction

171

Andrea Broderick

Jessica Lynn Corsi

Roxanne Mykitiuk and Ena Chadha

116 117 119 119 120 121 122 122 122 125 127 129 129 129

137 137



xii

Detailed Contents

2. Background

172

3. Travaux Préparatoires

177

4. Paragraph 1: Multiple Discrimination

184

5. Paragraph 2: Development, Advancement and Empowerment 5.1 ‘exercise and enjoyment of the human rights and fundamental freedoms set out in the present Convention’ 5.2 Interpretative Guidance 5.2.1 Article 16—​Violence 5.2.2 Article 25—​Health 5.2.3 Article 28—​Standard of Living 5.2.4 Article 34—​Committee on the Rights of Persons with Disabilities 5.2.5 Omissions

186

Article 7: Children with Disabilities

198

1. Introduction

198

2. Background

199

3. Travaux Préparatoires

201

4. Paragraph  1 4.1 A ‘child’ 4.2 ‘All necessary measures’ 4.2.1 Keeping Accurate Statistical Data 4.2.2 Early Intervention 4.2.3 Measures against Stigmatization 4.3 ‘all human rights and fundamental freedoms’ 4.3.1 Freedom from Violence 4.3.2 Abandonment 4.3.3 De-​Institutionalization 4.3.4 Right to Life, Survival, and Development 4.4 ‘on an equal basis with other children’

205 205 206 207 208 209 210 211 213 214 216 218

5. Paragraph  2 5.1 The Child’s ‘best interests’ 5.2 Supported Decision-​Making

219 219 222

6. Paragraph  3 6.1 The Child’s ‘right to be heard’ 6.1.1 The Collective Right to Be Heard 6.1.2 ‘due weight in accordance with their age and maturity’ 6.1.3 ‘disability and age-​appropriate assistance’

224 224 226 227 227

Article 8: Awareness-​Raising

229

1. Introduction and Background

230

2. Travaux Préparatoires

236

3. Paragraph  1 3.1 Duty ‘to adopt immediate, effective and appropriate measures’ 3.2 Paragraph 1(a) 3.3 Paragraph 1(b) 3.4 Paragraph 1(c)

241 244 245 246 249

Ilias Bantekas

Francisco Bariffi



188 189 189 191 193 194 195

Detailed Contents

xiii

4. Paragraph  2 4.1 Paragraph 2(a) 4.2 Paragraph 2(b) 4.2.1 Examples of Good Practices 4.3 Paragraph 2(c) 4.3.1 Examples of Good Practices 4.4 Paragraph 2(d) 4.4.1 Examples of Good Practices

250 250 253 254 254 255 256 257

Article 9: Accessibility

258

1. Introduction

259

2. Background and Travaux Préparatoires 2.1 Early Incarnations of Article 9 2.2 The Relationship Between Article 9 and Other CRPD Provisions 2.3 The Scope and Emphasis of Article 9 2.4 Nature of the Obligation

262 262 262 265 266

3. Paragraph 9(1) 3.1 ‘To enable persons with disabilities to live independently and participate fully in all aspects of life’ 3.2 ‘Appropriate Measures to Ensure’ 3.3 ‘Access, on an Equal Basis with Others’ 3.4 ‘Physical Environment’ 3.5 ‘Information and Communications, Including Information and Communications Technologies and Systems’ 3.6 ‘Other Facilities and Services Open or Provided to the Public’ 3.7 ‘Identification and Elimination of Obstacles and Barriers’ 3.8 ‘Accessibility’

268

4. Paragraph 9(2) 4.1 Paragraph 9(2)(a)—​‘Minimum Standards and Guidelines’ 4.2 Paragraph 9(2)(b) 4.3 Paragraph 9(2)(c)—​‘Training for Stakeholders’ 4.4 Paragraph 9(2)(d) 4.5 Paragraph 9(2)(e) 4.6 Paragraph 9(2)(f ) 4.7 Paragraph 9(2)(g) 4.8 Paragraph 9(2)(h)

281 281 282 283 283 284 284 285 285

Article 10: Right to Life

287

1. Introduction

287

2. Background and Travaux Préparatoires

288

3. Paragraph  1 3.1 ‘Inherent right to life’ 3.2 The Right to Life from the Perspective of Equality and Non-​Discrimination 3.3 Right to Life and Right to Health of Disabled Persons 3.4 Right to Life and Quality of Life 3.4.1 Quality Adjusted Life Years (QALY) and Disability Adjusted Life Years (DALY) 3.5 Right to Life and Assisted Suicide 3.6 Right to Life Versus Pre-​Natal Selection and Disability-​Selective Abortion

296 296 299 301 302

Anna Lawson

Smitha Nizar

268 269 273 274 275 277 279 279

302 304 305



xiv

Detailed Contents

3.7 ‘on an equal basis with others’ 3.8 Medical Interventions 3.8.1  Medical Assistance to End Life by Reason of Disability 3.9 Killing Newborn with Disabilities

311 311 312 313

Article 11: Situations of Risk and Humanitarian Emergencies

314

1. Introduction

314

2. Background and Travaux Préparatoires

316

3. Persons with Disabilities in Situations of Risk

318

4. ‘obligations under international law’ 4.1 ‘international humanitarian law’ 4.2 ‘international human rights law’

319 320 323

5. ‘take all necessary measures’ to Ensure the Protection and Safety of Persons with Disabilities

327

6. ‘situations of armed conflict, humanitarian emergencies’ 6.1 ‘natural disasters’

330 332

7. Persons at Risk 7.1 Refugees, Asylum Seekers, Migrants, and Internally Displaced Persons with Disabilities in Situations of Risk 7.2 Women and Girls with Disabilities in Situations of Risk 7.3 Children with Disabilities in Situations of Risk

334

Article 12 CRPD: Equal Recognition before the Law

339

Stephanie Motz

Lucy Series and Anna Nilsson

334 337 337

Lucy Series 1. Introduction

340

2. Background and Travaux Préparatoires

342

3. Paragraph  1 3.1 States Parties Reaffirm that Persons with Disabilities Have the Right to Recognition Everywhere as Persons before the Law

348

4. Paragraph  2 4.1 Defining Legal Capacity 4.2 Distinguishing Legal Capacity and Mental Capacity 4.3 Enjoyment of Legal Capacity ‘on an equal basis with others’ 4.4 Legal Capacity and Criminal Law 4.5 Evaluating Equalities and Discrimination Arguments about Legal Capacity

349 349 352 354 358 362

5. Paragraph  3 5.1 Support for the Exercise of Legal Capacity 5.2 Supported Decision-​Making

363 364 366

6. Paragraph  4 6.1 Respect for the Rights, Will, and Preferences of the Person 6.2 Conflicts of Interest and Undue Influence 6.3 Regular Review by a Competent, Independent, and Impartial Authority or Judicial Body 6.4 The Safeguards Shall Be Proportional to the Degree to which Such Measures Affect the Person’s Rights and Interests

368 369 370

349

371 372

Anna Nilsson 7. Paragraph  5 7.1 Background and Travaux Préparatoires



373 373

Detailed Contents 7.2 The Equal Right to Own and Inherit Property 7.3 The Equal Right to Control One’s Financial Affairs 7.4 Equal Access to Bank Loans, Mortgages, and Financial Credit

xv 374 376 380

Article 13: Access to Justice

383

1. Introduction

383

2. Background and Travaux Préparatoires

384

3. Paragraph  1 3.1 ‘Effective’ Access to Justice 3.2 ‘On an equal basis’ 3.3 ‘Procedural and age-​appropriate accommodations’ 3.4 Direct and Indirect Participants, Including as Witnesses 3.5 All Legal Proceedings, Including at Preliminary Stages

390 390 391 393 396 398

4. Paragraph  2

400

Article 14: Liberty and Security of the Person

402

1. Introduction

402

2. Background and Travaux Préparatoires

403

3. Paragraph 1(a)

406

4. Paragraph 1(b) 4.1 Unlawful and Arbitrary Deprivation of Liberty 4.2 ‘in conformity with the law’ 4.3 Therapeutic Jurisprudence

408 408 411 415

5. Paragraph  2 5.1 Human Rights Guarantees 5.2 Therapeutic Jurisprudence in Paragraph 2

418 422 424

Article 15: Protection against Torture and Cruel or Inhuman or Degrading Treatment or Punishment

426

1. Introduction

426

2. Background and Travaux Préparatoires

430

3. Paragraph  1 3.1 ‘Free Consent’ and Personal Autonomy 3.1.1  Detention on Grounds of Unsoundness of Mind 3.1.2  Guardianship on Grounds of Mental Incapacity 3.2 Torture 3.2.1  Severe Mental or Physical Pain and Suffering 3.2.2  Intent: Torture and Cruel, Inhuman, or Degrading Treatment 3.2.3  State Involvement 3.2.4  Prohibited Purpose 3.3 ‘Medical or Scientific Experimentation without his or her free consent’

436 436 438 438 442 445 446 447 448 449

4. Paragraph  2 4.1 Effective Preventive Measures 4.1.1  Psychiatric Drugs Given without Consent 4.1.2  Sterilization and Other Reproductive Rights Violations 4.1.3  Female Genital Mutilation

450 450 451 452 458

Eilionóir Flynn

Michael Perlin and Eva Szeli

Phil Fennell



xvi

Detailed Contents 4.1.4  Surgical Castration 4.1.5  Electro Convulsive Therapy (ECT), Unmodified ECT, and Use of ECT on Children 4.1.6  Seclusion, Caged Beds, and Other Restraints 4.1.7  Oppressive and Coercive Treatment Regimes 4.1.8  Failure to Give Adequate Medical Treatment or Pain Relief 4.1.9  Conditions of Detention

458

Article 16: Freedom from Exploitation, Violence, and Abuse

466

1. Introduction

467

2. Background and Travaux Préparatoires 2.1 Scope: Types of Harm Included in ‘exploitation, violence and abuse’ 2.2 Torture, Involuntary Treatment, and Informed Consent 2.3 Vulnerability of Disabled People and Prevention of Harm

468 468 470 475

3. Paragraph  1 3.1 ‘All appropriate legislative, administrative, social, education and other measures to protect’ 3.2 ‘Within and outside the home’ 3.3 ‘All forms of exploitation, violence and abuse, including their gender-​based aspects’

479

4. Paragraph  2 4.1 Preventative Measures, Ensuring ‘appropriate gender-​and age-​sensitive assistance and support’ 4.2 ‘Including through the provision of information and education on how to avoid, recognize and report instances’ 4.3 Ensure that Protection Services Are Age-​, Gender-​, and Disability-​Sensitive

484

5. Paragraph  3 5.1 ‘All facilities and programmes’ 5.2 ‘Effectively monitored by independent authorities’

487 487 490

6. Paragraph  4 6.1 Measures to Promote the Physical, Cognitive, and Psychological Recovery, Rehabilitation, and Social Integration

490

7. Paragraph  5 7.1 Effective Legislation and Policies . . . to Ensure Instances are Identified, Investigated and, where Appropriate, Prosecuted 7.2 Including Women-​and Children-​Focused Legislation and Policies

492

Article 17: Protecting the Integrity of the Person

494

1. Introduction

494

2. Travaux Préparatoires

495

3. The Right to Personal Integrity in the European Convention on Human Rights

497

4. The Right to Personal Integrity in the EU Charter of Fundamental Rights

498

5. The Right to Personal Integrity 5.1 Seclusion and Restrain 5.2 Forced Sterilization

500 504 505

Amanda Keeling

Francesco Seatzu



459 460 462 463 463

479 481 482

484 485 486

490

492 493

Detailed Contents

xvii

Article 18: Liberty of Movement and Nationality

508

1. Introduction

508

2. Background and Travaux Préparatoires

510

3. Paragraph  1 3.1 Chapeau of Paragraph 1 3.1.1  ‘right of persons with disabilities to liberty of movement . . . freedom to choose their residence and to a nationality’ 3.1.2 Liberty of Movement and Residence 3.1.3 Interlinkages with Other Rights 3.1.4 Movement within the Borders of a Country 3.1.5 Freedom of Choice of Travel 3.2 Paragraph 1(a): Have the Right to Acquire and Change a Nationality and [to] not [Be] Deprived of . . . Nationality Arbitrarily or on the Basis of Disability 3.3 Paragraph 1(b) 3.4 Paragraph 1(c): Are Free to Leave Any Country, Including Their Own 3.5 Paragraph 1(d)

513 513

4. Paragraph  2

528

Article 19: Living Independently and Being Included in the Community

530

1. Introduction

530

2. Background and Travaux Préparatoires

533

3. Article 19: Chapeau 3.1 Measures Appropriate and Effective 3.2 De-​Institutionalization 3.3 The Conjunction of Article 19 with Other CRPD Provisions 3.4 The Israeli Panel of Experts Paradigm

536 536 538 542 543

4. Paragraph  (a)

547

5. Paragraph  (b)

552

6. Paragraph  (c)

555

Article 20: Personal Mobility

559

1. Introduction

559

2. Background and Travaux Préparatoires 2.1 Interrelationship between Article 20 and other CRPD Articles

561 567

3. Paragraph  1 3.1 Effective Measures 3.2 Personal Mobility 3.3 Greatest Possible Independence

567 568 569 569

4. Paragraph  (a) 4.1 Affordable Cost

569 572

5. Paragraph  (b) 5.1 Quality 5.2 Mobility Aids, Devices, Assistive Technologies 5.3 Live Assistance

572 572 573 576

Lawrence Mute

János Fiala-​Butora, Arie Rimmerman, and Ayelet Gur

Lalin Kovudhikulrungsri and Aart Hendriks

513 514 516 518 519 520 522 526 527



xviii

Detailed Contents

5.4 Intermediaries 5.5 Affordable Cost

578 579

6. Paragraph  (c)

580

7. Paragraph  (d)

581

Article 21: Freedom of Expression and Opinion, and Access to Information

582

1. Introduction

582

2. Background and Travaux Préparatoires

583

3. Paragraph 1 (Chapeau)

586

4. Subparagraph  (a)

590

5. Subparagraph  (b)

595

6. Subparagraph  (c)

596

7. Subparagraph  (d)

599

8. Subparagraph (e) ‘Recognizing and promoting the use of sign languages’

601

Article 22: Respect for Privacy

604

1. Introduction and Background

604

2. Travaux Préparatoires

606

3. Paragraph  1 3.1 No Person with Disabilities 3.2 Regardless of Place of Residence or Living Arrangement 3.3 Arbitrary or Unlawful Interference 3.4 Unlawful 3.5 Arbitrary 3.6 Purpose 3.7 Public and Private Action 3.8 Privacy, Family, Home, Correspondence, and Communication 3.9 Privacy 3.10 Family 3.11 Home 3.12 Correspondence and Communication 3.13 Unlawful Attacks on Honour and Reputation of Persons with Disabilities 3.14 Right to Protection of Law Against Interference

608 609 609 610 610 611 612 613 613 614 618 619 619 622 622

4. Paragraph  2 4.1 Protection of Personal, Health, and Rehabilitation Information on an Equal Basis with Others 4.2 EU General Data Protection Regulation

625

Article 23: Respect for Home and the Family

628

1. Introduction

629

2. Background and Travaux Préparatoires

630

3. Paragraph  1 3.1 Effective and Appropriate Measures to Eliminate Discrimination 3.2 All Matters Relating to Marriage, Family, Parenthood, and Relationships 3.3 On an Equal Basis with Others

635 635 637 639

Eliza Varney

Molly Land, Anthony Giannoumis, Aga Kitkowska, and Maria Mikhaylova

János Fiala-​Butora



625 626

Detailed Contents

xix

4. Paragraph 1(a)

640

5. Paragraph 1(b)

642

6. Paragraph 1(c)

644

7. Paragraph  2

645

8. Paragraph  3

649

9. Paragraph  4

651

10. Paragraph  5

654

Article 24: Education

656

1. Introduction and Background

657

2. Travaux Préparatoires

666

3. Paragraph 1 (Chapeau): The Right of Persons with Disabilities to Education

670

4. Paragraph  2 4.1 Paragraph 2(a): Non-​Exclusion 4.2 Paragraph 2(b): Accessibility 4.2.1 Access to an Inclusive, Quality, and Free Primary Education and Secondary Education on an Equal Basis 4.2.2 On an Equal Basis with Others in the Communities in which They Live 4.3 Paragraph 2(c): Reasonable Accommodation 4.4 Paragraph 2(d): Individualized Support 4.5 Paragraph 2(e): The Educational Environment 4.5.1 Full Inclusion 4.5.2 Full Inclusion as Totally Supportive Environments 4.5.3 Special Education 4.5.4 The Right to Choose a School

674 675 678

5. Paragraph  3 5.1 Accessibility 5.2 Environments which Maximize Academic and Social Development for Students with Sensory Disabilities 5.3 Appropriate Measures—​Facilitating Learning 5.4 Narrow View of Appropriate Measures

696 696

6. Paragraph  4 6.1 Appropriate Measures—​Teacher Training 6.2 Prioritizing Certain Disabilities

700 700 702

7. Paragraph 5: Tertiary Education and Life-​Long Learning

703

Article 25: Health

705

1. Introduction

706

2. Background and Travaux Préparatoires

711

3. Article 25 (Chapeau) 3.1 Reasonable Accommodation 3.2 Health Services that Are Gender-​Sensitive

716 717 718

4. Paragraph  (a)

719

5. Paragraph  (b)

722

6. Paragraph  (c)

723

Dimitris Anastasiou, Michael Gregory, and James M Kauffman

Penelope Weller

678 681 682 685 686 686 689 690 694

698 698 699



xx

Detailed Contents

7. Paragraph  (d) 7.1 Free and Informed Consent 7.2 The Interaction between Article 12 and Article 25 7.3 Human Rights Training of Health Professionals

724 724 727 730

8. Paragraph  (e)

731

9. Paragraph  (f)

732

Article 26: Habilitation and Rehabilitation

734

1. Introduction

734

2. Background

737

3. Travaux Préparatoires

739

4. Paragraph 1 (Chapeau) 4.1 ‘organize, strengthen and extend comprehensive habilitation and rehabilitation services’ 4.2 ‘particularly in the areas of health, employment, education and social services’

745

5. Paragraph 1(a)

756

6. Paragraph 1(b)

757

7. Paragraph  2

760

8. Paragraph  3 8.1 Women, Children, Older Persons, and Migrants with Disabilities

761 762

Article 27: Work and Employment

764

1. Introduction

765

2. Background

766

3. Travaux Préparatoires

768

4. Paragraph 1: Chapeau 4.1  Sub-​paragraph 1(a) 4.2  Sub-​paragraph 1(b) 4.2.1 Equal Remuneration for Work of Equal Value 4.2.2 Safe and Healthy Working Conditions 4.2.3 Equal Opportunity to Be Promoted 4.2.4 Rest, Leisure, Working Hours, and Holidays 4.2.5 Protection from Harassment 4.2.6 Remedies and Redress of Grievances 4.3  Sub-​paragraph 1(c) 4.4  Sub-​paragraph 1(d) 4.5  Sub-​paragraph 1(e) 4.5.1 The State Obligation to Counter Exclusion by Promoting Employment 4.6  Sub-​paragraph 1(f ) 4.7  Sub-​paragraph 1(g) 4.8  Sub-​paragraph 1(h) 4.9  Sub-​paragraph 1(i) 4.10 Sub-​paragraph 1(j) 4.11 Sub-​paragraph 1(k)

771 773 777 777 779 780 780 781 782 783 784 785

5. Paragraph  2

799

Jerome Bickenbach and Dimitrios Skempes

Ilias Bantekas, Facundo Pennilas, and Stefan Trömel



750 755

787 788 789 790 793 798 798

Detailed Contents

xxi

Article 28: Adequate Standard of Living and Social Protection

801

1. Introduction

802

2. Background and Travaux Préparatoires

802

3. Paragraph  1 3.1 Adequate Standard of Living 3.2 Their Families 3.3 Adequate Food, Clothing, and Housing 3.4 Continuous Improvement of Living Conditions 3.5 Appropriate Steps

805 806 806 807 810 810

4. Paragraph  2 4.1 Social Protection

811 812

5. a. To ensure equal access by persons with disabilities to clean water  . . .  5.1 Equal Access 5.2 Clean Water Services 5.3 Access to Appropriate and Affordable Services, Devices, and Other Assistance for Disability-​Related Needs

815 815 816

Kevin Cremin

818

6. b. To ensure access . . . in particular women and girls with disabilities and older persons with disabilities, to social protection programmes . . . 6.1 Access 6.2 Women and Girls with Disabilities 6.3 Older Persons with Disabilities 6.4 Social Protection Programmes and Poverty Reduction Programmes

820 820 821 822 823

7. c. To ensure access . . . to assistance from the State with disability-​related expenses, including adequate training . . . 7.1 Situations of Poverty 7.2 Assistance from the State 7.3 Disability-​Related Expenses

825 826 828 828

8. d. To ensure access by persons with disabilities to public housing programmes

830

9. e. To ensure equal access by persons with disabilities to retirement benefits and programmes

832

Article 29: Participation in Political and Public Life

834

1. Introduction

835

2. Background and Travaux Préparatoires

835

3. Article 29 Chapeau 3.1 Exclusions or Restrictions in the Chapeau 3.2 Legal Capacity

843 845 846

4. Paragraph  (a) 4.1 Participation 4.2 Participate Directly (Right to Vote) or through Representatives (to Be Elected)

849 849 850

5. Paragraph (a)(i) 5.1 Accessible Voting 5.2 Accessibility 5.3 Equality in Voting Procedures

851 851 853 854

6. Paragraph (a)(ii)

854

7. Paragraph (a)(iii) 7.1 Assistance in Voting 7.2 Article 29(a) Exclusion and/​or Restrictions to the Right to Vote and Be Elected

857 858 859

Ilze Grobelaar Du Plessis and Jehoshaphat Njau



xxii

Detailed Contents

8. Paragraph  (b) 8.1 Effective and Fully Participate in the Conduct of Public Affairs

860 861

9. Paragraph (b)(i) and (ii)

862

Article 30: Participation in Cultural Life, Recreation, Leisure, and Sport

863

Ilias Bantekas, Pok Yin Stephenson Chow, Stavroula Karapapa, and Eleni Polymenopoulou Ilias Bantekas 1. General Introduction

864

2. Background

866

3. Travaux Préparatoires

867

Pok Yin Stephenson Chow 4. Paragraph  1 4.1 Paragraph 1 (Chapeau) 4.1.1 The Right to Take Part in Cultural Life 4.1.2 Culture as a ‘way of life’ and Implications on the ‘cultural space’ 4.1.3 Appropriate Measures to Ensure Access to Culture 4.1.4 National Accessibility Plans 4.2 Paragraph (1)(a) 4.3 Paragraph (1)(b) 4.4 Paragraph (1)(c)

872 875 875 877 878 880 880 882 883

5. Paragraph  2 5.5.1 To Develop and Utilize One’s Creative, Artistic, and Intellectual Potential 5.5.2 Eliminating Social Barriers and Promoting an Inclusive Society 5.5.3 Providing Equal Opportunities in the Field of Culture

884 884 885 886

Stavroula Karapapa 6. Paragraph  3 6.1 The Debates on Intellectual Property in the Travaux 6.2 ‘all appropriate steps’ 6.3 ‘in accordance with international law’ 6.4 Laws Protecting Intellectual Property Rights 6.5 ‘unreasonable or discriminatory barrier to access cultural materials’

888 888 890 893 895 897

Eleni Polymenopoulou 7. Paragraph  4 7.1 ‘Cultural identity’ 7.1.1 Meaning and Scope 7.1.2 States’ Obligations (‘recognition and support’) 7.1.3 Interpretation and Practice under the CRPD 7.2 Sign Languages 7.3 Deaf Culture 7.4 Linguistic Identity 7.4.1 Meaning and Scope 7.4.2 States Obligations (‘recognition and support’) 7.4.3 Interpretation and CRPD-​Related Practice

897 897 897 901 903 904 906 907 907 907 908

Ilias Bantekas 8. Paragraph  5 8.1 Chapeau 8.1.1 ‘enabling participation in sport, leisure and recreation’ 8.1.2 ‘leisure and recreation’



909 909 909 910

Detailed Contents 8.1.3 ‘sporting activities’ 8.2 Paragraph 5(a) 8.2.1 ‘mainstreaming’ 8.3 Paragraph 5(b) 8.3.1 ‘organise, develop and participate’ 8.3.2 ‘appropriate instruction, training and resources’ 8.4 Paragraph 5(c) 8.4.1 Accessible Tourism 8.5 Paragraph 5(d) 8.6 Paragraph 5(e)

Article 31: Statistics and Data Collection Mads Pedersen and Federico Ferretti

xxiii 912 913 914 915 915 916 916 917 919 921 924

Mads Pedersen 1. Introduction

925

2. Background and Travaux Préparatoires

925

3. Paragraph  1 3.1 ‘Undertake to collect’ 3.2 ‘Appropriate information’ 3.3 ‘Give effect’ to the CRPD

929 929 931 933

Federico Ferretti 4. Paragraph 1(a) 4.1 Legally Established Safeguards 4.2 Data Protection

935 936 938

Mads Pedersen 5. Paragraph 1(b): ‘internationally accepted norms’

944

6. Paragraph  2 6.1 ‘disaggregated’ 6.2 ‘assess the implementation’

944 944 948

7. Paragraph  3 7.1 ‘Dissemination’ and ‘Accessibility’ 7.2 Indicators as a Tool to Implement and Monitor the CRPD

949 949 949

Article 32: International Cooperation

955

1. Introduction and Background

955

2. Travaux Préparatoires

958

3. Paragraph 1: Chapeau 3.1 ‘[s]‌uch measures could include, inter alia’ 3.2 Paragraph 1(a) 3.3 Paragraph 1(b) 3.4 Paragraph 1(c) 3.5 Paragraph 1(d)

963 965 965 967 970 971

4. Paragraph  2 4.1 The Interpretive Arc of Article 32 4.2 CRPD Committee Practice in Overseeing the Implementation of Article 32 4.3 Whither Disability Inclusion as a Necessary Element of Sustainable Development?

971 974

Janet E Lord and Michael Ashley Stein

975 976



xxiv

Detailed Contents

Article 33: National Implementation and Monitoring

978

1. Introduction

979

2. Background and Interpretative Approach

982

3. Travaux Préparatoires

985

4. Paragraph  1 4.1 ‘shall designate one or more focal points within government’ 4.2 ‘one or more’ 4.3 ‘a coordination mechanism within government’ 4.4 ‘shall give due consideration’

987 987 988 989 990

5. Paragraph  2 5.1 ‘the principles relating to the status and functioning of national institutions for protection and promotion of human rights’ 5.2 ‘shall take into account’ 5.3 ‘maintain, strengthen, designate or establish within the State Party, a framework’ 5.4 Independence 5.4.1 Independence of the ‘mechanism’ 5.4.2 Degree of Independence of Other Framework Components 5.5 Persons with Disabilities as Framework Agents 5.6 Monitoring 5.7 Fact-​Finding and Indicators 5.8 Adequately Resourced 5.9 The Potential Role of National Human Rights Institutions 5.9.1 Monitoring Function: An Important Addition to the NHRI Mandate 5.9.2 Further Resources 5.9.3 The Actual Experience by NHRIs 5. 10 Cooperation between the Framework and the CRPD Committee

991

Vincent Aichele

992 993 995 996 996 998 998 999 1000 1001 1002 1005 1006 1006 1006

6. Paragraph  3 6.1 Scope 6.2 Views of the CRPD Committee 6.3 ‘in the monitoring process’ 6.4 ‘civil society’ 6.5 ‘in particular persons with disabilities and their representative organizations’ 6.6 Participation in the Monitoring Framework: Institutional Solutions 6.7 Implementation by the European Union (Sentences 1–​3)

1007 1007 1008 1008 1009

Article 34: Committee on the Rights of Persons with Disabilities

1012

Katherine Guernsey



1009 1009 1010

1. Introduction

1013

2. Background and Travaux Préparatoires

1016

3. Paragraph  1

1024

4. Paragraph  2

1024

5. Paragraph  3 5.1 ‘when nominating their candidates, States Parties . . .’

1025 1027

6. Paragraph  4 6.1 ‘equitable geographic distribution’ 6.2 ‘balanced gender representation’ 6.3 ‘participation of experts with disabilities’

1027 1028 1029 1030

Detailed Contents

xxv

7. Paragraph 5

1031

8. Paragraph  6

1032

9. Paragraph 7

1033

10. Paragraph  8

1033

11. Paragraph  9

1033

12. Paragraph  10

1034

13. Paragraph  11

1035

14. Paragraph  12

1036

15. Paragraph  13

1036

Article 35: Reports by States Parties

1038

1. Introduction

1038

2. Background and Travaux Préparatoires

1039

3. Paragraph  1 3.1 The Requirement of a Country Report within Two Years of Ratification 3.2 The Requirement of a Comprehensive Report 3.2.1 A Comparison of Compliance with Article 35’s Reporting Requirements and the Reporting Requirements of Other Treaties

1044 1044 1045

Arlene Kanter

1046

4. Paragraph 2: The Requirement of a Country Report Every Four Years after the Initial Report

1047

5. Paragraph  3 5.1 The CRPD Committee’s Guidelines

1047 1047

6. Paragraph  4 6.1 A ‘Comprehensive’ Report as a Result of an ‘Open’ and ‘transparent process’ 6.2 Best Practices Identified in Concluding Observations 6.3 Shadow Reports

1049 1049 1052 1053

7. Paragraph 5: ‘Indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Convention by States Parties’

1054

Article 36: Consideration of Reports

1060

1. Introduction

1061

2. Background and Travaux Préparatoires

1063

3. Paragraph  1 3.1 ‘Each report shall be considered by the Committee’ 3.1.1 Constructive Dialogue 3.1.2 List of Issues 3.1.3 Country Rapporteur 3.1.4 Simplified Reporting Procedure 3.2 ‘which shall make such suggestions and general recommendations on the report as it may consider appropriate’ 3.2.1 Concluding Observations 3.2.2 Follow-​up to Concluding Observations 3.2.3 Early Awareness and Urgent Action Procedures 3.3 ‘shall forward these to the State Party concerned’ 3.4 ‘The State Party may respond with any information it chooses to the Committee’

1066 1066 1067 1068 1069 1069

Helene Combrinck

1071 1072 1074 1076 1077 1078



xxvi

Detailed Contents

4. Paragraph  (2) 4.1 ‘If a State Party is significantly overdue in the submission of a report’ 4.2 ‘reliable information’

1078 1079 1080

5. Paragraph  (3)

1080

6. Paragraph  (4)

1081

7. Paragraph  (5) 7.1 ‘to the appropriate specialised agencies, funds and programmes of the United Nations’ 7.2 ‘and other competent bodies’ 7.3 ‘request or indication of a need’ 7.4 ‘technical advice or assistance’ 7.5 ‘along with the Committee’s observations and recommendations, if any’

1082

Article 37: Cooperation between States Parties and the Committee

1084

1. Introduction

1084

2. Background, Context, and Travaux Préparatoires

1085

3. Paragraph  1 3.1 The Committee and its Members 3.2 The Mandate 3.3 Cooperation with Reporting 3.4 Cooperation with General Comments 3.5 Cooperation with the Early Awareness and Urgent Action Procedures 3.6 Cooperation with the Communication Process 3.7 Cooperation with the Inquiry Process

1088 1088 1089 1090 1093 1094 1095 1096

4. Paragraph  2 4.1 ‘The Committee shall give due consideration to . . . enhancing national capacities’ 4.2 Ways and Means 4.3 Enhancing National Capacities for Implementation 4.4 Including through International Cooperation 4.5 Implications in Relation to Reporting 4.6 Implications for the Communication Process 4.7 Implications for the Inquiry Process and the ‘early awareness and urgent action procedures’

1097 1098 1099 1099 1101 1101 1103

Article 38: Relationship of the Committee with Other Bodies

1105

1. Introduction

1105

2. Background and Travaux Préparatoires

1106

3. Chapeau

1107

4. Paragraph  (a) 4.1 Specialized Agencies 4.2 UN Organs 4.3 Other Competent Bodies 4.4 Role and Function of Other Bodies 4.5 ‘invitation’ 4.6 ‘within the scope of their mandate’ 4.7 Submission of Written and Oral Information by NGOs

1108 1108 1110 1111 1113 1115 1115 1116

5. Paragraph  (b) 5.1 ‘shall consult’

1117 1117

Kris Gledhill

Ilias Bantekas



1082 1083 1083 1083 1083

1104

Detailed Contents

xxvii

Article 39: Report of the Committee

1119

1. Introduction

1119

2. Background and Travaux Préparatoires

1120

3. Paragraph  1 3.1 Reporting Requirement 3.2 Suggestions and General Recommendations 3.3 Formulation of CRPD General Comments 3.4.1 General Comment No 1 (2014) on Equal Recognition before the Law 3.4.2 General Comment No 2 (2014) on Accessibility 3.4.3 General Comment No 3 (2016) on Women and Girls with Disabilities 3.4.4 General Comment No 4 (2016) on the Right to an Inclusive Education 3.4.5 General Comment No 5 on the Right to Live Independently and Be Included in the Community 3.5 The Inquiry Procedure

1121 1121 1124 1128 1130 1131 1131

Article 40: Conference of States Parties

1135

1. Introduction

1135

2. Background and Travaux Préparatoires

1136

3. Paragraph  1 3.1 Legal Personality 3.2 Organization of the Conference 3.2.1 Sources 3.2.2 Organization 3.2.3 Meetings 3.3 Competence of the Conference

1138 1138 1139 1139 1140 1142 1142

4. Paragraph  2

1144

Article 41: The Secretary-​General of the United Nations Shall Be the Depositary of the Present Convention

1145

1. Introduction

1145

2. Background and Travaux Préparatoires

1145

3. Functions of Depositaries

1146

4. Powers of Depositaries

1148

5. Depositary Notifications

1148

6. The Obligation to Notify the Depositary under Article 44(1) CRPD

1149

Article 42: Signature

1150

1. Introduction

1150

2. Background and Travaux Préparatoires

1150

3. ‘Signature’ of a Treaty 3.1 Signature by Regional International Organizations

1151 1152

4. Effect of Signature

1153

Mary Pat Treuthart

Ilias Bantekas

Ilias Bantekas

Ilias Bantekas

1132 1133 1133



xxviii

Detailed Contents

5. ‘all States’ 5.1 Indefinite Signature Duration

1154 1155

Article 43: Consent to Be Bound

1156

1. Introduction

1156

2. Background and Travaux Préparatoires

1156

3. Ratification, Acceptance, and Approval

1157

4. Definitive Signature

1158

5. Accession by Any State 5.1 Ratification and Accession by International Organizations

1159 1159

Article 44: Regional Integration Organizations

1162

1. Introduction

1162

2. Background and Travaux Préparatoires

1164

3. Paragraph  1 3.1 ‘Regional Integration Organizations’ and their ‘Competence’

1165 1165

4. Paragraph  2 4.1 References to ‘States Parties’

1168 1168

5. Paragraph  3 5.1 Non-​applicability of RIO Instruments to Articles 45 and 47

1169 1169

6. Paragraph  4 6.1 Voting in the Conference of States Parties

1169 1169

Article 45: Entry Into Force

1171

1. Introduction

1171

2. Travaux Préparatoires and Background

1172

3. Paragraph  1 3.1 The Date of Deposit

1172 1174

4. Paragraph  2

1174

Article 46: Reservations

1175

1. Introduction

1175

2. Background and Travaux Préparatoires

1176

3. Paragraph  1 3.1 Reservations Incompatible with the Object and Purpose of the CRPD 3.2 Reservations against Particular Rights 3.3 Reservations Concerning Political or Administrative Organization 3.4 Reservations to the CRPD by International Organizations

1177 1179 1183 1184 1185

4. Paragraph  2

1186

Article 47: Amendments

1188

1. Introduction

1189

2. Travaux Préparatoires

1189

Ilias Bantekas

Jacob Katz Cogan

Ilias Bantekas

Ilias Bantekas

Konstantinos Magliveras



Detailed Contents

xxix

3. General Overview

1191

4. Paragraph  1 4.1 ‘Proposals for amendment will be submitted to the UN Secretary-​General . . .’ 4.2 ‘When so notified by States Parties, the Secretary-​General shall convene . . .’

1192

5. Paragraph  2

1195

6. Paragraph  3

1196

7. Optional Protocol to the Convention on the Rights of Persons with Disabilities 7.1 Article 15 CRPD Optional Protocol

1197 1197

Article 48: Denunciation

1198

1. Introduction

1198

2. Background and Travaux Préparatoires

1199

3. Denunciation, Un-​Signing, and Reservations 3.1 Scope of Denunciation 3.2 Notification to the Depositary 3.3 Legal Effect of Denunciation 3.4 Denunciation by an International Organization

1200 1200 1201 1202 1203

Article 49: Accessible Format

1204

1. Introduction

1204

2. Background and Travaux Préparatoires

1205

3. The Provision

1206

Article 50: Authentic Texts

1214

1. Introduction

1214

2. Background and Travaux Préparatoires

1214

3. Conflicts between Authentic Texts 3.1 Erroneous Text

1215 1216

4. Authentic Texts and Subsequent Translations

1217

5. The CRPD Committee’s Working Languages

1217

Optional Protocol to the Convention on the Rights of Persons with Disabilities

1218

1. Introduction

1219

2. Background and Travaux Préparatoires

1220

3. Article  1 3.1 Paragraph 1 3.1.1 Locus standi and Victim Requirement 3.1.2 On Behalf 3.1.3 Jurisdiction ratione personae 3.2 Paragraph 2

1222 1223 1223 1223 1225 1226

Ilias Bantekas

Eliza Varney

Ilias Bantekas

Tina Stavrinaki

1193 1194



xxx

Detailed Contents

4. Article  2 4.1 ‘Anonymous’ 4.2 ‘Abuse of the Right of Submission of Such Communications or Incompatibility with the Provisions of the Convention’ 4.3 ‘The Same Matter Has Already Been Examined by the Committee or Has Been or Is Being Examined under Another Procedure of International Investigation or Settlement’ 4.4 ‘All Available Domestic Remedies Have Not Been Exhausted. This Shall Not Be the Rule Where the Application of the Remedies is Unreasonably Prolonged or Unlikely to Bring Effective Relief ’ 4.5 ‘It Is Manifestly Ill-​Founded or Not Sufficiently Substantiated’ 4.6 ‘The Facts that Are the Subject of the Communication Occurred Prior to the Entry Into Force of the Present Protocol for the State Party Concerned Unless those Facts Continued After that Date’

1226 1227

5. Article  3 5.1 Organization and Working Methods 5.2 Pre-​Registration 5.3 Registration 5.4 Transmission to the State Party 5.5 Observations on Admissibility and Merits

1234 1234 1235 1237 1237 1238

6. Article  4 6.1 Working Methods Related to Interim Measures 6.2 Scope of Interim Measures 6.3 Monitoring of Interim Measures Requests

1239 1240 1242 1244

7. Article  5 7.1 Procedure of Examination on the Merits and Adoption of Views 7.2 Legal Status of Views 7.3 Remedies 7.4 Follow-​up

1246 1247 1248 1250 1251

8. Articles 6 and 7

1252

9. Article  8

1255

1227 1229 1230 1232 1233

Index1257



Preface The idea behind a commentary on the CRPD was conceived in the summer of 2014. The plan was to produce a comprehensive article-​by-​article commentary analysis that would appeal to human rights lawyers, disability rights advocates, and all those involved with the rights and lived experiences of persons with disabilities, such as sociologists, educators, policy makers, and many others. This is a tall order because books nowadays are addressed to audiences of a particular expertise, with law books being particularly challenging for non-​lawyers. Inter-​disciplinarity, however, was not an aim in and of itself. The text of the CRPD, as well as its travaux, deals with several issues that cannot readily be explained by a legal analysis (although it is true that lawyers have a tendency to pull everything within the law!). This includes awareness-​raising strategies, the social and medical models of disability, techniques for inclusive education, technical aspects of habilitation and rehabilitation, and many more. We have made a distinct effort to address pertinent issues through both legal and non-​legal lenses, where possible, so as to provide a holistic analysis of the CRPD. This is unusual for legal commentaries and we leave it to our readers to assess whether and to what degree we have achieved our aim. A book of this size would not have been possible without the dedication and professionalism of our contributors. Where a single chapter fails to meet our high quality standards or deadlines set by the editors, the entire project risks falling to disarray. This chain-​like effect within commentaries make them complex and stressful on the part of the editors and contribute to their ageing process. The four years that we have spent on this project ensures that each chapter has gone through several rounds of comments, extensive discussions, changes, and attention to detail. Ultimately, it was well worth the effort. Although everyone involved in the writing of this book was engaged in their own discreet subject-​matter we all, as a team, could see the broader picture, which was to bring together under a single volume existing scholarship, conclusions, best practices, but also conflicts arising from and within this field of law and policy. We are particularly grateful to our families for putting up with us during the course of this long journey. The Bantekas family was enriched with two more children along the way, bringing the total tally to four (we really think we should stop there). Between what seems like endless nappies, sleepless nights, and mastering to write with one hand while cradling a vomiting baby with the other, several chapters were miraculously written and many others edited. I would like to thank them all for their patience, starting with my amazing wife Eleni and my four kids, Stefanos, Zoe (my little ZaZa), Thalia, and Athanasia (Nasia). The Stein Muses—​the heroic Penelope, jubilant Sophie, and sublime Ariella—​accommodated many editing sessions at unseemly hours with supreme kindness; I acknowledge my deep gratitude even if I cannot adequately thank them. Anastasiou’s partner Domna and son Orfeas, who watched the gestation of the project with patience, understanding, delightful distractions, and critical remarks; I am deeply grateful to them. Finally, we only imagine the relief of all our significant others, when this book, at last, leaves our hands. The three editors wish to thank Merel Alstein and Natasha Flemming from OUP who believed in the project from the outset, commissioning several experts to provide their

xxxii

Preface

comments and expertise at the review stage, which significantly helped us shape its structure and direction. As always, Oxford’s copy-​editing has been impeccable, with attention to detail being key to the final production of the book. We also wish to thank Kimberly Marsh who undertook this process from submission to print. Although we have made every possible effort to eliminate the likelihood of mistakes, this is not possible for a book of this size. The editors welcome comments and suggestions from their readership. [Please note: At the time this book was going to press, the UN Enable website migrated. Users are advised to replace ‘www’ with ‘static’ in the URL. In addition the access date for website sources cited in this book is 10 January 2018 unless otherwise stated in the individual footnote.]



Editors’ Biographies Dimitris Anastasiou is Associate Professor of Special Education at Southern Illinois University Carbondale. He holds BS degrees in psychology, sociology, and elementary education, MSc in special education and school psychology, and a PhD in both special education and school psychology. His publications and scholarly interests include philosophical approaches to disability, disability rights, educational and disability policy, comparative special education, co-​teaching, cultural issues with implications for educational policy, and educational interventions in reading and writing. Dr Anastasiou is the author of one book, has contributed to three edited books and over twenty articles in peer-​reviewed journals including Exceptional Children, Journal of Disability Policy Studies, Journal of Medicine and Philosophy, Exceptionality, International Journal of Educational Development, European Journal of Special Needs Education, Remedial and Special Education, Teaching and Teacher Education, History of Education, Learning Disability Quarterly, and Scientific Studies of Reading. Dr. Anastasiou has served as co-​editor of the Journal of International Special Needs Education (JISNE), and as a reviewer for several peer-​reviewed journals. He is currently associate editor of the JISNE. Ilias Bantekas FCIArb is Professor of International Law at Hamad bin Khalifa University (a collaboration between Northwestern University, Pritzker School of Law, and Qatar Foundation). He acts as consultant to various inter-​governmental organizations, such as UNDP, UN special procedures, Council of Europe, and the EU. He also advises state entities, law firms, and NGOs in most fields of international law, human rights, international development law, and arbitration and is regularly appointed as arbitrator in international disputes. Key books include: International Human Rights Law and Practice (2nd edn, CUP 2016); Introduction to International Arbitration (CUP 2015); Criminological Approaches to International Criminal Law (CUP 2014); International Law (3rd edn, OUP 2017); Sovereign Debt and Human Rights (OUP 2018); The International Criminal Court and Africa (OUP 2017); International Criminal Law (4th edn, Hart 2010). Michael Ashley Stein holds a JD from Harvard Law School and a PhD from Cambridge University. Co-​founder and Executive Director of the Harvard Law School Project on Disability and a Visiting Professor at Harvard Law School for over a decade, Stein holds an Extraordinary Professorship at the University of Pretoria’s Centre for Human Rights, and a visiting professorship at the Free University of Amsterdam. Stein previously was Professor (and Cabell Professor) at William & Mary Law School, and has taught at New York University and Stanford law schools. His path-​breaking scholarship has been published globally by leading journals and presses, and he is the recipient of fellowships and awards from the American Council of Learned Societies, the National Endowment for the Humanities, and the National Institute on Disability Rehabilitation and Research, among others. An internationally recognized expert on disability law and policy, Stein participated in the drafting of the UN Convention on the Rights of Persons with Disabilities, works with disabled peoples organizations around the world, actively consults with governments on their disability laws and policies, advises a number of

xxxiv

Editors’ Biographies

UN bodies and national human rights institutions, and has brought landmark litigation. Stein has received numerous awards for his work, including the inaugural Morton E. Ruderman Prize for Inclusion, the inaugural Henry Viscardi Achievement Award, and the ABA Paul G. Hearne Award, and was appointed by President Obama to the United States Holocaust Memorial Council.



Contributor Biographies Sarah Arduin is an Adjunct Assistant Professor in the School of Law at Trinity College Dublin. She is a graduate of the University of Paris II Pantheon-​Assas (Licence de Droit) and of Trinity College Dublin (LLM). She holds a PhD from the School of Law at TCD on comparative constitutional and regulatory regimes in the context of the right to education of persons with disabilities. Her research interests sit at the intersection of regulation and human rights with an emphasis on the right to education. Her current research project looks at the emergence of gaps between educational policies as expressed by law and the level of compliance with the legal norms in the lived experience of schools. She is also looking at the theory of experimentalist governance in the context of the legal architecture of the UN Convention of the Rights of Persons with Disabilities. Francisco J Bariffi, is Deputy Director of the Human Rights Centre, National University of Mar del Plata, Argentina. He is a Professor and researcher on disability and human rights law. He is the Academic Coordinator of the Iberoamerican Network of Experts on the UN Convention on the Rights of Persons with Disabilities (www.redcdpd.net) (accessed 10 January 2018) and was a Legal Advisor for the Spanish Delegation during the 6th and 8th sessions of Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities. Jerome Bickenbach is a lawyer and health scientist who has worked for the past forty years on disability epidemiology, disability law and policy, and rehabilitation health systems research. He worked at the WHO on the development of the ICF and at Rehabilitation and Disability before moving to Swiss Paraplegic Research to continue research and writing on disability and ageing, assistive technology, and implementation science in the context of the learning health system for rehabilitation. Andrea Broderick is a tenured Assistant Professor in the Department of International and European Law at the Faculty of Law, Maastricht University. Andrea previously completed a Marie Curie fellowship at Maastricht University in the DREAM (Disability Rights Expanding Accessible Markets) network of researchers. Her doctoral thesis on the CRPD’s equality norm was nominated for the Max van der Stoel award (2016) and has been published as a monograph with Intersentia. Andrea has previously worked with the European Disability Forum and was recently appointed as an international expert on disability non-​discrimination law for The Promoting Rule of Law in Georgia Activity. Andrea is also a qualified Solicitor at the Law Society of Ireland and worked in professional legal practice for several years. She has published widely in academic journals and books. She has written, and co-​written, legal and policy thematic reports for, among others, the European Commission and the Council of Europe. Andrea’s current research interests lie in the areas of international and European disability law, EU equality law, inclusive education and the case law of the European Court of Human Rights. Ena Chadha is an equality rights lawyer and former Vice-​Chair with the Human Rights Tribunal of Ontario (2007–​15). Ms Chadha holds Advance Alternate Dispute Resolution

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Certificates in Negotiations and Mediations, Advanced Litigation, as well as a Certificate in Mental Health Law. In 2007, she completed a Masters research thesis on medical disclosure in human rights litigation. Prior to her appointment, Ms Chadha practiced privately in the areas of human rights and employment law. She served as counsel to the Ontario Human Rights Commission and as Director of Litigation with ARCH Disability Law Centre, a test case clinic specializing in disability and Constitutional rights issues. Ms Chadha is an adjunct Lecturer with Schulich School of Business and teaches in the areas of Negotiations and Power & Politics. She provides professional human rights and conflict resolution training and her speaking engagements have included the National Judicial Institute. She has published extensively on equality rights issues, focusing on gender, disability, race, and harassment. Pok Yin Stephenson Chow received his PhD from the University of Nottingham (UK). He is currently an Assistant Professor at the City University of Hong Kong. He is on the Editorial Advisory Board of the International Journal for Human Rights and Constitutional Studies and is a member of the Society of Legal Scholars and the Asian Society of International Law. As a member of the US bar, he served on the Executive Committee of the American Bar Association, Section of International Law, Hong Kong Chapter in 2015. His research interests concern cultural rights and diversity and has published his works at the Human Rights Law Review and the International & Comparative Law Quarterly. His most recent work includes a book entitled ‘Cultural Rights in International Law and Discourse: Contemporary Challenges and Inter-​disciplinary Perspectives’ to be published with Brill in 2018. Jacob Katz Cogan is the Judge Joseph P Kinneary Professor of Law at the University of Cincinnati College of Law. He was previously an attorney-​adviser in the Office of the Legal Adviser at the US Department of State. He has published extensively on the hidden assumptions, informal rules, and constitutive decisions and structures that form the operational international legal system, and he is the co-​editor of The Oxford Handbook of International Organizations (Oxford University Press, 2016) and Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (Martinus Nijhoff Publishers 2011). Helene Combrinck is an Associate Professor at the Faculty of Law, North-​ West University, South Africa. She previously worked as a senior researcher at the Centre for Disability Law and Policy, University of the Western Cape, Cape Town, which was preceded by a number of years as the project coordinator of the Gender Project at the (then) Community Law Centre, also at the University of the Western Cape. She has published widely on gender-​based violence as well as on disability rights. From 2016 to 2017, she was a member of the task force convened by the International Bar Association’s Human Rights Institute to consider the rights of persons with albinism. Current research interests include the rights of persons with psychosocial disabilities and the development of disability rights in Africa. Jessica Lynn Corsi is a Law Lecturer at Brunel University London. She is primarily a public international law scholar, focusing on human dignity and freedom from violence. She holds a cum laude JD from Harvard Law school, an award winning LLM from Cambridge University, and a PhD in law from Cambridge. Prior to teaching at Brunel she taught for various other law schools including NYU Law. Jessica has worked on 

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human rights issues in Asia, Africa, Latin America, North America, and Europe, for the UN, government agencies, NGOs, and academic institutions. She contributed to the text of the Cluster Munitions Convention and the World Health Organization’s Framework on Tobacco Control. Kevin Cremin is the Director of Litigation for Disability and Aging Rights at Mobilization for Justice. He is a graduate of the University of Chicago and Yale Law School. After clerking for a federal district court judge and a federal court of appeals judge, Kevin enforced the Fair Housing Act and the Americans with Disabilities Act for the United States Department of Justice. As an American India Foundation Fellow, Kevin conducted a study for the Centre for Advocacy in Mental Health on community-​based services for individuals with psychosocial disabilities. He has authored articles that have been published in the Yale Law and Policy Review, Cardozo Law Review, Texas Journal on Civil Liberties & Civil Rights, Journal of Law and Policy, and Frontiers of Law in China. Kevin has been a Lecturer in Law at Columbia Law School since 2009. Federico Ferretti is Senior Lecturer in Law at Brunel University London (UK). His main research interest and teaching is in Privacy & Data Protection law. He is a member of the Financial Services User Group (FSUG) of the European Commission, an expert group which advises the Commission in the preparation of legislation or policy initiatives which affect the users of financial services, provides insight, opinion, and advice concerning the practical implementation of such policies, proactively seeks to identify key financial services issues which affect users of financial services, and liaises with and provide information to financial services user representatives and representative bodies at the European Union and national level. He has led externally funded research projects and written extensively on credit data, consumer over-​indebtedness, credit laws, and personal insolvency legislation. A qualified lawyer of the high courts of Italy, he has worked as a practitioner, for the financial services industry, for consumer organizations, and in academia. János Fiala-​Butora is a Research Fellow at the Legal Studies Institute of the Hungarian Academy of Sciences and Director of the Central European Program of the Harvard Law School Project on Disability (HPOD). He is also legal advisor to the Budapest-​based Disability Rights Center (DRC). He is a graduate of the human rights programme of Central European University (Budapest) LLM 2004, and of Harvard Law School LLM 2010, and SJD 2016. As a human rights lawyer, he has brought landmark litigation before international courts on behalf of persons with disabilities, including the European Court of Human Rights, the European Committee of Social Rights, and the UN Committee on the Rights of Persons with Disabilities. In his research he focuses on international human rights mechanisms, rights of persons with disabilities, ethnic minorities, and refugees. Eilionóir Flynn is a Senior Lecturer at the School of Law and Director of the Centre for Disability Law and Policy, National University of Ireland Galway. Her current research interests include legal capacity, advocacy, access to justice, and the intersectionality of disability, gender, and ageing. In 2014 she became the youngest ever recipient of a European Research Council Starting Grant for the VOICES project, to document the narratives of people with lived experience of legal capacity denial. Internationally, she has supported the Secretariat of the UN Committee on the Rights of Persons with Disabilities, and in particular the working group which prepared a draft General Comment on Article 12 (legal capacity). 

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Anthony G Giannoumis’ research focuses on technology law, policy, and practice. He is currently researching the implementation of policies aimed at ensuring equal access to technology. His research interests include universal design, international governance, sustainable development, social regulation, standardization, assistive technology, and intellectual property. He is currently an associate professor of universal design at the Department of Computer Science at Oslo and Akershus University College, and an international research fellow at the Burton Blatt Institute at Syracuse University. Kris Gledhill has a law degree from the University of Oxford and an LLM from the University of Virginia. He practiced briefly as an attorney-​at-​law of the Commonwealth of Virginia, and was then a barrister in London for two decades, appearing in criminal and public law matters:  this included various precedent-​setting cases in the European Court of Human Rights, the House of Lords, and the Court of Appeal. He also sat as a Tribunal Judge on mental health cases. At the same time, he maintained an academic career, teaching part-​time at various institutions. He became a full-​time academic after moving to New Zealand in 2006. He is now a Professor at AUT Law School, where his teaching includes international human rights law. In addition to writing books, book chapters, and academic articles in a variety of areas, he is the Editor in Chief of the International Journal of Mental Health and Capacity Law, the General Editor of the New Zealand Criminal Law Review, Series Editor of the Legal Pedagogy Series for Routledge Publishing and the Editor of the Mental Health Law Reports. Michael Gregory is a Clinical Professor of Law at Harvard Law School and a Member of the Faculty at the Harvard Graduate School of Education. He is also Senior Attorney at the Trauma and Learning Policy Initiative (TLPI), a partnership between Harvard Law School and Massachusetts Advocates for Children, the mission of which is to ensure that children traumatized by exposure to violence and other childhood adversities succeed in school. At HLS, he co-​teaches the Education Law Clinic, which both represents individual families of traumatized children in the special education system and engages in administrative and legislative advocacy to advance a public policy agenda for whole-​school learning environments that are safe, supportive, inclusive, and trauma-​sensitive. He is co-​author of TLPI’s two landmark publications, Helping Traumatized Children Learn, Volumes 1 and 2, and he also writes in the field of special education law. He holds a Master of Arts in Teaching and began his law career as a Skadden Fellow. Katherine Guernsey is a public international lawyer who has dedicated her career to the field of human rights, with particular focus on disability inclusive development and diplomacy. Much of her work has focused on enhancing the capacity of stakeholders to effectively formulate and implement disability inclusive policies and practices. She was extensively involved in negotiation of the Convention on the Rights of Persons with Disabilities (CRPD), providing counsel to both governmental and non-​governmental delegations. She has numerous publications associated with the treaty and international disability law and policy, including several co-​authored World Bank publications. From 2010–​17, she served as Senior Policy Advisor to the Special Advisor for International Disability Rights at the US Department of State, promoting disability inclusive diplomacy as a priority in US foreign policy. In that capacity, she played a key role in developing and issuing the first ever comprehensive disability inclusive foreign policy guidance for the Department of State. 

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Ayelet Gur is a Lecturer at the School of Social Work at Bar Ilan University. Her interest lies at the intersection of social policy and disability, with emphasis on issues related to the social inclusion and human rights of people with disabilities in light of the Convention on the Rights of Persons with Disabilities. She is currently involved in two major national studies in Israel: an evaluation study on the transition of persons with intellectual and/​or developmental disabilities from institutional care facilities to community-​based settings, and a households study on the families of children with intellectual disabilities. Aart Hendriks is a health and human rights lawyer, attached to Leiden Law School as professor in health law. In addition, he serves as surrogate judge and member of the Board of Supervisors of the Erasmus Medical Centre in Rotterdam. He regularly serves as consultant for regional and international health and human rights organizations and teaches both nationally and internationally. Yoshikazu Ikehara is a senior attorney at the Tokyo Advocacy Law Office. He is a member of the Committee on Anti-​Discrimination Law for Persons with Disabilities under the Japan Federation of Bar Associations. He is a founder of a non-​governmental committee on Disability Rights Tribunal in Asia and the Pacific. He is a researcher at the Project Research Institute, Comprehensive Research Organization, Waseda University. He was a member of the Task Force on Anti-​Discrimination Law for Persons with Disability under the Governmental Committee of Disability Law and Policy Reform from 2011 to 2013. His main work in English is ‘Creation of a Disability Rights Tribunal for Asia and the Pacific: Its Impact on China?’, authored with Michael L Perlin, New York Law School Legal Studies Research Paper Series 10/​11 # 19. Emily Julia Kakoullis (LLB (Kent), LLM (Maastricht), PhD (Bristol)) is a Lecturer in Human Rights Law, at the School of Law and Politics, Cardiff University, with expertise in International Disability Human Rights Law. Her research focuses on the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD); the interaction between the CRPD and domestic cultural contexts, and the participation of persons with disabilities in decision-​making. Prior to taking up this role Emily was a Research Fellow at the University of Exeter, an Honorary Research Fellow at the University of Bristol, and completed her PhD at the University of Bristol on the ratification process for the CRPD in Cyprus, which was interdisciplinary and empirical and brought law and social science together (Kakoullis 2015). During her doctoral research, she also worked as a Research Assistant at the University of Bristol on projects on the CRPD. Prior to her return to academia she worked as a Legal Researcher at the Ministry of Justice in the UK, and for a disability non-​governmental organization in Cyprus, where she engaged in advocacy work with persons with disabilities. During her LLM she also worked as a Research Assistant at the Institute for Trans-​national Legal Research (METRO) at the University of Maastricht. Arlene S Kanter is an internationally acclaimed expert in international and comparative disability law and policy. At Syracuse University, she is the Laura J and L Douglas Meredith Professor of Teaching Excellence, and the Bond, Schoeneck & King Distinguished Professor of Law. Professor Kanter founded and directs the College of Law’s Disability Law and Policy Program, one of the first and most extensive disability law programs in the world. In Fall 2017, she is a visiting scholar at Harvard Law School and in Spring 

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2018, she is a Lady Davis Fellow at Hebrew University Faculty of Law. In 2010–​11, Professor Kanter was named the Distinguished Switzer Fellow by the US Department of Education’s National Disability Rehabilitation Research Institute and in 2009–​10, she was selected as a Fulbright Scholar at Tel Aviv University. Professor Kanter participated in the drafting of the UN Convention on the Rights of People with Disabilities and is the co-​author of the first law casebook on international and comparative disability law, and the author of numerous articles and book chapters on international human rights and comparative disability law, inclusive education, higher education and disability, and mental health law. Her most recent book:  The Development of Disability Rights Under International Law:  From Charity to Human (Routledge 2015)  traces the development of the United Nations Convention on the Rights of People with Disabilities (CPRD). Professor has been invited to present at hundreds of conferences around the world and at the United Nations General Assembly and the UN Commission on the Status of Women. She consults with governments and disability organizations in countries around the world on implementing the CRPD. Professor Kanter is co-​editor of the Critical Disability Series at SU Press, founder and editor of the SSRN Journal on Disability Law, co-​founder of the Disability Law Section of the American Association of Law Schools, and co-​founder of the Disability Collaborative Research Group of the Law and Society Association. She is a former Commissioner of the American Bar Association’s Commission on Mental and Physical Disability Law. Stavroula Karapapa is Professor of Intellectual Property and Information Law at the School of Law of the University of Reading. She has published widely in the area of intellectual property law and is the author of Private Copying (Routledge 2012) and Copyright and Mass Digitization (Oxford University Press 2013). James M Kauffman (EdD, University of Kansas) is Professor Emeritus of Education at the University of Virginia. He is author, co-​author, or co-​editor of numerous publications in special education and related fields. Among his most recent co-​authored or co-​edited works are:  Special Education:  What It Is and Why We Need It (2nd edn, Routledge 2018), The Scandalous Neglect of Children’s Mental Health: What Schools Can Do (Routledge 2018), Handbook of Special Education (2nd edn, Routledge 2017), Exceptional Learners: An Introduction to Special Education (14th edn, Pearson 2018), Characteristics of Emotional and Behavioral Disorders of Children and Youth (11th edn, Pearson 2018), and Special Education (in Reference Module in Neuroscience and Biobehavioral Psychology, Elsevier 2017). Amanda Keeling is a University Academic Fellow in Disability Law in the School of Law at the University of Leeds. She holds an undergraduate degree in Law, and an MA in Human Rights, following which she worked for several third sector organizations and NGOs in the human rights field. Her interest in the field of disability stems from work as a Research Assistant at the Cambridge Intellectual and Developmental Disability Research Group, where she worked on two projects exploring the implementation of the Mental Capacity Act 2005 Deprivation of Liberty Safeguards. Her PhD thesis explored the potential for the operationalization of article 12 in the context of adult safeguarding practice in England, using empirical methods to explore existing social work practice of support for decision making in the safeguarding context. Her work is now continuing to investigate the interpretation and implementation of the UNCRPD in the 

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British context, continuing to focus on adult safeguarding, but expanding out beyond article 12 to consider the wider interactions of the provisions and obligations within the Convention. Agnieszka Kitkowska has a multidisciplinary background, holding a Master of Arts in History of Art and Culture from Nicolaus Copernicus University and a Master of Science in Computing from Edinburgh Napier University. She is currently a PhD candidate in Computer Science at Karlstad University. Her professional experience and interests span a variety of disciplines such as human-​computer interaction, Usability, user experience, accessibility, and design. Her research focuses on the gap between attitudes and behaviours in privacy related decision-​making and incorporates interdisciplinary methods from computer science, social science, and psychology. Lalin Kovudhikulrungsri is a Lecturer at the Faculty of Law, Thammasat University, Thailand. Her main focus has been in air and space law and human rights law. She received her PhD in Law from Leiden University on a dissertation relating to the right to travel by air of persons with disabilities. She also holds a LLB from Thammasat University and a LLM from the Institute of Air and Space Law, Faculty of Law, McGill University, Canada. Molly K Land is Professor of Law and Human Rights at the University of Connecticut School of Law and Human Rights Institute and Associate Director of the University of Connecticut’s Human Rights Institute. Professor Land’s scholarship focuses on the intersection of human rights, science, technology, and innovation. She is the co-​author of The World Blind Union Guide to the Marrakesh Treaty: Facilitating Access to Books for Print-​ Disabled Individuals (OUP 2017). She has also authored several human rights reports, including a report for the World Bank on the role of new technologies in promoting human rights. Professor Land is a member of the Committee on Scientific Freedom and Responsibility with the American Association for the Advancement of Science. Anna Lawson is a Professor of law at the University of Leeds, where she is also director of the University-​wide interdisciplinary Centre for Disability Studies and co-​ordinator of the Law School’s Disability Law Hub. Her work focuses on disability equality and human rights at national and international levels. She has been a member of the board of the European Union’s Academic Network of Experts on Disability since its inception in 2007 and led its work on accessibility from 2011–​14. She will lead the University of Leeds East Asia Disability Forum (U-​LEAD) from 2018–​21. Anna has acted as an expert advisor for various governmental and inter-​governmental bodies, including the Council of Europe in connection with its disability strategy 2017–​23 and the UK’s House of Commons’ Women and Equalities Committee in connection with its 2016–​17 inquiry into disability and the built environment. She participated in the Ad Hoc Committee set up to draft the CRPD and is a member of a number of disabled people’s organizations—​ including Disability Rights UK, the National Federation of the Blind, the Royal National Institute of Blind and Partially Sighted People, the Alliance for Inclusive Education and the European Network for Independent Living. Janet Lord is senior research fellow at the Harvard Law School Project on Disability and serves on the board of the US International Council on Disabilities (USICD). An international human rights lawyer, she specializes in the human rights of persons 

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with disabilities. Lord participated in all of the negotiations for the Convention on the Rights of Persons with Disabilities (CRPD), serving as legal advisor to Disabled Peoples’ International, as expert to the UN on monitoring, and counsel to several lead governments during the process. She has travelled to more than forty countries to provide technical assistance on a wide range of disability rights and inclusive development projects for the World Bank, UNDP, UNDESA, the Office of the High Commissioner for Human Rights, USAID, and a variety of other organizations. In her capacity as senior fellow at the Harvard Law School Project on Disability, she has published a wide range of scholarly and practitioner-​oriented works on human rights law in the context of disability. She teaches law at the University of Maryland Carey School of Law in her native Baltimore and at American University Washington College of Law. Lord holds an LLB and LLM in law from the University of Edinburgh (Scotland), an LLM in international and comparative law from George Washington University Law School, and a BA in History from Kenyon College. Konstantinos D Magliveras, LLM (Exon), DPhil (Oxon) is Professor of international law at the University of the Aegean and is a practicing lawyer in Greece. His research interests include the law of intergovernmental organizations, international criminal law, the law of treaties, transnational migration, and human rights protection. His most recent book (with G J Naldi) is The African Union: History, Institutions and Activities (Wolters Kluwer 2018). Maria Mikhaylova is a research assistant at the Faculty of Technology, Art and Design at Oslo and Akershus University College of Applied Sciences (HiOA). She holds a Master degree from the University of Oslo in the Theory and Practice of Human Rights. She has worked as a legal analyst at Norwegian Helsinki Committee with the Natalia Estemirova Documentation Center and has acted as a case analyst for the Central and Eastern European Initiative for International Criminal Law and Human Rights. Maria holds a Specialist Degree in International Relations from the Russian State University for the Humanities. Stephanie Motz is a research assistant and PhD candidate at the University of Lucerne, Switzerland, where she writes on ‘The Refugee Status of Persons with Disabilities’ and teaches international migration law. She has completed research stays as a Grotius Research Scholar at the University of Michigan and as a Visiting Study Fellow at the Refugee Studies Centre of the University of Oxford. Stephanie also practices as a barrister, specializing in asylum, immigration, and human rights law. She has successfully represented applicants before the European Court of Human Rights, the UN Committee Against Torture, the Federal Supreme Court of Switzerland, and the United Kingdom High Court and Court of Appeal and has appeared in a country guidance case in the United Kingdom and lodged the first case against Switzerland before the CEDAW Committee (pending). Stephanie has taught public law at King’s College London and now teaches at the University of Lucerne and at the Zurich School for Higher Education in Applied Sciences (ZHAW). She has published various articles and book chapters in English and German in the area of both human rights and disability law as well as asylum and immigration law. Stephanie completed her undergraduate degree at King’s College London and her Master’s degree (Bachelor of Civil Law) at the University of Oxford. 

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Lawrence M Mute is a Lecturer at the School of Law of the University of Nairobi. Mute worked as a Commissioner with the Kenya National Commission on Human Rights for nine years, in the course of which he was a key member of Kenya’s delegation in the negotiations that resulted in the Convention on the Rights of Persons with Disabilities. Presently, Mute is also the Vice Chairperson of the African Commission on Human and Peoples’ Rights and the Special Rapporteur on Freedom of Expression and Access to Information in Africa. He also serves as a member of the Working Group on Older Persons and People with Disabilities in Africa. Mute has written journal articles and book chapters on constitutionalism, disability rights, equality, and media. Roxanne Mykitiuk is Professor of law at Osgoode Hall Law School where she specializes in disability, health, and family law. She is the Director of the Disability Law Intensive program. From 2013–​15, she was Chair of the Senate of York University. Roxanne has been Senior Legal Researcher for the Canadian Royal Commission on New Reproductive Technologies; a Member of the Ontario Advisory Committee on Genetics; a Member of the Ethics Committee of the Society of Obstetricians and Gynaecologists of Canada and the scholar in residence at the Law Commission of Ontario working on the Disability and Law Project. She is currently a member of the Board of Directors of ARCH Disability Law Clinic in Toronto. Roxanne is an active, engaged and collaborative researcher. She is the author/​co-​author of numerous articles, book chapters, and books investigating the legal, ethical and social implications of reproductive and genetic technologies and the legal construction and regulation of embodiment and disability. Recently her research has begun to create and investigate arts-​based methods—​digital stories and drama-​based narratives—​as a means of challenging and re-​representing experiences and conceptions of disability and normalcy. Anna Nilsson is a researcher and Lecturer at Lund University, Faculty of Law. She holds a Doctor of Laws in human rights and her doctoral thesis analyses and delineates the permissible scope for compulsory mental health interventions under the CRPD. Before embarking on an academic career, she practiced law in Sweden and abroad. She has several years of professional experience of human rights monitoring from her work as legal advisor to the Swedish Disability Ombudsman and as advisor on disability rights at the Council of Europe’s Commissioner for human rights. She participated in the negotiations before the Ad Hoc Committee (fourth to seventh session), representing the Swedish Disability Ombudsman and conducting advocacy on behalf of the global network of national human rights institutions. Smitha Nizar teaches law at Bangalore, India. She is the author of the book The Contradiction in Disability Law: Selective Abortions and Rights (OUP). This book was the first after the UNCRPD, which questions the unproblematic approach towards disability-​selective abortions. She was a member of the working group of the legal consultant to draft a new law for India in line with the CRPD. She has contributed her part to frame the right to life article in the said law. Prior to that, she was a practicing lawyer. She works to bring a change in the long persisting social prejudice in life with disabilities. She dreams for a world where disability is accepted as a general human condition, so that persons with disabilities are treated as equal on par with all others. 

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Jehoshaphat Njau has been the Coordinator of the University of Pretoria Disability Rights Project since 2011. In addition, he is an Attorney of the High Court of South Africa and an associate at Rontgen and Rontgen Inc. Mads Pedersen holds a Master of Laws from the University of Copenhagen. He served as an Assistant Attorney at Kammeradvokaten (the legal adviser to the Danish Government) from 2010 to 2013. He was an Attorney at Kammeradvokaten from 2013–​14 working on a variety of legal areas, including human rights law. He served as Special Adviser at the department of Equal Treatment at the Danish Institute for Human Rights from 2014 to 2016 working primarily in the fields of human rights and disability. As of October 2016 he is a Clerk at the Supreme Court of Denmark. Facundo Chávez Penillas is the Human Rights and Disability Advisor of the Office of the United Nations High Commissioner for Human Rights, based in Geneva, since 2013. He is a lawyer with graduate studies on business law and human rights law. Before his current position, Facundo worked in the Disability Department at the Ombudsperson Office of the City of Buenos Aires in Argentina and in a corporate law firm. He was member of organizations of persons with disabilities at national, regional and international levels before working for the United Nations. Michael L Perlin is Professor of Law Emeritus at New York Law School (NYLS), founding director of NYLS’s Online Mental Disability Law Program, and founding director of NYLS’s International Mental Disability Law Reform Project in its Justice Action Center. He is also the co-​founder of Mental Disability Law and Policy Associates. He has written thirty-​one books and nearly 300 articles on all aspects of mental disability law, including a treatise, Mental Disability Law: Civil and Criminal (Lexis-​Nexis Press), universally seen as the standard text in the area (co-​authored with Prof Heather Ellis Cucolo). His book, International Human Rights and Mental Disability Law: When the Silenced Are Heard was published by Oxford University Press in 2011. Before becoming a professor, Perlin was the Deputy Public Defender in charge of the Mercer County Trial Region in New Jersey, and, for eight years, was the director of the Division of Mental Health Advocacy in the NJ Department of the Public Advocate. He has represented thousands of persons with mental disabilities in individual and class actions at every court level from police court to the US Supreme Court, and has taught and worked with advocacy projects on every continent. He is also co-​chair of the Disability Rights Interest Group of the American Society of International Law. Eleni Polymenopoulou is Assistant Professor of Law at Hamad bin Khalifa University (HBKU) School of Law and visiting professor at the University of Grenoble-Alpes. She has published several book chapters and articles in leading peer-​reviewed journals of international and international human rights law. Her research focuses on the intersections between culture and the law, as well as the work of human rights courts. Alongside her academic appointment, she has also worked as a practicing lawyer and has collaborated with a number of NGOs, such as the Greek Council for Refugees and the international organization Article19. Arie Rimmerman, is Richard Crossman Professor of Social Welfare and Social Planning and the founder Dean of Social Welfare and Health Sciences the University of Haifa, Israel. He has been a distinguished Professor at the Newhouse School of Public 

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Communication, Syracuse University, and lectured also at Harvard, University of Pennsylvania, Washington University, and Charles University, Prague. He has published eleven books and more than 200 peer-​reviewed articles and research reports in Israel, Australia, Europe, and the United States. His is the author of series of three recent books by Cambridge University Press: Social Inclusion and People with Disabilities: National and International Perspectives (2013); Family Policy and Disability (2015); and Disability and Community Living Policies (2017). He is the recipient of the Lehman Award (1987), Fulbright Doctoral Student Fellowship (1979), the William Trump Award (1998), the International Award of the American Association on Mental Retardation (1999) and the Burton Blatt Distinguished Leadership Award (2006). Francesco Seatzu read law at the University of Cagliari, receiving a JD (first class with distinction), before completing his studies for a PhD at the University of Nottingham. Currently he is Full Professor of International and European Law at the University of Cagliari, Italy. He authored and edited several books, among them:  Natural Resources Grabbing: An International Law Perspective (with A Bonfanti and F Romanin Jacur, The Hague:  Martinus Nijhoff 2015); Foreign Investment, International Law and Common Concerns (with T Treves and S Trevisanut, Routledge 2013); Latin American and Caribbean International Institutional Law (with M Odello, TMC Asser Press 2015); Armed Forces and International Jurisdictions (with M Odello, Antwerp, Cambridge: Intersentia 2013); The UN Committee on Economic, Social and Cultural Rights: The Law, Process and Practice (Abingdon: Routledge 2012) (with M Odello), The World Bank Inspection Panel (Turin: Giappichelli 2007), Insurance in Private International Law: A European Perspective (Oxford:  Hart 2003), Tradition and Innovation in Private International Law (with L Pereznieto Castro and T Treves, New York: Juris Publishing 2005). Professor Seatzu is the author of several articles in public and private international law published in Italy and foreign countries. Lucy Series is a Lecturer in law and Wellcome Research Fellow at the School of Law and Politics, Cardiff University. Her research focuses on legal capacity, social care, and human rights. She is currently researching the contested relationship between mental capacity law and ‘empowerment’ using a historical and discursive lens. Lucy has worked at the Centre for Disability Law and Policy at NUI Galway, and completed her PhD at Exeter University. Before a career in legal academia, Lucy studied Psychology and Philosophy (BA (Oxon), MSc (Bristol University)) and worked in a range of health and social care settings with adults with autism, intellectual disabilities, and other cognitive impairments. Dimitrios Skempes is a research faculty member in the Swiss Paraplegic Research, the research arm of the Swiss Paraplegics Foundation, and the Department of Health Sciences and Health Policy at the University of Lucerne. As a rehabilitation professional he is particularly interested in what applying a human rights approach means for rehabilitation, and harnessing the opportunities offered by the CRPD to address chronic and entrenched deficiencies in rehabilitation services to maximize their value for health systems and societies at large. His recently completed PhD dissertation focused on the participatory development of an indicator framework to strengthen policy surveillance and accountability for the implementation of CRPD article 26. In the period 2014–​15 Dimitrios was a Junior Faculty Scholar with the ‘Human Rights in Patients’ Care’ programme of 

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Contributor Biographies

the Association of Schools of Public Health in the European Region. As a Marie Curie Research Fellow, he studied Disability Policy and Law between 2011 and 2014 at the Universities of Galway, Maastricht, and Leeds. During his graduate studies, Dimitrios also worked at the Disability and Rehabilitation Team of the World Health Organization. There he focused on WHO’s Global strategy and action plan to strengthen rehabilitation, contributing to the development of programmatic tools and projects. He is an active member of the International Society of Physical and Rehabilitation Medicine. Dimitrios holds a Master’s in Public Health from the University of Crete and a Postgraduate Certificate in Health Services Research from University College London. Tina Stavrinaki studied law at the University of Athens and as a State Scholarship Laureate in International Public Law at the Institut des Hautes Etudes Européennes (University Robert Schuman, Strasbourg 3) and the University Panthéon-​Assas (Paris 2). Her PhD thesis on the complaint procedures under the United Nations human rights treaties received a special award (Editions Pedone 2016). She worked in the National Commission for Human Rights (NHRI–​Greece) and she drafted several reports and papers on a wide range of human rights issues. As an independent expert she participated in a Special Drafting Committee on substantive gender equality and in the Economic and Social Committee of Greece. She coordinated for UNCHR the Racist Violence Recording Network in Greece and she has gained extended experience working with civil society organizations on hate crimes, racism, and discrimination against migrants and refugees, LGBTI persons, persons with disabilities, and religious minorities. Éva Szeli is a Hungarian-​American psychologist and lawyer, specializing in the human rights of persons with mental disabilities. As the Budapest-​based Director of European Programs for Mental Disability Rights International (MDRI, a non-​governmental organization in Washington DC, now known as Disability Rights International, or DRI), Dr Szeli’s work included human rights investigations and advocacy training in Bulgaria, Estonia, Hungary, Kosovo, Latvia, Russia, Serbia, and Ukraine, as well as numerous presentations on mental disability rights for United Nations and European Union bodies. Before joining MDRI, Dr Szeli worked as a staff psychologist in the US Department of Veterans Affairs; served as a clinician and consultant in private practice; and taught courses in psychology and the law at the University of Miami’s Department of Psychology. After leaving MDRI and returning to the United States, she taught distance-​learning courses in mental disability law as an Adjunct Professor of Law at New York Law School. She is currently a Senior Lecturer on the psychology faculty of Arizona State University. She co-​edited the first textbook on International Human Rights and Mental Disability (with Michael L Perlin et al) and continues to work as an educator and consultant on mental disability rights issues. Mary Pat Treuthart is a Professor of Law at Gonzaga University. She began her law teaching career after serving a judicial clerkship and working at Warren County Legal Services in New Jersey as a staff attorney and the program director where her primary caseload consisted of civil cases including family law, domestic violence, housing, consumer, public entitlements, and civil commitment matters. Professor Treuthart joined the Gonzaga law faculty in 1989 and was a Fulbright Scholar and Lecturer at Marie Curie Sklodowska University in Lublin, Poland (spring 2002) and served as a Legal Specialist for the ABA-​CEELI program in Pristina, Kosovo (Fall 2006). She is a faculty advisor to 

Contributor Biographies

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the Gonzaga Journal of International Law and served as a coach to the Jessup Moot Court team. Professor Treuthart is a member of the Pennsylvania bar. She taught previously at Duquesne University School of Law, Nevada School of Law, Golden Gate University School of Law, and University of San Diego Institute of International and Comparative Law (Dublin). She was a consultant for the National Center on Women and Family Law in New York City and a former faculty member at the National Judicial College and the National Council on Family and Juvenile Court Judges in Reno, Nevada. Stefan Trömel is since 2013 Senior Disability Specialist in the International Labour Organization. Before his current position, he was between 2008 and 2013 Coordinator and then Executive Director of the International Disability Alliance (IDA). Between 1999 and 2004 he was Director of the European Disability Forum (EDF). In representation of EDF, he was actively involved in the negotiation process of the UN Convention on the Rights of Persons with Disabilities. Eliza Varney is a Senior Lecturer in Law at Keele University. She completed her LLB at the University of Hull (1999), her LLM in Romania (2001) and her PhD at the University of Hull (2006). Eliza’s research is in disability equality, focusing on access to information and communication technologies and on the implementation of the UN Convention on the Rights of Persons with Disabilities. She is also conducting research on disability equality and Contract Law and on the participation of disabled people’s user-​led organizations (DPULOs) to public consultations. Her publications include the monograph Disability and Information Technology (Cambridge University Press 2013), book chapters and articles in Legal Studies, the Northern Ireland Legal Quarterly, Communications Law, Utilities Law Review, and Zeitschrift fur Rechtssoziologie. Penelope Weller is a Professor and Director of the Juris Doctor Program in the Graduate School of Business and Law at RMIT University, Melbourne, Australia. She is an expert in health law, mental health law and consumer rights. Her research is primarily concerned with the application of the Convention on the Rights of Persons with Disabilities. She teaches Administrative Law, Human Rights Law, Jurisprudence, and Innovative Justice. Outside the University, she is a Community Member of the Mental Health Tribunal in Victoria, Australia. She is the author of the monograph New Law and Ethics in Mental Health Advance Directives: The Convention on the Rights of Person with Disabilities and the Right to Choose (Routledge 2013).



Abbreviations ACHPR ACHR ACtHR ACM Trans Comput Educ ADA ADAPT ADRIP Afr J Disability AHC AHRLR AIDS AIR AIS Akron L Rev Am Crim L Rev Am J Phys Med Rehabil  Journal Am J Public Health Am U Int’l L Rev AJIL Albany Gov’t L Rev Alb LJ Sci & Tech ANED APA APF

African Commission on Human and Peoples’ Rights American Convention of Human Rights African Court of Human and People’s Rights ACM Transactions on Computing Education Americans with Disabilities Act (USA) Americans with Disabilities for Accessible Public Transportation American Declaration on the Rights of Indigenous Peoples African Journal of Disability Ad Hoc Committee African Human Rights Law Reports Acquired Immune Deficiency Syndrome All India Reports Accessibility Information Schemes Akron Law Review American Criminal Law Review American Journal of Physical Medicine & Rehabilitation

Appl and Prevent Psychol Arch Phys Med Rehabil ASD ASP AT ATMs

American Journal of Public Health American University International Law Review American Journal of International Law Albany Government Law Review Albany Law Journal of Science and Technology Academic Network of European Disability Experts American Psychological Association Asia-​Pacific Forum of National Human Rights Institutions Applied & Preventive Psychology Archives of Physical Medicine and Rehabilitation autism spectrum disorder Assembly of Parties Assistive Technology Automatic Teller Machines

Behav Sci and L Berkeley J Int’l Law Berkeley Tech LJ bis Buffalo L Rev BYIL

Behavioral Sciences & the Law Berkeley Journal of International Law Berkeley Technology Law Journal twice (second version) Buffalo Law Review British Yearbook of International Law

l CAL Cal L Rev Can J Hum Rts CAS Case W Res L Rev CAT CAT Ctee CBC CBR CDPA CDPPAT CED CED Ctee CEDAW CERD CESCR CHRA CIDT CIDTP CJEU Clinical L Rev CMLRev CMW CO CoE CONADIS COP COSP CPAPFD CPT CRC CRC Ctee CRDP CRIA CRPD CRPD-​OP CSIE CSOs 

Abbreviations Canadian Association of Living California Law Review Canadian Journal of Human Rights Court of Arbitration for Sport Case Western Reserve Law Review Convention Against Torture Committee on the Convention Against Torture Canadian Broadcasting Corporation Community Based Rehabilitation Copyright, Designs, and Patents Act China Disabled People’s Performing Art Troupe Convention for the Protection of All Persons from Enforced Disappearances Committee on the Convention on Enforced Disappearances Convention on the Elimination of All Forms of Discrimination against Women Convention on the Elimination of all Forms of Racial Discrimination Committee on Economic, Social and Cultural Rights Canadian Human Rights Act cruel, inhuman or degrading treatment inhuman or degrading treatment or punishment Court of Justice of the European Union Clinical Law Review Common Market Law Review Convention on the Protection of the Rights of All Migrant Workers and Members of their Families Concluding Observations Council of Europe National Register for the Disabled conference of parties Conference of States Parties Convention for the Protection of All Persons from Forced Disappearance Committee on the Prevention of Torture (Council of Europe) Convention on the Rights of the Child Committee on the Rights of the Child Concurrent Retirement and Disability Payments child rights impact assessment Convention on the Rights of Persons with Disabilities The Optional Protocol to the International Convention on the Rights of Persons with Disabilities Centre for Studies on Inclusive Education civil society organizations

Abbreviations CSR Ctee CUD CUP CVIPA

corporate social responsibility Committee Centre for Universal Design Cambridge University Press Copyright (Visually Impaired Persons) Act

DALY DESA Dev Pract DIG DIHR Disabil Health J Disabil Rehabil Disabil Soc Doc DOTCOM DPAC DPI DPOs DRPI DSA Duke J Int’l & Comp L

Disability Adjusted Life Years Department of Economic and Social Affairs Development in Practice Disabled Income Group Danish Institute for Human Rights Disability and Health Journal Disability and Rehabilitation Disability & Society Document Disability Online Tool of the [EU] Commission Disabled People Against Cuts Disabled Peoples’ International Disabled Persons Organizations Disability Rights Promotion International daily subsistence allowance Duke Journal of International and Comparative Law

EC ECCL ECHR ECJ ECOSOC ECSCAP

European Commission European Coalition for Community Living European Convention on Human Rights European Court of Justice Economic and Social Council (UN) Economic Commission for Latin America and the Caribbean (UN) electro convulsive therapy European Court of Human Rights Editor European Disability Forum Edition Editors European Foundation Centre Economic, Social and Cultural Rights Economic and Social Rights Economic and Social Commission for Asia and the Pacific Et alii (and others) Euro Telecom International et sequens (and the following) European Union European Anti-​Discrimination Law Review EU Charter of Fundamental Rights

ECT ECtHR ed EDF edn eds EFC ESCR ESR ESCAP et al ETI et seq EU Eur Anti-​Disc L Rev EUCFR

li



lii

Abbreviations

Eur Hum Rts L Rev Eur J Health L EWCA EWHC

European Human Rights Law Review European Journal of Health Law England and Wales Court of Appeal England and Wales High Court of Justice

FAO Fordham L Rev FRA Frontiers L China FYROM

Food and Agriculture Organization Fordham Law Review European Union Agency for Fundamental Rights Frontiers of Law in China former Yugoslav Republic of Macedonia

Ga J Int’l and Comp L GAOR GC GDP GDPR German Yearbook of Int’l L Geo J Int’l Aff Geo Wash Int’l L Rev GF Griffith L Rev

Georgia Journal of International & Comparative Law General Assembly Official Records General Comment Gross Domestic Product General Data Protection Regulation German Yearbook of International Law Georgetown Journal of International Affairs George Washington International Law Review Global Fund Griffith Law Review

Harv Hum Rts J Harv J L & Gender HIV HRC HRCtee HRLR HRQ Hum Rts Brief

Harvard Law School Human Rights Journal Harvard Journal of Law & Gender Human Immunodeficiency Virus Human Rights Council Human Rights Committee (UN) Human Rights Law Review Human Rights Quarterly Human Rights Brief

IAAF IACED

International Association of Athletics Federations Inter-​American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities Inter-​American Commission of Human Rights Inter-​American Court of Human Rights International Atomic Energy Agency Inter-​Agency Support Group (UN) International Civil Aviation Organization International Criminal Court International Covenant on Civil and Political Rights International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights

IACommHR IACtHR IAEA IASG ICAO ICC ICCPR ICERD ICESCR 

Abbreviations ICESCR-​OP ICF ICJ ICLQ ICMW ICON ICRC ICSID ICT(s) ID IDA IDC IDEA IEP IGM IHL IHRL ILM IJDL IJHR IL ILC ILM ILO ILSA IMF Intercultural Hum Rts L Rev Int’l J Children’s Rights Int’l J L & Psychiatry Int J L C Int’l J L & Fam Int’l J Refugee L Int’l Rev Law, Computers &  Technology IPC ISO ISPRM ITU ITU-​T

liii

Optional Protocol to the International Covenant on Economic, Social and Cultural Rights International Classification of Functioning, Disability and Health International Court of Justice International & Comparative Law Quarterly International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families International Journal of Constitutional Law International Committee of the Red Cross International Centre for Settlement of Investment Disputes information and communication technology(-​ies) intellectual disability International Disability Alliance International Disability Caucus Individuals with Disabilities Education Act Individualized Education Program intersex genital mutilations international humanitarian law international human rights law International Legal Materials International Journal of Discrimination and the Law International Journal of Human Rights Independent Living International Law Commission International Legal Materials International Labour Organization International Law Students Association International Monetary Fund Intercultural Human Rights Law Review International Journal of Children’s Rights International Journal of Law and Psychiatry International Journal of Law in Context International Journal of Law and the Family International Journal of Refugee Law International Review of Law, Computers & Technology International Paralympic Committee International Organization for Standardization International Society of Physical and Rehabilitation  Medicine International Telecommunication Union Telecommunication Standardization Sector of the International Telecommunications Union 

liv JAMA JDF J Air L & Com J Contemp Health L and Pol’y J High Tech L J Hum Rts J Intellectual Disabilities J Intellectual Disability  Research JIL JL and Health JL & Pol’y for Info Soc’y J Pediatr Surg J Psychiatry and L J Rehabil Med J Travel Res

Abbreviations Journal of the American Medical Association Japan Disability Forum Journal of Air Law and Commerce Journal of Contemporary Health Journal of High Technology Law Journal of Human Rights Journal of Intellectual Disabilities J Intellectual Disability Research Journal of International Law Journal of Health and Law Journal of Law and Policy for the Information Society Journal of Pediatric Surgery Journal of Psychiatry & Law Journal of Rehabilitation Medicine Journal of Travel Research

Law and Policy Law & Inequality: A Journal of Theory and Practice Law and Psychology Review Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex LGBTQI Lesbian, Gay, Bisexual, Transgender, Queer or Questioning, and Intersex LOI List of Issues LRC Learning in Regular Classrooms LSN Landmine Survivors Network Loy L A Int’l & Comp Law Rev Loyola of Los Angeles International and Comparative Law Review Loyola L Rev Loyola of Los Angeles Law Review L & Pol Law and Ineq Law and Psychol Rev LGBTI

Maine L Rev MCA MDAC MdDS MDGs Md L Rev MDRI Medical L Rev Melb U L Rev MICS Mich St U J Med and L MI Principles MIT Mod L Rev 

Maine Law Review Mental Capacity Act 2005 of England and Wales Mental Disability Advocacy Centre Mal de Debarquement Syndrome Millennium Development Goals Maryland Law Review Mental Disability Rights International Medical Law Review Melbourne University Law Review Multiple Indicator Cluster Surveys Michigan State University Journal of Medicine and Law Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Massachusetts Institute of Technology The Modern Law Review

Abbreviations MOLSA MoU MNCs Monash U L Rev MP MVT

Ministry of Labour and Social Affairs memorandum of understanding multinational corporations Monash University Law Review Member of Parliament Marrakesh VIP Treaty

n NACLC

footnote National Agency Check with Local Record and Credit Checks Non-​governmental organizations National Human Rights Institutions National Health System National Journal of Comparative Law Northern Kentucky Law Review National Library for the Blind New Law Journal Number Nordic Journal of International Law National Preventive Mechanisms New York Law School New York Law School Journal of Human Rights New York Law School Journal of International and Comparative Law New York Law School Law Review

NGOs NHRIs NHS NJCL N Ky L Rev NLB New LJ No Nordic JIL NPM NYLS NY L Sch J Hum Rts NY L Sch J Int’l and Comp NYL Sch L Rev

lv

OUP

Organization for Economic Cooperation and Development Office of the High Commissioner for Human Rights Official Journal (EU) Official Journal of the European Union (Communications) Official Journal of the European Union (Legislation) UN Office for Legal Affairs Optional Protocol Optional Protocol to the Convention against Torture Optional Protocol to the Convention on the Elimination of Discrimination against Women Optional Protocol to the Convention on the Rights of Persons with Disabilities Oxford University Press

Pac Rim L & Pol’y J para(s) PANTOU PCIJ Penn St L Rev

Pacific Rim Law & Policy Journal paragraph(s) European Accessible Tourism Directory Permanent Court of International Justice Penn State Law Review

OECD OHCHR OJ OJ C OJ L OLA OP OP-​CAT OP-​CEDAW OP-​CRPD



lvi

Abbreviations

PFL PGA Tour Psychiatry, Psychol and L PWD PWDA

Person-​First Language, People First Language professional golf tours Psychiatry, Psychology and Law persons with disabilities People with Disability Australia

QALY Q Rev Econ Finance

Quality Adjusted Life Years The Quarterly Review of Economics and Finance

REIOs RENIEC Res Rev Jur UPR RI RNIB RNID RTD

regional economic integration organizations National Identity and Civil Status Registry Resolution Revista Jurídica UPR Rehabilitation International Royal National Institute of Blind People Royal National Institute for the Deaf right to development

Social Accountability South Carolina Law Review Subcommittee on Prevention of Torture Subcommittee on Prevention of Torture Secretariat for the Convention on the Rights of Persons with Disabilities SCSs Second–​Chance Schools SDGs Sustainable Development Goals Seton Hall J Dipl & Int’l Rel Seton Hall Journal of Diplomacy and International Relations SLPs Sign Language Peoples SREOPD Standard Rules on the Equalization of Opportunities for Persons with Disabilities (UN) SRP Simplified Reporting Procedure SRV social role valorization Stan J Int’l L Stanford Journal of International Law Stan L Rev Stanford Law Review St John’s L Rev St John’s Law Review StRE UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities SWD students with disabilities Syracuse J Intl L & Com Syracuse Journal of International Law and Commerce SA SC L Rev SCP SCP-​OPCAT SCRPD

TFEU TJ T Jefferson L Rev TRIPS 

Treaty on the Functioning of the European Union therapeutic jurisprudence Thomas Jefferson Law Review Trade-​Related Aspects of Intellectual Property Rights Convention

Abbreviations UAE U Chi L Rev UCLA L Rev U Chi L Rev UDHR UDL U Haw L Rev UK UKSC UKUT U Miami L Rev U Mich J L Reform Utrecht J Int’l & Eur L UN UNCSD UNDESA UNDG UNDP UNESCAP UNESCO UNGA UNHCR UNICEF UNISDR UNRRA UNTS UPIAS UPR US USA U SF L Rev

United Arab Emirates University of Chicago Law Review University of California Los Angeles Law Review University of Chicago Law Review Universal Declaration of Human Rights Universal Design for Learning University of Hawaiʻi Law Review United Kingdom Supreme Court of the United Kingdom United Kingdom Upper Tribunal University of Miami Law Review University of Michigan Journal of Law Reform Utrecht Journal of International and European Law United Nations United Nations Conference on Sustainable Development United Nations Department of Economic and Social Affairs United Nations Development Group United Nations Development Programme United Nations Economic and Social Commission for Asia and the Pacific United Nations Educational, Scientific and Cultural Organization United Nations General Assembly United Nations High Commissioner for Refugees United Nations Children’s Fund United Nations International Strategy for Disaster Reduction United Nations Relief and Rehabilitation Administration United Nations Treaty Series Union of the Physically Impaired Against Segregation universal periodic review United States of America United States of America University of San Francisco Law Review

Vol

Virginia Law Review Vanderbilt Law Review Vienna Convention on the Law of Treaties blind, visually impaired and otherwise print disabled individuals Volume

WASH Wash L Rev

Water Sanitation and Hygiene Washington Law Review

Va L Rev Vand L Rev VCLT VIPs

lvii



lviii

Abbreviations

WBU WCA WFD WG WHO WIPO Wm & Mary L Rev WNSUP WPA WTO WWDA WWII

World Blind Union Work Capability Assessment World Federation of the Deaf Washington Group on Disability Statistics World Health Organization World Intellectual Property Organization William & Mary Law Review World Network of Users and Survivors of Psychiatry World Psychiatric Association World Trade Organization Women with Disabilities Australia Second World War

Yale Hum Rts and Dev LJ Yale J Int’l L

Yale Human Rights & Development Law Journal Yale Journal of International Law

Yale LJ

Yale Law Journal



Table of Treaties and International Instruments 1840 Treaty of Waitangi . . . . . . . . . . . . . . . . . 901 1883 Paris Convention . . . . . . . . . . . . . . . . . . 894 1886 Berne Convention . . . . . . . . . . . . . . . . . 894 Art. 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 894n Art. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 894n 1891 Madrid Agreement . . . . . . . . . . . . . . . . 894 1929 Warsaw Convention for the Unification of Certain Rules Relating to International Transportation by Air . . . . . . . . . . . . . . 575n Art. 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575n 1930 ILO Forced Labour Convention No 29 . . . . . . . . . . . . . . . . . 799 Art. 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799 Art. 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 799n Art. 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799n 1945 Charter of the United Nations (UN Charter) . . . . . . 1–​2, 8–​9, 18, 29, 43, 51, 85n, 142, 144, 318n, 956, 959n, 984, 1014, 1062n, 1088, 1098, 1144 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . 18n Para. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 142n Para. 2 . . . . . . . . . . . . . . . . . . . . 142n, 144n Art. 1 . . . . . . . . . . . . . . . . . . . . . . . . 43n, 1088 Art. 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 956n Art. 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088 Art. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110n Art. 7(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Art. 13 . . . . . . . . . . . . . . . . . . . . . 1088n, 1121 Art. 13(1)(b) . . . . . . . . . . . . . . . . . . . . . . 1121n Art. 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Art. 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1201 Art. 55 . . . . . . . . . . . 142n, 144n, 959n, 1088 Art. 56 . . . . . . . . . . . . . . . . . 142n, 959n, 1088 Art. 57 . . . . . . . . . . . . . . . . . . . . . . . . . 1108–​9 Art. 62 . . . . . . . . . . . . . . . . . . . . . 1088n, 1121 Art. 62(2) . . . . . . . . . . . . . . . . . . . . . . . . . 1121n Art. 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Art. 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106 Art. 96(2) . . . . . . . . . . . . . . . . . . . . . . 1115–​16 Art. 102 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148 Constitution of the Food and Agriculture Organization Art. II . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163n Statute of the International Court of Justice Art. 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1214

1946 Convention on the Privileges and Immunities of the United Nations Art. VI, s. 22(b) . . . . . . . . . . . . . . . . . . . . 1037n Art. VI, s. 23 . . . . . . . . . . . . . . . . . . . . . . 1036n Art. VII . . . . . . . . . . . . . . . . . . . . . . . . . . 1037n World Health Organization Constitution Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . 741n 1948 Genocide Convention . . . . . . . . . . . . . 1177 Universal Declaration of Human Rights (UDHR) 1948 . . . . 1, 11, 18, 31–​2, 50–​1, 97, 142, 144, 200, 296, 374, 384–​5, 390, 427, 495, 513, 622, 657–​8, 694–​5, 711n, 780, 802, 806, 808, 812, 823, 832, 836, 875n, 890–​1, 911, 1061 Preamble . . . . . . . . . . . . . . . . . . . . . . 50n, 51n Para. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . 144n Art. 1 . . . . . . . . . . . . . . . . . . . . . . . . . 51n, 142 Art. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 Art. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Art. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349 Art. 7 . . . . . . . . . . . . . . . . . . . . 144, 156n, 348 Art. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386 Art. 12 . . . . . . . . . . . . . . . . . . . . . . . . . 93, 604 Art. 13 . . . . . . . . . . . . . . . . 273, 513, 781, 911 Art. 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513 Art. 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629 Art. 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374n Art. 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 Art. 21 . . . . . . . . . . . . . . . . 97n, 144, 835, 850 Art. 22 . . . . . . . . . . . . . . . . . . 812n, 832n, 872 Art. 23 . . . . . . . . . . . . . . . . . . . 802, 812n, 813 Art. 23(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Art. 23(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 144n Art. 23(3) . . . . . . . . . . . . . . . . . . . . 802n, 812n Art. 24 . . . . . . . . . . . . . . . . . 780, 866, 910–​11 Art. 25 . . . . . . . . . . . . 711, 812, 813–​14, 872 Art. 25(1) . . . . . . . . . . 802, 806n, 808n, 812n, 823n, 832n Art. 25(2) . . . . . . . . . . . . . . . . . . . . . 629, 812n Art. 26 . . . . . . . . . . . . . . 658n, 659, 670, 872 Art. 26(1) . . . . . . . . . . . . . . . . . . . . . 659, 670n Art. 26(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 50n Art. 26(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 694 Art. 27 . . . . . . . . . . . . . . . . . . . . . . . 872, 875n Art. 27(1) . . . . . . . . . . . . . . 97n, 781, 866, 911 Art. 27(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 890n Art. 29(1) . . . . . . . . . . . . . . . . . . . . . . 31n, 531

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UNGA Res 217 . . . . . . . . . . . . . . . . . . 18n, 513n UNGA Res 217A (III) . . . . . . . 90n, 658n, 835n 1949 Convention for the Suppression of the Traffic in Persons and for the Exploitation of Prostitution of Others . . . . . . . . . . . . . . . . . . . . . . . 1171n Geneva Conventions of 1949 (Common Articles) . . . . . . . . . . . . . . . 4, 322 Art. 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 320n Art. 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 320n Art. 3 . . . . . . . . . . . . . . . . . . . . . . . . 320n, 321 Art. 3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 321n Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1949 Art. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321n Art. 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321n Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea 1949 Art. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321n Art. 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321n Geneva Convention (III) relative to the Treatment of Prisoners of War 1949 . . . . . . . . . . . . . . . . . . . . . . 316 Art. 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321n Art. 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322n Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War 1949 . . . . . . . . . . . . . . . . . . . 3 Art. 16 . . . . . . . . . . . . . . . . . . . . . . 321n, 322n Art. 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322n Art. 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322n Art. 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322n Art. 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321n 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms . . . . . 79, 91–​2, 97, 218, 223, 297, 323, 375, 407, 427, 442, 444, 453, 497, 499–​500, 541–​2, 610, 621, 836, 1158n, 1185 First Protocol Art. 1 . . . . . . . . . . . . . . . . . 218, 300n, 375n Art. 2 . . . . . . . . . . . . . . . . . . . . . . 676n, 677 Art. 3 . . . . . . 97n, 836n, 848, 849n, 1069n Protocol 12 Art. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 657n Art. 1 . . . . . . . . . . . . . . . . . . . . . . . . . 447, 621 Art. 2 . . . . . . . . . . . . . . . . . . . . 298, 312, 324n Art. 3 . . . . . . . . . . . . 324n, 414n, 437, 444–​5, 450–​1, 453–​4,  463–​4



Art. 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 324n Art. 5 . . . . . . . . . 406n, 407, 423–​4, 437, 541 Art. 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 541–​2 Art. 5(1)(e) . . . . . . . . . . . . . . . . . 423, 438, 541 Art. 5(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 541–​2 Art. 5(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541 Art. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439 Art. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324n Art. 8 . . . 208n, 223, 297–​8, 323n, 437, 439, 452, 497–​9, 560, 579, 605, 609–​10, 612–​13, 615, 618–​21, 629, 919n Art. 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 619 Art. 8(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 610n Art. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97n Art. 10(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 622 Art. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629 Art. 14 . . . . . . . . . 73n, 95, 218, 300n, 657n, 676n, 677, 919n Art. 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 Art. 15(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 324n Art. 32(2)(b) . . . . . . . . . . . . . . . . . . . . . . 1229n UNESCO Agreement on the Importation of Education, Scientific and Cultural Materials (Florence Agreement) Annexes A to E . . . . . . . . . . . . . . . . . . . . . 880n 1951 ILO Equal Remuneration Convention (C100) . . . . . . . . . . . . . . . . 777 Art. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 777 Refugee Convention . . . . . . . . . . . . . . . 199, 334 Art. 1A(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 334 Art. 39(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 1147 Art. 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148 1952 Optional Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms Art. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374n Social Security (Minimum Standards) Convention 1952 . . . . . . . . . . . . . . . . . . 812 Art. 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 812n 1954 Convention relating to the status of Stateless Persons . . . . . . . . . . . 521n 1957 Treaty on the Functioning of the European Union (TFEU) Title II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939 Art. 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939 Art. 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Art. 114 . . . . . . . . . . . . . . . . . . . . . . 938, 1168 Art. 216 . . . . . . . . . . . . . . . . . . . 1153n, 1160n Art. 216(2) . . . . . . . . . . . . . . . . . . . . . . . . 1160n Art. 218 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Art. 338 . . . . . . . . . . . . . . . . . . . . . . . . . . 936–​7

Table of Treaties and International Instruments 1961 Convention on the Reduction of Statelessness . . . . . . . . . . . . . . . . . . . 521n Vienna Convention on Consular Relations 138n 1965 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) . . . . . 1, 50, 71–​4, 121n, 141, 145, 147, 149, 160, 168, 239, 247n, 374, 380, 384, 513, 568, 812, 836n, 982, 1014, 1025, 1124, 1196n, 1219n, 1251n Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . 51n Paras 1–​3 . . . . . . . . . . . . . . . . . . . . . . . . 145n Art. 1 . . . . . . . . . . . . . . . . . . . . . 71n, 74n, 75n Art. 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50n Art. 1(4) . . . . . . . . . . . . . . . . . . . . . . . 50n, 145 Art. 2 . . . . . . . . . . . . . . . . . . . . . . . . . 120, 866 Art. 2(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75n Art. 2(1)(d) . . . . . . . . . . . . . . 124, 380n, 921n Art. 2(1)(e) . . . . . . . . . . . . . . . . . . . . . . . . . 160n Art. 2(2) . . . . . . . . . . . . . . . . . . . . . . 50n, 160n Art. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380n Art. 5 . . . . . . . . . . . . . . . . . . . . . . . 145n, 836n Art. 5(vi) . . . . . . . . . . . . . . . . . . . . . . . . . . . 872 Art. 5(a) . . . . . . . . . . . . . . . . . . . . . 157n, 384n Art. 5(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97n Art. 5(d)(i) . . . . . . . . . . . . . . . . . . . . . 567, 569 Art. 5(d)(i) . . . . . . . . . . . . . . . . . . . . . . . . . 513n Art. 5(d)(ii) . . . . . . . . . . . . . . . . . . . . . . . . 513n Art. 5(d)(iii) . . . . . . . . . . . . . . . . . . . . . . . . 513n Art. 5(d)(v) . . . . . . . . . . . . . . . . . . . . . . . . 374n Art. 5(e)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Art. 5(e)(iv) . . . . . . . . . . . . . . . . . . . . . . . . 812n Art. 5(e)(vi) . . . . . . . . . . . . . . . . . . . 866, 893n Art. 5(f ) . . . . . . . . . . . . . . . . . . . 102, 273, 853 Art. 6 . . . . . . . . . . . . . . . . . . . . 50n, 75n, 384n Art. 7 . . . . . . . . . . . . . . 160n, 238, 380n, 568 Art. 8(1) . . . . . . . . . . . . . . . . . . . 1025n, 1028n Art. 8(6) . . . . . . . . . . . . . . . . . . . . . . . . . . 1196n Art. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046n Art. 9(2) . . . . . . . . . . . . . . . . . . . . 1120n, 1124 Art. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034n Art. 14(7) . . . . . . . . . . . . . . . . . . . . . . . . . 1227n Art. 14(7)(b) . . . . . . . . . . . . . . . . . . . . . . 1247n 1966 ICSID (International Centre for the Settlement of Investment Disputes) Convention . . . . . . . . . . . . 1202n Art. 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1202n International Covenant on Civil and Political Rights (ICCPR) . . . . 1, 17, 41, 48, 50, 95, 97, 103, 109, 114, 142, 163, 200, 241, 290, 296, 323, 348n, 363, 372, 384–​5, 390, 406n, 427, 450, 495, 511n, 512–​17, 520, 563, 583, 586, 610, 612–​14, 619,

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621, 635, 715, 835, 841, 1014, 1018, 1040n, 1045, 1085n, 1099, 1124–​5, 1131, 1135, 1185, 1241 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . 85n Art. 2 . . . 95n, 108n, 323, 592n, 837n, 1099 Art. 2(1) . . . . . . . . . . . . . . . 49, 583, 621, 657n Art. 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386 Art. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103n Art. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 Art. 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 324n Art. 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613 Art. 5(2) . . . . . . . . . . . . . . . . . . . . . . . 113, 137 Art. 6 . . . . . . . . . . . . . . . . . . . 296n, 323, 324n Art. 6(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296 Art. 7 . . . . . . 323, 324n, 427–​8, 433, 444–​5, 447, 450, 453, 463 Art. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799 Art. 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 324n Art. 8(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 324n Art. 8(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Art. 9 . . . . . . . . . . . . . . . . . 93, 323, 422n, 770 Art. 10 . . . . . . . . . . . . 90, 93, 323, 422n, 463 Art. 10(1) . . . . . . . . . . . . . . . . . . 51n, 323, 463 Art. 11 . . . . . . . . . . . . . . . . . . . . . . 324n, 422n Art. 12 . . . . . . . 93, 273, 511n, 512–​13, 516, 531, 563, 612, 715 Art. 12(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 513 Art. 12(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 526 Art. 12(3) . . . . . . . . . . . . . . . . . . 512, 514, 525 Art. 14 . . . . . . . . . . . . . . . . . . . . . . . . 388, 440 Art. 14(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 157n Art. 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324n Art. 15(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . 866 Art. 16 . . . . . . . . . . . . . . . . . . . . . . . 324n, 349 Art. 17 . . . . . . . . . . . 93, 604–​5, 607, 609–​10, 612–​15, 619–​23,  625 Art. 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324n Art. 19 . . . . . . . . . . . . . 97n, 583–​4, 586, 612 Art. 19(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 586n Art. 19(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 Art. 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 835n Art. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629 Art. 24 . . . . . . . . . . . . . . . . . . 511n, 513n, 629 Art. 24(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 520n Art. 25 . . . . . . . . 97n, 514n, 835n, 838, 840, 843n, 850, 859 Art. 25(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 861 Art. 25(c) . . . . . . . . . . . . . . 102, 273, 717, 853 Art. 26 . . . . . . . . . . . . 95n, 144–​5, 157n, 159, 165, 323, 348, 657n Art. 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907 Art. 28(2) . . . . . . . . . . . . . . . . . . . . . . . . . 1025n Art. 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034n



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Art. 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036n Art. 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035n Art. 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025n Art. 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034n Art. 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046n Art. 40(3) . . . . . . . . . . . . . . . . . . 1106n, 1115n Art. 41(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 50n Art. 45 . . . . . . . . . . . . . . . . . . . . 1120n, 1121n Art. 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 Art. 51(3) . . . . . . . . . . . . . . . . . . . . . . . . . 1191n International Covenant on Economic, Social and Cultural Rights (ICESCR) . . . . . . 1, 17, 41, 48, 50, 95, 97, 103, 109, 112, 114, 116, 117n, 119–​20, 123–​4, 131, 133, 134n, 142, 144–​5, 175, 176n, 200, 324, 385, 516, 531, 538, 583, 586, 657–​8, 666, 694–​5, 711, 712n, 716–​18, 738, 802, 806, 811, 816, 832, 868, 898, 910–​11, 923, 959n, 1014, 1025, 1040n, 1045, 1085n, 1099, 1210, 1212 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . 85n Art. 2 . . . . 95n, 112, 131, 716n, 1099, 1101 Art. 2(1) . . . . . . . . 111–​12, 592n, 658, 773n, 811, 956n Art. 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324 Art. 3 . . . . . . . . . . . . . . . . . . . . . . . 103n, 144n Art. 4(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 324n Art. 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Art. 6 . . . . . . . . . . . . . . . . . . . . . . . . . 767, 771 Art. 7 . . . . . . . . . . . . . . . . . . . . 144n, 767, 777 Art. 7(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Art. 7(d) . . . . . . . . . . . . . . . . . . . . . . . 780, 911 Art. 9 . . . . . . . . . . . . . . . . . . . 804n, 812, 832n Art. 10 . . . . . . . . . . . . . . . . . . . . . . . . 629, 812 Art. 10(2)-​(3) . . . . . . . . . . . . . . . . . . . . . . 812n Art. 11 . . . . . . . . . 193n, 324, 804n, 810, 816 Art. 11(1) . . . . . . . . . . . . . . . 802n, 806n, 956n Art. 11(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 956n Art. 12 . . . . . . 324, 706n, 711, 713–​14, 717, 720, 726, 741, 742n, 910 Art. 12(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 144n Art. 12(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 711 Art. 13 . . . . . . . . . 90, 144n, 658n, 666n, 670 Art. 13(1) . . . . . . . . . . . . . . . . . 51n, 659, 670n Art. 13(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 50n Art. 13(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 679 Art. 13(2a) . . . . . . . . . . . . . . . . . . . . . . . . . . 679 Art. 13(2b) . . . . . . . . . . . . . . . . . . . . . . . . . . 679 Art. 13(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 694 Art. 14 . . . . . . . . . . . . . . . . . . . . . . 658n, 666n Art. 15 . . . . . . . . . . . . . . . . . . . . . . . . 97n, 899 Art. 15(1)(a) . . . . . . . . . . . . . . 872, 893n, 898 Art. 15(1)(c) . . . . . . . . . . . . . . . . . . . . . . . 890n



Art. 15(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 956n Art. 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046n Art. 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046n Art. 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50n Art. 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1120n Art. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959n Art. 29(3) . . . . . . . . . . . . . . . . . . . . . . . . . 1191n 1969 American Convention on Human Rights . . . . . . . 123n, 291n, 294n, 427, 836, 1201 Art. 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 291n Art. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291n Art. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434 Art. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422n Art. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 604 Art. 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629 Art. 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629 Art. 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374n Art. 23 . . . . . . . . . . . . . . . . . . . . . . 836n, 849n Art. 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95n Art. 46(1)(c) . . . . . . . . . . . . . . . . . . . . . . 1229n Art. 62(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1201 Vienna Convention on the Law of Treaties . . . . . . . . . 3n, 7, 36, 89, 1085n, 1157n, 1169, 1175, 1177, 1189, 1199 Art. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226n Art. 2(1)(b)(bis) . . . . . . . . . . . . . 1152n, 1173n Art. 2(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . 1175 Arts 10–​12 . . . . . . . . . . . . . . . . . . . . . . . . 1152n Art. 10(1)(b) . . . . . . . . . . . . . . . . . 1151, 1158 Art. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157n Art. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157n Art. 14(2) . . . . . . . . . . . . . . . . . . . . . . . . . 1157n Art. 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159n Art. 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1153n Art. 18(a) . . . . . . . . . . . . . . . . . . . . . . . . . 1151n Art. 18(1)(a) . . . . . . . . . . . . . . . . . . . . . . 1153n Art. 19(c) . . . . . . . . . . . . . . . . . 36n, 524, 1177 Art. 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1177n Art. 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1178 Art. 23(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 1186 Art. 24(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Art. 24(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Art. 25(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Art. 26 . . . . . . . . . . . . . . . . . . 122, 1088, 1192 Art. 31 . . . . . . . . . . 7, 89n, 189n, 373n, 1215 Art. 31(1) . . . . . . . . . . . . . . . . 3n, 1085n, 1109 Art. 31(2) . . . . . . . . . . . . . . . . . . . . . 7n, 1085n Art. 31(3) . . . . . . . . . . . . . . . . . . . . . . . . . 1085n Art. 31(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . 206 Art. 31(3)(b) . . . . . . . . . . . . . . . . . 206, 1085n Art. 31(4) . . . . . . . . . . . . . . . . . . . . . . . . . 1085n

Table of Treaties and International Instruments Art. 32 . . . . . . . . . . . 373n, 995, 1085n, 1215 Art. 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215n Art. 33(3) . . . . . . . . . . . . . . . . . . . . . . . . . 1214n Art. 33(4) . . . . . . . . . . . . . . . . . . . 1215n, 1216 Art. 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Arts 39 et seq . . . . . . . . . . . . . . . . . . . . . . 1189n Art. 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Art. 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190n Arts 42–​43 . . . . . . . . . . . . . . . . . . . . . . . . 1198n Art. 42(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 Arts 42ff . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 Art. 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1202n Art. 44(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1200n Art. 44(2) . . . . . . . . . . . . . . . . . . . 1199n, 1200 Art. 44(3) . . . . . . . . . . . . . . . . . . . 1199n, 1200 Art. 44(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 1200 Art. 54(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 1202 Art. 54(b) . . . . . . . . . . . . . . . . . . . . . . . 1201–​2 Art. 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198n Art. 60 . . . . . . . . . . . . . . . . . . . . . 1199n, 1200 Art. 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1202 Art. 65(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1201 Art. 65(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 1202 Art. 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1202 Art. 66(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 1202 Art. 76(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 Art. 76(2) . . . . . . . . . . . . . . . . . . . . . . . . . 1148n Art. 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Art. 77(1)(a) . . . . . . . . . . . . . . . . . . . . . . 1147n Art. 77(1)(c) . . . . . . . . . . . . . . . . . . . . . . 1147n Art. 77(1)(d) . . . . . . . . . . . . . . . . . . . . . . 1147n Art. 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1216 Art. 79(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1216 Art. 79(2) . . . . . . . . . . . . . . . . . . 1148n, 1216n 1970 European Agreement Concerning Work of Crews of Vehicles Engaged in International Road Transport 1970 . . . . . . . . . . . . . 1166n Patent Cooperation Treaty . . . . . . . . . . . . . . . 894 1973 Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Art. 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163n 1974 Athens Convention relating to the Carriage of Passengers and Their Luggage by Sea . . . . . . . . . . 575n 1976 Optional Protocol to the ICCPR . . . . . . . . . . . . . . . . . . . . . 1219n Art. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Art. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227n Art. 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095 Art. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227n

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1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) . . . . . . . . 320n, 321n Art. 8(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 322n Art. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321n Art. 11(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 322n Art. 11(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 322n Art. 11(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 322n Art. 11(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 322n Art. 11(5) . . . . . . . . . . . . . . . . . . . . . . . . . . 322n Art. 11(6) . . . . . . . . . . . . . . . . . . . . . . . . . . 322n Art. 15(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 321n Art. 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322n Art. 41(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 321n Art. 69 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322n Art. 70(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 322n Art. 75(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 321n Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-​International Armed Conflicts (Protocol II) 1977 . . 320n, 321n Art. 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 321n Art. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321n Art. 9(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 321n Art. 18(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 322n 1978 UNESCO Charter of Physical Education, Physical Activity and Sport . . . . . . . . . . . . . . . . . . . . . . . . . 912 Art. 1(1) . . . . . . . . . . . . . . . . . . . . . . 910n, 912 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals Art. XV . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163n Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) . . . . . . 1, 50, 71, 73–​5, 77n, 85, 95, 103–​4, 141, 145, 147, 149, 160, 163, 168, 171n, 173–​4, 176, 189, 196, 199, 239, 247, 296, 325, 350, 374, 380, 384, 458, 513, 521, 707n, 812, 817, 823, 832, 836, 841–​2, 926n, 959n, 1014, 1024–​5, 1035, 1040n, 1124, 1126, 1128, 1151, 1157, 1164, 1172, 1196, 1199, 1215, 1225, 1231, 1236n, 1243, 1250 Preamble . . . . . . . . . . . . . . . . . . . . . . 51n, 85n Art. 1 . . . . . . . . . . . . . . . 50n, 71n, 74n, 145n Art. 2 . . . . . . . . . . . . 103n, 108n, 120, 1118n Art. 2(e) . . . . . . . . . . . . . . . . . 122, 380n, 921n Art. 3 . . . . . . . . . . . . . . 50n, 108n, 160n, 237 Art. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103n



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Table of Treaties and International Instruments

Art. 4(1) . . . . . . . . . . . . . . . . . . . . . . 101, 145n Art. 5 . . . . . . . . . . . . . . . . . . . . . . . 160n, 380n Art. 5(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238 Art. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145n Art. 7 . . . . . . . . . . . . . . . . . . 384n, 835n, 838n Art. 8 . . . . . . . . . . . . . . . . . . . 103n, 194, 384n Art. 9 . . . . . . . . . . . . . . . . . . . . . . . 103n, 513n Art. 10 . . . . . . . . . . . . . . . . . . . . . . 103n, 145n Art. 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 Art. 11 . . . . . . . . . . . . . . . . . . . . . . 103n, 145n Art. 11(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . 767 Art. 11(1)(e) . . . . . . . . . . . . 812n, 823n, 832n Art. 12 . . . . . . . . . . . . 103n, 145n, 712n, 726 Art. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103n Art. 13(c) . . . . . . . . . . . . 866, 873, 911n, 912 Art. 14 . . . . . . . . . . . . . . . . . . 103n, 145n, 817 Art. 14(2)(h) . . . . . . . . . . . . . . . . . . . . . . . 817n Art. 15 . . . . . . . . . . . . 103n, 157n, 165, 384n Art. 15(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 Art. 15(2) . . . . . . . . . . . . . . . . . . . . . . . 349–​50 Art. 15(4) . . . . . . . . . . . . . . . . . 513n, 567, 569 Art. 16 . . . . . . . . . . . . . . . . . . . . . . . 103n, 629 Art. 16(1)(h) . . . . . . . . . . . . . . . . . . . . . . . 374n Art. 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103n Art. 17(1) . . . . . . . . . . . 1025n, 1028n, 1062n Art. 17(8) . . . . . . . . . . . . . . . . . . . . . . . . . 1036n Art. 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1061n Art. 1046n . . . . . . . . . . . . . . . . . . . . . . . . 1046n Art. 19(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1034n Art. 20(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1196n Art. 21 . . . . . . . . 1120n, 1121n, 1122n, 1124 Art. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103n Art. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1189 Art. 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1062n Art. 29(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1062n Art. 29(2) . . . . . . . . . . . . . . . . . . . . . . . . . 1062n 1980 Agreement Establishing the Common Fund for Commodities Art. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1166n Convention concerning International Carriage by Rail (adopted 9 May 1980, entered into force 1 May 1985) . . . . . . . . . . . . . . . . . . . . . 575n 1982 Convention for the Conservation of Salmon in the North Atlantic Ocean (NASCO) Art. 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163n Convention on Future Multilateral Cooperation in North-​East Atlantic Fisheries Art. 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163n Convention on the Law of the Sea (UNCLOS) Annex IX . . . . . . . . . . . . . . . . . . . . . . . . . 1163n



Mexico City Declaration on Cultural Policies . . . . . . . . . . . . . . . . 877 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . 877n World Programme of Action concerning Disabled Persons . . . . . 1, 15n, 61, 97, 146, 173–​4, 200, 238, 737, 866, 879, 893n, 1141 Chapter F, paras 21–​30 . . . . . . . . . . . . . . 101n 1985 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) . . . . . 1, 28n, 384, 427, 442–​4, 446–​8, 450, 453, 459, 461–​3, 471, 1014, 1040n, 1045, 1128, 1196, 1219n, 1240–​2, 1245–​6, 1251, 1253 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . 51n Art. 1 . . . . . 427n, 443–​4, 447–​8, 450n, 454 Art. 2 . . . . . . . . . 427, 428n, 450, 480, 1227n Art. 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 480n Art. 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 427n Art. 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 427n Art. 3 . . . . . . . . . . . . . . 427n, 428n, 446, 450 Art. 4 . . . . . . . . . . . . . . . . . . . 428n, 450n, 451 Art. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227n Art. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384n Art. 14 . . . . . . . . . . . . . . . . . . . 384n, 490, 493 Art. 16 . . . . . . . . . . . . . . . . . . . . . . . . 443, 454 Art. 17(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1025n Art. 17(7) . . . . . . . . . . . . . . . . . . . . . . . . . 1196n Art. 18(5) . . . . . . . . . . . . . . . . . . . . . . . . . 1196n Art. 19 . . . . . . . . . . . . . . . . . . . . 1046n, 1061n Art. 20 . . . . . . . . . . . . . . 1080, 1096n, 1252n Arts 22(1)–​(5) . . . . . . . . . . . . . . . . . . . . . . 1242 Art. 22(5)(a) . . . . . . . . . . . . . . . . . . . . . . 1229n Art. 23(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 51n Art. 28(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 51n Art. 24 . . . . . . . . . . . . . . . . . . . . 1120n, 1122n Art. 29(3) . . . . . . . . . . . . . . . . . . . . . . . . . 1191n ILO Convention Concerning Vocational Rehabilitation and Employment (Disabled Persons) No 159 . . . . . 45, 174, 177n, 200, 738, 767 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . 101n Art. 4 . . . . . . . . . . . . . . . . . . . 101n, 174, 177n Art. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 739n Art. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 739n Art. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 739n 1986 African Charter on Human and People’s Rights (‘Banjul Charter’) . . . . 323, 427, 707n, 712n, 836 Art. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95n Art. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605 Art. 13 . . . . . . . . . . . . . . . . . . . . . . 836n, 849n

Table of Treaties and International Instruments Art. 13(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 849 Art. 14 . . . . . . . . . . . . . . . . . . . . . . 374n, 375n Art. 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Art. 16 . . . . . . . . . . . . . . . . . . . . . . 707n, 712n Art. 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629 Art. 18(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 1987 Montreal Protocol on Substances that Deplete the Ozone Layer Art. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959n Art. 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 959n 1988 Additional Protocol to the American Convention on Human Rights in the area of Economic, Social, and Cultural Rights (Protocol of San Salvador) . . . . . . . . 200, 707n, 712n Art. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Art. 10 . . . . . . . . . . . . . . . . . . . . . . 707n, 712n Art. 13(3)(e) . . . . . . . . . . . . . . . . . . . . . . . . 200 Art. 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 1989 Convention on the Rights of the Child (CRC) . . . . . 1–​2, 10, 27, 48, 50, 53, 85, 90, 95, 103–​5, 112, 145, 166, 174, 189, 199–​200, 202–​3, 205–​8, 212, 219, 221–​2, 224, 226, 227n, 247, 294–​7, 325–​6, 338, 384, 513, 520, 635, 654, 657–​8, 666, 694–​5, 707n, 742n, 812, 817, 836, 879, 887, 907, 926n, 957, 959n, 1014, 1024, 1035, 1040n, 1045, 1124, 1150, 1157, 1164, 1172, 1196n, 1199, 1206, 1215 Preamble . . . . . . . . . . . . . . . . . . . . . 51n, 959n Art. 1 . . . . . . . . . . . . . . . . . . . . . 35n, 53n, 205 Art. 2 . . . . . . . . 36n, 85n, 111, 174, 199–​200 Art. 2(1) . . . . . . . . . . . . 27, 49, 95n, 145, 199 Art. 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 Art. 3 . . . . . . . . . . . . . . . . . . . . . 199, 326, 920 Art. 3(1) . . . . . . . . . . . . . . . . . 85n, 221n, 920n Art. 3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 Art. 4 . . . . . . . . . . . . 111–​12, 131, 957, 959n Art. 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Art. 5 . . . . . . . . . . . . . . . . . . . . . . . . . 104, 224 Art. 6 . . . . . . . . . . . . 85n, 199, 217, 294, 326 Art. 6(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297 Art. 7 . . . . . . . . . . . . . . . . . . . . . . . . 206, 513n Art. 7(1) . . . . . . . . . . . . . . . . . . . . . . . 326, 528 Art. 7(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 520n Art. 9 . . . . . . . . . . . . . . . . . . . . . . . . . 326, 654 Art. 12 . . . . . . . . . 85n, 105, 199, 384n, 836n Art. 12(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 Art. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97n Art. 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Art. 17 . . . . . . . . . . . . . . . . . . . . . . . . 256, 907 Art. 17(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 877n

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Art. 19 . . . . . . . . . . . . . . . . 326, 469, 479, 484 Art. 20 . . . . . . . . . . . . . . . . . . . . . . . . 326, 629 Art. 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629 Art. 23 . . . . 27, 36n, 97n, 104n, 105, 145–​6, 174, 199–​201, 203–​4, 206, 218, 738, 831n Art. 23(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Art. 23(2) . . . . . . . . . . . . . . . . . . 131, 201, 659 Art. 23(3) . . . . . . . . . . . . . . 146, 566, 580, 659 Art. 23(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 Art. 24 . . . . . . . . . . . . . . . . . . . . . . 707n, 712n Art. 24(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 817n Art. 24(2)(c) . . . . . . . . . . . . . . . . . . . . . . . 817n Art. 26(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 812n Art. 28 . . . . 90, 101n, 658n, 666n, 670, 694 Art. 28(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 670n Art. 28(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 90n Art. 29 . . . . . . . . . . . . . . . . . . . . . . 658n, 666n Art. 29(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 873 Art. 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907 Art. 31 . . . . . . . . . . . . . . . . . . . . . . . 101n, 866 Art. 31(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 872 Art. 32 . . . . . . . . . . . . . . . . . . . . . . . . 470, 767 Art. 37(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 326 Art. 37(b) . . . . . . . . . . . . . . . . . . . . . . . 93, 326 Art. 37(c) . . . . . . . . . . . . . . . . . . . . . . . 51n, 90 Art. 38 . . . . . . . . . . . . . . . . . . . 316, 320n, 325 Art. 39 . . . . . . . . . . . . . . . . . . . . . . . . 325, 490 Art. 38(4) . . . . . . . . . 30, 291–​3, 316–​17, 319 Art. 40(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 50n Art. 42 . . . . . . . . . . . . . . . . . . . . . . . 238, 1206 Art. 43(2) . . . . . . . . . . . 1025n, 1028n, 1193n Art. 43(11) . . . . . . . . . . . . . . . . . . . . . . . . 1035n Art. 43(12) . . . . . . . . . . . . . . . . . . . . . . . . 1036n Art. 44 . . . . . . . . . . . . . . . . . . . . 1046n, 1061n Art. 44(5) . . . . . . . . . . . . . . . . . . . . . . . . . 1120n Art. 45(a) . . . . . . . . . . . 1107–​8, 1110n, 1112 Art. 45(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 1083 Art. 45(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 1124 Art. 45.5 . . . . . . . . . . . . . . . . . . . . . . . . . . 1121n Art. 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151n Art. 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157n Art. 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172n Art. 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190 Art. 51(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 1177 Art. 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199n Art. 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146n Art. 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215n ILO Indigenous and Tribal Peoples Convention, C169 . . . . 24,  835–​6 Art. 6 . . . . . . . . . . . . . . . . . . . . . . . . . 24, 836n Art. 7 . . . . . . . . . . . . . . . . . . . . . . . . . 24, 836n Madrid Protocol . . . . . . . . . . . . . . . . . . . . . . . 894



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Table of Treaties and International Instruments

1990 Cairo Declaration on Human Rights in Islam . . . . . . . . . . . . . . . . . . 1179n Charter on the Rights and Welfare of the Child Art. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) . . . . . 1, 11, 48, 95, 326, 384, 511n, 513, 812, 836, 1014, 1024, 1040n, 1045 Art. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227n Art. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227n Art. 11, 52 . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Art. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97n Art. 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Arts 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Art. 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . 90, 93 Art. 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384n Art. 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Art. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Art. 27(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 812n Art. 29 . . . . . . . . . . . . . . . . . . . . . . 511n, 513n Art. 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 873 Art. 39 . . . . . . . . . . . . . . . . . . . . . . 511n, 513n, 518n, 567, 569 Art. 39(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 514n Art. 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Art. 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 836n Art. 43(1)(g) . . . . . . . . . . . . . . . . . . . . . . 872–​3 Art. 45(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . 873 Art. 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Art. 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Art. 72(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1025n Art. 72(1)(b) . . . . . . . . . . . . . . . . . . . . . . 1025n Art. 72(7) . . . . . . . . . . . . . . . . . . . . . . . . . 1035n Art. 72(8) . . . . . . . . . . . . . . . . . . . . . . . . . 1036n Art. 72(9) . . . . . . . . . . . . . . . . . . . . . . . . . 1036n Art. 73 . . . . . . . . . . . . . . . . . . . . 1046n, 1061n Art. 74(4) . . . . . . . . . . . . . . . . . . . . . . . . . 1111n Art. 74(7) . . . . . . . . . . . . . . . . . . . . . . . . . 1120n Art. 75(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1034n Art. 77(2)(a) . . . . . . . . . . . . . . . . . . . . . . 1229n Art. 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384n Art. 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146n Art. 86(1) . . . . . . . . . . . . . . . . . . 1151n, 1157n Art. 86(3) . . . . . . . . . . . . . . . . . . . . . . . . . 1157n Art. 90(3) . . . . . . . . . . . . . . . . . . . . . . . . . 1191n Art. 91(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1177 Art. 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215n UNESCO World Declaration on Education for All (Jomtien Declaration) . . . . . . . . . . . . . . 660 Art. 3, Para. 5 . . . . . . . . . . . . . . . . . . . . . . 660n



1991 Paris Principles . . . . . . 985, 993–​4, 996–​7, 1002–​5, 1018, 1102, 1112n s. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 994 Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Healthcare (MI Principles) . . . . . . . 5–​6, 61, 146, 342, 437, 449, 727, 831n, 893n Principle 1(4) . . . . . . . . . . . . . . . . . . . . . . . 146n Principle (1)5 . . . . . . . . . . . . . . . . . . . . . . . 146n Principle 3 . . . . . . . . . . . . . . . . . . . . . . . . . 147n Principle 11 . . . . . . . . . . . . . . . . . . . . . . . . 727n Principle 11(6) . . . . . . . . . . . . . . . . . . . . . 727n 1992 Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief . . . . . . . . . . . . 315 Convention on Biological Diversity . . . . . . . . . . . . . . . . 1138n, 1139n Art. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48n Art. 3 . . . . . . . . . . . . . . . . . . . . . . . . . 85n, 89n Art. 34(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1163n EC Treaty (Treaty Establishing the European Community) Art. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Art. 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Art. 100a . . . . . . . . . . . . . . . . . . . . . . . . . . . 938 Art. 230(4) . . . . . . . . . . . . . . . . . . . . . . . . . 552n Art. 300 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 International Sugar Agreement Art. 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1153n Rio Declaration Principle 9 . . . . . . . . . . . . . . . . . . . . . . . . . . 968 UN Framework Convention on Climate Change 1992 . . . . . . . . . . . . . . 957 Art. 3 . . . . . . . . . . . . . . . . . . . . . . . . . 85n, 89n Art. 4(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957 Art. 22(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1163n 1993 Vienna Declaration and Programme of Action . . . . . 12n, 24n, 959n Para. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 24n Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . 959n Section II Pt. A and C . . . . . . . . . . . . . . . 959n Art. 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Art. 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Arts 63–​65 . . . . . . . . . . . . . . . . . . . . . . . . . . 147 UNGA Declaration on the Elimination of Violence Against Women 1993, UNGA Res 48/​104 . . . . . . . . . . 189n 1994 Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/​or Desertification, Particularly in Africa Art. 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169n

Table of Treaties and International Instruments Marrakesh Agreement Establishing the World Trade Organization . . . . . . . . . . 1163 Art. XIV(1) . . . . . . . . . . . . . . . . . . . . . . . 1163n Trademark Law Treaty . . . . . . . . . . . . . . . . . . . 894 UN Convention to Combat Desertification . . . . . . . . . . . . . . . . . . . 1138n Art. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85n UNESCO Salamanca Statement and the Framework for Action on Special Needs Education . . . . . . . 201, 660 Para. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 660n Para. 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . 661n Para. 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . 661n Para. 72 . . . . . . . . . . . . . . . . . . . . . . . . . . . 661n 1995 Beijing Declaration and Platform for Action . . . . . . . . . . . . . . . . . . . . . . . . 176 Copenhagen Declaration and Program of Action of the World Summit for Social Development . . . . . . . . . . . . . 201 TRIPS (Trade-​Related Aspects of Intellectual Property Rights) Agreement . . . . . . . . . . . . . . . . . . . 872, 895 Art. 13 . . . . . . . . . . . . . . . . . . . . . . . 872, 875n UNESCO Declaration of Principles of Tolerance . . . . . . . . . . . . . . . . . . . . . . 898n 1996 Agreement for the Establishment of the Indian Ocean Tuna Commission Art. IV(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1167n Panama Commitment to Persons with Disabilities in the American Hemisphere . . . . . . . . . . . . . . 147 Revised European Social Charter (ETS No 163 (1996) . . . . . 97, 707n, 712n, 923, 1223 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . 91n Para. 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . 101n Art. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Art. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 707n Art. 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97n Art. 15(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 912 Art. 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101n Art. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91n Art. 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101n WIPO Copyright Treaty . . . . . . . . . . . . . . . . . 895 Art. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 895n Art. 10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 895 Art. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 895n 1997 Convention on Human Rights and Biomedicine (CETS No 164) Preamble, Art. 1 . . . . . . . . . . . . . . . . . . . . . 91n Art. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 724 Convention on the Prohibition of the Use, stockpiling, production and transfer of antipersonnel mines and on their destruction 1997 . . . . . . . . . . . . . . . . . . 959n

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Art. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959n Art. 11(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1137n Kyoto Protocol 1997 Art. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959n Art. 24(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1163n Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management Art. 39(4) . . . . . . . . . . . . . . . . . . . . . . . . . 1165n 1998 Agreement Concerning the Establishing of Global Technical Regulations for Wheeled Vehicles, Equipment and Parts which Can Be Fitted and/​or be Used on Wheeled Vehicles Art. 9.3.1 . . . . . . . . . . . . . . . . . . . . . . . . . 1165n Convention on Cooperation for the Protection and Sustainable Use of the River Danube Art. 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1167n Rome Statute of the International Criminal Court . . . . . . . . . . . . . 1109, 1136 Art. 5(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . 427n Art. 7(1)(f ) . . . . . . . . . . . . . . . . . . . . . . . . . 427n Art. 7(2)(e) . . . . . . . . . . . . . . . . . . . . . . . . . 427n Art. 13(b) . . . . . . . . . . . . . . . . . . . . . . . . . 1109n Art. 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109n Art. 112 . . . . . . . . . . . . . . . . . . . 1136n, 1143n Art. 120 . . . . . . . . . . . . . . . . . . . 1175n, 1200n Art. 121(6) . . . . . . . . . . . . . . . . . . . . . . . . 1191n Art. 125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8n Art. 128(3) . . . . . . . . . . . . . . . . . . . . . . . . . 1159 1999 Inter-​American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities (IACED) 1999 . . . . . 44–​5, 66, 146, 200n, 323, 767, 1166n Art. 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66n Art. III(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Art. 4(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . 146n Montreal Convention for the Unification of Certain Rules for International Carriage by Air (adopted 28 May 1999, entered into force 4 November 2003) ICAO Doc 9740 . . . . . . . . . . . . 575n Art. 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575n Art. 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575n Protocol for the Modification of the Convention concerning International Carriage by Rail . . . . . . . 575n Protocol to Amend the 1949 Convention on the Establishment of an Inter-​American Tropical Tuna Commission Art. 1(7) . . . . . . . . . . . . . . . . . . . . . . . . . . 1163n



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2000 Charter for Leisure . . . . . . . . . . . . . . . . 911 Dakar Statement and Framework for Action . . . . . . . . . . . . . . . . . . . . . . . . 201 EU Charter of Fundamental Rights (EUCFR) . . . . . . . . . . . . 18n, 91–​2, 95, 97, 498–​500, 831n, 939 Art. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91n Art. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500 Art. 3 . . . . . . . . . . . . . . . . . . . . . . . . . 498–​500 Art. 6(2)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 499 Art. 7 . . . . . . . . . . . . . . . . . . . . . 499–​500,  939 Art. 8 . . . . . . . . . . . . . . . . . . . . . . . . . 500, 939 Art. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500 Art. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97n Art. 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95n Art. 21(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 95n Art. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97n Art. 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500 Art. 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499 Art. 52(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 499 Art. 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152n Optional Protocol to CEDAW . . . 1146n, 1219 Art. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227n Art. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227n Art. 4(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . 1229n Art. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1239 Art. 8 . . . . . . . . . . . . . . . 1080, 1096n, 1252n Art. 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172n Art. 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1177n Art. 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199n Art. 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215n Optional Protocol to the CRC on the Involvement of Children in Armed Conflict . . . . . . . . . . . . . . . . . . . . 326 Patent Law Treaty . . . . . . . . . . . . . . . . . . . . . . 894 UN Convention against Transnational Organised Crime (CATOC) . . . . 493, 959 Preamble (j) . . . . . . . . . . . . . . . . . . . . . . . . . . 8n Art. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 490 Art. 6(3) . . . . . . . . . . . . . . . . . . . . . . 490n, 491 Art. 6(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . 493n Art. 14(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 493n Art. 25(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 493n Art. 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959n 2001 Articles on Responsibility of States for Internationally Wrongful Acts Arts 49ff . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 International Classification of Functioning, Disability and Health (ICF) . . . . . . . . 60–​1 2002 Optional Protocol of the Convention against Torture (OPCAT) . . . . . . 433, 487, 994, 1014, 1024–​5, 1033, 1100, 1146n, 1219n Art. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014n  Art. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014n

Art. 5(6) . . . . . . . . . . . . . . . . . . . . . . . . . . 1025n Art. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033 Art. 11(c) . . . . . . . . . . . . . . . . . . . . . . . . . 1111n Art. 18(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 994 Art. 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172n Art. 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1177n Art. 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199n Art. 33(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 1199 Art. 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215n Optional Protocol to the Convention on the Rights of the Child . . . . . . . . . . . 1219n Art. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 Art. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 Art. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 Art. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227n Art. 7(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 1229n Art. 8 . . . . . . . . . . . . . . . . . . . . . . . 217, 1046n Art. 11(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1249n Art. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046n Art. 13 . . . . . . . . . . . . . . . . . . . . 1096n, 1252n Protocol to the Athens Convention 1974 . . . . . . . . . . . . . . . . . 575n 2003 Convention against Corruption . . . . . . . . . . . . . . . . 959n, 1136 Ch VII . . . . . . . . . . . . . . . . . . . . . . . . . . . 1136n Art. 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959n Art. 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959n Art. 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959n Art. 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959n Art. 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 Art. 63(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1135n Art. 63(4) . . . . . . . . . . . . . . . . . . . . . . . . . 1137n Art. 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141n Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa Art. 2(1)(e) . . . . . . . . . . . . . . . . . . . . . . . . . 160n Art. 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 160n Arts 3–​24 . . . . . . . . . . . . . . . . . . . . . . . . . . 160n World Health Organization Framework Convention on Tobacco Control Art. 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170n 2004 Arab Charter on Human Rights Art. 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374n UN Convention on Jurisdictional Immunities of States and their Property 2004 Art. 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1155n Art. 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 2005 Convention on Choice of Court Agreements Art. 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169n Convention on the Protection and Promotion of the Diversity of Cultural Expressions . . . . . . . . . . . . . . . 1167 Art. 27(3)(e) . . . . . . . . . . . . . . . . . . . . . . 1167n

Table of Treaties and International Instruments Hyogo Framework for Action (HFA) 2005–​2015 . . . . . . . . . . . . . . . . . 975 International Agreement on Olive Oil and Table Olives Art. 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 1166n UNESCO Convention on the Protection of Cultural Diversity . . . . . . . . . . . . . . . 899 2006 Convention on the Rights of Persons with Disabilities (CRPD) . . . . . 3–​20, 22–​33, 35–​9, 48–​54, 57–​62, 64–​5, 69–​85, 90–​124, 128–​34, 136–​43, 145–​7, 154–​8, 161, 163, 165–​9, 171–​5, 177, 181–​90, 194–​5, 197, 200–​1, 203, 205–​9, 211–​14, 215n, 216n, 217, 221–​8, 235–​6, 241–​2, 245–​57, 259–​66, 268–​9, 271–​85, 287–​8, 290–​1, 293, 295–​302, 305–​6, 310–​11, 314, 316, 322–​3, 326–​32, 334–​8, 340–​1, 344, 347–​8, 350, 358, 360, 363–​4, 368–​9, 373–​81, 383–​7, 390, 392, 393n, 398–​9, 401–​2, 406n, 407–​9, 411, 420, 422–​8, 430, 432, 436–​7, 440–​2, 444–​7, 449–​50, 454–​7, 459–​61, 468, 471, 475, 477, 481, 484–​5, 495, 497–​8, 500–​1, 506, 509–​10, 518–​19, 522, 523n, 524, 526n, 530–​1, 536–​7, 539–​42, 545, 547–​50, 554–​6, 560–​1, 567–​77, 579–​81, 583, 587, 589, 592–​3, 597–​603, 605–​7, 609, 611, 613, 615–​19, 621, 623–​6, 629–​30, 633, 635–​54, 657–​8, 661–​5, 670n, 671, 673, 675, 680–​4, 686, 690–​1, 694–​701, 703, 706–​11, 713–​16, 718–​21, 723–​4, 726–​30, 732–​3, 735, 737, 740, 742, 748, 750, 754–​8, 760–​2, 765–​7, 769–​75, 778–​9, 781–​2, 784, 786–​7, 790–​3, 797–​8, 802, 804, 806–​12, 814–​16, 818–​25, 827, 830–​1, 838, 840–​1, 843, 849, 851, 853, 855, 859–​60, 862, 865, 871, 873–​4, 879–​81, 888, 890–​1, 895, 897, 900, 902–​3, 905–​10, 912, 917–​20, 923, 925, 927–​35, 938, 942–​6, 948–​9, 952–​8, 964–​72, 974–​7, 979, 981–​1003, 1005–​11, 1013–​14, 1016–​18, 1024–​5, 1028–​9, 1032, 1034–​5, 1036n, 1038–​55, 1057–​9, 1061–​8, 1069n, 1070–​6, 1077n, 1078, 1080–​2, 1084–​91, 1093–​6, 1098–​9, 1101, 1103–​4, 1106–​16, 1119–​31, 1133–​4, 1136–​44, 1146, 1148, 1150–​61, 1163–​4, 1166–​9, 1170n, 1172–​87, 1189, 1191–​6, 1198–​202, 1204–​7, 1209–​17, 1219–​22, 1224–​6, 1228, 1231–​7, 1240–​4,  1250–​3 Preamble . . . . . . . 5, 8–​14, 17n, 25, 74, 131, 182, 185, 188, 202, 618, 902n, 1100

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Para. (a) . . . . . . . . . . . . . . . 8, 51n, 91, 156n Para. (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Para. (c) . . . . . . . . . . . . 10, 50n, 102n, 750 Para. (d) . . . . . . . . . . . . . . . . . 11, 173n, 189 Para. (e) . . . . . . . . . . 12–​13, 36, 53–​4, 58n, 65n, 98n, 99, 262n, 481n, 798, 814n, 824n, 827n, 829n, 831, 968n Para. (f ) . . . . . . . . . . . . . . . . . . . 14, 15n, 61 Para. (g) . . . . . . . . . . . . . . . . . . . . . . 16, 977 Para. (h) . . . . . . . . . . . . . . . 17, 51n, 53, 91, 95, 156n, 380n Para. (i) . . . . . . . . . . . . . . . . . . . . . . 18, 100 Para. (j) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Para. (k) . . . . . . . . . . 19, 22, 98n, 99, 827n Para. (l) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Para. (m) . . . . . . . 21, 98n, 99, 827n, 930n Para. (n) . . . . . . . . . . . . . . . 22–​3, 532, 814n Para. (o) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Para. (p) . . . . . . . . . . . 24–​5, 95, 151, 185n, 189, 900, 1071n Para. (q) . . . . . . . . . . . . . . . . . 25, 189, 821n Para. (r) . . . . . . . . . . . . . . . . . 27, 104, 481n Para. (s) . . . . . . . . . . . . . . . . . . . . 27–​8,  189 Para. (t) . . . . . . . . . . . . . . . . 28, 806n, 826n Para. (u) . . . . . . . . . . . . . . . . . . . 29–​30,  318 Para. (v) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Para. (w) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Para. (x) . . . . . . . . . . . . . . . . . . . . . 32, 806n Para. (y) . . . . . . . . . . 32, 91, 98n, 99, 156n, 380n, 806n, 814n, 827n Art. 1 . . . . . . . . . . 12, 35–​43, 47–​9, 51n, 52, 55, 57, 59, 61–​2, 64, 75n, 85, 91, 95n, 98n, 99, 100n, 110–​11, 116n, 156n, 259n, 364, 375n, 411n, 434, 436, 481n, 531, 555, 589, 596, 599, 641, 663n, 798, 814n, 824n, 827n, 843n, 931, 982, 1178, 1204, 1208n, 1209n, 1210n, 1228 Para. 1 . . . . . . . . . . . . . . . . 36, 40, 50, 1225 Para. 2 . . . . . . . . . . . . . . 36, 38, 40, 44, 47, 54–​8, 71, 250n, 663n Arts 1–​4 . . . . . . . . . . . . . . . . . . . . . 1068, 1072 Arts 1–​33 . . . . . . . . . . . . . . . . . . . . 1090, 1215 Art. 2 . . . . . . . . . . . . . 12, 36n, 40, 42, 53, 58, 63–​4, 67, 69n, 70–​2, 74, 82n, 83, 96, 104n, 106, 117n, 118, 125–​6, 151, 160, 164, 276, 354, 363, 378n, 381n, 391n, 436, 542, 555, 557, 582, 587, 591, 594n, 597, 602n, 664n, 677, 682–​3, 716–​17, 718n, 744, 793n, 796, 805, 846, 853, 860, 880n, 904, 1057, 1207, 1208n Art. 2(a) . . . . . . . . . . . . . . . . . . . . . 819n, 828n Art. 2(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 828n

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Art. 3 . . . . . . . . 18, 22–​3, 53, 71, 83n, 84–​6, 89–​90, 93, 96, 100, 188–​9, 204, 268, 363n, 391, 393, 428, 436, 471n, 481n, 509, 555, 560, 569, 571, 581, 596, 720, 757, 758n, 814n, 827n, 900, 906, 965–​6, 1007, 1192 Art. 3(a) . . . . . 8, 51n, 90, 156n, 379n, 422n, 532n, 543, 589n, 591, 598n, 711n, 721, 814n, 902n Art. 3(b) . . . . . . . . . . . . . . . 95, 555, 756, 1181 Art. 3(c) . . . . . . . . . . . . . 97, 589n, 638n, 849, 930n, 1007n, 1209n Art. 3(d) . . . 99, 555, 589n, 598n, 602n, 756 Art. 3(e) . . 100, 555, 638n, 756, 849n, 1181 Art. 3(f ) . . . . . . 102, 224, 268n, 589n, 696n, 820n, 1209n Art. 3(g) . . . . . . . . . . . . . . . . . . . . 102–​3,  821n Art. 3(h) . . . . . . . . . . . . 104, 217, 602n, 900n Art. 3(p) . . . . . . . . . . . . . . . . . . . . . . . . . . . 185n Art. 4 . . . . . . . . . . . . 71, 79, 106–​8, 115, 182, 204, 206, 244, 270, 300, 376n, 391, 393, 423, 555, 568, 573, 589n, 596, 715, 721, 760–​1, 784, 802n, 804, 843, 860, 910, 963, 982, 1097–​1100, 1192 Art. 4(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 597n Art. 4(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Art. 4(e) . . . . . . . . . . . . . . . . . . . . . . . . 75, 597 Art. 4(f ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79n Art. 4(g) . . . . . . . . . . 79n, 567, 573, 581, 585 Art. 4(h) . . . . . . . . . . . . . . . . . . . . . . . 567, 573 Art. 4(1) . . . . . . . . . 116–​17, 311n, 760n, 982 Art. 4(1)(a) . . . . . . . . . . . . . . . . . . . . . 119, 161 Art. 4(1)(b) . . . . . . 119–​21, 270, 811n, 1131 Art. 4(1)(c) . . . . . . . . . . . . . . . . . . . . . 115, 121 Art. 4(1)(d) . . . . . . . . . . . . 122, 311, 555, 756 Art. 4(1)(e) . . . . . . . . . . . 122, 125, 256, 380n, 381n, 811n Art. 4(1)(f ) . . . . . . . . 125, 127, 129, 278, 285, 422n, 761n, 1100 Art. 4(1)(g) . . . . 127, 129, 276, 285, 594, 1100 Art. 4(1)(h) . . . . . . . . . . 129, 276, 285, 1100 Art. 4(1)(i) . . . . . . . . . . . . . . . . . 129, 285, 844 Art. 4(2) . . . . . 114, 131, 133–​4, 211, 244–​5, 366n, 592–​3, 658, 716, 773, 811n, 929, 995n Art. 4(2)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . 256 Art. 4(3) . . . . 23, 98n, 112, 115, 121, 134–​6, 160, 165, 279, 281, 328, 341n, 343, 575n, 603n, 723, 744, 804n, 860, 991, 1007–​9, 1023n, 1027, 1045, 1049, 1052, 1099–​1100, 1208n, 1209n Art. 4(4) . . . . . . . . . . . . . . . . . . . . . . . 137, 423 Art. 4(5) . . . . . . . . . . . . . . . . . . 138, 989, 1185



Art. 5 . . . . . . . . 95, 97n, 102, 140–​4, 146–​8, 151–​2, 154–​8, 160–​1, 165, 167, 185, 223n, 236, 248, 270, 298–​9, 305, 391, 393, 395, 436, 523, 542, 555, 557, 597–​9, 639, 641, 682, 715, 769–​70, 794–​5, 843, 851, 853–​4, 1192 Art. 5(1) . . . . . . . . . 120, 144, 150–​1, 157–​61, 218, 428, 555, 756 Art. 5(2) . . . . . . . . 117n, 144, 151, 154, 157, 160–​3, 429, 557, 1181 Art. 5(3) . . . . . . . 79n, 146, 149, 151, 153–​4, 157, 161, 164, 166, 555, 597, 602, 683, 756, 793, 811n Art. 5(4) . . . . . . . . . . . 117n, 145, 152–​3, 157, 167–​9, 218, 770 Arts 5–​30 . . . . . . . . . . . . . . . . . . . . 1068, 1072 Art. 6 . . . . . . 26, 75n, 76n, 104, 122, 171–​2, 183–​5, 187–​8, 195n, 337, 483, 711, 719, 762, 821, 1070, 1093, 1131 Art. 6(1) . . . . . . . . . 184–​5, 188, 397–​8, 821n Art. 6(2) . . . . . . . . . . . . . . 186–​8, 811n, 822n Art. 7 . . . . . 27, 90, 104, 135, 198–​9, 202–​7, 210–​11, 216, 218, 221, 223n, 237n, 337, 390, 711, 762, 902, 904, 919–​20 Art. 7(1) . . . . 205, 207, 211–​12, 217–​18, 906n Art. 7(2) . . . . . . . . . . . . . . . . 219, 221, 919–​21 Art. 7(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 224–​5 Art. 8 . . . . 8, 32, 62, 91, 100, 117, 158, 188–​9, 203, 210, 229, 236, 240–​2, 244–​8, 250, 254–​5, 471n, 542–​4, 605, 807, 809–​10, 822, 865, 904, 909, 1100, 1204, 1211 Art. 8(a) . . . . . . . . . . . . . . . . . 91n, 117n, 156n Art. 8(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 117n Art. 8(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 117n Art. 8(1) . . . . . . . . . . . . 51n, 241–​2, 244, 250, 807n, 810n Art. 8(1)(a) . . . . . . . . . . . 32, 100n, 210n, 242, 245–​6, 809n, 1211n Art. 8(1)(b) . . . . . . . . . . . . . . . 242, 246, 380n Art. 8(1)(c) . . . . . . . . . . 242, 247, 249, 251–​2 Art. 8(2) . . . . . . . . . . . . . . . . . . . . . . . 242, 250 Art. 8(2)(a) . . . . . . . . . . . . . . . . . 250–​1,  1211n Art. 8(2)(a)(i) . . . . . . . . . . . . . . . . . . . . . . . . 251 Art. 8(2)(a)(ii) . . . . . . . . . . . . . . . . . . . . . . . 251 Art. 8(2)(a)(iii) . . . . . . . . . . . . . 252, 765, 770 Art. 8(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . . 253 Art. 8(2)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 254 Art. 8(2)(d) . . . . . . . . . . . . . . . . . . . . 130, 256 Art. 9 . . . . . . . 58n, 79, 94, 99, 126, 129–​30, 158, 162, 164, 166, 258–​63, 265–​6, 268–​9, 271–​9, 281, 283, 285, 298–​9, 380, 383, 395, 398, 555, 557, 562, 567, 569–​71, 573, 575, 580, 583,

Table of Treaties and International Instruments 586n, 589–​90, 596–​600, 711, 717n, 736, 758, 762, 794, 818, 831, 843–​4, 853, 906, 909, 911, 965, 971, 1093, 1100, 1131, 1204, 1207–​8 Art. 9(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 905n Art. 9(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Art. 9(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Art. 9(1) . . . . . . 79, 261, 268–​9, 273, 275–​6, 278–​9, 284, 464, 481n, 487, 557, 611, 811n, 816n, 818n, 831n, 1207n Art. 9(1)(a) . . . . . . . . . . . 274, 277, 696, 831n Art. 9(1)(b) . . . . . . . . . . . . . . . . . . . . 274, 278 Art. 9(2) . . . . . . . . . . 261, 269, 276, 279, 281, 516, 557, 811n Art. 9(2)(a) . . . . . . . . . . . . . . . . . . . 281–​2,  999 Art. 9(2)(b) . . . . . . . . . . . . . . 123, 124n, 266, 272, 282–​3, 597 Art. 9(2)(c) . . . . . . . . . . . . . . . . . 130, 156, 283 Art. 9(2)(d) . . . . . . . . . . . . 68n, 129, 283, 599 Art. 9(2)(e) . . . . . . . . . . . . . . . . . . . . . 284, 602 Art. 9(2)(f) . . . . 129, 284–​5, 557, 820n, 1207n Art. 9(2)(g) . . . . . . . . . . . 284–​5, 593n, 820n Art. 9(2)(h) . . . 284–​6, 557, 593n, 594, 617n Art. 10 . . . . . . . . . . . . 58n, 217, 287, 289–​90, 296–​300, 302, 305, 310–​11, 341, 363, 398, 481n, 555, 711, 1192 Art. 11 . . . . . . . . 10n, 30, 188, 195, 314–​15, 319–​21, 322n, 323, 327–​31, 334–​5, 337, 908, 966, 975 Art. 12 . . . . . . . 19, 23, 36, 58n, 93–​4, 101n, 102, 104, 152, 162–​3, 165, 199, 206, 222, 223n, 298, 339–​44, 346–​51, 353–​4, 356, 358, 361–​2, 364, 369, 371–​3, 374n, 383, 387, 389, 392, 399–​400, 420, 429, 436, 439–​40, 464–​5, 485, 488–​9, 542–​4, 547, 588, 643, 710, 727–​8, 730, 843–​4, 846–​7, 850–​1, 854, 857, 860, 1093, 1095, 1126, 1128, 1130, 1217, 1239 Art. 12(1) . . . . . . . . . . 344, 348–​9, 518, 588n Art. 12(2) . . . . . 344, 349, 353–​4, 361, 481n, 543n, 588n, 848, 859, 1154 Art. 12(3) . . . . . . . . . . 162, 223, 224n, 345–​6, 363–​4, 376–​7, 543n, 588n, 811n, 816n, 847, 857, 859 Art. 12(4) . . . . . . . . 345–​6, 358, 367–​70, 527, 729–​30, 858, 1072, 1075 Art. 12(5) . . . . . 345, 373–​6, 379n, 380, 568, 588n, 811n, 815n Art. 13 . . . . . 58n, 162, 190, 223n, 298, 341, 361, 372, 383–​4, 387, 390–​2, 395–​401, 421, 422n, 464–​5, 492, 587n, 596, 1100, 1102, 1128

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Art. 13(1) . . . . . . . . . . . . . 390–​1, 393, 398–​9, 481n, 816n Art. 13(2) . . . . . . . . . . . . . . . . . . . . . . 256, 400 Art. 14 . . . . 23, 62, 298, 341, 354, 358, 361, 383, 392–​3, 398–​9, 402–​4, 406–​10, 415–​16, 419–​22, 425, 434–​6, 465, 505, 555, 710, 724, 730, 900, 1094, 1128 Art. 14(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 481n Art. 14(1)(a) . . . . . . . . . . . . . . . 402, 406, 416 Art. 14(1)(b) . . . . . . 402, 406, 408, 411, 417, 410n, 465, 505 Art. 14(2) . . . . . . 299, 402, 406–​7, 418, 422, 424, 464, 481n Art. 15 . . . . . 52, 58n, 188, 195, 211, 298–​9, 341, 398, 422n, 426–​30, 434–​6, 440, 442, 444–​5, 449, 453–​5, 459–​60, 463–​5, 471, 480, 482, 489–​90, 504, 524, 710, 724, 730, 998, 1182 Art. 15(1) . . . . . 427, 434, 436, 442, 447, 449 Art. 15(2) . . . . . . . . . . . . . 119, 427, 431, 434, 450, 464, 481n Art. 16 . . . . . . . 91, 102n, 158, 183, 188–​90, 211, 341, 363, 376, 422n, 429, 468–​71, 475, 477–​87, 489–​93, 505–​6, 544, 567, 711, 807, 810, 822, 998 Art. 16(1) . . . . . . . . 119, 190, 469–​70, 476–​7, 479–​84, 486–​7, 810n, 822n Art. 16(2) . . . . . . . . . . . 190, 469, 479, 484–​7, 807n, 811n, 822n Art. 16(3) . . . . . . . . . . . . 487–​90, 492,  998–​9 Art. 16(4) . . . . . . . . . . . . . 52, 91n, 93n, 156n, 481, 490, 811n Art. 16(5) . . . . . . . . . . . . . . . 119, 492–​3, 822n Art. 17 . . . . . . . . 23, 52–​3, 58n, 211, 298–​9, 341, 398, 408n, 422n, 429, 434–​6, 453–​8, 464, 481n, 482, 489, 494–​7, 500–​2, 504–​5, 508–​9, 710–​11, 724, 757, 802n, 998, 1128 Art. 18 . . . . . . . 58n, 509, 511, 513, 515–​18, 523–​4, 527, 567, 903, 1128, 1182, 1184 Art. 18(1) . . . . . . . . . . . . . . . . . 481n, 513, 515 Art. 18(1)(a) . . . . . . . . . . . . . . . . . . . . . . 520–​1 Art. 18(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . 522 Art. 18(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . 526 Art. 18(1)(d) . . . . . . . . . . . . . . . . . . . 513, 527 Art. 18(2) . . . . . . . . . . . . . . . . . . . . . . 209, 528 Art. 19 . . . . 23, 58n, 94, 99n, 165, 341, 511, 517, 530–​44, 547–​50, 552, 555–​7, 567, 587n, 599, 809, 811n, 814n, 843–​4, 849, 901–​3, 930, 952, 1097, 1128, 1133–​4



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Art. 19(a) . . . . . . . . . . 102n, 481n, 511n, 517, 532, 536, 543, 547, 549, 609 Art. 19(b) . . . . . . . . . 533, 536–​7, 552, 554–​5, 809n, 816n, 844n Art. 19(c) . . . . . . . . . 533, 536–​7, 555–​7, 845 Art. 20 . . . . . . 94, 102n, 512, 555, 557, 562, 564–​5, 567–​74, 968, 1080 Art. 20(a) . . . . . . . . . . . . . . . . . . . . . . . . . 568–​9 Art. 20(b) . . . . . . . 127, 565, 568, 572–​3, 576 Art. 20(c) . . . . . . . . . . . . . . 130, 256, 568, 580 Art. 20(d) . . . . . . . . . . . . . . . . . . . . . . 568, 582 Art. 20(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 569 Art. 21 . . . . . . . . . . . . 58n, 97n, 128n, 262–​3, 276, 395, 399, 481n, 573, 582–​7, 589–​90, 596, 599–​600, 739, 811n, 820n, 843, 845, 904–​5, 908, 1128, 1204–​5, 1207–​8 Art. 21(a) . . . . . 129, 584, 590–​2, 593n, 594, 845n, 1207n, 1208n Art. 21(b) . . . . . . . . . 70n, 584, 595–​6, 1207n Art. 21(c) . . . . . . . . . . . . . . . . . . 123, 585, 596 Art. 21(d) . . . . . . . . . . . . . . . . . . 585, 599–​600 Art. 21(e) . . . . . . . . . . . . . . . . 70n, 585, 601–​2 Art. 22 . . . . . . 58n, 604–​5, 608–​15, 618–​19, 621–​2, 711, 753 Art. 22(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 608n Art. 22(2) . . . . . . . . . 481n, 614–​15, 625, 745 Art. 23 . . . . . . . . 32, 58n, 95, 183, 188, 197, 203–​4, 223n, 341, 453, 455, 506, 615, 618, 628–​30, 634–​40, 642–​5, 649–​50, 653, 711, 715–​16, 807, 814n, 909, 1128 Art. 23(1) . . . . 481n, 631, 635–​7, 807n, 811n Art. 23(1)(a) . . . . . . . . . . . . . . . . . . . . . . 640–​2 Art. 23(1)(b) . . . . . . . . . . . . . . . . 642–​4,  820n Art. 23(1)(c) . . . . . . . . . . . . . . . . . . . 506, 644 Art. 23(2) . . . . . . . . 94, 221, 223, 631, 645–​7, 649–​50, 807n,  919–​20 Art. 23(3) . . . . . 209, 634, 647, 649–​52, 807n Art. 23(4) . . . . . . . 631, 634, 647, 649, 651–​4 Art. 23(5) . . . . . . . . . . . . . . . . . . . . 634,  654–​5 Art. 24 . . . . . . . . 58n, 91, 95, 132, 144, 188, 196–​7, 203, 211, 253, 485, 587n, 586, 656–​8, 661–​72, 674–​7, 682–​3, 685–​8, 690, 692–​5, 698, 700, 702, 765, 814n, 818n, 849, 907, 916, 921, 958, 1093, 1132, 1204, 1208, 1210n, 1215n Art. 24(1) . . . . . . . . . . . . . . . 99n, 102n, 481n, 670–​4, 685, 920 Art. 24(1)(a) . . . . . . . . . . . . . . . 52, 91n, 156n Art. 24(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . 920 Art. 24(2) . . . . . . . . . . . . 481n, 528, 674, 921 Art. 24(2)(a) . . . . . . . . . . . . . . . . . 674–​5,  686



Art. 24(2)(b) . . . . . . . . . . 668–​9, 674–​5, 678, 703, 816n, 921 Art. 24(2)(c) . . . . . . 674, 682, 685, 703, 921 Art. 24(2)(d) . . . . . . . . 674, 685–​6, 698, 921 Art. 24(2)(e) . . . . . . . 663n, 669, 674, 685–​7, 689, 698 Art. 24(3) . . . . . . 528, 602, 696, 698–​9, 702, 811n, 1208n Art. 24(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . 697 Art. 24(3)(b) . . . . . . . . . . . . . . 70n, 697, 904n Art. 24(3)(c) . . . . . . . . . . . . . . . . . . 663n, 698 Art. 24(4) . . . . . 117, 130, 256, 698, 700, 702 Art. 24(5) . . . . . . . . . . . . . . . . . . . . . 703, 816n Art. 25 . . . . . . . 91, 95, 144, 172n, 183, 188, 191–​3, 233n, 289, 298–​301, 305, 341, 363, 398, 429, 434, 436, 453, 455, 463, 507, 555, 587n, 596, 706–​7, 710–​11, 713–​14, 716–​21, 724, 727–​8, 730, 732, 734, 736–​7, 745, 749–​52, 754–​6, 758, 760, 762, 808, 811n, 814n, 818, 821n, 822, 900, 910, 968, 1100, 1102, 1128, 1183 Art. 25(a) . . . 191n, 289n, 301, 719, 723, 1184 Art. 25(b) . . . . . . . . . 209, 714n, 722–​3, 822n Art. 25(c) . . . . . . . . . . . . . . . . . . . . . 102n, 723 Art. 25(d) . . . . . 52, 91n, 93n, 117, 123, 130, 156n, 256, 436, 710–​11, 721, 724, 730 Art. 25(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 731 Art. 25(f ) . . . . . . . . . . . . . 732–​3, 752n, 808n Art. 26 . . . . . 94, 102n, 127, 233n, 298, 398, 542, 555, 567, 573, 711, 733–​7, 741, 744–​6, 749–​52, 754–​6, 758, 760, 762, 765, 770, 804, 849, 968 Art. 26(1) . . . . . . 99n, 735n, 745, 750–​1, 753 Art. 26(1)(a) . . . . . . . . . . . . . . . 747, 750, 756 Art. 26(1)(b) . . . . . . . . . . . . . . . 750, 757, 760 Art. 26(2) . . . . . . . . . . . . . . . . . . . . . . 130, 760 Art. 26(3) . . . . . . . . . . . . . . . . . . . . . . 373, 761 Art. 27 . . . . . . 58n, 95, 99, 144, 188, 196–​7, 481n, 587n, 745, 764–​9, 772–​3, 775, 779, 784, 789, 791–​4, 797–​9, 804, 818n, 1097, 1133–​4 Art. 27(1) . . . . . . . 99n, 102n, 119, 771, 811n Art. 27(1)(a) . . . . . . . . . . . . . 768–​70, 772–​3, 785, 789, 796 Art. 27(1)(b) . . . . . . 76n, 769, 772, 777, 781, 789, 911 Art. 27(1)(c) . . . . . . . . . . . . . . . . . . . 771, 783 Art. 27(1)(d) . . . . . . . . . . . . 256, 784–​6, 821n Art. 27(1)(e) . . . . . . . . . . . . . . . . . . . 99n, 785 Art. 27(1)(f ) . . . . . . . . . . . . . . . . . . . 99n, 788 Art. 27(1)(g) . . . . . . . . . . . . . . . 99n, 122, 789 Art. 27(1)(h) . . . . . 99n, 123, 769, 790, 804n

Table of Treaties and International Instruments Art. 27(1)(i) . . . . . . . . . . . . . . . . . . . . 770, 793 Art. 27(1)(j) . . . . . . . . . . . . . . . . 99n, 789, 798 Art. 27(1)(k) . . . . . . 99n, 772, 785, 789, 798 Art. 27(2) . . . . . . . . . . . . . . . . . . . . . . 770, 799 Art. 28 . . . . . . . . . . . . 53, 188, 193, 543, 555, 801–​3, 805–​7, 809–​11, 815–​18, 821, 827, 903–​4, 1097, 1133–​4 Art. 28(1) . . . . . . . . . 805, 810–​12, 816n, 828 Art. 28(2) . . . . . . . . . . 808, 811–​12, 814, 818 Art. 28(2)(a) . . . . 815, 816n, 820, 821n, 828 Art. 28(2)(b) . . . . . . . . . . . . . . . 803, 820, 832 Art. 28(2)(c) . 803, 820, 821n, 823, 825, 828 Art. 28(2)(d) . . . . . . . . . . . . . . . . . . . 122, 830 Art. 28(2)(e) . . . . . . . . 772, 816n, 821n, 832 Art. 29 . . . . . . . 23, 58n, 97n, 152, 341, 399, 481n, 543, 587n, 834–​6, 838, 842–​6, 848–​51, 860, 904, 930, 958, 1008, 1071n, 1076n, 1095, 1128, 1204, 1209 Art. 29(a) . . . . . . . . . 842, 849–​50, 859, 861n, 1068, 1073 Art. 29(a)(i) . . . . 68n, 842, 850–​1, 853, 861n Art. 29(a)(ii) . . . . . . . . . . . . . . 573, 842, 851, 854–​5, 86hun1n Art. 29(a)(iii) . . . . . . . . . . . . . . . . . . . . . . 857–​8 Art. 29(b) . . . . . . . . . . . . 836n, 860–​1, 1209n Art. 29(b)(i) . . . . . . . . . . . . . . . . . . . . . . . . . 862 Art. 29(b)(ii) . . . . . . . . . . . . . . . . . . . . . . . . 862 Art. 30 . . . . . . . . 58n, 97n, 128n, 277, 481n, 587n, 818, 849, 863–​9, 871–​3, 880, 881n, 889, 893–​5, 897, 899, 908–​9, 911, 1181, 1209n Art. 30(1) . . . . . . . . . 811n, 866, 872–​5, 902n Art. 30(1)(a) . . . . . . . . . . . 821n, 879–​80, 882 Art. 30(1)(b) . . . . . . . . . . . . . 600, 879, 882–​3 Art. 30(1)(c) . . . . . . . . . . . . . . 821n, 879, 883 Art. 30(2) . . . . . . . . . . . . . . 811n, 865–​6, 871, 873–​4,  884–​6 Art. 30(3) . . . . . . . . . . . 128, 277, 617n, 811n, 865, 888, 890–​1, 897 Art. 30(4) . . . . . . . 69n, 70n, 602, 885n, 897, 899–​903, 905,  907–​8 Art. 30(5) . . . . . . . . . 781, 811n, 818n, 870–​1, 909–​13,  918–​21 Art. 30(5)(a) . . . . . . . . . . . . . . . . . . . 913, 916 Art. 30(5)(b) . . . . . . . . . . . . . . . . . . . . 915–​16 Art. 30(5)(c) . . . . . . . . . . . . . . . . 913,  916–​17 Art. 30(5)(d) . . . . . . . . . . . . . . . 816n,  919–​21 Art. 30(5)(e) . . . . . . . . . . . . 821n, 912, 921–​2 Art. 30(5)(3) . . . . . . . . . . . . . . . . . . . . . . . . 865 Art. 31 . . . . 188, 195–​6, 207, 270, 615, 754, 880n, 924–​5, 928–​35, 944, 949, 953–​4, 1000, 1068, 1072, 1085, 1098, 1100, 1102

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Art. 31(1) . . . . . . . 754n, 929, 931, 948, 1000 Art. 31(1)(a) . . . . . . . 614, 790n, 935–​6, 938 Art. 31(1)(b) . . . . . . . . . . . . . . . . . . . 936, 944 Art. 31(2) . . . . . . . . . . . . . . . . . . 929, 944, 948 Art. 31(3) . . . . . . . . . . . . . . . . . . . . . . 929, 949 Art. 32 . . . . . . . . 20, 34, 128, 568, 573, 925, 933, 955–​6, 958, 963, 965–​8, 973–​6, 1068, 1072, 1089n, 1098, 1101, 1164 Art. 32(1) . . . . . . . . . . . . . . . . . . . . 601,  963–​4 Art. 32(1)(a) . . . . . . . . . . . . . . . . . . . . . . 965–​6 Art. 32(1)(b) . . . . . . . . . . . . . . . 256, 965, 967 Art. 32(1)(c) . . . . . . . . . . . . . . . . . . . 965, 970 Art. 32(1)(d) . . . . . . . . . . . . . . . 127, 965, 971 Art. 32(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 971 Art. 33 . . . . 121, 128, 136, 270, 925, 978–​87, 990–​1, 993, 995, 997–​8, 1005, 1008, 1010, 1055, 1061, 1068, 1072, 1092, 1099–​100, 1102, 1112, 1140n, 1143–​4, 1163, 1204, 1212, 1219n Art. 33(1) . . . . . . . . 930, 983–​5, 987, 989–​91, 998, 1008–​10 Art. 33(2) . . . . . . . 963, 981n, 982–​5, 991–​3, 995–​1002, 1005–​11,  1183 Art. 33(3) . . . . . 22–​3, 98n, 137, 862n, 930n, 982–​4, 991n, 998–​9, 1007–​9, 1011, 1099, 1102n, 1212–​13 Art. 34 . . . . . . . . 194, 1000, 1012–​14, 1017, 1019n, 1023, 1027, 1030, 1041–​2, 1061, 1062n, 1066n, 1164, 1196, 1219n Art. 34(1) . . . . . . . . . . . . . . 1024, 1062n, 1089 Art. 34(2) . . . . . . . 1017, 1021n, 1024, 1033, 1173n, 1194 Art. 34(3) . . . . . . . . . . . 1025–​7, 1062n, 1088 Art. 34(4) . . . . . . . . . . . 98n, 194, 1008, 1027 Art. 34(5) . . . . . . . . . . 1031–​2, 1139,  1142–​3 Art. 34(6) . . . . . . . . . . . . 1032, 1140n, 1173n Art. 34(7) . . . . . . . . . . . . . . . . . . . . . . . . . . 1033 Art. 34(8) . . . . . . . . . . . . . . . . . . . . . . . . . . 1033 Art. 34(9) . . . . . . . . . . . . . . . . . . . 1033, 1034n Art. 34(10) . . . . . . . . . . . . . . 1034, 1088, 1234 Art. 34(11) . . . . . . . . . . . . . . . . . . . . . . . . . 1035 Art. 34(12) . . . . . . . . . . . . . . . . . . . . . . . . . 1036 Art. 34(13) . . . . . . . . . . . . . . . . . . . . . . . . . 1036 Art. 35 . . . . . . . 38, 58, 311, 515, 569, 1013, 1038–​47, 1051–​3, 1061, 1079, 1088–​90, 1122, 1212–​13, 1219, 1251 Art. 35(1) . . . . . 250n, 1044–​5, 1047, 1066n, 1088n, 1089n, 1212n Art. 35(2) . . . . . . . . . . . . . 856n, 1047, 1089n, 1091, 1212n Art. 35(3) . . . . . . . . . . . . . . . 1045, 1047, 1089 Art. 35(4) . . . . . . . . . . . 1039, 1049–​50, 1053 Art. 35(5) . . . . . . . . . . . . . . . . . . . 1045n, 1054



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Table of Treaties and International Instruments

Art. 36 . . 1013, 1060–​1, 1079, 1121n, 1212 Art. 36(1) . . . 1066, 1071, 1078, 1089, 1213n Art. 36(2) . . . . . . . . . . . . . . . 1078–​9, 1089–​90 Art. 36(3) . . . . . . . . . . . . . . . . . . . . . . . 1080–​1 Art. 36(4) . . . . . . . . . . . . . . . . . . . . 1081, 1213 Art. 36(5) . . . . . . . . . . . . . 1082, 1089n, 1101, 1110n, 1114 Art. 37 . . . . . . 1013, 1084–​8, 1091, 1094–​9, 1101, 1103 Art. 37(1) . . . . . . . . . . . . 1085, 1088, 1090–​1, 1096–​7,  1101 Art. 37(2) . . . . . . 1076n, 1085, 1097, 1100–​1 Art. 38 . . . . . . . . . 576, 1006n, 1013, 1061n, 1082–​3, 1089n, 1105–​8, 1110n, 1112n, 1113, 1196 Art. 38(a) . . . . . . . . . . . . . . . . . 1108–​17,  1142 Art. 38(b) . . . . . . . . . 1090n, 1108n, 1109–​11, 1113n, 1117 Art. 39 . . . . . . . . 1013, 1119–​24, 1127, 1196 Art. 39(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1121 Art. 40 . . . . . . 1023n, 1061n, 1135–​7, 1139, 1140n, 1143, 1148n, 1194 Art. 40(1) . . . . . . . . . . . . . . . . 1138–​9,  1142–​4 Art. 40(2) . . . . . . . . . . . . . . . . . . . . 1139, 1144 Art. 41 . . . . . . . . 1035, 1145–​7, 1149, 1159, 1174, 1186, 1193n, 1216 Art. 42 . . . . . . . . 1148, 1150–​2, 1155, 1157, 1158n, 1159, 1163, 1200n Art. 43 . . . . . . . . . 1113, 1148, 1152, 1154n, 1156–​9, 1163, 1173, 1195n Art. 44 . . . . . . 8, 1010, 1113, 1139n, 1160n, 1162–​6, 1169n, 1185, 1195n Art. 44(1) . . . . . . . . . . . . . 1149, 1152, 1153n, 1155, 1165, 1168 Art. 44(2) . . . . . . . . . . . . . . . . . 1168–​9,  1192n Art. 44(3) . . . . . . . . . . . . . . . . . . . . . . 1169–​70 Art. 44(4) . . . . . . . . . . . . . 1139n, 1141, 1143, 1169, 1170n Art. 45 . . . . . . . . . . . . . . 1163, 1169, 1171–​3 Art. 45(1) . . . . . . . . . . . . . . . . . . 1144,  1171–​3 Art. 45(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 1174 Art. 46 . . . . . . . . 524n, 1175–​6, 1185, 1228n Art. 46(1) . . . . . . . . . . 524, 1177, 1192, 1200 Art. 46(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 1186 Art. 47 . . . . . . . 1143, 1163, 1169, 1188–​92, 1194–​5,  1197 Art. 47(1) . . . . . . . . . 1139, 1142, 1192, 1196 Art. 47(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Art. 47(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Art. 48 . . . . 1148, 1193n, 1195n, 1198–​203 Art. 49 . . . . . . . . . . . . . . . . . . . . . . . . 1204–​12 Art. 50 . . . . . . . . . . . . . . . . . . . 1211, 1214–​17 Recital (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9



Recital (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Recital (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Recital (p) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Recital (q) . . . . . . . . . . . . . . . . . . . . . . . . . 25–​6 Recital (y) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Optional Protocol to CRPD 2006 . . . . 442, 846, 1061, 1087, 1089–​90, 1095, 1103–​4, 1114, 1122, 1153, 1197, 1212, 1219–​20, 1223, 1225–​6, 1228, 1233–​4, 1236n, 1237, 1246–​8, 1253 Art. 1 . . . . . . . . . . . . . . . . . . . . . . . 1222, 1239 Art. 1(1) . . . . . . . . . . . . . . . 399, 1222–​2, 1226 Art. 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 Art. 1(20 . . . . . . . . . . . . . . . . . . . . . . . . . . 1222 Arts 1–​5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Art. 2 . . . . . . . . . . . . . . . 1095, 1097, 1226–​7 Art. 2(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398 Art. 2(d)(e) . . . . . . . . . . . . . . . . . . . . . . . . . 299n Art. 2(e) . . . . . . . . . . . . . . . . . . . . . . 756, 1232 Art. 2(f ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1233 Art. 3 . . . . . . . . 1089, 1095, 1234–​5, 1237–​8 Art. 4 . . . . . . . . . . . . . . . . . . . . 1089, 1239–​40 Art. 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096 Art. 4(2) . . . . . . . . . . . . . . . . . . . . . 1095, 1241 Art. 5 . . . . . . . . . 1089, 1095, 1104n, 1246–​7 Art. 6 . . . . . . 1080, 1089, 1096, 1133, 1254n Art. 6(1) . . . . . . . . . . . . . . . . . . . . 1080n, 1096 Art. 6(2) . . . . . . . . . . . . . . . . . . . . 1037n, 1096 Art. 6(3) . . . . . . . . . . . . . . . . . . . . 1096n, 1097 Art. 6(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097 Art. 6(5) . . . . . . . . . . . . . . . . . . . . . . . . . . 1096n Art. 6 . . . . . . . . . . . . . . . . . . . . . . . 1252, 1255 Arts 6–​8 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1252 Art. 7 . . . . . . . . . . . . . . . . . . . . . . . 1252, 1255 Art. 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097 Art. 7(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097 Art. 8 . . . . . . . . . . . . . . . . . . 1096, 1252, 1255 Art. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163n Art. 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Art. 16 . . . . . . . . . . . . . . . . . 1176, 1210, 1212 Art. 17 . . . . . . . . . . . . . . . . . . . . . . 1210, 1212 Art. 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1211 International Convention for the Protection of All Persons from Enforced Disappearance (CED) . . . 48, 50, 384, 1014, 1033, 1040n, 1086, 1146n, 1195n, 1219n Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . 50n Arts 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384n Art. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384n Art. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384n Art. 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384n Art. 19(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 51n

Table of Treaties and International Instruments Art. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022n Art. 26(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1025n Art. 26(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 1033 Art. 26(9) . . . . . . . . . . . . . . . . . . . . . . . . . . 1086 Art. 28(2) . . . . . . . . . . . . . . . . . . . . . . . . . 1117n Art. 31(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1227n Art. 33 . . . . . . . . . . . . . . . . . . . . 1096n, 1252n Art. 36(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1120n Art. 38(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Art. 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Art. 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1191n Art. 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215n 2007 International Coffee Agreement Art. 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163n Lisbon Treaty . . . . . . . . . . . . . . . . . . . . . 918, 939 2008 Convention on Cluster Munitions . . . 30n Optional Protocol to the ICESCR 1966 . . . . . . . . . . . . . . . . . . 1210–​11,  1219n Art. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227n Art. 3(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 1229n Art. 9(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 1249n Art. 11 . . . . . . . . . . . . . . . . . . . . 1096n, 1252n Art. 16 . . . . . . . . . . . . . . . . . . . . . . . . 1210–​11 2009 Asian Human Rights Declaration . . . . 836 Kampala Convention for the Protection and Assistance of Internally Displaced Persons in Africa . . . . . . . . . . . . . . . . . . . 333 Art. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333n Art. 4(4)(f ) . . . . . . . . . . . . . . . . . . . . . . . . . 333n 2010 Antigua Convention for Cooperation in the Protection and Sustainable Development of the Marine and Coastal Environment of the Northeast Pacific . . . . . . . . . . . . . . . . . . . 977 Art. 3(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . 977n International Cocoa Agreement 2010 Art. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1166n Art. 4(5) . . . . . . . . . . . . . . . . . . . . . . . . . . 1163n Statute of the International Renewable Energy Agency Art. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1166n 2011 International Law Commission Articles on the Responsibility of International Organizations Art. 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161n 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or

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Otherwise Print Disabled (MVT) (VIP Treaty) . . . . . . . . . 128, 277, 617, 865, 873, 881, 891, 1208 Art. 2(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 617n Art. 2(c)(iv) . . . . . . . . . . . . . . . . . . . . . . . . 617n Art. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1208n Art. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1208n Art. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1208n Art. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 895 Art. 8 . . . . . . . . . . . . . . . . . . . . . . . . . 617, 621 Art. 10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 2014 ILO Protocol to the Forced Labour Convention 1930 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . 799 Art. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799 UN Fundamental Principles of Official Statistics . . . . . . . . . . . 936, 944n Principle 6 . . . . . . . . . . . . . . . . . . . . . . . . . 944n UN Principles Governing International Statistical Activities . . . . . . . . . . . 936, 944n Principle 6 . . . . . . . . . . . . . . . . . . . . . . . . . 944n Principle 7 . . . . . . . . . . . . . . . . . . . . . . . . . 944n 2015 Sendai Framework for Disaster Risk Reduction 2015–​2030 . . . . . . . . . . . . . . 315, 333, 975 para 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333 para 19(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 333 para 19(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . 333 para 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333 para 36(a)(iii) . . . . . . . . . . . . . . . . . . . . . . . . 333 2016 American Declaration on the Rights of Indigenous Peoples (ADRIP) . . . . . . . . . . . . . . . . . . . . 898, 907 Art. 14(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 907n Charter on Inclusion of Persons with Disabilities in Humanitarian Action . . . . . . . . . . . . . . . 315, 328–​9, 331n Convention on the Counterfeiting of Medical Products and Similar Crimes involving Threats to Public Health (Medicrime Convention) Art. 28(3) . . . . . . . . . . . . . . . . . . . . . . . . . 1173n New York Declaration for Refugees and Migrants . . . . . . . . . . . . . . . . . . . . . . . . . 336 Protocol to the African Charter on Human and Peoples Rights on the Rights of Persons with Disabilities in Africa . . . . . 767 Art. 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767



Table of Cases INTERNATIONAL COURTS, COMMISSIONS, AND TRIBUNALS African Commission on Human and Peoples’ Rights Legal Resources Foundation v Zambia (2001) AHRLR 84 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 849n Modise v Botswana (2000) AHRLR 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 849n Purohit v The Gambia (2003) AHRLR 96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 849

Court of Arbitration for Sport Oscar Pistorius v International Association of Athletics Federations (IAAF) (2008) 3 Aust & NZ Sports LJ 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914–​15

Court of Justice of the European Union A, B and C v Staatssecretaris van Veiligheid en Justitie (Cases C-​148/​13 to C-​150/​13) 11 December 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499 Accession to the ECHR (CJEU), Re (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152n Coleman v Attridge Law, Case C-​303/​06, [2008] ECR I-​5603 . . . . . . . . . . . . . . . . . . . . . . . . . 649, 767n HK Danmark v Dansk almennyttigt Boligselskab [2013] C-​335/​11 . . . . . . . . . . . . . . . . . . . . . . . 38n, 62 HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab v HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/​S, in liquidation, [Joined Cases C-​335/​11 and C-​337/​11 HK Danmark (Ring and Skouboe Werge)] . . . . . . . . . . . 796n Netherlands v European Parliament and Council, Case C-​377/​98 [2001] ECR I-​7079 . . . . . . . 91n, 498n O’Flynn v Adjudication Officer, Case C-​237/​94 [1996] 3 CMLR 103 . . . . . . . . . . . . . . . . . . . . . . . 355n Oliver Brüstle v Greenpeace (Case C-​34/​10) (2010/​C 100/​29) 18 October 2011 . . . . . . . . . . . . . . . . 499 Sonia Chacon Navas v Eurest Colectiviades SA [2006] C-​13/​05 . . . . . . . . . . . . . . . . . . . . 38n, 61–​2, 942 Wolfgang Glatzel v Freistaat Bayern, Case No C-​356/​12, ECLI:EU:C:2014:350 . . . . . . . . . . . . . . . . 792n Z v A Government Department and The Board of Management of a Community School, Case C-​363/​12, CJEU Judgment (18 March 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 1163n

European Court of Human Rights A v UK (1999) 27 EHRR 611 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212n A v United Kingdom (1998) 27 EHRR 611 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447n A v United Kingdom App no 25599/​94 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123n A M M v Romania App No 2151/​10 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220n ABC v Ireland (2011) 53 EHRR 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722n Aerts v Belgium (1998) 29 EHRR 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423 Alajos Kiss v Hungary (2013) 56 EHRR 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069 Al-​Skeini and Others v United Kingdom (2011) 53 EHRR 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1185n Amann v Switzerland (2000) 30 EHRR 843 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 611n, 620n AN v Lithuania judgment (31 August 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439n Anheuser-​Busch Inc. v Portugal (2007) 44 EHRR 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375n Aron Kiss v Hungary (2010) ECHR 1649 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497n Arskaya v Ukraine [2013] ECHR 1235 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223n, 362n Asalya v Turkey [2014] ECHR 398 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407n Ashingdane v United Kingdom [1985] 7 EHRR 528 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403 Assenov v Bulgaria (1999) 28 EHRR 652 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427n, 450 Aswat v United Kingdom (2014) 58 EHRR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323n B v France (1993) 16 EHRR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615n B S v Spain App No 47159/​08 (24 July 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78n

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Bankovic and others v Belgium and others (2001) ECHR 890 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225n Bati and Others v Turkey [2008] ECHR 246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445n Belashev v Russia App No 28617/​03 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722n Béláné Nagy Hungary App no 53080/​13 (13 December 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375n Belvedere Alberghiera Sr1 v Italy App no 31524/​96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375n Bensaid v the United Kingdom (2001) 33 EHRR 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497n, 615n Beyeler v Italy (2000) 33 EHRR 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375n Blokhin v Russia, (2016) ECHR 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220n Botta v Italy Appl no 21439/​93, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 560 Botta v Italy (1998) 26 EHRR 241 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919n Branduse v Romania App No 6586/​03 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722n Budayeva et al v Russia (2014) 59 EHRR 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323n Bures v Czech Republic [2012] ECHR 1819 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428n, 450n, 451 Burghartz v Switzerland (1994) 18 EHRR 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 560n, 615n Çam v Turkey, App No 51500/​08 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79n, 677n Capital Bank AD v Bulgaria (2005) 44 EHRR 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161n Case of A-​MV v Finland [2017] ECHR 273 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126n Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Belgian Linguistics Case) (No 2) (1968) 1 EHRR 252, 284 . . . . . . . . . . . . . . . . . . . . . 168 Centre for Legal Resources on behalf of Valentin Câmpeanu v Romania, App No 47848/​08, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Cestaro v Italy (2000) 29 EHRR 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443, 445n, 450n, 451 Cestaro v Italy [2015] ECHR 352 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428n Chapman v United Kingdom [GC] (2001) 33 EHRR 399, joint with Coster (no 24876/​94), Beard (no 24882/​94), Jane Smith (No 25154/​94), and Thomas Lee (no 25289/​94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899n Ciorap v Moldova (2007) ECHR 502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444 Copland v United Kingdom (2007) 45 EHRR 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 619n Costello Roberts v United Kingdom (1993) 19 EHRR 112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447n DD V Lithuania [2012] ECHR 254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439n, 532 D H and Others v the Czech Republic (2008) 47 EHRR 3 . . . . . . . . . . . . . . . . . . . . . . . . 73n, 355n, 676 D H and Others v the Czech Republic [GC](2008) 47 EHRR 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . 899n Đorđević v Croatia (2012) ECHR 1640 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210, 471 Drobnjak v Serbia (2009) ECHR 1526 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497n Dudgeon v United Kingdom (1983) 5 EHRR 573 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615n E v Norway (1990) 17 EHRR 30, 57–​58 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423 Elefteriadis v Romania App 38427/​05 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722n Fyodorov and Fyodorova v Ukraine App No 39229/​03 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722n Gard and Others v United Kingdom App No 39793/​17 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303n Gherghina v Romania (2015) 61 EHRR SE15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 560n Giacomelli v Italy (2007) 45 EHRR 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609, 619n Gladkiy v Russia App No 3242/​03 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722n Glass v United Kingdom [2004] ECHR 103 . . . . . . . . . . . . . . . . . . . . . . . . . 221n, 223n, 297, 498, 919n Glor v Switzerland App No 13444/​04 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 74n Gorzelik and Ors v Poland [GC] (2005) 40 EHRR 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899n Guberina v Croatia, [2016] ECHR 287 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73n, 218, 300n Guillot v France App No 22500/​93 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615n Hajol v Poland App No 1127/​06 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722n Herczegfalvy v Austria (1992) 15 EHRR 437 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414, 471n, 610n Hirst v United Kingdom No 2 (GC) [2005] ECHR 681 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 848n



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HLR v France (1997) 26 EHRR 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447n Horvath and Kiss v Hungary App No 38832/​06 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 848, 860n Horváth and Kiss v Hungary App No 11146/​11 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 676 Hutchison Reid v United Kingdom (2003) 37 EHRR 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 438n Hutten-​Czapska v Poland (2006) ECHR 628 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1243n I G v Slovakia App No 15966/​04 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453n, 454, 454n IB v Greece [2013] ECHR 283 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774n IC v Romania, App No 36934/​08 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215n Ireland v United Kingdom [1978] 2 EHRR 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443 Jalloh v Germany (2007) 44 EHRR 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446, 722n Johansson v Finland (2007) 47 EHRR 369 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 909n Kacper Nowakowski v Poland, App No 32407/​13 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223n, 909n Kędzior v Poland [2012] ECHR 1809 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439n, 532 Keegan v Ireland (1994) 18 EHRR 342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 618n Keenan v United Kingdom (2001) 33 EHRR 913 . . . . . . . . . . . . . . . . . . 93n, 323n, 424, 445, 446n, 463 Kharchenko v Ukraine App No 40107/​02 (2011)...... 722n Khudobin v Russia (2009) 48 EHRR 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722n Kiyutin v Russia (2011) 53 EHRR 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722n Kudla v Poland [GC] (2000) 135 EHRR 198 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424 Kuttner v Austria App No 7997/​08 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408n Kutzner v Germany App No 46544/​99 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 653 Kuznetsov and ors v Russia (2009) 49 EHRR 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 909n L v Lithuania (2008) 46 EHRR 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 723n Lambert and Others v France (1998) 30 EHRR 346 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312n Liberty v United Kingdom (2009) 48 EHRR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 610n, 620n Lithgow and others v United Kingdom (1986) 8 EHRR 329 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375n Loizidou v Turkey (1995) 20 EHRR 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1185n Loizidou v Turkey (1996) ECHR 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225n Malone v United Kingdom (1985) 7 EHRR 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 610n Marper v United Kingdom [GC] (2009) 48 EHRR 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615n, 620n Matter v Slovakia (1999) ECHR 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439n McDonald v United Kingdom App No 4241/​12 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 560 McGlinchey v United Kingdom (2003) 37 EHRR 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 463 Mechenkov v Russia App No 35421/​05 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722n Megyeri v Germany (1992) 15 EHRR 584, 590–​92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423 Mihailovs v Latvia [2013] ECHR 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407n, 438, 439n, 532 Mikulić v Croatia App No 53176/​99 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615 MM v UK App No 24029/​07 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 610n MSS v Belgium and Greece (2011) 53 EHRR 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722n Munjaz v United Kingdom [2012] ECHR 1704 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722n Muñoz Díaz v Spain (2010) 50 EHRR 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899n Nasri v France (1996) 21 EHRR 458 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323n, 612n, 909n NB v Slovakia (2012) ECHR 991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454n Neulinger and Shuruk v Switzerland [2010] ECHR 1053 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220n Nevermerzhitsky v Ukraine (2006) 43 EHRR 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444, 445n, 463 Niemietz v Germany (1992) 16 EHRR 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 560n Oliari and Others v Italy (2017) 65 EHRR 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 618n Olisov and Others v Russia judgment (2 May 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443n Oršuš and Others v Croatia App No 15766/​03 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 676n



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Paradiso and Campanelli v Italy App No 25358/​12 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 220n, 638n Peck v United Kingdom (2003) 36 EHRR 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615n Pfeifer v Austria (2009) 48 EHRR 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 622n Pleso v Hungary [2012] ECHR 1767 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 438n Pretty v the United Kingdom (2002) 35 EHRR 1 . . . . . . . . . . . . . . . . . . . 18n, 91, 93n, 312, 497n, 762n Price v United Kingdom (2002) 34 EHRR 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 560n Price v United Kingdom [2001] ECHR 453 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323n, 446n, 464 Prokopovich v Russia (2006) 43 EHRR 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 619n R P and Others v United Kingdom [2012] ECHR 1796 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223n R R v Poland, App No 27617 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208n Rakevich v Russia (2003) ECHR 558 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423n Refah Partisi and others v Turkey, App No 41340/​98 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91n Rotaru v Romania App No 28341/​95 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 610n RP v United Kingdom [2012] ECHR 1796 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397 Ruiz Rivera v Switzerland [2014] ECHR 156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408n Salakhov and Islyamova v Ukraine (2013) App No 28005/​08 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722n Saviny v Ukraine (2008) 51 EHRR 780 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 Sciacca v Italy (2006) 43 EHRR 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615n Segerstedt-​Wiberg and Others v Sweden (2007) 44 EHRR 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 612n Selmouni v France (2000) 29 EHRR 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427n, 443, 445n Sentges v Netherlands (2004) 7 CCL Rep 400 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 579 Shelly v United Kingdom [2008] ECHR 108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722n Shtukatorow v Russia (2008) ECHR 223 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379n, 397n, 438n, 439 Shtukaturov v Russia (2012) 54 EHRR 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722n Sitaropoulos and Giakoumopoulos v Greece (2013) 56 EHRR 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 560n Slawomir Musial v Poland App No 28300/​06 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722n Soering v United Kingdom (1989) 11 EHRR 439 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427n, 428n, 450 Stanev v Bulgaria (2010) ECHR 1182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424n, 446n Stanev v Bulgaria (2012) 55 EHRR 22 . . . . . . . . . . . . . . . . . . . . . . . 379n, 438n, 439n, 446, 541–​2, 722n Stork v Germany (2005) ECHR 406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498 Sunday Times v United Kingdom (1979) 2 EHRR 245 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215n Sykora v Czech Republic [2012] ECHR 1960 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439n, 722n Testa v Croatia (2008) 47 EHRR 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722n Thlimmenos v Greece (2000) 31 EHRR 411 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75n Tre Traktörer Aktiebolag v Sweden (1989) 13 EHRR 309 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375n Tyrer v United Kingdom (1978) 2 EHRR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212n Tysiac v Poland (2007) 45 EHRR 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722, 723n Tysiac v Poland (2007) ECHR 219 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 726n Valentine Campeanu v Romania App 47848/​08 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297 Van der Leer v the Netherlands (1990) 12 EHRR 567 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 438n Varbanov v Bulgaria (2000) ECHR 457 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423n VC v Slovakia App No 18968/​07 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453 VKV v Russia App No 68059/​13 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212n Von Hannover v Germany (2005) 40 EHRR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605n Wieser and Bicos Beteiligungen GmbH v Austria (2007) 45 EHRR 44 . . . . . . . . . . . . . . . . . . . . . . . 619n Winterwerp v the Netherlands [1979] 2 EHRR 387 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352n, 423, 438n X and Y v Croatia [2011] ECHR 1835 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439n X and Y v Netherlands (1986) 8 EHRR 235 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213n, 497n, 615n X v Croatia App No 11223/​04 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 653



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X v Finland (2012) ECHR 1371 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452n X v Netherlands App No 8978/​80 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123n X v United Kingdom (1981) 4 EHRR 188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424, 438n Y.F. v Turkey (2003) 39 EHRR 715 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497n Z H v Hungary App No 28973/​11 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 909n Z v Finland (1998) 25 EHRR 371 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615n Z v United Kingdom (2001) 34 EHRR 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428n, 447n, 450n Zehnalová and Zehnal v Czech Republic App No 38621/​97 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 560

European Committee of Social Rights (ECSR) European Action of the Disabled (AEH) v France, Merits (11 September 2013). . . . . . . . . . . . . . . . . . 681 Federation of Employed Pensioners of Greece (IKA-​ETAM) v Greece Merits (7 December 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161n Pensioners’ Union of the Agricultural Bank of Greece (ATE) v Greece Merits (16 January 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161n

INTER-​A MERICAN COURT AND COMMISSION OF HUMAN RIGHTS Acevedo-​Jaramillo v Peru Judgment (2006) (Ser C) No 157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 772n Bueno-​Alves v Argentina, Merits, Reparations and Costs (2007) (Ser C) No 164 . . . . . . . . . . . . . . . . 323n Case of Plan de Sánchez Massacre v Guatemala (2004) (Ser C) No 105 . . . . . . . . . . . . . . . . . . . . . . . 898n Case of Saramaka People v Suriname (2007) (Ser C) No 172 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898n Comunidad Moiwana v Suriname, (2016) (Ser C) No 124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898n Constitutional Court v Peru (Competence) (1999) (Ser C) No 55 ������������������������������������������������� 1201n In the Matter of María Inés Chinchilla Sandoval (Guatemala), Case 12.739 (2 April 2014) . . . . . . . . 411n Ivcher Bronstein v Peru (Competence) (1999) (Ser C) No 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1201n Mapiripán Massacre v Colombia (2005) (Ser C) No 122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294n Opario Lemoth Morris et al [Miskitu Divers] v Honduras, Report, Case No 1186–​04, Report No 121/​09, OEA/​Ser L/​V/​II, doc 51 corr 1 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 783 Ramcharan v Trinidad and Tobago (Admissibility) Case 12.400, Rep No 49/​02 (2002) . . . . . . . . . . 1202n Rosario Congo v Ecuador Case 11427 Rep 6399 (13 April 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 323n Salvador Chiriboga v Ecuador (Preliminary Objection and Merits) (2008) (Ser C) No 179 . . . . . . . . 375n The Mayagna (Sumo) Awas Tingni Community v Nicaragua (2001) (Ser C) No 79 . . . . . . . . . . . . . . 898n Velásquez Rodríguez v Honduras (1988) (Ser C) No 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123n Xákmok Kásek Indigenous Community v Paraguay, (2010) (Ser C) No 214 . . . . . . . . . . . . . . . . . . . 291n Ximenes Lopes v Brazil (2006) (Ser C) No 149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428n

International Centre for the Settlement of Investment Disputes Euro Telecom International (ETI) v Bolivia, ICSID Case No. ARB/​07/​28 (2009) . . . . . . . . . . . . . . 1202n Saint-​Gobain Performance Plastics Europe v Venezuela ICSID Case No. ARB/​12/​13 (2013) . . . . . . . . . 1202n Valle Verde Sociedad Financiera SL v Venezuela ICSID Case No. ARB/​12/​18 (2012) . . . . . . . . . . . 1202n

International Court of Justice Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Preliminary Objections, Judgment (2007) ICJ Rep 582 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249n Avena and Other Mexican Nationals (Mexico v USA), Judgment (2004) ICJ Rep 12 . . . . . . . . . . . . 138n Hungary v Slovakia, Judgment Merits [1997] ICJ Rep 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977n Interhandel (Switzerland v USA) Merits (1959) ICJ Rep 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1230n LaGrand (Germany v USA) Merits (2001) ICJ Rep 466 . . . . . . . . . . . . . . . . . 1185, 1215n, 1241, 1242n LaGrande Case (FRG v US) (2001) ICJ Rep 446 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138n Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (2004) ICJ Rep 136 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1116n



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Table of Cases

Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion (1996) ICJ Rep 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1116n Nottebohm case (Liechtenstein v Guatemala), Second Phase, Judgment [1955] ICJ Rep 4 . . . . . . . . . 520 Republic of Guinea v Democratic Republic of the Congo) (Merits) [2010] ICJ Rep 639 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983n, 1126n

International Criminal Tribunal for the Former Yugoslavia (ICTY) ICTY Prosecutor v Furundžija Trial Chamber Judgment (10 December 1998) . . . . . . . . . 427, 428n, 450 ICTY Prosecutor v Kunarac, Appeals Chamber judgment (12 June 2002) . . . . . . . . . . . . . . . 446n,  447–​8 ICTY Prosecutor v Kvocka Appeals Chamber judgment (28 February 2005) . . . . . . . . . . . . . . . . . . . . 447 Prosecutor v Tadic Appeals Chamber Judgment (15 July 1999) 105 ILR 419 . . . . . . . . . . . . . . . . . . . 320n

Nuremburg Military Tribunals United States v Karl Brandt and others, published in Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10 (1950) . . . . . . . . . . . . . . . . . . 453n

UNITED NATIONS Human Rights Committee Arenz et al v Germany, UN Doc CCPR/​C/​80/​D/​1138/​2002 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . 922n A R J v Australia UN Doc CCPR/​C/​60/​D/​692/​1996 (11 August 1997) . . . . . . . . . . . . . . . . . . . . . 1245n Ahani v Canada UN Doc CCPR/​C/​80/​D/​1051/​2002 (15 June 2004) . . . . . . . . . . . . . . . . . . . . . . . 1242n Alekseev v Russian Federation UN Doc CCPR/​C/​109/​D/​1873/​2009 (2 December 2013) . . . . . . . 1230n Aumeeruddy-​Cziffra v Mauritius UN Doc CCPR/​C/​OP/​1 (1984) . . . . . . . . . . . . . . . . . 612, 613n, 619n B and C v Czech Republic UN Doc CCPR/​C/​113/​D/​1967/​2010 (1 July 2015) . . . . . . . . . . . . . . 1232n B K v Czech Republic UN Doc CCPR/​C/​105/​D/​1844/​2008 (5 September 2012) . . . . . . . . . . . . . 1228n Bleier v Uruguay UN Doc CCPR/​C/​15/​D/​30/​1978 (29 March 1982) . . . . . . . . . . . . . . . . . . . . . . . 1095 Bakur v Belarus UN Doc CCPR/​C/​114/​D/​1902/​2009 (7 September 2015) . . . . . . . . . . . . . . . . . . . 586n Bourchef v Algeria UN Doc CCPR/​C/​86/​D/​1196/​2003 (27 April 2006) . . . . . . . . . . . . . . 1223n, 1243n Burdyko v Belarus UN Doc CCPR/​C/​114/​D/​2017/​2010 (25 September 2015) . . . . . . . . . . . . . . . 1242n Cabal & Pasini Bertran v Australia UN Doc CCPR/​C/​78/​D/​1020/​2001 (2003) . . . . . . . . . . . . . . . . 922n Canepa v Canada UN Doc CCPR/​C/​59/​D/​558/​1993 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 612 Castañeda v Mexico UN Doc CCPR/​C/​108/​D/​2202/​2012 (29 August 2013) . . . . . . . . . . . . . . . . . 1245n Chiti v Zambia, UN Doc CCPR/​C/​105/​D/​1303/​2004 (28 August 2012) . . . . . . . . . . . . . . . . . . . . 1231n Coeriel v The Netherlands UN Doc CCPR/​C/​52/​D/​453/​1991 (1994) . . . . . . . . . . . . . . . . . . . . . . . . 614 Croes, deceased and his heirs v The Netherlands UN Doc CCPR/​C/​34/​D/​164/​1984 (1988) . . . . . 1225n Evans v Trinidad and Tobago (2003) UN Doc CCPR/​C/​77/​D/​908/​2000 . . . . . . . . . . . . . . . . . . . . 1202n F K A G et al v Australia UN Doc CCPR/​C/​108/​D/​2094/​2011 (28 October 2013) . . . . . . . . . . . . 1243n Fanali v Italy UN Doc CCPR/​C/​18/​D/​75/​1980 (31 March 1983) . . . . . . . . . . . . . . . . . . . . . . . . . 1230n Fernando v Sri Lanka UN Doc CCPR/​C/​83/​D/​1189/​2003 (10 May 2005) . . . . . . . . . . . . . . . . . . 1243n Gillot v France, Communication No 932/​2000: Views (15 July 2002) UN Doc A/​57/​40 270 . . . . . . 168n Gunaratna v Sri Lanka UN Doc CCPR/​C/​95/​D/​1432/​2005 (17 March 2009) . . . . . . . . . . . . . . . . 1243n Hamilton v Jamaica UN Doc CCPR/​C/​66/​D/​616/​1995 (18 July 1999) . . . . . . . . . . . . . . . . . . . . . . 323n Joseph Frank Adams v the Chez Republic Communication No 586/​1994, 23 July 1996 . . . . . . . . . . . 73n Judge v Canada UN Doc CCPR/​C/​78/​D/​829/​1998 (13 August 2003) . . . . . . . . . . . . . . . . . . . . . . . 296n Khadzhiev v Turkmenistan UN Doc CCPR/​C/​113/​D/​2079/​2011 (12 May 2015) . . . . . . . . . . . . . . 619n KL v Peru, UN Doc CPR/​C/​85/​D/​1153/​2003 (22 November 2005) . . . . . . . . . . . . . . . . . . . . . . . . 163n Manuel Wackenheim v France Communication No 854/​1999 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . 144 Länsman et al v Finland UN Doc CCPR/​C/​58/​D/​671/​1995 (30 October 1996) . . . . . . . . . . . . . . 1242n Länsman et al v Finland UN Doc CCPR/​C/​83/​D/​1023/​2001 (15 April 2005) . . . . . . . . . . . . . . . 1242n LMR v Argentina UN Doc CCPR/​C/​101/​D/​1608/​2007 (28 April 2011) . . . . . . . . . . . . . . . . . . . . . 163n Lopez Burgos v Uruguay UN Doc CCPR/​C/​13/​D/​52/​1979 (29 July 1981) . . . . . . . . . . . . . . . . . . . 621n Mellet v Ireland UN Doc CCPR/​C/​116/​D/​2324/​2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163n Piandiong et al v Philippines UN Doc CCPR/​C/​70/​D/​869/​1999 (20 December 2000) . . . . . . 1245n, 1246n Rafael Armando Rojas García v Colombia UN Doc CCPR/​C/​76/​D/​778/​1997 (2002) . . . . . . . . . . . 611n



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lxxxiii

Sextus v Trinidad and Tobago UN Doc CCPR/​C/​72/​D/​818/​1998 (16 July 2001) . . . . . . . . . . . . . 1202n Shin v Republic of Korea UN Doc CCPR/​C/​80/​D/​926/​2000 (19 March 2004) . . . . . . . . . . . . . . . 1242n SYL v Australia UN Doc CCPR/​C/​108/​D/​1897/​2009 (11 September 2013) . . . . . . . . . . . . . . . . . 1245n Toonen v Australia UN Doc CCPR/​C/​50/​D/​488/​1992 (31 March 1994) . . . . . . . . . . . . . . . . . . . . . . 612 Valentini de Bazzano v Uruguay UN Doc CCPR/​C/​OP/​1 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 1223n Viana Acosta v Uruguay UN Doc CCPR/​C/​21/​D/​110/​1981 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . 451 X v Serbia UN Doc CCPR/​C/​89/​D/​1355/​2005 (3 May 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223n X v Sweden UN Doc CCPR/​C/​103/​D/​1833/​2008 (17 January 2012) . . . . . . . . . . . . . . . . . . . . . . . 1231n X v The Netherlands UN Doc CCPR/​C/​107/​D/​1886/​2009 (10 May 2013) . . . . . . . . . . . . . . . . . . 1227n

CRPD Committee A F v Italy UN Doc CRPD/​C/​13/​D/​9/​2012 (19 May 2015) . . . . . . . . . . . . . . . . . . . . . 248n, 791, 1234n A M v Australia, UN Doc CRPD/​C/​13/​D/​12/​2013 (29 May 2015) . . . . . . . . . . . . . . . . . . . . 1223, 1239 Beasley v Australia UN Doc CRPD/​C/​15/​D/​11/​2013 (25 April 2016) . . . . . . . . . . . 69n, 79n, 80n, 81n, 82n, 165, 248n, 260, 268, 272, 276, 1233n, 1250n Bujdosó v Hungary UN Doc CRPD/​C/​10/​D/​4/​2011 (16 October 2013) . . . . . . . . . 248n, 1071n, 1248n D L v Sweden UN Doc CRPD/​C/​17/​D/​31/​2015 (21 May 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . 1232n D R v Australia UN Doc CRPD/​C/​17/​D/​14/​2013 (19 May 2017) . . . . . . . . . . . . . . . . . . . . . . . . . 1232n F v Austria UN Doc CRPD/​C/​14/​D/​21/​2014 (21 September 2015) . . . . . . . . . . . . 79n, 248n, 260, 276, 282, 284–​6, 574–​5, 577, 598, 1231n, 1250n H M v Sweden UN Doc CRPD/​C/​7/​D/​3/​2011 (21 May 2012) . . . . . . . . . . 75n, 79n, 165n, 248n, 298, 407n, 555, 557, 574, 756, 1233n, 1242n, 1250n L M L v United Kingdom UN Doc CRPD/​C/​17/​D/​27/​2015 (19 May 2017) . . . . . . . . . . . . . . . . . 874n, 1232n, 1242n Liliane Gröninger et al v Germany UN Doc CRPD/​C/​D/​2/​2010 (7 July 2014) . . . . . . . . . . . 248n, 792, 1248n, 1250n Lockrey v Australia UN Doc CRPD/​C/​15/​D/​13/​2013 (30 May 2016) . . . . . . . . . 69n, 79n, 165n, 248n, 260, 268, 272, 276 Marie-​Louise Jungelin v Sweden, UN Doc CRPD/​C/​12/​D/​5/​2011 (14 November 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79n, 80n, 81n, 82n, 165n, 248n, 794–​5, 1248n Marlon James Noble v Australia, UN Doc CRPD/​C/​16/​D/​7/​2012 (10 October 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74n, 248n, 440n, 464, 1104n, 1224n, 1231, 1248n, 1250n McAlpine v United Kingdom UN Doc CRPD/​C/​8/​D/​6/​2011 (13 November 2012) . . . . . . . . 1233, 1234n Nyusti & Takacs v Hungary, UN Doc CRPD/​C/​9/​D/​1/​2010 (21 June 2013) . . . . . . . . 124n, 130, 248, 260, 271, 272n, 276, 282, 597–​8, 1233n, 1234, 1248n, 1250n S C v Brazil, UN Doc CRPD/​C/​12/​D/​10/​2013 (28 October 2014) . . . . . . . . 1228, 1229n, 1231n, 1239 X v Argentina UN Doc CRPD/​C/​11/​D/​8/​2012 (10 October 2016) . . . . . . . . . . . . 248n, 260, 268, 274, 298, 398, 407, 464, 756, 1244, 1248n, 1250n Zsolt Bujdosó and five others v Hungary UN Doc CRPD/​C/​10/​D/​4/​2011 (20 September 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 844n, 846–​8, 850, 852, 857, 860, 1095

Committee on the Elimination of Discrimination against Women (CEDAW) A T v Hungary, UN Doc CEDAW/​C/​32/​D/​2/​2003 (2005) . . . . . . . . . . . . . . . . . . 1231n, 1242n, 1243n da Silva Pimentel v Brazil UN Doc CEDAW/​C/​49/​D/​17/​2008 (2011) . . . . . . . . . . . . . . . . . . . 428n, 447 Goekce v Austria UN Doc CEDAW/​C/​39/​D/​5/​2005 (6 August 2007) . . . . . . . . . . . . . . . . 1225n, 1231n Herrera v Canada UN Doc CEDAW/​C/​50/​D/​26/​2010 (30 November 2011) . . . . . . . . . . . . . . . . 1245n Y W v Denmark UN Doc CEDAW/​C/​60/​D/​51/​2013 (13 April 2015) . . . . . . . . . . . . . . . . . . . . . 1232n Yildirim v Austria UN Doc CEDAW/​C/​39/​D/​6/​2005 (1 October 2007) . . . . . . . . . . . . . . 1225n, 1231n

Committee against Torture A A v Azerbaïdjan UN Doc CAT/​C/​35/​D/​247/​2004 (25 November 2005) . . . . . . . . . . . . . . . . . . A I v Switzerland UN Doc CAT/​C/​32/​D/​182/​2001 (17 May 2004) . . . . . . . . . . . . . . . . . . . . . . . . A R A v Sweden UN Doc CAT/​C/​38/​D/​305/​2006 (30 April 2007) . . . . . . . . . . . . . . . . . . . . . . . . Brada v France UN Doc CAT/​C/​34/​D/​195/​2002 (24 May 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . Dadar v Canada UN Doc CAT/​C/​35/​D/​258/​2004 (5 December 2005) . . . . . . . . . . . . . . . . . . . . .

1230n 1244n 1230n 1246n 1245n



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Table of Cases

Gerasimov v Kazakhstan UN Doc CAT/​C/​48/​D/​433/​2010 (10 July 2012) . . . . . . . . . . . . . . . . . . 1231n Hajrizi and Others v Serbia and Montenegro UN Doc CAT/​C/​29/​D/​161/​2000 (21 November 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447n Tursunov v Kazakhstan UN Doc CAT/​C/​54/​D/​538/​2013 (3 July 2015) . . . . . . . . . . . . . . . . . . . . . 1242n

NATIONAL COURTS Argentina Aquino, Isacio v Cargo Servicios Industriales SA Case No A 2652 XXXVIII (2004). . . . . . . . . . . . . . 779n

Australia Ingram v QBE Insurance (Australia) Ltd [2015] VCAT No H107/​2014 (18 December 2015) . . . . . . . 732n Minister of State v Teoh (1994–​1995) 183 CLR 273 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1098n Nicholson & Ors v Knaggs & Ors [2009] VSC 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 814n X v Commonwealth [1999] HCA 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774n

Belgium United Nations v B (1952) 19 ILR 490 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109n

Canada Canada (Attorney General) v Thwaites [1994] 3 F C 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774n Law v Canada (Minister of Employment and Immigration) [1999] 1 SCR 497 . . . . . . . . . . . . . . . 24, 25n R v Rose [1998] 3 SCR 262 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403n Turnbull v Famous Players Inc (2001) 40 CHRR D/​333 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 883 Vlug v Canadian Broadcasting Corp (2000) 38 CHRR D/​404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 882

Colombia Decision of the Constitutional Court, Case C-​131/​14, Colombian Constitutional Court (11 March 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 644n Decision of the Constitutional Court, Case C-​133/​14 (11 March 2014) . . . . . . . . . . . . . . . . . . . . . . 457n

France Gianmartini et al v Easyjet Cass crim 15 décembre 2015, Bull crim 2015 n° 286 . . . . . . . . . . . 509n, 923n

India Francis Coralie Mullin v Administrator, Union Territory of Delhi and Ors, AIR 1981 SC 746, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309n Francis Coralie Mullin v Union Territory of Delhi (1981) AIR 1981 SC 746 . . . . . . . . . . . . . . . . . . . . 721 Jeeja Ghosh & ANR v Union of India & Others, Indian Supreme Court judgment (12 May 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 519 Nikhil D Dattar and Niketa Mehta v Union of India (2008) 110(9) BOMLR 3293 . . . . . . . . . . . . . . 309 Olga Tellis v Bombay Municipal Corporation [1985] 2 Supp SCR 51 . . . . . . . . . . . . . . . . . . . . . . . . 309n Pascim Banga Khet Mazdoor Samity v State of West Bengal (1966) AIR SC 2426 . . . . . . . . . . . . . . 721–​2 Rakesh Chandra Narayan v Union of India (1989) AIR 1989 SC 148 . . . . . . . . . . . . . . . . . . . . . . . . . 721 Ranjit Kumar v State Bank of India76, case 2009(5) Bom CR 227. . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 Savitha Sachin Patil and Another v Union of India, Writ petition (Civil) No 121/​17 Order (28 February 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309n State of Punjab & others v Mohinder Singh Chawla (1997) 2 SCC 83 . . . . . . . . . . . . . . . . . . . . . . . . 721

Kenya Republic v Cabinet Secretary for Transport & Infrastructure Principle Secretary & 5 Others ex parte Kenya Country Bus Owners Association & 8 Others [2014] eKLR . . . . . . . . . . 518n

New Zealand Creed NZ v Governor General [1981] 1 NZLR 172 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1098n



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Fauna and Flora case, Wai 262 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901n The Canterbury Health Claim, Wai 2645 (filed on 17 February 2017) . . . . . . . . . . . . . . . . . . . . . . . 901n Trevethick v Ministry of Health [2008] NZHC 415 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 773n

Russia Case GKPI 11–​2093 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 783n Sergiyenko v the Belgorod Regional Department of the Federal Bailiff Service, Judgment of the Oktyabrskiy District Court of Belgorod (17 April 2014) case no 2–​1664/​2014 . . . . . . . . . . . 274 Shitikov v Absent Ltd, Judgment of the Promyshlennyi District Court of Smolensk (18 December 2013) case no 2–​3339/​2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 Tsurenko v the Ministry of Education of the Omsk Region, Decision of Appeal of the Omskiy Oblast Court (18 December 2013) case no 33–​8213/​2013 . . . . . . . . . . . . . . . . . . . 276

South Africa Government of the Republic of South Africa and Others v Grootboom 2001 (1) SA 46 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53n Hoffman v South African Airways [2000] ZACC 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774n

Spain Barcelona Provincial High Court, Judgment 202/​2015 (12 May 2015) . . . . . . . . . . . . . . . . . . . . . . . 274n Judgment 619/​2013 (10 October 2013), Civil Chamber of the Supreme Court . . . . . . . . . . . . . . . . . 274n

Switzerland M v R Swiss Federal Court judgment (2000) ATF 127 III 86 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774n

England and Wales A Local Authority v ED & Ors [2013] EWCOP 3069 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351n Archibald v Fife Council, [2004] UKHL 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776n, 785n Barnes [2004] EWCA Crim 3246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913n Burnip v Birmingham City Council [2012] EWCA Civ 629 [1]‌ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 828n C (Adult: Refusal of Medical Treatment), Re [1994] 1 All ER 819 . . . . . . . . . . . . . . . . . . . . . . . . . . . 725n Findlay, In re [1985] AC 318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1098n FirstGroup Plc v Paulley [2017] UKSC 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571–​2,  923n J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry and Others and related appeals; MacLaine Watson & Co Ltd v Department of Trade and Industry; MacLaine Watson & Co Ltd v International Tin Council (judgment of 26 Oct 1989) 81 ILR 670 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1160n JW, Re [2015] EWCOP 82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371n London Borough of Haringey v CM [2014] EWCOP B23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126n Lyons v Board of the State Hospital [2011] ScotCS CSOH_​21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351n Morby (1882) 2 QBD 571 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214n Ormond Street Hospital (GOSH) v Chris Gard and Others [2017] EWHC 972 (Fam) Declaration (11 April 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 R (E) v Nottinghamshire Healthcare NHS Trust [2009] EWCA Civ 795 . . . . . . . . . . . . . . . . . . . . . . 351n R v Newham London Borough Council, ex parte Dada (1995) 1 FCR 248 . . . . . . . . . . . . . . . . . . . . 205n Rex v Bourne 3 All E R (1938) 615, 694–​95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 Ross v Ryanair Ltd & Anor [2004] EWCA Civ 1751 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 572 St George’s Healthcare NHS Trust v S [1999] Fam 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223n Stott v Thomas Cook Tour Operators Ltd [2014] UKSC 15 . . . . . . . . . . . . . . . . . . . . . . . . . . 519n, 923n

United States ADA in Vande Zande v Wisconsin Dep’t of Admin 44 F 3d 538, 543 (7th Cir 1995) . . . . . . . . . . . . Addington v Texas, 441 US 418, 425 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alexander v Choate, 469 US 287, 301 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Am Council of Blind v Astrue, No 05–​4696–​WHA, 2009 WL 3400686 (N D Cal 20 October 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

537n 414n 825n 825n



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American Geophysical Union v Texaco Inc 60 F 3d 913, 918 (2d Cir 1994) . . . . . . . . . . . . . . . . . . . 897n Balfour, Gunthrie & Co Ltd v United States 90 F Supp 831 (1950) 17 ILR 323 . . . . . . . . . . . . . . . 1109n Bouvia v County of L A 195 Cal App 3d 1075, 241 Cal Rptr 239 (Cal App 1987) . . . . . . . . . . . . . . 304n Bowen v Am Hosp Ass’n 476 US 610 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302, 304 Brown v Board of Education of Topeka 347 US 483 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Bucks v Bell 247 US 200 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51n Burlington Industries, Inc v Ellerth 524 US 742 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 782n Buskirk v Apollo Metals 116 F Supp 2d 591, 598 (ED Pa 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 910n Campbell v Acuff-​Rose Music Inc 510 US 569, 590 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897n Canterbury v Spence (1972) 464 F 2d 772 (DC Cir 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 725n Colyar v Third Judicial District Court 469 F Supp 424 (D Utah 1979) . . . . . . . . . . . . . . . . . . . . . . . . 414 Cooper v CLP Corp 679 Fed Appx 851 (11 Cir 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 782n Crabtree v Goetz 2008 WL 5330506 (M D Tenn 19 December 2008) . . . . . . . . . . . . . . . . . . . . . . . 537n DeAngelo v ConAgra Foods Inc 422 F 3d 1220 (11th Cir 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 795n District of Columbia v Brooke 214 US 138, 149 (1909) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413n Doe v Gallinot 486 F Supp 983, 991 (C D Cal 1979), aff’d, 657 F 2d 1017 (9th Cir 1981) . . . . . . . . . 413n Dred Scott v John Sandford 60 US 393 (1857) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289 Dusky v United States 362 U.S. 402 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419n Faragher v City of Boca Raton 524 US 775 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 782n Feist v Louisiana 730 F 3d 450 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 796 Fifth Circuit in Newberry v East Texas State University 161 F 3d 276 (5th Cir 1998) . . . . . . . . . . . . 795n Fleetwood v Harford Sys Inc 380 F Supp 2d 688 701 (D Md 2005) . . . . . . . . . . . . . . . . . . . . . . . . . 797n Foucha v Louisiana 504 US 71, 86 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412n Georgia v McAfee, 385 S E 2d 651 (Ga 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304n Graham v Florida 130 S Ct 2011, 2034 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418n Harrington v East Coast Area Health Board DEC—​E/​2002/​001 (January 2002) . . . . . . . . . . . . . . . 795n Humphrey v Cady 405 U.S. 504, 509 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412n Infant Doe v Bloomington Hospital 464 US 961 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302, 304 Jackson v Indiana 406 US 715 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412n Jacobson v Massachusetts 197 US 11 (1905) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51n, 413n Jones v State 396 S W 3d 558, 561–​62 (Tex Crim App 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422n Jones v United States 463 US 354, 363 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419n Khrapunskiy v Doar 12 N Y 3d 478 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 772n Kiphart v Saturn Corp 74 F Supp 2d 769, 774 (MD Tenn 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 910n Knowles v Sherriff 460 Fed Appx 833, 836 (11th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 796n Lane et al v Brown et al United States District Court Case No 3:12–​cv-​00138–​ST (2016) . . . . . . . . . 775n Lane v Candura 376 N E 2d 1232 (Mass App Ct 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304n Lawrence v Texas 539 US 558, 562 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403 Lessard v Schmidt 349 F Supp 1078 (E D Wis 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413n Mackay v Bergstedt 801 P 2d 617 (Nev 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304n MC v Central Reg Sch Dist 81 F 3d 389, 396 (3d Cir 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 696n Medellín v Texas (Medellín II) 128 S Ct 1346 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138n, 1185n Messier v Southbury Training School (STS), 562 F Supp 2d 294 (D Conn 2008) . . . . . . . . . . . . . . . 537n Miller v Alabama 132 S Ct 2455, 2475 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418n Mills Board of Education 348 F Supp 866, 868 (D D C 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 678 Milton v Nicholson No 07–​20201, 2007 WL 2695625 (5th Cir 2007) . . . . . . . . . . . . . . . . . . . 786, 787n O’Connor v Donaldson 422 US 563 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412–​13 Obergefell v Hodges 576 US _​_​_​(2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Oberti v Board of Education of the Borough of Clementon School District, 995 F 2d 1204 (3d Cir 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 671n Olmstead v L C 527 US 581 (1999) 138 F 3d 893 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 531, 537 Parents Involved in Community Schools v Seattle School District No 1 551 US 701 [2007] . . . . . . . . . 672n Pate v Robinson 383 U.S. 375, 385 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419n Pennsylvania Association for Retarded Children (PARC) v Commonwealth 334 F Supp 1257, 1264 (E D Pa 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 678 People v Berling 251 P 2d 1017 (Cal App 1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419n



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Peraza v State 467 S W 3d 508, 520 n 29 (Tex Crim App 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422n PGA Tour Inc v Martin 532 US 661, 204 F 3d 994 affirmed (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 915 Pierce v Society of Sisters 268 US 510 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 695n Quackenbush, In re 383 A 2d 785 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304n Rasul v Bush 542 US 466 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1185n, 1225n Rogers v Whitaker (1992) 175 CLR 479 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 725n Roper v Simmons 543 U.S. 551, 577 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418n Rorrer v City of Stow 743 F 3d 1025 (6th Cir 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 795n Schindler v Schiavo (In re Schiavo) 780 So 2d 176, 180 (Fla Dist Ct App 2001) . . . . . . . . . . . . . . . . . 304 Specht v Patterson 386 US 605, 608 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412n Stieberger v Apfel 134 F 3d 37, 39 (2d Cir 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 825n Summers v Altarum Institute, Corp 13–​1645, 2014 WL 243425 (4th Circuit 2014) . . . . . . . . . . . . . 795n T W by McCullough and Wilson v Unified Sch Dist No 259, Wichita, Kan, 43 IDELR 187, 136 F App’x 122 (10 Cir 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 687n The Author’s Guild et al v Google Inc 05 Civ 8136 (DC) 2013 WL 6017130 (SDNY 14 November 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 892–​3 The Author’s Guild et al v HathiTrust et al 11 CV 6351 (HB) (SDNY 14 November 2013) . . . . . . . . . . 893 The Authors Guild et al v Google Inc 13–​4829–​cv (2d Cir 16 October 2015) . . . . . . . . . . . . . . . . . 892–​3 The Authors Guild v HathiTrust 902 F Supp 2d 445 (SDNY 10 October 2012), aff’d in part in The Authors Guild v HathiTrust (2d Cir 10 June 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 893 Townsend v Quasim (9th Cir 2003) 328 F3d 511 520 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 537n United States v Lyons 739 F 2d 994 (5th Cir 1984), 731 F 2d 243 (5th Cir 1984), cert denied 469 U.S. 930 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418n United States v University Hospital 729 F 2d 144 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302, 304 Workman v Frito-​Lay 165 F 3d 460 (6th Cir 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 795n



Table of Legislation ARGENTINA Occupational Risks Law (LRT) 1995 Art. 39(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 779 AUSTRALIA Commonwealth Electoral Act 1918 . . . . . 1069n Disability (Access to Premises—​Buildings) Standards 2010 . . . . . . . . . . . . . . . . . . . . 884 Mental Health Act 2013 . . . . . . . . . . . . . . . . 352n Mental Health Act 2014 . . . . . . . . . . . . . . . . 352n AUSTRIA Federal Disability Act (BundesbehindertenG) (1990) . . . . . . . 135 Federal Equal Treatment Act (1993) BGBI 1993/​100 § 19a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77n Migration Act 1958 . . . . . . . . . . . . . . . . . . . . 524n BELGIUM

Representation Agreement Act 1995 (British Colombia) . . . . . . . . . . . . . . . . 367n Sexual Sterilization Act 1928 (Alberta) . . . . . . . . . . . . . . . . . . . . . . . . . . 458 Vulnerable Persons Living with a Mental Disability Act 1996 (Manitoba, Canada) . . . . . . . . . . . . . . . 367n CHINA Compulsory Education Law 1986 . . . . . . . . 1056 Law on the Protection of the Rights and Interests of Women 1992 . . . . . . . . . . . . . . . . . . . . 1055 Mental Health Law 2013 . . . . . . . . . . . . . . . . 452 COLOMBIA Law 1412 of 2010 Art. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503 Art. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 457 COOK ISLANDS

Cooperation Agreement between federal government and communities 2009 . . . . 138

Electoral Act 2004 . . . . . . . . . . . . . . . . . . . . . 855n

BULGARIA

COSTA RICA

Natural Persons and Support Measures (Draft) Act 2014 . . . . . . . . . . . . . . . . . . 352n Persons and Family Act 1949 s. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 438n

Ley 9.379 para la Promoción de la Autonomía Personal de las Personas con Discapacidad (‘Law for the Promotion of Personal Autonomy of Persons with Disabilities’, Civil Procedure Code No 9,379, 2016) . . . . . . . . . . . . . 367n

CANADA Adult Guardianship and Trusteeship Act 2008 (Alberta) . . . . . . . . . . . . . . . . . . . . 367n Air Transportation Regulations (2017) s. 155(3)(b) . . . . . . . . . . . . . . . . . . . . . . 576n Canadian Association of Broadcasters Equitable Portrayal Code (2008) . . . . . 255 Charter of Rights and Freedoms (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 1052 s. 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101n s. 15(1) . . . . . . . . . . . . . . . . . . . . . . . . . 24, 150 Human Rights Act 1977 . . . . . . . . . . . . . . . 1052 Immigration and Refugee Protection Act 2001 s. 38(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 523 Decision-​Making, Support and Protection to Adults Act, 2003 (Yukon) . . . . . . . . 367n Mental Health Care and Treatment Act 2006 Art. 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 900n Art. 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 900n

CROATIA Act on Protection of Persons with Mental Disorders 2014 . . . . . . . . . . . . 352n Constitution 1990 . . . . . . . . . . . . . . . . . . . . . . 306 Criminal Code 1997 . . . . . . . . . . . . . . . . . . . . 306 Law on Health Care Measures for the Exercise of the Right to Free Decision-​Making About Giving Birth 1978 . . . . . . . . . . . . . . . . . 306 CYPRUS Persons with Disabilities Law 2000 . . . . . . . . . 59 Art. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59n Persons with Disabilities Law 2006 . . . . . . . 135n Sign Language Law (L 66 (I) 2006) . . . . . . 1073 DENMARK Health Act 2005 . . . . . . . . . . . . . . . . . . . . . . . 305

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FINLAND

INDIA

Constitution 2011 s. 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101n

Constitution 1950 . . . . . . . . . . . . . . . . . . . . . . 298 Art. 21 . . . . . . . . . . . . . . . . . . . . . . . . 298, 309 MTP Act 1971 . . . . . . . . . . . . . . . . . . . . . . . 309n PNDT Act 2004 . . . . . . . . . . . . . . . . . . . . . . 309n Rights of Persons with Disabilities Act 2016 . . . . . . . . . . . . . . . . . . . . . . . . 309n

FRANCE Exception to Copyright, Related Rights and the Rights of Database Producers for People with Disabilities 2017 s. 45a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 888n GERMANY Basic Law 1949 Art. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51n Art. 2(2) Sentence 1 . . . . . . . . . . . . . . . . . . . . . . . . 307 Copyright Act of 9 September 1965 (Federal Law Gazette I, 1273), as last amended by Article 1 of the Act of 20 December 2016 (Federal Law Gazette I 3037) . . . . . . . 888n Criminal Code 1998 ss 211 et seq . . . . . . . . . . . . . . . . . . . . . . . . . 307 ch VI s 211(1) . . . . . . . . . . . . . . . . . . . . . . 307n ch VI s 211(2) . . . . . . . . . . . . . . . . . . . . . . 307n s. 218 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307n s. 218(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 307n s. 218(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 307 Penal Code 1872 . . . . . . . . . . . . . . . . . . . . . . . 307 Pregnancy Conflict Act 1995, Criminal Code s 218(a)(2). . . . . . . . . . . 307 Pregnant Women’s and Families’ Amendment Act 1995 . . . . . . . . . . . . . . 307 GREECE Law 3699, Special Education of Individuals with Disabilities or Special Needs, 2008 Art. 4(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 685n Art. 6(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . 685n HUNGARY Constitution 1949 . . . . . . . . . . . . . . . . . . . . . . 308 Art. XXXVI . . . . . . . . . . . . . . . . . . . . . . . 1071n Art. 70(5) . . . . . . . . . . . . . . . . . . . . . 846n, 848 Civil Code 2013 . . . . . . . . . . . . . . . . . . . . . . 645n Foetus Life Act 1992 . . . . . . . . . . . . . . . . . . . . 308 s. 6(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 308n s. 6(2)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 308n s. 6(4)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 308n Health Act 1997 . . . . . . . . . . . . . . . . . . . . . . . 308 s. 187(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 308n ss 183–​84 . . . . . . . . . . . . . . . . . . . . . . . . . . 308n



IRAN Constitution 1979 . . . . . . . . . . . . . . . . . . . . 1181n Art. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1180 Art. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1180 IRELAND (REPUBLIC OF IRELAND) Assisted Decision-​Making (Capacity) Bill 2013 . . . . . . . . . . . . . . . . . . . . . . . . 352n Assisted Decision-​Making (Capacity) Act 2015 . . . . . . . . . . . . . . . . . . 367n, 373n Education Act 2004 . . . . . . . . . . . . . . . . . . . 685n Human Rights and Equality Commission Act 2014 s. 42(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101n ISRAEL Capacity and Guardianship (Amendment No 18) Law, 5776–​2016 . . . . . . . . . . . 367n ITALY Basaglia Law 1978 . . . . . . . . . . . . . . . . . . . . . . 553 Law No.68/​1999 . . . . . . . . . . . . . . . . . . . . . . . 791 Law no 104 5 February 1992 . . . . . . . . . . . . 685n Mariotti Law 1968 . . . . . . . . . . . . . . . . . . . . . 553 JAPAN Basic Act for Persons with Disabilities 1970 . . . . . . . . . . . . . . . . . . . 886 KENYA Children’s Act, No 8 of 2001 s. 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 s. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 Constitution 2010 . . . . . . . . . . . . . . . . . . . . . . 307 Art. II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308n Art. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307n Art. 26(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 Art. 26(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 Art. 28 . . . . . . . . . . . . . . . . . . . . . . . . . . 518n Art. 43(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 Art. 54(1)(c) . . . . . . . . . . . . . . . . . . . . . . . 518n LITHUANIA Criminal Code 2000 Art. 142 . . . . . . . . . . . . . . . . . . . . . . . . . . . 310n

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Constitution 1957 Art. 8(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1182 Art. 153(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1182

Criminal Code 2005 . . . . . . . . . . . . . . . . . . . . 310 Part II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310n s. 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310n §§144–​54 . . . . . . . . . . . . . . . . . . . . . . . . . 310n ss 150–​53 . . . . . . . . . . . . . . . . . . . . . . . . . . 311n s. 154 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310n §§155–​60 . . . . . . . . . . . . . . . . . . . . . . . . . 310n §§161–​78 . . . . . . . . . . . . . . . . . . . . . . . . . 310n Constitution 1992 Art. 15(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 310n

NEW ZEALAND

SOUTH AFRICA

Public Health and Disability Act 2000 s. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901

Broad-​Based Black Economic Empowerment Act 53 of 2003 . . . . . . . 791 Choice on Termination of Pregnancy Act 1996 . . . . . . . . . . . . . . . . . . . . . . . . . 306 Art. 2(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . 307n Constitution 1996 . . . . . . . . . . . . . . . . . . . . . 101n Art. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92n Art. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92n Art. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92n Art. 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92n Art. 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92n Art. 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92n Art. 165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92n Art. 181 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92n Art. 196 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92n s. 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 527n Sch 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92n Domestic Violence Act 1998 . . . . . . . . . . . . 1058 Mental Health Care Act 2002 . . . . . . . . . . . 1058

FORMER YUGOSLAV REPUBLIC OF MACEDONIA Law on the Prevention and Protection Against Discrimination 2010 Art. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77n MALAYSIA

NORWAY Anti-​Discrimination and Accessibility Act 2008 . . . . . . . . . . . . . . . . . . . . . . . . . 126 s. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126n s. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 PARAGUAY Act No 978/​96 Art. 6(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 514n PERU Act No 29478 2009 . . . . . . . . . . . . . . . . . . . 1056 Act No 29524 on Deafblind Persons 2010 . . . . . . . . . . . . . . . . . . . . . 1056 Administrative Decision No 0269–​2009 of the National Identity and Civil Status Registry (RENIEC) . . . . . . . . . . 1056 Finance Act 2011 . . . . . . . . . . . . . . . . . . . . . 1056 RUSSIA Civil Code of 1994 Art. 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 438n SAUDI ARABIA Basic Law of Governance 1992 Art. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1179n SERBIA Constitution 2006 . . . . . . . . . . . . . . . . . . . . . . 298 Guide Dog Assistance Law 2015 . . . . . . . . . . 577 SINGAPORE Mental Capacity Act 2008 . . . . . . . . . . . . . . 352n Model Act on reasons and procedure for limiting and protection of certain rights and liberties, 2013 . . . . . 352n SLOVAKIA Act on Artificial Termination of Pregnancy 1986 . . . . . . . . . . . . . . . . . 311

SOUTH KOREA Anti-​Discrimination against and Remedies for Persons with Disabilities Act 2008 Art. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393 Culture and Arts Promotion Act 2016 . . . . . 886 Immigration Control Act 1992 Art. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514n Mother and Child Health Act 1986 Art. 14(1)(1) . . . . . . . . . . . . . . . . . . . . . . . . 310 Enforcement Decree . . . . . . . . . . . . . . . . . . 310 Art. 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . 310 Art. 15(2) . . . . . . . . . . . . . . . . . . . . . . . . . 310 Nationality Processing Guidelines 2013 Art. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526n Welfare of Disabled Persons Act 1989 . . . . . 886 SPAIN Art. 26/​2011 . . . . . . . . . . . . . . . . . . . . 311, 1053 Act 51/​2003 on Equal Opportunities, Non-​discrimination and Universal Access for People with Disabilities . . . . 127



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Código Civil (Civil Code) 1889 Art. 200 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 501 Código Penal (Penal Code) 1995 Art. 156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 501 Sexual and Reproductive Health Act (Organic Act 2/​2010) . . . . . . . . . . . 311

Art. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 900n Art. 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 900n Special Educational Needs and Discrimination Act (SENDA) 2001 . . . . . . . . . . . . . . . . . . . 703n

UGANDA

UNITED STATES (US)

Constitution 1995 Art. 22(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 309n Art. 22(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 309n UNITED ARAB EMIRATES (UAE) Civil Code 1985 . . . . . . . . . . . . . . . . . . . . . . . 856 Constitution 1971 . . . . . . . . . . . . . . . . . . . . . . 856 UNITED KINGDOM (UK) Abortion Act 1967 . . . . . . . . . . . . . . . . . . . . . 300 s. 1(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 Adults with Incapacity (Scotland) Act 2000 s. 1(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367n s. 1(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367n Copyright (Visually Impaired Persons) Act 2002 (CVIPA 2002) . . . . . . . . . . . . 891 Copyright, Designs, and Patents Act 1988 ss 31A-​31F . . . . . . . . . . . . . . . . . . . . 888n, 892 ss 81–​83 . . . . . . . . . . . . . . . . . . . . . . . . . . . 892n Criminal Procedure (Insanity) Act 1964 . . . 361n Disability Discrimination Act 1995 . . . . . . . . . . . . . . . . 57, 572, 703n Education Act 1981 . . . . . . . . . . . . . . . . . . . 687n Equality Act 2010 . . . . . . . . . . . . 257, 769n, 883 s. 29(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 572 s. 149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101n Art. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 782 Art. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 782 Human Fertilisation and Embryology Act 1990 s. 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 Human Rights Act 1998 . . . . . . . . . . . . . . 1158n Mental Capacity Act 2005 (England and Wales) . . . . . . . . . . . . . . . 352 s. 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367n s. 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354n s. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 726 s. 3(2) . . . . . . . . . . . . . . . . . . . . . . . 352n, 367n s. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365n Mental Capacity Act (Northern Ireland) 2016 SI 2016\18 . . . . . . . . . . . . . . . . . . 352n s. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367n s. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365n Mental Health Act 1983 . . . . . . . . . . . . . . . . 900n Mental Health (Care and Treatment) (Scotland) Act 2003 Pt. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 900n



Title 17 of the United States Code (U.S.C) § 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 892n § 121 . . . . . . . . . . . . . . . . . . . . . . . 888n, 893n Title 20 of the United States Code (U.S.C) § 1401(3)(A) . . . . . . . . . . . . . . . . . . . . . . . 824n Title 42 of the United States Code (U.S.C) § 423(d)(1)(A) . . . . . . . . . . . . . . . . . . . . . . 824n § 12101(7) . . . . . . . . . . . . . . . . . . . . . . . . . 893n Air Carrier Access Act 1986 . . . . . . . . . . . . . . 577 Americans with Disabilities Act 1990 . . . . . . . 78, 531n, 532, 537, 618, 625n, 661n, 663n, 776, 797, 910, 915 §§ 12101–​117, 12201–​213 . . . . . . . . . . . 769n § 12102 et seq . . . . . . . . . . . . . . . . . . . . . . 703n § 12102 . . . . . . . . . . . . . . . . . . . . . 663n, 665n s. 12111 . . . . . . . . . . . . . . . . . . . . . . . . . . . 682n § 12112(b)(4) . . . . . . . . . . . . . . . . . . . . . . . 73n Title II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 537 Title III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79n ADA Amendments Act 2008 . . . . . . . . . . . . 661n Copyright Code s. 121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 892 Constitution 1788 14th amendment . . . . . . . . . . . . . . . . . . . . 695n Health Insurance Portability and Accountability Act (HIPPA) 64 Federal Register 53, 211 (14 August 2002) . . . . . . . . . . . 625n, 626n Individuals with Disabilities Education Act (IDEA) 1990 . . . . . . . . 664n, 675–​6, 677n, 684n, 687n Part C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 665n § 1401(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 676n § 1401(3)(A)(i) . . . . . . . . . . . . . . . . . . . . . 665n § 1401(9) . . . . . . . . . . . . . . . . . . . . . . . . . . 675n § 1401(14) . . . . . . . . . . . . . . . . . . . . . . . . . 685n § 1412(a)(5) . . . . . . . . . . . . . . . . . . . . . . . 687n § 1412(a)(10)(C)(ii) . . . . . . . . . . . . . . . . . 696n § 1414(d)(3)(A) . . . . . . . . . . . . . . . . . . . . 676n § 1415 (k) . . . . . . . . . . . . . . . . . . . . . . . . . 677n § 1431 et seq. . . . . . . . . . . . . . . . . . . . . . . 665n § 6311 (c)(4)(a)(i)(I)(bb) . . . . . . . . . . . . . 677n § 6311 (b)(2)(B)(xi)(III) . . . . . . . . . . . . . 677n 1996 New Jersey Genetic Privacy Act, NJ Rev Stat § 178:30–​12 (1996) . . . . 626n

Table of Legislation Personal Responsibility and Work Opportunity Act 1996 . . . . . . . . . . . . . 525n Privacy Act 1974 5 USC § 552(a) (2000) . . . . . . . . . . . . . . . . . . . . 625n, 626n Rehabilitation Act 1973 . . . . . . . . . . . . . . . . . . 78 s. 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703n Supported Decision-​Making Agreement Act 2015 (Texas) SB No 1881 2015 . . . . . . . . . . . . . . . . . 367n URUGUAY Constitution 1830 . . . . . . . . . . . . . . . . . . . . . . 515 Art. 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 515n Art. 80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 515n EUROPEAN UNION DIRECTIVES Directive 2013/​32/​EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection . . . . . . . . . . . . 526n Directive 2005/​29/​EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-​to-​consumer commercial practices in the internal market and amending Council Directive 84/​450/​ EEC, Directives 97/​7/​EC, 98/​27/​ EC and 2002/​65/​EC of the European Parliament and of the Council and Regulation (EC) No 2006/​2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (Text with EEA relevance) Arts 5–​9 . . . . . . . . . . . . . . . . . . . . . . . . . . . 377n Directive 2001/​29/​EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society Art. 5(3)(b) . . . . . . . . . . . . . . . . . . 888n, 891n Directive 2000/​78/​EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation . . . . 38, 61–​2, 65n, 78, 96, 767, 769n Art. 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65n Art. 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76n Art. 5 . . . . . . . . . . . . . . . . . . . . 76n, 78n, 793n Art. 5(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767

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Recital 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Recital 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Recital 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Directive 96/​9/​EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases . . . . . . . . . . . . . 896n Art. 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 896n Directive 95/​46/​EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data . . . . . . . . . . . 614n, 936n, 938, 941 Art. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941n Art. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941 Art. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942n Art. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941n Art. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941n Art. 11(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 941n Recitals 1–​11 . . . . . . . . . . . . . . . . . . . . . . . 938n EUROPEAN UNION REGULATIONS General Data Protection Regulation (GDPR) Regulation (EU) 2016/​679 . . . . . . . . . . . . 614, 626–​7, 936n, 938,  941–​2 Art. 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 626n Art. 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 626n Art. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941n Art. 5(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . 626n Art. 5(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . 626n Art. 5(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . 626n Art. 5(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . 626n Art. 5(1)(e) . . . . . . . . . . . . . . . . . . . . . . . . . 626n Art. 5(1)(f ) . . . . . . . . . . . . . . . . . . . . . . . . . 626n Art. 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 626n Art. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941 Art. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942n Art. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941n Art. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941n Art. 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941n Art. 14(5) . . . . . . . . . . . . . . . . . . . . . . . . . . 941n Art. 89 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942n Recital 35 . . . . . . . . . . . . . . . . . . . . . . . . . . 942n Recital 54 . . . . . . . . . . . . . . . . . . . . . . . . . . 942n Regulation (EU) No 1303/​2013 . . . . . . . . . 539n Regulation (EU) No 181/​2011 Art. 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576n Regulation (EU) No 1177/​2010 Art. 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575n



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Regulation (EC) 1371/​2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations [2007] OJ L 315/​14 Art. 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575n Regulation (EC) No 1107/​2006 . . . . 520n, 570, 575n, 923 Art. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575n Regulation (EC) No 2006/​2004 Art. 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576n Regulation (EC) No 332/​97 . . . . . . . . . . . . . 937



Recital 13 . . . . . . . . . . . . . . . . . . . . . . . . . . 937n Recital 14 . . . . . . . . . . . . . . . . . . . . . . . . . . 937n Recital 15 . . . . . . . . . . . . . . . . . . . . . . . . . . 937n Art. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937n Art. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937n Art. 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937n Art. 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937n Art. 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937n Regulation (EC) No 97/​281 . . . . . . . . . . . . 937n Art. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937n Art. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937n Ch V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937n

Preamble ( a) Recalling the principles proclaimed in the Charter of the United Nations which recognize the inherent dignity and worth and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world, ( b) Recognizing that the United Nations, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, has proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, ( c) Reaffirming the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination, ( d) Recalling the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, ( e) Recognizing that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others, ( f) Recognizing the importance of the principles and policy guidelines contained in the World Programme of Action concerning Disabled Persons and in the Standard Rules on the Equalization of Opportunities for Persons with Disabilities in influencing the promotion, formulation and evaluation of the

policies, plans, programmes and actions at the national, regional and international levels to further equalize opportunities for persons with disabilities, ( g) Emphasizing the importance of mainstreaming disability issues as an integral part of relevant strategies of sustainable development, ( h) Recognizing also that discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person, (i) Recognizing further the diversity of persons with disabilities, (j) Recognizing the need to promote and protect the human rights of all persons with disabilities, including those who require more intensive support, (k) Concerned that, despite these various instruments and undertakings, persons with disabilities continue to face barriers in their participation as equal members of society and violations of their human rights in all parts of the world, (l) Recognizing the importance of international cooperation for improving the living conditions of persons with disabilities in every country, particularly in developing countries, (m) Recognizing the valued existing and potential contributions made by persons with disabilities to the overall well-​being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in their enhanced sense of belonging and in significant advances in the human, social and economic development of society and the eradication of poverty, (n) Recognizing the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices,

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(o) Considering that persons with disabilities should have the opportunity to be actively involved in decision-​making processes about policies and programmes, including those directly concerning them,

of the United Nations and observance of applicable human rights instruments are indispensable for the full protection of persons with disabilities, in particular during armed conflicts and foreign occupation,

(p) Concerned about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status,

(v) Recognizing the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms,

(q) Recognizing that women and girls with disabilities are often at greater risk, both within and outside the home of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation,

(w) Realizing that the individual, having duties to other individuals and to the community to which he or she belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the International Bill of Human Rights,

(r) Recognizing that children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children, and recalling obligations to that end undertaken by States Parties to the Convention on the Rights of the Child, (s) Emphasizing the need to incorporate a gender perspective in all efforts to promote the full enjoyment of human rights and fundamental freedoms by persons with disabilities, (t) Highlighting the fact that the majority of persons with disabilities live in conditions of poverty, and in this regard recognizing the critical need to address the negative impact of poverty on persons with disabilities, (u) Bearing in mind that conditions of peace and security based on full respect for the purposes and principles contained in the Charter

( x) Convinced that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State, and that persons with disabilities and their family members should receive the necessary protection and assistance to enable families to contribute towards the full and equal enjoyment of the rights of persons with disabilities, (y) Convinced that a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities will make a significant contribution to redressing the profound social disadvantage of persons with disabilities and promote their participation in the civil, political, economic, social and cultural spheres with equal opportunities, in both developing and developed countries,

1. Introduction 2. Background and Travaux Préparatoires 2.1 Legal Effect of Preambles under Public International Law 2.2 The States Parties to the Present Convention 3.1 Paragraph (a) 3.2 Paragraph (b) 3.3 Paragraph (c) 3.4 Paragraph (d) 3.5 Paragraph (e) 3.6 Paragraph (f ) 3.7 Paragraph (g) 3.8 Paragraph (h)

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Preamble 3.9 3.10 3.11 3.12 3.13 3.14 3.15 3.16 3.17 3.18 3.19 3.20 3.21 3.22 3.23 3.24 3.25

Paragraph (i) Paragraph (j) Paragraph (k) Paragraph (l) Paragraph (m) Paragraph (n) Paragraph (o) Paragraph (p) Paragraph (q) Paragraph (r) Paragraph (s) Paragraph (t) Paragraph (u) Paragraph (v) Paragraph (w) Paragraph (x) Paragraph (y)

3 18 19 19 20 21 22 23 24 25 27 27 28 29 31 31 32 32

1. Introduction The preamble to the Convention on the Rights of Persons with Disabilities (CRPD) consists of twenty-​five paragraphs, and is thus half the length of the operative provisions of the treaty. Of the core human rights conventions, it is by far the longest preamble among them. Preambles to human rights treaties, as with all treaty preambles, are introductory statements that set out the treaty’s purpose, underlying philosophy, drafters’ intent, and historical evolution.1 The preamble facilitates treaty interpretation, as noted by the International Criminal Court Appeals Chamber in its observation that the purposes of a treaty may be gleaned from ‘the wider aims of the law as may be gathered from its preamble and general tenor of the treaty’.2 And while preambular paragraphs may not, on account of their characteristic hortatory language, confer specific rights and obligations, as explained in the ICRC Commentary to Geneva Convention IV, the preamble ‘frequently facilitates the interpretation of particular provisions which are less precise than they should be, by its indication of the general idea behind them and the spirit in which they should be applied’.3 And finally, as exemplified by the Maartens Clause—​an 1   Art 31(1) 1969 Vienna Convention on the Law of Treaties 1155 UNTS 331, 340. See also Gyorgy Haraszti, Some Fundamental Problems of The Law of Treaties (Akademiai Kiado 1973) 106–​07. The term ‘preamble’ derives from the late Middle English, specifically, Medieval Latin ‘praeambulum’ and from Late Latin ‘praeambulus’ meaning ‘going before’. Its meaning in legal terms is a clause, or group of clauses, at the beginning of an agreement that sets forth its meaning, intention, and/​or the reasons for its adoption and is thus helpful in its interpretation. See The New Shorter Oxford English Dictionary on Historical Principles vol 2 (OUP 1993) 2323. See also Bryan A Garner, ‘Preamble’, Black’s Law Dictionary (9th edn, West 2009). 2   Situation in Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-​Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, ICC-​01/​04-​168 (13 July 2006) para 33. The Vienna Convention on the Law of Treaties (VCLT) provides that international agreements are to be interpreted in accordance with the ordinary meaning of their terms, in their context, and in light of their object and purpose. See Art 31(1) VCLT. Further, the negotiating history of an agreement is a ‘supplementary’ means of interpretation, to be used when the meaning of a provision is ambiguous or obscure. Art 32 VCLT. 3  ICRC, Commentary to the Convention (IV) relative to the Protection of Civilian Persons in Time of War, Preamble (ICRC 1958). See also ICRC, Commentary to Convention (IV) relative to the Protection of Civilian Persons in Time of War, Preamble (ICRC 2016).

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international humanitarian law doctrine according to which, in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience—​preambles can contribute to the crystallization of an international rule. The Martens Clauses was elevated from its preambular position into an operative article in a later treaty, demonstrating that paragraphs housed in the preamble can be elevated to operative status. Both the Geneva Conventions of 1949 and the two Protocols additional thereto of 1977 restated the Martens Clause. Furthermore, the 1977 Diplomatic Conference which led to the drafting of Additional Protocol I  underlined the continuing importance of the Martens Clause by moving it from the preamble, where it first appeared in the 1973 draft, to a substantive provision of the Protocol. Undoubtedly, therefore, the Martens Clause is still relevant.4

2.  Background and Travaux Préparatoires The basis for what became the preamble was a Mexican working paper, the proposal developed to ensure the success of the first meeting of the Ad Hoc Committee on the basis that its mandate was to consider ‘proposals’.5 Absent a proposal being tabled, there was a risk, so the Mexican delegation reasoned, that an opposing delegation might suggest that the Committee had no work to perform within its mandate, pursuant to the UNGA resolution that established it. A general consensus emerged as to the basic elements of the preamble, as evidenced by paragraphs common to early proposals by Mexico, New Zealand, and as reflected in the Bangkok draft.6 All three documents supported the reflection in the preamble of: (1) the idea that existing human rights standards are applicable to people with disabilities; (2) the value of existing human rights standards to people with disabilities; (3) the value of disability-​specific instruments, such as the Standard Rules;7 (4) the notion that human rights violations against people with disabilities persist; and (5) the notion that states have a responsibility to eliminate barriers to the full and equal participation and enjoyment of human rights by people with disabilities.8 Further, in the Bangkok draft’s

4   Rupert Ticehurst, ‘The Martens Clause and the Laws of Armed Conflict’ (1997) 317 International Review of the Red Cross 125. 5   ‘Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities’, Working Paper, A/​AC.265/​WP 1 (2002) [Mexico Draft]. 6   The Bangkok draft acknowledges that ‘Paragraphs (a) to (k) are derived from the Working paper by Mexico, A/​AC265/​WP1, Mexican Draft, with changes only to paragraph (g). Paragraphs (l) and (m) are derived from the Compilation of the results of the working groups of the Seminar, Américas regional seminar and workshop on norms and standards related to the rights of persons with disabilities and development, Quito, Ecuador, 9–​11 April 2003. Paragraphs (n) to (u) were added by the Bangkok meeting.’ Regional Workshop Towards a Comprehensive & Integral International Convention on Protocol & Promotion of the Rights & Dignity of Persons with Disabilities, 14–​17 October 2003, ‘Bangkok Draft:  Proposed Elements of a Comprehensive and Integral International Convention to Promote and Protect the Rights of Persons with Disabilities’ UN Doc A/​AC265/​2003/​CRP/​ 10 (2003); ‘New Zealand’s View of a Convention on the Rights of Disabled People’, 28 November 2003 [New Zealand Proposal]; Mexico Draft. 7   UNGA Res 48/​96 (20 December 1993), Annex, ‘Standard Rules on the Equalization of Opportunities for Persons with Disabilities’. [Standard Rules]. 8   A side-​by-​side comparison of the three contributions together with an analysis appears in the following document: Landmine Survivors Network, ‘A comparative analysis of the Mexican, Bangkok and New Zealand Contributions to the UN Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities’ (December 2003) [LSN Comparative Analysis].

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elaborate preamble, included were core issues that were eventually addressed not only in the adopted preamble, but also in the operative parts of the treaty text. These included:  (1) independent living; (2)  autonomous decision-​making by people with disabilities; (3) gender and disability; (4) particularly marginalized groups of people with disabilities; and (5) international cooperation.9 The Mexico and Bangkok proposals also referenced inclusion of paragraphs in the preamble, acknowledging the social circumstances that contribute to increase the incidence of disability, the role of persons with disabilities and NGOs in disability rights awareness-​ raising, and the interrelationship between poverty and disability.10 The New Zealand proposal noted that some issues are ‘more adequately dealt with in other settings’, an implicit criticism of prevention-​oriented language found in the preamble to the Mexican draft.11 Some of the more substantive elements of the preamble—​and those that most closely addressed core conceptual issues of human rights in the context of disability—​were not addressed in the 2004 Working Group draft, but were added throughout the course of the negotiations.12 That said, some of the most substantive discussions during the negotiations occurred around language housed in the preamble of the adopted text. Many of these provisions were connected to operative paragraphs in the Convention that would eventually make their way into the preamble, either as language reinforcing of those operative articles or as language deemed too controversial or unsuitable for reflection in the articles of the CRPD. The final text of the CRPD preamble gives a flavour for nearly all of the core conceptual issues arising during the negotiation of the Convention. Of major consequence was the placement of language reflecting the social model of disability, not only embedded in article 1 (purpose) but also in paragraph (e) of the preamble, which came in large part as a result of Australian Disabled Person’s Organizations (DPOs) working together with their government delegation. Of special interest are those provisions that did not make their way into the final preambular text, but were included in early drafts and proposals put forward during the negotiations. Their deliberate excision in some instances lends insights into the intention of the drafters in some important respects. First, a point of strident protest among some members of civil society, was the decision to avoid mention of the contested and certainly outmoded non-​binding guidelines adopted in 1991 along with the Standard Rules, namely, the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Healthcare (MI Principles). Inputs provided in an online consultation held by UN Department of Economic and Social Affairs (UN DESA), a highly novel approach to participation in treaty consultations at the time, sums up well the basis of the objection to the Mexican proposed preambular language: While the citations of previously agreed texts is generally good, many organizations of persons concerned with abuse of psychiatric practices find the citation of 1971 Declaration on the Rights of Mentally Retarded Persons and the 1991 Principles for the Protection of Persons with Mental 10 11   Bangkok Draft, at Preamble.  ibid.   See New Zealand Proposal at ‘Scope’.   The position of Aust that a ‘preamble should reflect the main treaty text and not the other way around’ and, further, that detailed consideration of the preamble ought to take place towards the end of negotiations when the parameters of the treaty are clear is a sound one. But as the CRPD process bears out, early formulation of standard recitals in a preamble can occur at any point in the process. His position on the relatively unimportant role of the preamble, even against final clauses of a treaty, may be correct for the standard recitals, but even that proposition is open to question in the CRPD context. Anthony Aust, Modern Treaty Law and Practice (2nd edn, CUP 2007) 426. 9

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Illness and the Improvement of Mental Healthcare to be inappropriate since they contain principles that are no longer considered fair or correct.13

A second omission with some significance concerned proposals to include in the preamble language referencing the prevention of disability and also text emphasizing the interrelationship between poverty and conflict and correspondingly high rates of disability. For instance, the Venezuelan proposal, a response to the Mexican treaty proposal, included the following three paragraphs: • Concerned at the fact that extreme poverty, marginalization, social exclusion, war and underdevelopment contribute to the existence of high disability rates, since the great majority of persons with disabilities live in developing countries, • Bearing in mind that, in many cases, disability can be prevented by creating conditions of equity and thus by increasing the level of development and quality of life of the world’s people, • Recognizing that the strengthening of international peace and security and the prevention of conflict help reduce the high rates of disability in the world.14

Language concerning prevention of disability did not make its way into the preamble and was roundly criticized, especially by the disability community.15 The draft language focused on the prevention of disability reflected the early thinking in the process and the traditional view that conflates disability rights and prevention of disability. Proponents were quickly disabused of the idea, not only by DPOs but likewise by delegates representing countries with more developed disability rights legislation. Finally, it was the preamble, not any of the operative provisions of the treaty—​that resulted in a last minute delay of the final text’s adoption at the eighth, and final, session of the Ad Hoc Committee. At the behest of the United States, the offending text for paragraph (u) was put to the vote, creating the need to move hundreds of delegates from conference room 4 to an adjacent hall in the basement of UN Headquarters equipped with voting machinery but without, however, accessibility features which had been incrementally made to enhance 1950s-​era barriers. Following the vote tabulation, the way was cleared for the Ad Hoc Committee to adopt the finalized treaty text and send it onwards ultimately for a vote of the whole General Assembly in December 2006. 13  Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, New York, 16–​27 June 2003, ‘Compilation of Proposals for a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities’ UN Doc A/​AC265/​CRP13 Add 1 and 2 (2003) [2003 June Compilation]. 14   Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, ‘Draft submitted by the Government of the Bolivarian Republic of Venezuela’ UN Doc A/​AC265/​2003/​WP1 (2003) [Venezuelan Draft]. 15   In response to draft text for Preamble (m) (‘Committed to take the necessary steps to reduce the causes that originate or worsen certain disabilities;’), a participant in the online DESA consultation captures well the sentiment expressed against coverage of disability prevention in the treaty:

While prevention is an important issue in a larger context, it should not be included in a Convention on disabilities, which is applied to persons who already have a disability. This text opens the door to a large number of steps, including eugenics, that have serious social and moral implications, as well as linking the Convention to large and often intractable issues like armed conflict. This paragraph should be deleted or the emphasis should be on mitigating the factors that worsen certain disabilities. See 2003 June Compilation.

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Unlike all other chapters in this volume, which provide a lengthy discussion of the travaux in a distinct section, discussions of the travaux are incorporated into the commentary to the various paragraphs of the preamble in this chapter.

2.1 Legal Effect of Preambles under Public International Law The general position in international law as to the legal effect of a preamble is, in accordance with article 31 of the Vienna Convention on the Law of Treaties (Vienna Convention), it forms the context within which the treaty should be interpreted and applied.16 Thus, the Appeals Chamber of the International Criminal Court has stated that when interpreting treaties, the purposes may be discerned from ‘the wider aims of the law as may be gathered from its preamble and general tenor of the treaty’.17 The commentary on the preamble by Landmine Survivors Network during the CRPD drafting provides additional texture to the overall work that a preamble does: ‘[T]‌he preamble provides a useful historical context and the rationale for introducing a new instrument into the body of international law.’18 The more comprehensive view is that the explanatory power of the preamble is significant and tells a story about the treaty’s underlying rationale, the general tenor and conceptual undergirding of its text, and the international context within which the treaty was adopted. Its greatest effect is the power of the preamble to give traction to norm development and evolution. This is apparent even in the first decade of the CRPD’s entry into force. In this regard, the oft-​cited proposition that the preamble is non-​binding merits deeper consideration. According to the Vienna Convention on the Law of Treaties, ‘the context for the purpose of the interpretation of a treaty shall comprise, in addition to the text . . . its preamble and annexes . . .’19 Thus the preamble, while not dispositive, is nonetheless an interpretive tool whose import is obscured by the truism that it is ‘non-​binding’. This is certainly borne out by the early practice of the CRPD Committee and its jurisprudence. To cite but one example, the attention given to preambular paragraph (e) bears out the heft that language housed in a preamble may have, including its bearing on the interpretation of the treaty. Paragraph (e) was intended to reflect the social model of disability and is explicitly linked to article 1 in practice and numerous commentaries.20

  Art 31 VCLT.   Situation in Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-​Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, ICC-​01/​04-​168 (13 July 2006) para 33. See also Tuiloma Neorini Slade and Roger S Clark, ‘Preamble and Final Causes’, in Roy S Lee (ed), The International Criminal Court: The Making Of the Rome Statute: Issues, Negotiations, Results (Brill 1999) 425–​29; Morten Bergsmo and Otto Triffterer, ‘Preamble’, in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (2nd edn, C H Beck/​Hart/​Nomos 2008) 1–​47; William Schabas, The International Criminal Court: Commentary on the Rome Statute (OUP 2010) 29–​53; Eric David, in Paul de Hert et al (eds), Code of International Criminal Law and Procedure: Annotated (Larcier Ghent 2013) 7–​10. 18   Landmine Survivors Network, ‘Comments on the draft text, Preamble’, third session, available at: . 19   Art 31(2) VCLT. 20   See eg Michael Ashley Stein and Janet E Lord, ‘The United Nations Convention on the Rights of Persons with Disabilities: Process, Substance, and Prospects’ in Felipe G Isa and Koen de Feyter (eds), International Human Rights Law in a Global Context (University of Deusto 2008) 495. See also Gerard Quinn, ‘Disability and Human Rights:  A New Field in the United Nations,’ in Catarina Krause and Martin Scheinin (eds), International Protection of Human Rights: A Textbook (Abo Akademi 2009) 247–​71. 16 17

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2.2 The States Parties to the Present Convention The CRPD preamble opens in the name of: ‘The States Parties to the present Convention’, a conventional and thus unremarkable introduction, but for the fact that the CRPD allows, in article 44, for regional integration organizations to join as parties.21 While not defined in the CRPD, the term ‘regional integration organization’ may be understood to mean ‘an organization constituted by sovereign states of a given region, to which its member states have transferred competence in respect of matters governed by this Convention and which has been duly authorized, in accordance with its internal procedures, to sign, ratify, accept, approve or accede to it . . .’.22 The European Union (EU), a regional integration organization, is party to the CRPD by virtue of article 44. The EU is constituted by member states but also enjoys separate legal personality.23 This gives some credence to the view that the term ‘parties’ would have been preferable, but the point is likely a pedantic one.24

3.1 Paragraph  (a) Preambular paragraph (a) reaffirms human rights principles set out in the UN Charter and reflects the conceptual interrelationship between human rights and other core values of the United Nations. It underscores a principle that is restated in article 3(a) CRPD that is of particular significance for disability rights advocates who have long argued that seeing persons with disabilities as equal in dignity is a necessary precondition to recognition of disability rights. This principle is closely linked to the obligations laid out in article 8 CRPD, concerning awareness-​raising, which recognizes the need to combat negative stereotypes based on disability—​often on erroneous attributes of causation, linked to deviance, curse, and the like—​in order to advance disability rights in law, policy, and programming.25 The text appeared first in the Mexican paper prepared to form the basis of discussions at the onset of the Ad Hoc Committee process, and was housed in two separate paragraphs at the start of the preamble.26 It was not incorporated into the Bangkok Draft,

21   Provisions on participation identify the categories of states or organizations that may become party. Certain treaties can only be implemented by states by reason of their nature and full competence in respect of the subject matter of those treaties. Art 125, 1998 Rome Statute of the International Criminal Court, 1998, which reads:

Signature, ratification, acceptance, approval or accession 1. This Statute shall be open for signature by all States.   See 2000 UN Convention against Transnational Organized Crime, Preamble (j).   See elsewhere commentary in this volume. 24   Drawing from the meaning ascribed to the term ‘states’ in other treaties referencing regional integration organizations, ‘States Parties’ in the Preamble and in other provisions in the CRPD should be understood as applying to regional integration organizations, but within the limits of their competence. See 2000 UN Convention against Transnational Organized Crime, Preamble (j). 25   For more on art 8, see elsewhere commentary in this volume. 26   The text of the two paragraphs in the Mexico Proposal reads: 22 23

Reaffirming the purposes and principles of the Charter of the United Nations; Considering that the Charter of the United Nations reaffirms the value of the human person based on the principles of dignity and equality inherent to human beings and resolves to promote the social progress and better standards of living of all peoples within a broader concept of freedom; See Mexico Proposal (n 5) at Preamble.

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but made its way into the Chair’s text that was used as the basis for the Working Group discussions, by which time it assumed the following form in a single paragraph: Emphasizing that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world . . . 27

The Working Group adopted a similar formulation, replacing ‘Emphasizing’ with ‘Recalling’.28 The contribution of recital (a) for the CRPD is its reflection of the foundational principles of the UN Charter that have since given rise to a detailed human rights system and framework. It also reflects the notion, as underscored throughout the Ad Hoc Committee negotiations,29 that the CRPD comprises not new rights, but an expression and elaboration of human rights principles already embedded in existing human rights law and in the architecture of the international human rights framework (treaty, custom, general principles). As such, this paragraph instantiates the notion that the CRPD is firmly rooted in the existing human rights architecture and represents not a new take, but rather an articulation of previously enumerated rights.30

3.2 Paragraph  (b) The second paragraph in the preamble affirms the foundation for the human rights of persons with disabilities in its recognition that the International Bill of Human Rights (comprising the UDHR, ICCPR, and ICESCR) accords rights and freedoms to all. It gives expression to the understanding that human rights apply to all persons and that, as such, all rights are to be applied without distinction. The various rights and freedoms included in these three instruments, while not explicit as to disability discrimination, are nonetheless open ended and understood to apply to persons with disabilities.31 The language for this paragraph was first introduced in the Bangkok draft, although it included an open-​ended list of prohibited grounds of discrimination, including disability, among the prohibited grounds.32 The paragraph was included in the Working Group draft, preambular paragraph (b), minus the listing of characteristics, and remained essentially unchanged, apart from grammatical correction.33 27   See ‘Chair’s Draft Elements of a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, Draft Elements for Inclusion in a Preamble’ (7 January 2004). 28   See ‘Report of the Working Group to the Ad Hoc Committee, Ad Hoc Committee on a Comprehensive and Integral Int’l Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities’ 5–​16 January 2004, annex I, Art 11 UN Doc A/​AC265/​2004/​WG1 (27 January 2004) [Working Group Draft], (‘Recalling the principles proclaimed in the Charter of the United Nations which recognise the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world’). ibid, at Preamble. 29   Don McKay, ‘The Convention on the Rights of Persons with Disabilities:  A Benchmark for Action’ (2007) 56 Int’l Rehab Rev 2. 30   For an account of the UN human rights architecture, see Ilias Bantekas and Lutz Oette, International Human Rights Law and Practice (2nd edn, CUP 2016) chs 1–​4. See also Julie A Mertus, The UN Human Rights System: A Guide for a New Era (2nd edn, Routledge 2010). 31   See Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No 5, persons with disabilities’ UN Doc E/​1995/​22 (9 December 1994)  para 5; (‘[T]‌he requirement contained in article 2 (2) of the Covenant that the rights “enunciated . . . will be exercised without discrimination of any kind” based on certain specified grounds “or other status” clearly applies to discrimination on the grounds of disability.’); ibid. 32 33   Bangkok Draft, Preamble (a).   Working Group, Preamble (b).

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The inclusion of the term ‘all’ in relation to rights and freedoms is significant in the context of disability, as prior instruments were in some instances held to render rights and freedoms contingent for persons with disabilities. This point was driven home both on the floor of the Ad Hoc Committee with frequency and in commentaries on the CRPD treaty content.34 The inclusion of the term, therefore, goes to the heart of the rationale for a specific treaty on a sub-​population group covered in theory but not in practice by existing human rights law. Finally, the language ‘without distinction of any kind’ is reflected in instruments that predate the international human rights conventions.35

3.3 Paragraph  (c) Preambular paragraph (c) is drawn directly from paragraph 5 of the Vienna Declaration and is one of the most significant phrases to come out of the World Conference on Human Rights held in Vienna in 1993 and resulting in a detailed Programme of Action laying out priority issues for action to advance human rights.36 NGO commentaries underscored the importance of including this language, noting the relevance of the Vienna Declaration. The Landmine Survivors Network (LSN) Commentary on the Working Group Draft, noted the following regarding the Working Group text: ‘Draft Preamble paragraph (c) contains language that has not been introduced in previous submissions of the draft text’ and further, ‘[t]‌he reference in this paragraph is to the Vienna Declaration (1993), paragraph 5: “All human rights are universal, indivisible and interdependent and interrelated”.’37 The Working Group text remained intact, the only amendment to the paragraph being the addition of the term ‘interrelatedness’. Two substantive points bear mention in relation to this paragraph. First, early on in the negotiation of the CRPD there was resistance to the comprehensive approach to human rights adopted in the Convention on the Rights of the Child. Some delegations urged the adoption of a treaty more narrow in scope, focused on non-​discrimination and thus more aligned with CEDAW or CERD.38 The Special Rapporteur on Disability, charged with assisting in the implementation of the UN Standard Rules, himself cautioned against a

34   See eg Working Group Discussion of Objectives and General Principles where Governments and NGOs emphasized that all human rights are applicable to persons with disabilities and should be recognized as such. Working Group Daily Summary Vol 3 No 1 (5 January 2004). 35   For a review of international humanitarian law in the context of disability, see Janet E Lord, ‘International Humanitarian Law and Disability: Paternalism, Protection or Rights?’ in Michael Gill and Cathy Schlund-​ Vials (eds), Disability, Human Rights and the Limits of Humanitarianism (Ashgate 2014) 155. The phrase mirrors that found in the principal international humanitarian law instruments. The point is not merely academic, rather, the CRPD imports the principle of adverse distinction into its framework through art 11, specifically in its acknowledgment of the application of international humanitarian law to persons with disabilities in situations of risk. 36   Vienna Declaration and Programme of Action UN Doc A/​CONF157/​23 (25 June 1993) para 5. 37   Landmine Survivors Network, ‘Convention Document Legal Analysis: A legal commentary on the draft convention text produced by the Working Group for the UN Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities’ (March 2004) [LSN Working Group Commentary], available at: . 38   See eg Second Session of the UN Ad Hoc Committee on a Comprehensive and Integral Convention on the Rights and Dignity of Persons with Disabilities, Statement by H E Mr Peter Tesch, Australian Mission to the UN, 17 June 2003 (arguing for a convention narrow in scope and focused on filling existing gaps in a form that would be annexed to an existing treaty).

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far-​reaching convention and instead favoured a narrowly crafted instrument.39 Recital (c) therefore is ultimately a reflection of the decision taken in the Ad Hoc Committee to proceed with the drafting of a comprehensive treaty text elaborating on the full range of human rights—​civil, political, economic, social, and cultural—​within the context of disability.40 Second, the point has been made that disability rights are particularly reflective of this notion of indivisibility.41 Indeed, this may be empirically proven: inaccessible means of transport can mean the difference between an education and life-​long poverty for an individual with a disability. Illustratively, inaccessible rehabilitation, as for a landmine survivor, can make the difference between successful reintegration into society following traumatic injury and life-​long unemployment. And, as noted by Anna Lawson, the duty to provide reasonable accommodation is the glue that holds together these various rights.42

3.4 Paragraph  (d) The human rights treaties cited in preambular paragraph (d) are all legally binding, multilateral human rights conventions. They are also all considered ‘core’, the nomenclature used by the Office of the High Commissioner for Human Rights to denote the existence of a treaty monitoring body attached to a human rights convention.43 As such, they enjoy something of a higher order in international human rights law. Other human rights conventions are not included and the Universal Declaration of Human Rights (UDHR), the instrument from which all of these treaties emanate, receives mention in preambular paragraph (b). The sequencing is also deliberate and indicates the order in which they were adopted, but for the ordering of CERD, adopted one year prior to the two Covenants, which appears after the two foundational human rights conventions. While the development of the text for preamble (d) did not merit extensive discussion during the CRPD negotiations of any particular note, the Migrant Workers Convention44 was included in the list, notwithstanding objections to its mention voiced early on, at the Working Group. The objection was strong enough to merit a footnote in the Working Group text and its inclusion was ultimately accepted on the basis that the Convention had entered into force and thus did indeed form part of the corpus of human rights law.45

39   See Bengt Lindqvist, UN Special Rapporteur on Disability, ‘Some Thoughts on the Elaboration of a Disability Convention’ [undated] (noting that a comprehensive and integral convention ‘would become very long and perhaps complicated to handle from a monitoring point of view.’); ibid para 14. 40   This is best exemplified by the submission of the Chair’s text prior to the Working Group, which covers a full range of civil, political, economic, social, and cultural rights and the resulting Working Group text, which likewise reflects a comprehensive approach. See Chair’s Text, as well as the Working Group text. 41   Rebecca Brown and Janet E Lord, ‘The Role of Reasonable Accommodation In Securing Substantive Equality For Persons With Disabilities: The UN Convention On The Rights Of Persons With Disabilities’, in Marcia H Rioux, Lee Ann Basser, and Melinda Jones (eds), Critical Perspectives on Human Rights and Disability Law (Martinus Nijhoff 2011) 273. 42   Anna Lawson, Disability and Equality Law in Britain: The Role of Reasonable Adjustment (Hart 2008) 19. 43   The Office of the High Commissioner for Human Rights denominates as ‘core’ human rights conventions those that have treaty bodies to monitor their implementation. See OHCHR, Background conference document prepared by the OHCHR for the fifth session of the Ad Hoc Committee, ‘Monitoring Implementation of the International Human Rights Instruments: An Overview of the Current Treaty Body System’ UN Doc A/​AC265/​2005/​CRP2 (2005). 44   International Convention on the Rights of All Migrant Workers and Members of Their Families, UNGA Res 45/​158, annex (1990). 45   See eg Working Group Draft fn 2.

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The proposal by Chile, according to which mention be made to the World Conference against racism, racial discrimination, xenophobia, and related intolerance, held in South Africa in 2001, with a view to acknowledging the impetus given to the Ad Hoc Committee process was not taken up. This is an unfortunate omission in the preamble given its historical archiving function and perhaps counter-​intuitive linkage between the two processes.46 The final text of the paragraph serves two principal functions. First, it traces antecedent instruments along the lines of other preambular paragraphs in human rights treaties and second, it places prior core conventions within the CRPD context. This, then, arguably helps to situate the CRPD as a mere expression of—​rather than departure from—​existing human rights law.

3.5 Paragraph  (e) Preambular paragraph (e) begins with an acknowledgement that disability ‘is an evolving concept’. This reflects in part the difficulty of coming to consensus on whether and how to define disability in the CRPD, a matter resolved by the inclusion of language in article 1, concerning its purpose, as opposed to article 2, relating to definitions. It signals, therefore, both the difficulty of agreeing on a common definition of disability, together with the imperative that, howsoever defined, disability falls squarely within a socio-​contextual frame. In this respect it is perhaps the most important conceptual statement in the preamble, instantiating the decisive shift from a medical and/​or charity modelled approach to one that understands the disabling impact of socio-​contextual factors exogenous to individuals with a disability.47 As Kayess and French note, the paragraph ‘makes it clear that disability is to be understood according to the precepts of the social model’ and as ‘affirmed by the description of persons with disability in the second paragraph of article 1, and in the virtually absolute emphasis placed by the substantive human rights articles on the removal of barriers and provision of accommodations that will facilitate participation and inclusion of persons with disability within society’.48 Notwithstanding its central importance in helping conceptualize the thrust of the CRPD, early preamble proposals did not specifically address the framing of disability in accordance with the social model, apart from the draft proposal of Venezuela, which was

46   ‘Report of the third session 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’ UN Doc A/​AC265/​2004/​5 (9 June 2004), Annex, Compilation of proposed revisions and amendments made by the members of the Ad Hoc Committee to the draft text presented by the Working Group as a basis for negotiations by Member States and Observers in the Ad Hoc Committee, 9 June 2004 (‘It is recommended that appreciation be extended to the World Conference against racism, racial discrimination, xenophobia and related intolerance, held in South Africa in 2001, which gave impetus to the resolution promoting the work of the United Nations in the elaboration of an International convention on the rights of persons with disabilities—​Chile.’). 47   There were, however, some international documents that reflected, at least to some extent, the social model understanding of disability. Following the adoption of the Standard Rules, the Vienna Declaration and Programme of Action, adopted in 1993, stated the need for the ‘elimination of all socially determined barriers, be they physical financial, social or psychological, which exclude or restrict full participation in society’; Vienna Declaration and Programme of Action UN Doc A/​CONF 157/​23 (25 June 1993) para 63. 48   Rosemary Kayess and Phillip French, ‘Out of Darkness Into Light? Introducing the Convention on the Rights of Persons with Disabilities’, (2008) 8 Hum Rts L Rev 1; see also Michael Ashley Stein, ‘Disability Human Rights’ (2007) 95 California Law Review 75.

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a response to the Mexican proposal, containing various amendments, one of which was the following addition to the preamble: Recalling that discrimination against anyone on the basis of any structural or functional absence or impairment or any temporary or permanent limitation, restriction, obstruction or dysfunction in respect of human beings’ relationship to their environment constitutes a violation of the principles of equal rights and respect for human dignity and impedes the participation of persons with disabilities under conditions of equality in social, economic, political and cultural life . . . 49

While awkwardly stated, and reflecting in any event a translation from the original Spanish into English, the draft text is a reflection, at least in part, of a social model understanding of disability. The LSN Comparative Analysis Commentary of December 2003, in its review of proposals by Mexico, the Bangkok Meeting, and New Zealand, remarks: ‘It is notable that none of the documents specifically calls for the preamble to acknowledge the paradigm shift in thinking about disability that has occurred over the last few decades to reflect a move away from medical models of disability towards a recognition of rights-​based social models.’50 The LSN Commentary observes, however, that a contribution by New Zealand refers specifically to the shift away from the charity and medical models regarding stereotyping of groups, but is not a textual proposal, but rather a statement of principles.51 A major push for the inclusion of this paragraph in the preamble came from a coalition of Australian DPOs. In a 2004 paper on the preamble, they argued that ‘the Preamble, for interpretative purposes, should clearly signal a change in understanding of disability away from one of ‘individual pathology’ to a recognition of the way in which social structures and processes disable people with impairments, and thereby deny their human rights’ and to that end proposed the following addition: Recognising a profound shift away from an understanding of disability as an individual pathology towards one that recognises the disabling impact of inaccessible social structures and processes on persons with impairment.52

The Australian delegation, working in collaboration with Australian DPOs, pressed for the inclusion of language reflecting the social model of disability. The resulting reference to disability as ‘an evolving concept’ in the preamble is in part a reflection of the progressive evolution of disability reflected in UN instruments and also signals the evolution of disability and its definition in national law. Discussions within the Ad Hoc Committee emphasized the importance of capturing in the treaty text this shift and also emphasizing that the concept is in fact still evolving.53 Thus the reference to the evolution of the concept is an acknowledgment of the tension that persisted between delegations favouring some degree of guidance, given there was no universally adopted definition of disability and those who feared that having a definition would operate as a constraint to 50 51   See Venezuelan Draft.   LSN Comparative Analysis.  ibid.   People with Disability Australia et al, Submission to the Ad Hoc Committee, Preamble (July 2004). 53   Reflecting the social model of disability and also allowing for some flexibility given the variation among persons with disabilities in the way they choose to self-​identify was expressed early on in the Ad Hoc Committee process. WNUSP in its written submission ‘Basic Articles: Who is Covered’, underscored that ‘[i]‌t would also be desirable to obtain a definition that is comfortable both for people with disabilities who identify with medical terminology and diagnosis, and for those who reject medical terminology and identify with disability as a social and political category only.’ Ad Hoc Committee, ‘NGO Contributions to the Elements of a Convention’ UN Doc A/​AC265/​CRP13/​Add 1 (23 June 2003) 10. 49 52

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the realization of the Convention’s aims. The language did not make its way into the text of the treaty until the eighth session where China proposed the following language that very much mirrors the final text: Recognizing an evolving concept of disability where disability is a state of participation restriction resulted from interaction between an individual with impairments and environmental barriers.54

As a matter of international law, this recognition in the text introduces a certain measure of flexibility in much the same way that similar acknowledgement has been made in the international environmental law context. The clear thrust of the language is that disability must be understood not as a medical issue but instead as one in which a multitude of barriers in society serve to impact the enjoyment of human rights by persons with disabilities. It introduces a kind of flexibility into an otherwise set text—​it does not lock into the treaty a fixed and static understanding of disability, rather, it embraces a more nuanced approach to the conceptual boundaries of disability.

3.6 Paragraph  (f) Preambular paragraph (f ) is notable more for what it excludes in its spare mention of only two disability specific instruments adopted before the CRPD. The origin of the language is the Mexican Paper which devotes a separate, highly effusive, preambular paragraph to the Standard Rules.55 The Bangkok draft adopts the Mexican language in its preamble, whereas the Venezuelan proposal, by contrast, offers an amendment to the draft provision that includes a voluminous listing of seventeen instruments.56 Each of these proposals addressed the World Programme of Action separately in other preambular paraphrases. Mention to the World Programme of Action in the same paragraph as the Standard Rules arose first in response to the Working Group, where the draft Preamble excluded any mention of the document. The LSN Commentary to the Working Group text noted:  ‘Given that the Standard Rules summarize the message of the UN World Programme of Action, the Ad Hoc Committee may find it appropriate to include reference to the UN World Programme of Action as well.’57 The initial characterization of the role that the Standard Rules played in the equalization of opportunities for persons with disabilities drew criticism from the outset, as evidenced in the LSN analysis provided at the request of the Mexican government, which bluntly (but correctly) noted:  ‘This paragraph arguably overstates the role and impact that the Standard Rules has played.’58 The resulting language in recital (f ) is toned down from earlier expressions, and makes reference to the importance of ‘principles and policy 54   Proposed modifications by governments during the Eight Session of the Ad Hoc Committee, Preamble, China, available at: . 55  Mexico Working Paper (n 5)—​the proposed language read:  ‘Noting with great satisfaction that the Standard Rules on the Equalization of Opportunities for Persons with Disabilities have played an important role in influencing the promotion, formulation, and evaluation of the policies, plans, programs, and actions at the national, regional, and international levels to further the equalization of opportunities by, for and with persons with disabilities.’ For the Venezuelan proposal, see Venezuela Draft, Preamble. 56 57   Bangkok Draft, Preamble.   LSN Working Group Commentary. 58   The LSN analysis advised that Mexico: ‘Amend to improve drafting: Noting . . . that the Standard Rules on the Equalization of Opportunities for Persons with Disabilities have played an important role in  . . .’ Landmine Survivors Network, ‘Analysis to the Mexican Working Paper for a Proposal on a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities’ (2002) (on file with author).

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guidelines’ contained in both the World Programme of Action (which preceded the Standards Rules) and the subsequently adopted Standard Rules.59 The recognition of the ‘principles and policy guidelines’ in the paragraph draws an important distinction between those disability-​specific instruments referenced here and those instruments mentioned elsewhere in the Preamble that are legally binding. These two soft-​law instruments create an ongoing mandate, in particular for UN DESA, that did not expire with the adoption of a legally binding treaty.60 The point is not merely academic; activists in the disability community have sometimes put forward the view that these two instruments ought to fall into desuetude on the basis that the CRPD supersedes them; essentially they wished they would just go away. While incorrect from a legal standpoint, it is a political point with clear implications for the budgeting of UN DESA, the entity charged with the follow up of both instruments that also share the CRPD Secretariat with OHCHR. Of greatest interest is the decision taken by the drafters not to name a large list of antecedent instruments notwithstanding their focus on disability issues and in spite of the fact that so many figured into the draft preambular language of earlier proposals put forward by states.61 Some of the key omissions reflect deep ideological rifts, as has been duly noted by CRPD commentators.62 In this category falls the decision to exclude mention of the instrument adopted during the same year as the Standard Rules, which were heavily relied upon by the CRPD drafters. The MI Principles were excluded on the basis that they were outdated, reflected a medicalization of disability, and undercut the human rights of persons with mental disabilities along with the two first disability-​specific international instruments adopted by the UN General Assembly during the 1970s.63 For the World Network of Users and Survivors of Psychiatry, for instance, they reflected concern ‘about the naming of instruments containing outdated or paternalistic norms, which might 59   Notably, the resulting text reflects the statement found in the Position paper of China, combining mention of the two primary instruments, their importance, and role of their principles:

The international instruments adopted by the United Nations, such as the World Programme of Action concerning Disabled Persons and the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, have been of major importance in promoting the rights of persons with disabilities and improving their situation. They will continue to form an integral part of the indispensable guiding principles pertaining to the cause of persons with disabilities. Ad Hoc Committee on a Comprehensive and Integral Int’l Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, Convention on the Rights of Persons with Disabilities: ‘A Proposed Draft Text by China’ (11 December 2003) [China Proposal]. 60   See eg Venezuelan proposal. 61   For a voluminous list of antecedent international and regional treaties and soft law instruments that figured into the Venezuelan proposal, see preambular paragraph number 6. 62   See generally Kayess and French (n 48). Paragraph (f ) of the Preamble brings into focus this issue of continuity and discontinuity of the CRPD with the United Nation previous expositions of the human rights of persons with disability and related programmatic activity. Despite its benign appearance, it is intensely politically charged. The World Programme of Action concerning Disabled Persons and the Standard Rules on the Equalisation of Opportunities of Persons with Disabilities are explicitly acknowledged as antecedents to the CPRD but the 1971 Declaration, the 1975 Declaration, and the [MI] Principles are not. These omissions were intensely pursued by the IDC, which sought to negate any relationship between these instruments and the CRPD, and thereby to limit any future reliance upon them for the purposes of interpreting and applying CRPD rights; ibid 24. 63   The general argument in favour of excluding mention of these two instruments was the recognition that while they may have been, for their time, a step forward in placing disability rights on the international agenda, they reflect less a rights-​based model or socio-​contextual understanding of disability and more a charity/​ medical orientation. See Stein and Lord (n 20) 495.

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cause confusion in the interpretation of this convention’.64 Their exclusion from the preamble should see them fall into desuetude. The objections also rested on the particular discourse around disability in those instruments and the perspective that, following Mary Joe Frug’s work in post-​modern feminism, the construction of disability in legal text is an important and fertile ground for reform and very much a site of political struggle over disability oppression.65

3.7 Paragraph  (g) In paragraph (g), the CRPD evokes disability inclusion as an essential strategy of sustainable development. Further, it expresses a linkage to environmental concerns, broadly defined in the context of disability as the array of barriers presented in the environment that inhibit participation and full inclusion. In so doing, it acknowledges that the long-​term stability of the economy and environment is only achievable through the integration and acknowledgement of economic, environmental, and social concerns throughout the decision-​making process66 and that mainstreaming disability is integral to development.67 The phrase was a late addition to the preamble and did not appear in the text of the penultimate seventh session of the Ad Hoc Committee. The phrase referencing mainstreaming disability in development, and an additional preambular paragraph tying together development and human rights realization, was introduced by Bangladesh at the final (eighth) session and the paragraph on sustainable development was accepted with minor edits, while the additional paragraph on development and human rights was dropped.68 The proposal by Cuba earlier on in the negotiations to expressly acknowledge the right to development in the preamble was not taken up and provoked a routine (ideologically loaded) objection from the United States, among other delegations.69 64  Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, New  York, 16–​27 June 2003, ‘NGO Contributions to the Elements of a Convention’, World Network of Users and Survivors of Psychiatry, available at: . 65   Frug’s work is instructive in making the point that: ‘The [postmodern] position locating the human experience as inescapably within language suggest that feminists should not overlook the constructive function of legal language as a critical frontier for feminist reforms.’ Mary Joe Frug, ‘A Postmodern Feminist Legal Manifesto (an Unfinished Draft)’ (1992) 105 Harvard Law Review 1045, 1046. 66   United Nations Conference on the Human Environment, 1992 Rio Declaration on Environment and Development. United Nations General Assembly, Report of the World Commission on Environment and Development: Our Common Future’ (1987). 67   John C Dernbach, ‘Sustainable Development as a Framework for National Governance’ (1998) Case Western Reserve Law Review 1–​103; John C Dernbach, ‘Achieving Sustainable Development: The Centrality and Multiple Facets of Integrated Decision-​Making’ (2003) Indiana Journal of Global Legal Studies 247. 68   Ad Hoc Committee, Eighth session, ‘Proposed Changes by Governments’, Preamble, Bangladesh (on file with author); see also Ad Hoc Committee, eighth session, ‘Compilation of Proposals Received from Government Delegations Electronically by Friday, 18 August 2006, midnight’ (18 August 2006) (on file with author). At the same time during the eighth session, the International Disability Caucus was still pressing hard for the inclusion of a separate article on international cooperation (Art 32) that would ensure the inclusion of persons with disabilities at all levels of development and ensure that public money would not fund programmes that create barriers and, further, supported the inclusion in the same article of a reference to humanitarian and emergency aid as a critical component of international cooperation. See International Disability Caucus, ‘News Page for August 14’ (14 August 2006) (on file with author). 69   The Cuban proposal read: ‘Recognizing that the exercise of the right to development, as a universal and inalienable right, is a prerequisite to the integral and sustainable solution to meeting the needs of persons with disabilities.’ Ad Hoc Committee, ‘Compilation of Proposed Revisions and Amendments made by the members

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The application of sustainable development in practice requires the collection and dissemination of relevant information—​in this case information about barriers—​and further, requires the conduct of environmental impact assessments.70 It thus serves as a basis for allowing, or indeed requiring, disability inclusion and accessibility in bilateral and multilateral assistance, in much the same way that sustainable development as a principle paves the way for green conditionality. The notion of disability inclusion in achieving sustainable development and the practical consequences flowing from this approach have already started to emerge.71 Without question, its linkage in recital (i) is contributing to the emerging international law on sustainable development. As such, the language in the preamble substantively elevates the interrelationship between disability inclusion and sustainable development. It echoes the recognition in the 2030 Agenda for Sustainable Development that persons with disabilities are protected from discrimination in the context of development.72 The project of ensuring that disability inclusion is part and parcel of sustainable development is firmly reflected in the Sustainable Development Goals (SDGs) and the new World Bank’s Environmental and Social Framework. It is likewise reflected in related instruments, such as the Sendai Framework and the New York Declaration, insofar as humanitarian action is closely related to development and a component of it in many instances.73

3.8 Paragraph (h) The ICCPR and ICESCR provide that rights set out in therein derive from the inherent dignity of the human person.74 Human dignity is an intrinsic and universal attribute of all human beings and thus discrimination on the basis of disability violates that inherent

of the Ad Hoc Committee to the Draft Text presented by the Working Group as a basis for Negotiations by Member States and Observers in the Ad Hoc Committee’, Annex II, Preamble (d). 70   The status of sustainable development in international law is variously described as a rule of customary law, an arti culated purpose of environmental treaty law or a concept with, at the very least, interstitial normative force. Whatever its nature in international law, the linkage provided between sustainable development and disability inclusion in the CRPD Preamble informs the concept. For more on the legal status of the concept of sustainable development in international law, see Marie Claire Cordonier Segger, ‘Sustainable Development in International Law’ in David Armstrong (ed), Routledge Handbook of International Law (Routledge 2009) 359. 71   See UNGA Res 63/​150 (18 December 2008), ‘Realizing the Millennium Development Goals for Persons with Disabilities’ (urging ‘states to pay special attention to the gender specific needs of persons with disabilities, including by taking measures to ensure their full and effective enjoyment of all human rights and fundamental freedoms’), operative paragraph 8. See ibid, operative para 6, calling on states ‘to enable persons with disabilities to participate as agents and beneficiaries of development, in particular in all efforts aimed at achieving the Millennium Development Goals’, by ensuring that programmes and policies to promoting gender equality and empowerment of women and improving maternal health, among others, are inclusive of and accessible to persons with disabilities. 72  UNGA Res 70/​1 (21 October 2015), ‘Transforming Our World:  The 2030 Agenda for Sustainable Development’ para 19 (‘We emphasize the responsibilities of all States, in conformity with the Charter of the United Nations, to respect, protect and promote human rights and fundamental freedoms for all, without distinction of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, disability or other status.’). 73   World Bank, ‘Environmental and Social Framework’ (2017), available at: ; ‘Sendai Framework for Disaster Risk Reduction’, (UNISDR 2005), available at:  ; New York Declaration for Refugees and Migrants, UNGA Res 71/​1 (19 September 2016). 74   1966 International Covenant on Civil and Political Rights, [ICCPR]; 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR).

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dignity. The marrying of non-​discrimination and dignity in this paragraph is an implicit recognition that the experience of disability discrimination offends human dignity and worth. The reference to ‘respect for inherent dignity’ in the preamble echoes the preambular paragraph in the Universal Declaration of Human Rights, which emphasizes that ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world’.75 Last, the addition of the term ‘worth’ was introduced by the Holy See and mirrors language in the preamble of the UN Charter.76

3.9 Paragraph  (i) Preambular paragraph (i) follows closely on the preceding recital and is a reminder that persons with disabilities are not homogenous, but rather represent a diverse population. This recognition in the preamble is further reflected in the substantive provisions of the CRPD, for instance in article 3 where respect for difference is, in part, a statement about the diversity of disability; and equally in that identifying and dismantling barriers does not allow for a uniformity of approach, and that the very concept of reasonable accommodation mandates an acute attention to the individual needs of disabled persons. The importance of recognizing the diversity of persons with disabilities was emphasized in the European Union’s contribution to proposals or elements of a convention compiled by the Ad Hoc Committee early in the process, in December 2003 and reflected also in the specific text submitted by the EU.77 The EU language introduced at that time reflects the final version, but for the addition of the term ‘further’, which serves the purpose of uniting prior paragraphs and an additive function in that it builds on the multifaceted nature of disability. While the paragraph is the briefest of the preambular paragraphs, it in fact captures better than any other provision in the treaty the complexity of disability and, therefore, the magnitude of the Convention’s aims. It also reflects a compromise between those wanting some mention of diversity, though with greater specificity, and those who preferred a spare text that did not seek to define or otherwise enumerate diversity in the context of disability. The clarification offered by South Africa, that ‘persons with disabilities are not a homogeneous group, but diverse in their own right’ was not taken up.78 75   Universal Declaration of Human Rights (UDHR), UNGA Res 217 (10 December 1948), at preamble; see also Pretty v United Kingdom App No 2346/​02, ECHR 29 April 2002 para 65) (recognizing human dignity and human freedom as ‘the very essence of the Convention’). The EU Charter of Fundamental Rights recognizes that the Union is founded on the ‘universal values of human dignity, freedom, equality and solidarity’, European Union, Charter of Fundamental Rights of the European Union 26 October 2012, 2012/​C 326/​02. 76   UN Charter, preamble, (‘to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small’). 77   Ad Hoc Committee, ‘Compilation of Proposals for Elements of a Convention’ (19 December 2003) 5 and 9; Note: This particular compilation in advance of the Working Group, released in December 2003, comprises an updated compilation of both Government and NGO contributions that was previously released at the second session of the Ad Hoc Committee. The contribution of New Zealand early on in the process also cautioned on the importance of recognizing ‘the diversity of disabled people and their contexts in relation to gender, race, colour, age and ethnicity’; ibid 19. Of NGOs supporting reference to diversity early on in the process, see the contribution by the European Disability Forum, which considered that ‘the diversity of the disability population must be acknowledged’; ibid 33. 78   Ad Hoc Committee, ‘Compilation of Proposed Revisions and Amendments made by the Members of the Ad Hoc Committee to the Draft Text presented by the Working Group as a basis for negotiations by Member States and Observers in the Ad Hoc Committee’, Annex II, preamble (g).

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Its first appearance in an international human rights convention is an important contribution to the evolving notion of intersectionality.

3.10 Paragraph  (j) Preambular paragraph (j) builds on the prior paragraph, adding another dimension to the diversity of the population of persons with disabilities as ascribed by the treaty drafters. The resulting language is the consequence of a tricky threading of the needle during the CRPD negotiations. There was a strongly held view that the Convention needed to acknowledge not only the diversity of disability but also the idea that impairment exists along a spectrum and that some individuals experience the disabling impact of impairment differently, and indeed more acutely, than others. An alternative text proffered during the course of the negotiations—​references, for instance, to ‘multiple, profound, or severe’ disability—​was rejected.79 The Bangkok text sought to introduce language that addressed several elements of intersectional discrimination together: Recognizing that persons with severe and multiple disabilities, persons with intellectual disability, members of minority population groups with disabilities or indigenous persons with disabilities are subjected to multiple forms of discrimination, continued deprivation and neglect, and denial of their rights, and that there are compelling reasons for addressing their particular needs and those of their families.80 Civil society organizations argued that care must be taken not to reinforce stigma—​and thereby fall afoul of the kind of legislative stereotyping the treaty was seeking to combat—​in language adopted to describe individuals with disabilities. Ultimately, the various ideas reflected in the Bangkok draft were parsed into separate paragraphs in the preamble (paras. (j), (p)).

The resulting wording achieves the purpose of the drafters to carefully align the treaty language with a socio-​contextual understanding of disability. The term ‘support needs’ places the focus externally, on the support to be provided to facilitate human rights enjoyment, much like the upending achieved in article 12, according to which the presumption in favour of incapacity yielded to a supported decision making framework emphasizing support needs, not procedures to remove decision-​making power or presumptions of incapacity.81

3.11 Paragraph  (k) Preambular paragraph (k) provides recognition that community isolation and exclusion of persons with disabilities from decision-​making is a global phenomenon, affecting developed and developing countries alike. It signals an acknowledgement that the non-​ binding, but disability-​specific instruments had not resulted in the elevation of disability rights on the international agenda, nor had resulted in improvements in law, policy, and

79   Ad Hoc Committee, ‘Report of the third session 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’, UN Doc A/​AC265/​2004/​5 (2004) Annex, ‘Compilation of Proposed Revisions and Amendments made by the Members of the Ad Hoc Committee to the Draft Text presented by the Working Group as a basis for Negotiations by Member States and Observers in the Ad Hoc Committee’ (9 June 2004). 80   Bangkok Draft (n 5) preamble (u). 81   For commentary on Art 12, see commentary in this volume.

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programming. It is also a recognition that the existing instruments—​both treaties as well as disability-​specific, non-​binding instruments, had not resulted in a major turnaround. This was amply demonstrated in the oft-​cited work released some months prior to the first meeting of the Ad Hoc Committee, namely the Quinn/​Degener OHCHR report and other seminal documents developed as the work of the Ad Hoc Committee got underway, including the US National Council on Disability’s White Paper and its accompanying Reference Tool, both of which emphasized the importance of including language on international cooperation in the treaty text.82 Also of note was the understanding by the disability community that the mainstream human rights community had failed to integrate disability into its work, notwithstanding reporting by the Special Rapporteur on Disability of egregious human rights violations against persons with disabilities.83 Recognition that violations of human rights were ubiquitous ‘in all parts of the world’ signalled also the understanding that disability exclusion is a universal problem, including in countries with the most robust anti-​discrimination frameworks. An implicit message in the paragraph is the sense that the global human rights movement had not brought such violations to light.

3.12 Paragraph  (l) Preambular paragraph (l) recognizes the role that international cooperation plays especially in developing country contexts. This both underscores the frequent concern expressed during the drafting of the CRPD that international cooperation is essential in order for developing countries to meet their obligations and further, that international cooperation is a two-​way street, hence the wording ‘in every country’. The term, however, ubiquitous in international environmental treaties and not unfamiliar to human rights treaty texts, was nonetheless controversial. Inasmuch as donor governments were (and continue to be) concerned that the CRPD would confer untenable financial obligations—​think here, widespread retrofitting of schools, public buildings, transport systems—​it was not an easy concept to import into the CRPD. The proposal of Mexico placed the topic squarely on the agenda and indeed Mexico was the facilitator of article 32, the resulting operative provision on international cooperation in the CRPD. The draft preambular text on international cooperation, however, was footnoted twice in the Working Group text. This was an indication of the objection of some delegations to its inclusion at all and the desire to postpone its consideration until determination of whether international cooperation would be addressed in the operative part of the text.84

82   For the Quinn/​Degener report, see Gerard Quinn and Theresia 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); see National Council on Disability, ‘A White Paper—​Understanding the Role of an International Convention on the Human Rights of People with Disabilities’ (National Council on Disability, 12 June 2002); National Council on Disability, ‘Understanding the Potential Content and Structure of an International Convention on the Human Rights of People with Disabilities:  A Reference Tool Providing Sample Treaty Provisions Drawn from Existing International Instruments’ (National Council on Disability, July 2002) 55–​59. 83   Leandro Despouy, ‘Human Rights and Disabled Persons’ (United Nations 1993) paras 179–​82. 84   Footnote 4 of the Working Group text proposed the following language: ‘Recognising the importance of international cooperation for improving the living conditions of persons with disabilities in every country, in particular in the developing countries.’ See Working Group Draft (n 24) fn 4.

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In its original formulation in the Working Group text,85 emphasis is placed on ‘developing countries’ in the context of international cooperation. The focus of debate on this paragraph was the interest in reflecting the bi-​directional aspects of cooperation, yet efforts to drop the reference and refer only to ‘global cooperation’ on this basis were rejected. Early in the negotiations, on the occasion of the fourth review and appraisal of the World Programme of Acton by the UN Department of Economic and Social Affairs, emphasis was placed on ensuring that the link between global development and the proposed convention was maintained on the basis that this was a unique and distinguishing factor from other human rights conventions.86 By the third session, the formula put forward by the EU, Syria, and Argentina gained traction and received no further attention either from governments or NGOs.87 The link between human rights and international cooperation no longer appears, however, and instead reference is made to international cooperation to further the improvement of living conditions.

3.13 Paragraph  (m) Preambular paragraph (m) recognizes the agency of persons with disabilities in society and the value of diversity. The genesis of the language came in the Bangkok draft, and made its way into the Working Group text at para (j). It was ultimately amended only slightly in the final version to emphasize the ‘valued’ existing and potential contributions and also adding language that linked full participation of persons with disabilities to ‘their enhanced session of belonging’, on the basis of amendments proposed by Canada at the fourth session.88 85   The language appeared as recital (i) in the Working Group text as follows: ‘Emphasising the importance of international cooperation to promote the full enjoyment of human rights and fundamental freedoms of persons with disabilities.’ See Working Group Draft (n 24) preamble (i). 86   The Fourth Review noted: ‘A major issue in the elaboration of the convention on the rights of persons with disabilities would be to identify options to bring the disability perspective into international development instruments, such as the Millennium development goals, that do not address specifically the situation of persons with disabilities, and to provide thereby a normative basis for the advancement of current and future generations of persons with disabilities in the context of development.’ UN DESA, ‘Fourth Review and appraisal of the World Programme of Action concerning Disabled Persons’ A/​58/​61-​E/​2003/​5 (2003). 87   Ad Hoc Committee, ‘Report of the third session 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’ UN Doc A/​AC.265/​2004/​5 Annex (2004), ‘Compilation of proposed revisions and amendments made by the members of the Ad Hoc Committee to the draft text presented by the Working Group as a basis for negotiations by Member States and Observers in the Ad Hoc Committee’ (9 June 2004). During the third session the inclusion of language of international cooperation was supported, though it was noted that the phrase ‘in particular developing countries’ was a reflection of the tradition notion that cooperation entails a one-​way transfer of resources rather than a two-​way exchange. See International Service for Human Rights, ‘Summary of Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, Fourth Session’, at 2 (on file with author). 88   cf Bangkok Draft (n 5) Preamble (p). The Canadian amendments proposed:

pp(j) ‘Emphasizing the IMPORTANCE OF RECOGNIZING THE VALUED existing and potential contributions made by persons with disabilities to the overall well-​being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in THEIR ENHANCED SENSE OF BELONGING AND significant advances in the human, social and economic development of [DEL their societies] TO SOCIETY and the eradication of poverty,’ Fourth Session, ‘Daily summary of discussions, Preamble’, UN Convention on the Rights of People with Disabilities Vol 5 No 1 (23 August 2004).

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It is thus one among numerous references in the CRPD to the participation of persons with disabilities in society, both in terms of personal well-​being and as a major contributing factor to their communities. It acknowledges that persons with disabilities are not only beneficiaries of human rights and development but, crucially, that they are participants in such processes. This connects to the numerous references in the CRPD concerning participation, for instance as a general principle and as a general obligation of states to facilitate such participation in the making of law, policy, and programming and in other contexts. The CRPD Committee, in its work, embraces DPO participation and the participation of persons with disabilities as an ongoing and recurrent theme, and is soon to release work on article 33(3) CRPD, the provision that accords DPOs a specific role in the monitoring of CRPD implementation.89 Finally, it connects participation in decision-​making to the realization of rights and to development, without which advances will not be achieved. The implications of the CRPD articulation of these obligations for international human rights law, and international law more generally, should not be lost.90 Moreover, these obligations shore up articulation of the rights to participate in decision-​making for other marginalized groups, whether LGBTI persons, indigenous persons, and others.

3.14 Paragraph  (n) The recognition in preambular paragraph (n) of individual autonomy and independence for persons with disabilities finds expression in article 3 CRPD, among the first of its general principles which speaks of ‘[r]‌espect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons.’91 It specifies, as one dimension of autonomy and dependence, the freedom to make one’s own choices, an aspect of life that is often abridged for persons with disabilities in numerous domains. The Bangkok draft included preambular language capturing the essence of the principle of autonomy in its proposed language recognizing ‘the rights of self-​determination’ together with ‘the protagonist role of persons with disabilities in decision-​making’.92 The paragraph made its way into the Working Group draft preamble, and received support from NGO commentators, who further urged its inclusion among the principles of the CRPD. One of the functions of the preamble is to preliminarily identify principles and objectives of the Convention. The language in paragraph (k) fulfils that function by referring to the ‘individual autonomy’ and ‘independence’ of people with disabilities.93 The voice of the World Network of Users and Survivors of Psychiatry was strongest in stressing that the preamble should avoid any medical model language, differentiating among sub-​groups of persons with disabilities or referring to differences in functional capacities. Put simply, WNUSP maintained that:  ‘Limiting references to autonomy,   Communication with author and CRPD Committee Member Stig Langvad (30 September 2017).   For more on the role of DPO participation in the CRPD drafting process and voice accountability, see Janet E Lord, ‘Disability Rights and the Human Rights Mainstream: Reluctant Gatecrashers?’ in Clifford Bob (ed), The International Struggle for New Human Rights (2009); see also Janet E Lord, ‘Mirror, Mirror on the Wall: Voice Accountability and NGOs in Human Rights Standard Setting’ (2004) 5 Seton Hall J Dipl & Int’l Rel 93. 91 92   Art 3 CRPD.   Bangkok Draft (n 5) preambular para (m). 93   LSN Working Group Analysis. 89 90

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independence and choice . . . with language like “to the extent possible” was entirely out of place in this convention.’94 Paragraph (n) reaches across the treaty into a number of other operative articles in the CRPD. The paragraph is pertinent to understanding the text adopted in articles 19, 4(3), 29, 14, and 17.95 Most notably, it connects to the transformative role played by article 12 in upending presumptions of legal incapacity and incompetence based on disability to the recognition of legal capacity and the capacity to act.96 Article 12 CRPD provides the framework within which persons with disabilities are facilitated in achieving autonomy and independence, through recognition of legal capacity and the establishment of support to decision-​making, where needed. Freedom to make one’s own choices animated the debate surrounding the most challenging aspects of the negotiations, namely, the approach to be taken with regard to legal capacity and sweeping guardianship and related regimes that strip people with disabilities of all decisions, very frequently without any due process of law or possibility of review. The CRPD Committee, in its first General Comment, spelt out in further detail the implications of article 12 for autonomy.97 Scholars have underscored autonomy and independence, seeking to problematize traditional theories of autonomy that uphold the paradigm of the rational man, unfettered and essentially isolated from all influence or support in decision-​making.98

3.15 Paragraph  (o) Preambular paragraph (o) picks up on the concept of participation in decision-​making and underscores the notion that the participation of persons with disabilities is an imperative in all decision-​making processes about policies and programs, including those directly concerning them. Participation, whether as a general principle of the CRPD (article 3), a general obligation for states (article 4(3)), or its robust reflection in other CRPD articles (eg article 29 on political participation; article 33(3) on national monitoring) equally reflects the role that persons with disabilities and their representative organizations played in the process by which the CRPD was drafted.99 During the CRPD negotiations there emerged a clear recognition that stigmatized individuals must be meaningfully engaged in crafting measures required to combat stigma and discrimination, the first instance of which was the first decision taken by the Ad Hoc Committee to facilitate the participation of NGOs in the process.100 Legal advocates were 94   Fourth Session of the Ad Hoc Committee, ‘Daily Summary of Discussions’, Preamble, UN Convention on the Rights of People with Disabilities Vol 5, No 1 (23 August 2004). 95   See elsewhere commentary in this volume. 96   For a discussion of Art 12, see elsewhere in this volume. 97   CRPD Committee, ‘General Comment No 1, Article 12: Equal Recognition before the Law’ UN Doc CRPD/​C/​GC/​1 (19 May  2014). 98   See eg Janet E Lord and Michael Ashley Stein, ‘Contingent Participation and Coercive Care: Feminist and Communitarian Theories Consider Disability and Legal Capacity’ in Bernadette McSherry and Ian Freckelton (eds), Coercive Care: Law and Policy (2013); Dan Goodley, Dis/​ability Studies: Theorising Disabilism and Ableism (2008) 10; Nirmala Erevelles, ‘Material Citizens: Critical Race Theory, Disability Studies and the Politics of Education’ (2002) 1 Disability, Culture and Education 5, 12. 99   Lord (n 90); Janet E Lord, ‘A Participatory Framework for NGO Engagement in the International Legal Process’ (2001) Proc Am Soc’y Int’l L. 100   See Ad Hoc Committee’s Decision on the modalities for the participation of accredited non-​governmental organizations in the Ad Hoc Committee in considering proposals for a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities, (1 August 2002).

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highly attuned to developments in international law that sought to address requirements for participation for highly marginalized groups. The LSN Commentary on the proposed draft treaty text during the course of the negotiations sought to align the more robust language associated with indigenous peoples rights and participation to the evolving CRPD draft text. Successive commentaries prepared by NGO legal experts point to ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries, in particular articles 6 and 7, as the basis for the incorporation of participatory obligations into the CRPD.101 The resulting language derives from the Working Group text (paragraph l), which was included in the final text with one amendment. The term ‘especially’ was amended to read ‘including’ at the end of the paragraph, removing the implicit hierarchy associated with participation in decision-​making in areas ‘especially’ concerning persons with disabilities. The resulting inference is that all decisions are important to persons with disabilities and all concern them. In so doing it exposes the weakness in the refrain: ‘Nothing about us without us.’ The simpler, phrase is perhaps more apt: ‘Nothing without us.’ Proposals in two separate NGO commentaries to strengthen the language were not taken up.102 There are two dimensions to giving voice to persons with disabilities. Stigmatization on the basis of disability can have deleterious consequences for one’s capacity to give voice and exercise agency, even in matters acutely concerning to the individual. Externally, exclusion from decisional processes offends human dignity and impacts decisional outcomes that can have long lasting consequences with highly detrimental effects on the realization of human rights.

3.16 Paragraph  (p) Stigma and the discrimination it breeds is understood to be compound, multiple, or intersectional for an individual who possesses more than one attribute to which stigma and discrimination attach. During the Working Group, the Ontario Human Rights Commission observed: There is legal jurisprudence in Canada that supports the notion that individuals can face multiple or ‘intersecting’ forms of discrimination. In its majority decision in Law v. Canada,2 the Supreme Court of Canada recognized that a discrimination claim can present an intersection of grounds that are a synthesis of those listed in s. 15(1) of the Canadian Charter of Rights and Freedoms or are analogous to them.

101   ILO Indigenous and Tribal Peoples Convention, C169 (27 June 1989)  C169. For references to that Convention, see Janet E Lord and Katherine N Guernsey, ‘Understanding the Potential Content and Structure of an International Convention on the Human Rights of People with Disabilities: A Reference Tool Providing Sample Treaty Provisions Drawn from Existing International Instruments’ (National Council on Disability 2002)  10–​11. 102   The LSN Commentary notes the language referring to the importance of participation of people with disabilities in decision-​making processes and observes ‘that this is a weaker formulation than that used in the Vienna Declaration, which uses the word “essential”. Vienna Declaration and Programme of Action, UN Doc A/​CONF.157/​23 (25 June 1993) para 5’. See LSN Commentary. Australian DPOs, picking up on this idea, proposed in 2004 that the paragraph be ‘strengthened’ by using the term ‘recognising’ to introduce the paragraph rather than ‘considering’ on the basis that this would clarify for states an affirmative acceptance of the principle and further argued for the concept of participation in decision-​making to be referred to as ‘essential’ and as a ‘condition precedent’ to the enjoyment of the human rights provided in this and other human rights instruments, citing the fundamental principle put to the Ad Hoc Committee by the International Disability Caucus on numerous occasions in the debate to date: ‘nothing about us, without us’; PWD Australia (n 42).

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The Commission has dealt with a number of cases where the ground of disability intersects with other enumerated grounds of discrimination as well as other factors such as language. The Commission has published a discussion paper on the broader topic: An intersectional Approach to Discrimination Addressing Multiple Grounds in Human Rights Claims.103

This is unquestionably the case for persons with disabilities who are disproportionately poor, an issue compounded by the inaccessibility of schools, training programs, and employment opportunities. As noted by Cera, recital (p) is a novel expression in the lexicon of human rights treaties insofar as the terms ‘multiple’ and ‘aggravated’ find no parallel in the core human rights conventions.104 During the final phase of the negotiations, the importance of integrating a gender perspective across the treaty text, as well as including discrete provisions on women and children was stressed, along with the importance of reinforcing the specific risks these groups experience and the impact of intersectionality on their rights.105 The human rights architecture, with its traditional singular focus on anti-​discrimination connecting to one particular ground—​race, or gender, or other single characteristic—​has both oversimplified individual experience of discrimination and complicated access to anti-​discrimination protections rooted in discrimination based on a single ground. The CRPD preamble contributes to the conceptualization of complex forms of discrimination in intersectional terms. This conception has gained traction, as reflected in human rights practice. In the report of the Special Rapporteur on the Right to Health, this notion was underscored in the examination of mental health where it was noted that ‘[m]‌ultiple and intersectional forms of discrimination continue to impede the ability of individuals, including women and persons from racial and ethnic minorities with disabilities, to realize their right to mental health.’106 This dimension has also generated considerable scholarly commentary since the adoption of the CRPD.107

3.17 Paragraph  (q) Recital (q) picks up on the notion of enhanced risk rooted in the intersection of multiple markers of risk. It reflects, therefore, the emerging evidence introduced during the negotiations of the disproportionate risk of violence that women and girls with disabilities face relative to their non-​disabled counterparts or to disabled men.108 This recognition led to

103   Ontario Human Rights Commission, Comments on the Draft Text, preamble. The case cited in the submission is: Law v Canada (Minister of Employment and Immigration) [1999] 1 SCR 497. 104   As Cera notes, however, the 1995 Beijing Declaration refers in paragraph (n) to ‘multiple or aggravated forms of discrimination’ specifically in the context of discrimination against women. Rachele Cera, ‘Preamble’ in Valentina Della Fina, Rachele Cera, and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities:  A Commentary (Springer 2017) 77, 85. For the reference in the Beijing Declaration, see UN Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women UN Doc A/​CONF 177/​20 (1995) and UN Doc A/​CONF 177/​20/​Add 1 (1995). 105   New Zealand Human Rights Commission, ‘Position Paper, International Convention on the Promotion and the Protection of the Rights and Dignity of Persons with Disabilities’ (July 2006) 3. 106   Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health UN Doc A/​HRC/​25/​21 (28 March 2017). 107   Oddny M Arnardóttir, ‘A Future of Multidimensional Disadvantage Equality?’ in Oddny M Arnardóttir and Gerard Quinn (eds), The United Nations Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Martinus Nijhoff 2009) 41. 108   See Women’s Caucus paper, ‘Towards a Gender Sensitive Disability Right Convention’ (24 June 2004) (on file with author).

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its explicit recognition in the preamble. It also reflects the fact that women and girls with disabilities face risk in personal and private realms (‘within and outside the home’) and that exposure to risk takes many forms, including not only acts of violence and abuse, but also neglect and negligence. Primary credit for the strong gender inclusion across the CRPD text goes to the leadership of Korean Women with Disabilities, who successfully, with the support of their government, proposed a specific article housed in the general and cross-​cutting obligations of article 6 CRPD.109 This effort was supported by the Women’s Caucus within the network of NGOs participating in the Ad Hoc Committee and women advocates were vocal about the need to specifically reference the vulnerability of women and girls with disabilities in the Convention. Language that specifically referred to the ‘gender based manifestations’ of violence and abuse at the end of recital (q) were deleted in the final text. Since the adoption of the CRPD, this has been borne out in numerous studies, most notably the first World Report on Disability, published by the World Health Organization and the World Bank in 2011,110 studies by the OHCHR,111 the Special Rapporteur on Violence against Women,112 the work of the United Nations Population Fund,113 and the concluding observations by the CRPD Committee.114 Exposure of women with disabilities to exploitation is increasingly understood by human rights organizations, as evidenced by the work exposing instances of violence and abuse against women with disabilities and the risks associated to trafficking concerning women with disabilities.115 109   A Facilitator was appointed to address gender integration across the text and, during the August 2005 session of the Ad Hoc Committee, a paper was introduced covering proposed inputs from the Preamble, operative provisions, and monitoring articles. See Ad Hoc Committee, sixth session, ‘Disabled Women (Facilitator’s proposal)’ (8 August 2005) (on file with author). 110   World Health Organization & World Bank Group, ‘World Report on Disability’ (2011). 111   OHCHR, ‘Thematic Study on the Issue of Violence against Women and Girls and Disability’ UN Doc A/​HRC/​4 20/​5 (2012) para 26. 112   See ‘Report of the Special Rapporteur on violence against women, its causes and its consequences’ UN Doc A/​67/​227 (2012) para 13. 113   WHO/​UNFPA, ‘Promoting Sexual and Reproductive Health for Persons with Disabilities: Guidance Note’ (2009). 114   CRPD Committee, ‘Concluding Observations on the Initial Report of Belgium’ UN Doc CRPD/​C/​ BEL/​CO/​1 (13 March 2013) para 30; CRPD Committee, ‘Concluding Observations on the Initial Report of Australia’ UN Doc CRPD/​C/​AUS/​CO/​1 (21 October 2013)  para 16; CRPD Committee, ‘Concluding Observations on the Initial Report of China’ UN Doc CRPD/​C/​CHN/​CO/​1 (15 October 2012) paras 57, 65, and 90; CRPD Committee, ‘Concluding Observations on the Initial Report of El Salvador’ UN Doc CRPD/​C/​SLV/​CO/​1 (8 October 2013) para 37; CRPD Committee, ‘Concluding Observations on the Initial Report of the Czech Republic’ UN Doc CRPD/​C/​CZE/​CO/​1 (15 May 2015) para 34; CRPD Committee, ‘Concluding Observations on the Initial Report of Mauritius’ UN Doc CRPD/​C/​MUS/​CO/​1 (30 September 2015) para 29; CRPD Committee, ‘Concluding Observations on the Initial Report of New Zealand’ UN Doc CRPD/​C/​NZL/​1 (1 October 2013)  para 37; CRPD Committee, ‘Concluding Observations on the Initial Report of Gabon’ UN Doc CRPD/​C/​GAB/​CO/​1 (2 October 2015) para 40; CRPD Committee, ‘Concluding Observations on the Initial Report of Kenya’ UN Doc CRPD/​C/​KEN/​CO/​1 (30 September 2015) para 33; CRPD Committee, ‘Concluding Observations on the Initial Report of the Dominican Republic’ UN Doc CRPD/​C/​DOM/​CO/​1 (8 May 2015) para 33; CRPD Committee, ‘Concluding Observations on the Initial Report of Paraguay’ UN Doc CRPD/​C/​PRY/​CO/​1 (15 May 2013) para 16. See also UNGA Res 63/​150, ‘Realizing the Millennium Development Goals for Persons with Disabilities’ (18 December 2009) (calling on states ‘to enable persons with disabilities to participate as agents and beneficiaries of development, in particular in all efforts aimed at achieving the Millennium Development Goals by ensuring that programmes and policies to promoting gender equality and empowerment of women and improving maternal health, among others, are inclusive of and accessible to persons with disabilities’ (operative paragraph 6). 115   Disability Rights International, Application for precautionary measures in favor of the 334 people with mental disabilities interned in the Federico Mora Hospital, in Guatemala (12 October 2012), available at: .

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3.18 Paragraph  (r) Paragraph (r) picks up on the recognition first set forth in the Convention on the Rights of the Child (CRC) that disability is a specifically prohibited ground of discrimination. Article 2(1) CRC, unlike other core human rights conventions, explicitly listed disability among its grounds of prohibited discrimination against children. Of note is the other disability-​specific provision in the CRC, article 23, which was roundly criticized during the course of the CRPD negotiations for language that appeared to circumscribe full and complete protection of the rights of children with disabilities on an equal basis with others.116 The offending language in article 23 CRC concerned a disabled child’s ‘achieve[ment] of the fullest possible social integration and individual development’.117 The CRPD arguably redresses this concern, both in terms of integrating age considerations across the CRPD text, as well as by including among its general obligations article 7 on children with disabilities.118 That provision clarifies that children with disabilities are entitled to all human rights and fundamental freedoms on an equal basis with other children and affirms the principle of the best interests of the child and the right to participation in line with the CRC, with these latter two elements reflecting two of the central principles of the CRC, as applied to children with disabilities. The first years of CRPD Committee practice indicate the prevalence of outmoded perceptions about children with disabilities insofar as national platforms on children with disabilities tend to be very narrowly focused on the prevention and early detection of disability, the limited participation of children with disabilities, and the fact that children with disabilities remain at risk.119

3.19 Paragraph  (s) Preambular paragraph (s) addresses the recognition, frequently cited on the floor of the Ad Hoc Committee, that there is a significant gender dimension to the human rights of persons with disabilities. The gender dimension most frequently referenced during the negotiations was the disproportionate impact of discrimination on women and girls with disabilities. Early in the negotiations, in June 2003, advocates supporting a gender-​sensitive convention convened and issued a document, Towards a Gender Sensitive Disability Rights Convention which supported, among other things, ‘ways to integrate gender sensitive areas of concern into a disability rights convention’.120 This meeting was the genesis of the Women’s Caucus, formed to ensure that issues pertaining to gender 116   Janet E Lord, ‘Child Rights Trending: Accommodating Children with Disabilities in the Global Human Rights Framework and US Foreign Policy’ (2017) 16 Whittier Journal of Child and Family Advocacy 1. 117 118   Art 23 CRC.   See commentary on Art 7 CRPD in this volume. 119  See eg CRPD Committee, ‘Concluding Observations on the Initial Report of Austria’ UN Doc CRPD/​C/​AUT/​CO/​1 (13 September 2013) para 17; CRPD Committee, ‘Concluding Observations on the Initial Report of Ecuador’ UN Doc CRPD/​C/​ECU/​CO/​1 (27 October 2014) para 16; CRPD Committee Concluding Observations on Slovakia (n 114) paras 17, 51; CRPD Committee, ‘Concluding Observations on the Initial Report of Mexico’ UN Doc CRPD/​C/​MEX/​CO/​1 (27 October 2014) para 13; CRPD Committee Concluding Observations on El Salvador (n 114) para 17; CRPD Committee, ‘Concluding Observations on the Initial Report of Sweden’ UN Doc CRPD/​C/​SWE/​CO/​1 (12 May 2014) para 13; CRPD Committee, ‘Concluding Observations on the Initial Report of Azerbaijan’ UN Doc CRPD/​C/​AZE/​CO/​1 (12 May 2014) para 16; CRPD Committee, ‘Concluding Observations on the Initial Report of Korea’ UN Doc CRPD/​ C/​KOR/​CO/​1 (29 October 2014) para 13. 120   Joint Statement, Towards a Gender Sensitive Disability Rights Convention, 24 June 2003 (paper on file with author).

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and discrimination against women and girls with disabilities were fully addressed during the negotiation process. This notion was generally supported by governments, with the European Union in its ‘Elements for an International Convention’ proposing that a future convention, in the preamble should: ‘Emphasize the incorporation of a gender perspective in all efforts to promote the full and equal enjoyment of human rights and fundamental freedoms by persons with disabilities.’121 This preambular language on gender integration preceded the inclusion of a specific article on women with disabilities. In referring to a ‘gender perspective’ in preambular paragraph (s), there is an implicit acknowledgement of the multifaceted intersection between disability and gender that extends beyond discrimination on the basis of biological sex. Since the adoption of the CRPD, successive treaty bodies have taken into account the gender-​specific dimensions of disability in their work. For example, both the HR Committee and the CAT Committee have issued recommendations to states parties regarding violence against women with disability and the forced sterilization of women and girls with disability falling within the scope of their respective treaty mandates.122 The Committee on the Rights of the Child has made similar recommendations in the context of children with disability, paying particular attention to gender.123 Further, the CEDAW Committee has likewise issued calls for urgent action by states in relation to women with disability, particularly in relation to the pervasive and high incidence of violence perpetrated against women and girls with disabilities, especially those living in institutions or otherwise supported.124

3.20 Paragraph  (t) The first part of preambular paragraph (t) gives recognition to the fact that persons with disabilities very often live in poverty. The point is perhaps an obvious one inasmuch as the vast majority of persons with disabilities lives in developing countries, but empirical evidence supports that person with disabilities are more likely to live among the poorest of the poor in those countries and, further, that disability is strongly correlated with poverty in any society, whether developed or developing.125 The issue of disability and poverty did arise in the context of discussions on the preamble in preparatory meetings held in both Quito and Bangkok.126 The Chair’s text 121  Hellenic Presidency of the European Union, Second session 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 (16–​27 June 2003), ‘Elements of an International Convention’ (23 June 2003), at preamble. 122  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Committee against Torture, ‘Concluding Observations on the Combined Fourth and Fifth Periodic Reports of Australia’ UN Doc CAT/​C/​AUS/​CO/​4–​5 (23 December 2014); UN HRCtee ‘List of Issues prior to the Submission of the Sixth Periodic Report of Australia’ UN Doc CCPR/​C/​AUS/​6 (15 October–​2 November 2012); UN Doc CCPR/​C/​AUS/​Q/​6 (9 November 2012). 123   CRC Committee, ‘Concluding Observations on the Report of Australia’ UN Doc CRC/​C/​AUS/​CO/​ 4 (28 August 2012). 124   CEDAW Committee, ‘Concluding Observations on the Report of Australia’ UN Doc CEDAW/​C/​ AUS/​CO/​7 (30 July 2010). 125   See generally World Bank and World Health Organization, ‘World Report on Disability’ (2011). 126  The Bangkok meeting inserted a reference to ‘extreme poverty’ as one among many social factors impacting persons with disabilities in a preambular paragraph and the Quito meeting proposed specific language: ‘Recognizing that poverty leads to a greater prevalence of disability, which, in turn, generates poverty, such that we must adopt measures to combat it;’.

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introduced to the Working Group did not contain a separate paragraph on the issue, but did draw a connection between the human rights of persons with disabilities and the eradication of poverty in one of its proposed paragraphs.127 The first clause in the paragraph was added alongside several preambular additions to the Chair’s text at the Working Group session in 2004, with the initial text reading as follows: ‘Mindful of the need to alleviate the negative impact of poverty on the conditions of persons with disabilities.’128 A footnote to the text indicated that some delegates were unsure about the language and indeed it was revisited and subject to numerous suggested amendments.129 The ultimate formulation combines two principal concerns, first, that persons with disabilities are disproportionately impacted by poverty and second, the necessity of addressing the impact of poverty on disabled persons. Repeated observations of the CRPD Committee underscore the linkage between poverty and disability as an important recurring theme and often the Committee points to the compounding and intersectional impact of poverty on persons with disabilities who are migrants, live in rural areas, or who belong to a highly marginalized ethnic group (eg Roma).130

3.21 Paragraph  (u) Maintenance of peace and security is a principal purpose of the UN, as reflected in the preamble of the UN Charter, and appears as the first enumerated purpose of the Organization. Unlike the wording in the Charter, the preambular language in the CRPD enunciates the connection between peace and security and the full protection of persons with disabilities. It recognizes, in particular, the insecurity posed by armed conflict and foreign occupation for persons with disabilities, as borne out by conflicts occurring during the time period in which the CRPD was under negotiation. However apparent the nexus, the negotiations surrounding the terms used were hotly contested, lasting until the final minutes of the work of the Ad Hoc Committee and holding up the vote on the adoption of the treaty text.131 Some additional background is warranted. The idea for a separate article addressing the protection of persons with disabilities in armed conflict was raised during preparations prior to the Working Group at the Beirut meeting and rose again at the Working Group with the result that a brief paragraph was included expressing concern ‘that situations of armed conflict have especially devastating consequences for the human rights of persons with disabilities’.132 Further, reference is made in a footnote to the provision in 127   See ‘Chair’s Draft Elements of a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities: Draft elements for inclusion in a preamble’ (7 January 2004) (‘Emphasizing the existing and potential contributions made by persons with disability to the overall well-​being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in significant advances in the human, social and economic development of their societies and the eradication of poverty.’); ibid para (h). 128 129   See Working Group Draft.   ibid fn 6. 130   See eg CRPD Committee, ‘Concluding Observations on the Initial Report of Croatia’ UN Doc CRPD/​ C/​HRV/​CO/​1 (15 May 2015) paras  43–​44. 131  See ‘Interim Report 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 on its Eighth session’ UN Doc A/​AC265/​2006/​4 (2006) para 11 (Noting that on 25 August, at its 20th meeting, the Ad Hoc Committee adopted preambular paragraph (s)bis of the text of the Convention by a recorded vote of 102 to 5 with 8 abstentions); ibid. 132   Working Group Draft at (p).

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the Working Group draft on the right to life in respect of the protection of persons with disabilities in armed conflict.133 The suggestion was made that the Convention should contain a separate draft article on the protection of the rights of persons with disabilities in armed conflict, similar to the approach taken in article 38(4) of the Convention on the Rights of the Child, and one strongly supported by civil society organizations.134 The NGO Save the Children, for instance, noted ‘the global increase in situations of unrest, conflict, and disaster, which poses extra risks for children and adults with disabilities upon the chance for survival and development’135 and argued not for a preambular reference, but for a second paragraph to the draft article on the right to life. The resulting paragraph (u) of the preamble is integrally connected to the provision that became article 11 CRPD, on the protection of persons with disabilities in situations of risk. Language offensive to some states, most notably the United States and Israel who objected to the term, ‘foreign occupation’ was deleted from early proposals of article 11 and housed in the preamble as a compromise. Notwithstanding the compromise and the appearance of the term ‘foreign occupation’ outside the operative provisions of the CRPD, the United States held fast to its objection. This resulted in a last minute forced vote on the inclusion of the paragraph. With minutes before the Ad Hoc Committee was to adjourn, and with the adoption of the entire final version of treaty text hanging in the balance, delegates quickly moved to a conference hall equipped with voting machinery, interpreters agreed to hang on past their appointed time of work, and the vote was taken. The interrelationship between human rights and international humanitarian law as reflected article 11 CRPD is, interestingly, making its way into international humanitarian law treaty preambles, as in the following paragraph of the preamble to the Convention on Cluster Munitions which reads: Bearing in mind the Convention on the Rights of Persons with Disabilities which, inter alia, requires that States Parties to that Convention undertake to ensure and promote the full realisation of all human rights and fundamental freedoms of all persons with disabilities without discrimination of any kind on the basis of disability.136

Of even greater consequence is the progressive development of a disability-​inclusive sensibility in global disaster risk reduction policies, climate change frameworks, and humanitarian action in emergencies more generally.137

133   The footnote provides: ‘Some members of the Working Group suggested that the Convention should contain a separate draft article on the protection of the rights of persons with disabilities in armed conflict, similar to the approach taken in Article 38(4) of the Convention on the Rights of the Child.’ See Working Group Draft (n 24) fn 31. 134   Among those DPOs supporting the inclusion of paragraph (p) in the Working Group Draft was the European Disability Forum, which proposed the additional reference to terrorism and natural disaster. See European Disability Forum, ‘Compilation of Comments on Articles of the Draft Text of the Working Group’, preamble at 2. 135 136   ibid 41.   Convention on Cluster Munitions, adopted 30 May 2008, 2688 UNTS 39. 137   Office of the High Commissioner for Human Rights, ‘Thematic study on the rights of Persons with Disabilities: Article 11 of the CRPD’ (2016), available at: .

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3.22 Paragraph  (v) The Bangkok draft138 included language in the preamble on accessibility, combined with equality of opportunity in all human rights realms. That language tapped the Mexico proposal, which referred to ‘equality of opportunities in the exercise of all human rights’ together with ‘accessibility to the physical environment’139 and the Venezuelan proposal, which mentioned ‘access to the physical, economic, social and cultural environment’.140 Amendments to the text decoupled equality of opportunities from accessibility and, in so doing, elevated accessibility to a central status in the paragraph. Thus, the Working Group text refocused the paragraph on accessibility and broadened its scope to include accessibility to the ‘physical, social, and economic environment and to information and communications technologies’.141 Proposed amendments by South Africa and Yemen at the third session of the Ad Hoc Committee to include reference to the ‘political’ environment were not taken up. The LSN Commentary noted that the draft language for this paragraph in the Working Group text (paragraph q) reflected the major target areas for equal participation set forth in rules 5–​12 of the UN Standard Rules and underscored the concept of accessibility as one of the fundamental principles of the paradigmatic shift in the perception of disability in society.142 Following the Working Group, amendments were accepted to further broaden the scope of the paragraph, to include accessibility to ‘health and education’ and by the seventh session it had attained its current formulation. Accessibility was one of the first concepts addressed by the CRPD Committee and is the subject of its second General Comment.143 While there was overwhelming consensus during the negotiations that accessibility was a fundamental concept to be addressed in the context of human rights and disability, its nature is not fully articulated and is made more challenging by its reappearance across the treaty text, as a principle, general obligation, and as a constituent element of specific obligations.144

3.23 Paragraph  (w) The Preamble in paragraph (w) reflects the idea, first set forth in the UDHR, that the enjoyment of human rights also implies the performance of duties on the part of rights holders.145 The text for the paragraph was introduced relatively late in the negotiation and did not give rise to extensive discussion. An amendment put forward by Canada to refer not to the rights set forth in the International Bill of Human Rights, but instead to the ‘present Convention’ were not taken up.146 In that sense the paragraph reflects recognition that the rights and responsibilities of the three foundational human rights

139 140   Bangkok Draft at preamble para (g).   Mexico Draft.   Venezuela Draft at (k). 142   Working Group Draft at (p).   LSN Working Group Commentary. 143   CRPD Committee, ‘General Comment No 2, Article 9: Accessibility’ UN Doc CRPD/​C/​GC/​2 (22 May 2014). 144   For further discussion on the nature of accessibility, see Janet E Lord, ‘Accessibility and Human Rights Fusion in the CRPD:  Assessing the Scope and Content of the Accessibility Principle and Duty under the CRPD’, Presentation for the General Day of Discussion on Accessibility, CRPD Committee, UN—​Geneva (7 October 2010). 145   Art 29(1) UDHR provides: ‘Everyone has duties to the community in which alone the free and full development of his personality is possible.’ 146  See ‘Proposed modifications by governments during the Eight Session of the Ad Hoc Committee’, Preamble, at (u), Canada. 138 141

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instruments are applicable to persons with disabilities, while further implicitly recognizing that the rights and responsibilities of persons with disabilities in the CRPD are indeed derived from those instruments. It thus reinforces the notion that the CRPD is firmly rooted in the existing human rights law framework. The individual duties to which this paragraph refers encompass three sets of duties, namely: (1) duties on individuals vested with state authority to respect, promote, and protect human rights; (2) duties to exercise one’s rights responsibly; and (3) general duties individuals have towards others and their community.147 The pertinent UDHR provision reflected an attempt to strike a balance between individual freedom and the rights of others and the legitimate demands of the community and the state. The two international covenants include in their preambles an identical reference to individual duties, which is based on the UDHR.

3.24 Paragraph  (x) Penultimate preambular paragraph (x)  addresses the concern expressed during the negotiations that the family was not sufficiently addressed in the text of the CRPD. No proposed text early on in the process prior to the Working Group mentioned the family or its role in relation to society, or in respect of persons with disabilities specifically.148 In the Working Group text, mention was made of families in the draft article on adequate standard of living and the reference in a footnote to that provision queried how family should be defined so that it may fit into the pertinent provision.149 The settled text came late in the process, introduced as paragraph (v bis), alongside amendments to article 23. The resulting text that emerged is thus a compromise, giving a nod to some of the more conservative elements among delegations, but also to countries’ concern that the Convention should not undermine the role that families play in the lives of disabled family members. The main thrust of the CRPD with regard to families lies in its firm recognition that persons with disabilities enjoy their rights within the family and their right to found a family. It was recognized by the drafters that families did play important roles and could in fact further the rights of persons with disabilities but at the same time, its placement in the preamble also reflects the strongly held view, especially among civil society groups, that this was first and foremost a treaty on the rights of persons with disabilities. It further reflects an unease among some that families are, in many cases, serious violators of the rights of their disabled family members. To that end, article 8 affirms the need for awareness-​raising within the family.150

3.25 Paragraph  (y) The final preambular paragraph included language drawn from the initial UNGA resolution that created the Ad Hoc Committee in the first place. It also reflects the name ascribed to the Ad Hoc Committee—​the Ad Hoc Committee on a ‘comprehensive and integral international convention to promote and protect the rights and dignity of 147  International Council on Human Rights, Taking Duties Seriously:  Individual Duties in International Human Rights Law: A Commentary (1999) 15. 148  Ad Hoc Committee, ‘Compilation of Proposals for Elements of a Convention’ (19 December 2003) (December 2003 Compilation). 149 150   Working Group Draft (n 24) fn 102.   Art 8(1)(a) CRPD.

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persons with disabilities’ and echoes the initial title of the draft treaty before the decision to simplify—​and thereby make more accessible—​its title.151 Of particular note is the fact that the language here reflects the ultimate decision of the Ad Hoc Committee to go with a convention addressing all human rights, civil, political, economic, social, and cultural, as opposed to a more abridged version indicated by some governments early on in the Ad Hoc Committee process.152 The language in recital (y) made a first appearance in the Bangkok draft as elements of two separate preambular paragraphs (o) and (p).153 In the Working Group draft, it appears as the final recital (r), where it retained all of its elements throughout the negotiations with the exception of the amendment that substituted the name of the Ad Hoc Committee for the generic reference to a convention that first appeared in the Working Group draft. That proposal was elaborated during the seventh session by China, Mexico, Uganda, and Russia.154 In that respect it achieves continuity between the UNGA resolution that established the Ad Hoc Committee and its resulting work. Further, like that resolution, the language underscores the recognition of the fact that disability is a developmental issue and also reflects the broad participation in the negotiation by developing countries. While social disadvantage of persons with disabilities is pervasive and persistent in developed and developing countries alike, the reality is that among the world population of persons with disabilities, 80 per cent live in developing countries.155 And 20 per cent of these persons live in extreme poverty and thus experience profound social disadvantage.156 A proposal not taken up by the Ad Hoc Committee was the Chilean amendment to add language noting that the convention would ‘contribute significantly to improving the Human Development Index’.157 The paragraph ties together disability within the broad framework of human rights, highlights the social disadvantage that so severely impacts rights enjoyment by disabled persons, and emphasizes that disability is an issue for development. From this paragraph follows the idea that the CRPD fills an existing gap in the international human rights framework and has implications for the realization of all

151   See Comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities (9 December 2001) UNGA Res 56/​168 (19 December 2001) para 1. 152   eg Australia initially called for a treaty annexed to the Covenant on Economic, Social and Cultural Rights—​see Second Session of the UN Ad Hoc Committee on a Comprehensive and Integral Convention on the Rights and Dignity of Persons with Disabilities, Statement by H E Mr Peter Tesch, Australian Mission to the UN, 17 June 2003 (arguing for an annex to an existing treaty to address the rights of persons with disabilities). The European Union, in its Principles paper, clearly favoured a limited, non-​discrimination approach more such as the CEDAW rather than the CRC. See Hellenic Presidency of the European Union, Second session 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 (16–​27 June 2003), ‘Elements of an International Convention’ (23 June 2003). 153  (o) Recognizing the profound social disadvantage of persons with disabilities, in both developing and developed countries, and the important contribution that a convention dealing specifically with the human rights of persons with disabilities could make to redressing this disadvantage. 154   Ad Hoc Committee, Seventh Session, ‘Proposed Modifications by Governments: Proposal by China’. 155   See World Bank and World Health Organization, ‘World Report on Disability’ (2011). 156   See International Federation of the Red Cross and Red Crescent Societies, ‘World Disaster Report 2007’ (IFRC 2007) 87, available at: . 157   See Ad Hoc Committee, Fourth Session, ‘Compilation of Comments, Proposals and Amendments submitted electronically: Chilean Proposal’.

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human rights and, equally, for inclusive development. In that sense, it echoes across the treaty to article 32 in bringing disability inclusion in development into a human rights fold, a domain of the treaty for which state practice is readily apparent; for instance, in moves to ensure that frameworks on natural disasters are inclusive of persons with disabilities and that humanitarian actors seek to ensure inclusive practices in their assistance work.158

158   See eg Sendai Framework for Disaster Risk Reduction, (UNISDR 2005). For an overview of these developments, see Janet E Lord, ‘Desk Review on the Inclusion of Persons with Disabilities in Humanitarian Action’ (Inter-​Agency Standing Committee Task Team on Inclusion of Persons with Disabilities in Humanitarian Action, August 2017).

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Article 1 Purpose The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

Persons with disabilities include those who have long-​term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

1. Introduction 2. Background and Travaux Préparatoires 2.1 Purpose (Article 1, Paragraph 1) 2.2 Description of ‘Disability’ (Article 1, Paragraph 2) 3. Paragraph 1 3.1 ‘The purpose of the present Convention’ 3.2 ‘to promote, protect, and ensure’ 3.3 ‘full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities’ 3.4 ‘to promote respect for their inherent dignity’ 4. Paragraph 2 4.1 ‘Persons with disabilities’ 4.2 ‘include those who have long-​term physical, mental, intellectual or sensory impairments’ 4.3 ‘which in interaction with various barriers’ 4.4 ‘may hinder their full and effective participation in society’ 4.5 ‘on an equal basis with others’

35 39 40 44 48 48 49 50 50 53 54 55 57 57 58

1. Introduction Article 1 sets out the purpose of the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) and describes its target group. The CRPD is the only core UN international human rights convention to have a separate article entitled ‘purpose’,1 and the second to include a description of its target group as an identifiable group in one of its articles.2 Article 1 enshrines a ‘paradigm shift’ in approach to the concept of ‘disability’ in international human rights law: a shift from an approach underpinned by a ‘medical model of disability’ that views persons with disabilities as ‘objects’ 1  Office of the High Commissioner for Human Rights (OHCHR), ‘The Core International Human Rights Instruments and their monitoring bodies’ (OHCHR 2017), available at: ; Arlene S Kanter, The Development of Disability Rights under International Law from Charity to Human Rights (Routledge 2015). 2   Art 1 CRC.

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of medical treatment and in need of charity; to a ‘social model of disability’, which views persons with disabilities as ‘subjects’ with rights and focuses on the barriers persons with disabilities face that may hinder their societal participation.3 The provision’s content, particularly the resulting description of persons with disabilities, was ‘among the most controversial’,4 with the final version of article 1 only finalized during the last Ad Hoc Committee session. Article 1 provides a framework for the teleological interpretation of the CRPD’s provisions.5 The inclusion of a provision stating the ‘purpose’ of the CRPD is significant under international law.6 This is because in accordance with the Vienna Convention on the Law of Treaties (VCLT), no state party can formulate a reservation that ‘is incompatible with the object and purpose of the treaty’.7 It is noted that no state party to the CRPD has lodged any declaration or reservation to article 1, unlike in respect of other controversial articles, such as article 12—​equal recognition before the law.8 Stein and Lord suggest that the protection afforded to the purpose of the treaty also extends to the conceptualization of ‘disability’ set out in article 1, paragraph 2, by virtue of its inclusion in the provision dedicated to the CRPD’s purpose.9 The CRPD is a thematic convention that focuses on persons with disabilities’ human rights, whereas previous core UN human rights conventions failed to adequately protect such rights.10 The objective of article 1, paragraph 1, is to ensure that persons with disabilities enjoy all the human rights set out in existing UN international core human rights conventions equally with non-​disabled persons.11 This provision complements the core UN human rights conventions, as it tailors the relevant norms of existing core human rights conventions to the circumstances of persons with disabilities.12 Article 1, paragraph 2, and preambular paragraph e, provide a description, rather than a definition, of the persons whose human rights the CRPD aims to protect. This description of ‘persons with disabilities’ is underpinned by a ‘social model of disability’.13

3   Statement by Louise Arbour to the Resumed 8th Session of the Ad Hoc Committee on the CRPD (5 December 2006); Rosemary Kayess and Paul French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8 HRLR 1; Gerard Quinn and Oddny Mjoll Arnadottir, ‘Introduction’ in Gerard Quinn and Oddny Mjoll Arnadottir (eds), The UN Convention on the Rights of Persons with Disabilities European and Scandinavian Perspectives (Martinus Nijhoff 2009); Kanter (n 1). 4 5   Kayess and French (n 3).   Art 2 CRPD is also interpretive; ibid. 6   Michael Ashley Stein and Janet E Lord, ‘Future Prospects for the United Nations Convention on the Rights of Persons with Disabilities’ in Quinn and Arnadottir (n 3). 7   Art 19(c) VCLT. 8   List of Declarations and Reservations to the CRPD, 2515 UNTS 3 (Status as at 20 October 2017). 9   Stein and Lord (n 6). 10   There is one exception to the thematic core conventions, this concerns the Convention on the Rights of the Child (1989), which makes reference to ‘disability’ in Art 2 and ‘disabled child/​ren’ in Art 23; Valentina Della Fina, ‘Article 1 [Purpose]’ in Valentina Della Fina, Rachele Cera, and Guiseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities—​A Commentary (Springer 2017); Bernadette McSherry, ‘The United Nations Convention on the Rights of Persons with Disabilities’ (2009) 16(1) Journal of Law and Medicine; Kayess and French (n 3). 11  Della Fina (n 10); Anna Lawson, ‘The United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?’ (2007) 34 Syracuse J Intl L & Com 563. 12   Della Fina (n 10); Lawson (n 11). 13  Lisa Waddington, ‘A New Era in Human Rights Protection in the European Community: The Implications the United Nations’ Convention on the Rights of Persons With Disabilities for the European Community’ (2007) April Maastricht University Faculty of Law Working Papers 1, 1–​22; Stein and Lord (n 6); Kanter (n 1).

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This model draws a distinction between ‘impairment’ (the biological) on the one hand, and ‘disability’ (the societal) on the other hand.14 Its central thrust is that it is society (the social barriers) that disables persons who have impairments.15 This model ‘defines disability as the societal response to impairment’ and conceptualizes disability as ‘social oppression’.16 The ‘social model of disability’ rejects the ‘medical model of disability’, which focuses on, and reduces disability to, the impairment a person may have. Through the medical model of disability the ‘problem’ (of disablement) is located in the individual who needs to be ‘fixed’,17 their lives dominated by medical approaches, treatments, and experts,18 and where persons with disabilities are subject to discrimination, marginalization, exclusion, isolation, and oppression.19 Also, for many persons with intellectual disabilities, it allows denial of their agency and right to self-​determination.20 Significantly, this conceptualization of ‘disability’ reserves the exercise of power over decisions concerning persons with disabilities’ lives for medical professionals, and not for persons with disabilities, themselves.21 Article 1 rejects viewing persons with disabilities as ‘objects’ to be treated and as recipients of charity and welfare; it views persons with disabilities as subjects with human rights and authors of their own lives.22 The social model of disability has been critical for persons with disabilities and the Disabled People’s Movement.23 However, it is also important to note that there are other ‘social approaches’ that share some commonalities with the social model of disability; further, although the social model of disability is extremely influential, it is not without critique.24 Another of the ‘social approaches’, which also had some influence during the drafting and the negotiations for the CRPD, was the ‘minority rights approach’ to disability.25 This approach views persons with disabilities as a disadvantaged and oppressed minority group that have been denied their rights, face discrimination and social exclusion, and it focuses on the relationship between the group of persons considered ‘persons 14   Jan Walmsley, ‘Research and Emancipation:  Prospects and Problems’, in Peter Goward, G. Grant, P. Ramcharan, and M. Richardson (eds), Learning Disability—​A Life Cycle Approach to Valuing People (Open University Press 2005); Rannveig Traustadottir, ‘Disability Studies, the Social Model and Legal Developments’, in Quinn and Arnadottir (n 3). 15   Walmsley (n 14); Traustadottir (n 14). 16  Walmsley (n 14)  724; Traustadottir (n 14); Dan Goodley, Disability Studies:  An Interdisciplinary Introduction (Sage Publications 2011). 17   Kayess and French (n 3); Walmsley (n 14); Traustadottir (n 14); Marcia H Rioux, Lee A Basser, and Melinda Jones, Critical Perspectives on Human Rights and Disability Law (Martinus Nijhoff 2011); Jan Grue, Disability and Discourse Analysis (Ashgate 2015). 18   Tom Shakespeare, Disability Rights and Wrongs (Routledge 2006); Grue (n 17). 19   Kayess and French (n 3); Rioux et al (n 17). 20  Gerard Quinn, Theresia Degener et  al, Human Rights and Disability:  The Current Use and Future Potential of United Nations Human Rights (UN 2002); Michael Bach, ‘Supported Decision Making under Article 12 of the UN Convention on the Rights of Persons with Disabilities—​Questions and Challenges’ (2007) Presentation to Conference on Legal Capacity and Supported Decision Making Parents’ Committee of Inclusion Ireland Athlone, Ireland 1, available at: ; Rioux et al (n 17); Grue (n 17). 21 22 23   Grue (n 17).   Kanter (n 1).   Traustadottir (n 14). 24   Traustadottir (n 14); Shakespeare (n 18); Tom Shakespeare, Disability Rights and Wrongs Revisited (2nd edn, Routledge 2014). 25   Kayess and French (n 3); Kanter (n 1). This is also found in the literature as the ‘minority group model’ or the ‘minority group approach’; Harlan Hahn, ‘Antidiscrimination Laws and Social Research on Disability: The Minority Group Perspective’ (1996) 14 Behavioral Sciences and the Law 41.

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with disabilities’ (the minority group) and other groups.26 Although it does not make the distinction between ‘disability’ and ‘impairment’, it does place emphasis on the social environment.27 This approach considers that the discrimination, oppression, and prejudice persons with disabilities may face should be fought using civil rights legislation.28 This approach was developed in North America,29 and places emphasis on the significance of language, attitudes, and ideas,30 and for this reason employs ‘People First Language’ (PFL) which positions ‘the person before the disability’.31 The (‘strong’) ‘social model of disability’ developed in Britain, has been criticized in that by separating ‘disability’ and ‘impairment’ it places too much emphasis on social and structural barriers and ignores the experiential and cultural elements.32 For example, it ignores the importance of impairment in people’s everyday lives and the pain people may experience; and it fails to articulate or reflect the experiences, interests, and needs of persons with particular impairments, such as deafness and intellectual disabilities.33 Nevertheless, the ‘social model of disability’ was extremely influential in the Disabled People’s Movement and the Disabled Peoples Organizations (DPOs) that were involved in the drafting and negotiation process of the CRPD.34 This chapter will show how these models and approaches were important and influenced the drafting of article 1(2). Lastly, it also needs to be noted that although the drafting and negotiation for article 1 were heavily influenced by the social model of disability, it is more recently considered that the CRPD goes beyond the social model and is underpinned by the ‘human rights model of disability’.35 At the international level, reports by states parties submitted to the CRPD Committee in view of article 35, reveal that most states are having difficulty in understanding the social model of disability enshrined in article 1, as their reports reflect a medical model of disability understanding.36 At the European Union (EU) level, however, case law from the Court of Justice of the European Union (CJEU), when interpreting the concept of ‘disability’ under Directive 2000/​78/​EC since the EU ratified the CRPD in 2010,37 has held that the concept of ‘disability’ must be interpreted in view of the CRPD’s article 1(2).38 This in turn is in contrast with earlier case law of the CJEU,39 which predated the EU’s ratification of the CRPD, and reflected a medical model of disability.40 Thus, the 26  Hahn (n 25); Dan Goodley, Disability Studies:  An Interdisciplinary Introduction (2nd edn, Sage Publications 2017). 27   Traustadottir (n 14); Shakespeare (n 18), (n 24); Hahn (n 25). 28   Traustadottir (n 14); Shakespeare (n 18). 29   Simo Vehmas, ‘Dimensions of Disability’ (2004) 13 Cambridge Quarterly of Healthcare Ethics 34. 30  ibid. 31   eg ‘person/​s with a/​disability/​ies’; Lawson (n 11); Kathie Snow, ‘To Ensure Inclusion, Freedom, and Respect for All, It’s Time to Embrace People First Language’, 1, 2, available at: ; Paul T Jaeger and Cynthia Anna Bowman, Understanding Disability Inclusion, Access, Diversity, and Civil Rights (Praeger 2005). 32 33   Shakespeare (n 24) 11.   Traustadottir (n 14). 34   Kayess and French (n 3); Theresia Degener, ‘Disability in a Human Rights Context’ (2016) 5 Laws 35. 35   Michael Ashley Stein, ‘Disability Human Rights’ (2007) 95 Cal L Rev 75; Theresia Degener, ‘A Human Rights Model of Disability’, in Peter Blanck and Eilionóir Flynn (eds), Routledge Handbook of Disability Law and Human Rights (Routledge 2017). 36   Degener (n 35). 37   European Community Council Decision 2010/​48/​EC of 26 November 2009 (OJ 2010 L23) 35. 38   HK Danmark v Dansk almennyttigt Boligselskab [2013] C-​335/​11 (11 April 2013). 39   At the time, the European Court of Justice (ECJ). 40   Sonia Chacon Navas v Eurest Colectiviades SA [2006] C-​13/​05 (11 July 2006).

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‘paradigm shift’ in conceptualizing ‘disability’ embodied in the CRPD is reflected in EU anti-​discrimination  law.

2.  Background and Travaux Préparatoires The text of what would become ‘Article 1—​Purpose’ CRPD began as text in two separate draft articles when Mexico submitted a working paper of a draft convention at the Ad Hoc Committee’s first session.41 Its content was discussed during sessions two to four, sessions seven to eight, and the Working Group.42 Traditionally, drafting and negotiating UN human rights conventions take place between UN member states’ delegations only, with the negotiation process based on achieving consensus amongst states.43 However, after intense lobbying at the first session, it was decided that representatives from DPOs and human rights non-​governmental organizations (NGOs), were allowed to attend future Ad Hoc Committee sessions,44 and that accredited organizations could participate in the Ad Hoc Committee’s work.45 This is significant, as it meant that the convention’s target group were able to directly contribute to the negotiation and drafting process; the process was ‘unusually transparent and cooperative’;46 and it was conciliatory in nature,

41   Ad Hoc Committee, ‘Comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities—​Working Paper by Mexico’ [First Session] UN Doc A/​AC265/​ WP1 (2002) Art 1. 42   Ad Hoc Committee, ‘Views submitted by Governments, intergovernmental organizations and United Nations bodies concerning a comprehensive and integral international convention on the protection and promotion of the rights and dignity of persons with disabilities Note by the Secretary-​General Executive Summary’ [Second Session] UN Doc A/​AC265/​2003/​4+A/​AC265/​2003/​4/​Corr1 (16–​27 June 2003); UN Enable, ‘Daily summary of discussions by article’ [Third Session] (24 May–​4 June 2004) (Landmine Survivors Network, 2004), available at: ; UN Enable, ‘Daily summary of discussions by article’ [Fourth Session] (23 August–​4 September 2004) (Landmine Survivors Network, 2004), available at: ; UN Enable, ‘Daily summary of discussion at the seventh session 30 January 2006’ (30 January 2006) 8(11) (Rehabilitation International), available at:  ; UN Enable, ‘Daily summary of discussion at the seventh session 31 January 2006’ (31 January 2006) 8(12) (Rehabilitation International), available at:  ; UN Enable, ‘Eighth Session of the Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities’ (14–​25 August and 5 December 2006), available at: ; Ad Hoc Committee, ‘Report of the Working Group to the Ad Hoc Committee—​Annex I—​Draft comprehensive and integral international convention on the protection and promotion of the rights and dignity of persons with disabilities’ UN Doc A/​AC265/​2004/​WG/​1 CRP4 plus CRP4/​Add 1, Add 2, Add 4, and Add 5 (2004). 43   Amita Dhanda, ‘Constructing a New Human Rights lexicon: Convention on the Rights of Persons with Disabilities’ (2008) 5 Sur—​International J on Human Rights 43; Richmond Lang, ‘The United Nations on the Right and Dignities for Persons with Disability: A Panacea for Ending Disability Discrimination?’ (2009) 3 ALTER European Journal of Disability Research 266; Janet E Lord, ‘The U.N. Disability Convention: Creating Opportunities for Participation Disability and the Law’ (2010) 19 Business Law Today 23–​27. Other parties, such as non-​UN member states, entities, NGOs, and NHRIs, are excluded from the negotiation process, and may only attend UN General Assembly (GA) sessions where they have been granted ‘observer status’. ‘Observer status’ is granted to organizations where their activities concern issues of interest to the UNGA. 44  Lawson (n 11); Ad Hoc Committee, ‘Report of the First Session of the Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities’ (2002) UN Doc A/​57/​357 (2002). 45   Ad Hoc Committee Report (n 44). 46   Lord (n 43)  23; Lana Moriarity and Kevin Dew, ‘The United Nations Convention on the Rights of Persons with Disabilities and Participation in Aotearoa New Zealand (2011) 26 Disabil Soc 683.

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that is, articles were agreed by consensus and, where disagreements arose, they were amicably resolved.47 This in turn had implications for the drafting of what would become the content of article 1. Some delegations were sceptical about the necessity to include an article dedicated to the convention’s ‘purpose’, whereas others supported it as a succinct version supplementing its title.48 In particular, what became its second paragraph was one of the ‘most difficult’ points debated,49 as the decision whether to include a definition of ‘disability’ or ‘persons with disabilities’ and, if so, its content, was ‘among the most controversial’,50 and one that was nearly not resolved, being negotiated up until the eighth session. Because article 1 began as text in two separate articles that were not joined until the eighth session, the negotiation and drafting process for it is divided in this chapter into two sections: first discussing the purpose (article 1, paragraph 1), and then the description of persons with disabilities (article 1(2)).

2.1 Purpose (Article 1, Paragraph 1) Article 1 in Mexico’s working paper set out ‘the object’ of the draft convention. This read: The object of this Convention is to: a) Recognize, guarantee, promote, and protect the rights of persons with disabilities; b) Eliminate all forms of discrimination against persons with disabilities in public and private spheres; c) Promote the autonomy and independent lives of persons with disabilities and achieve their full participation in economic, social, cultural, civil, and political life, under conditions of equality; d) Promote new forms of international cooperation to support national efforts in the benefit of persons with disabilities, and achieve the objectives of this Convention.51

The draft provision made reference to both the convention’s object, that is, to recognize, guarantee, promote, and protect the convention’s target group’s human rights; and to the principles of non-​discrimination, autonomy, social participation, and international cooperation.52 In contrast, the Working Group’s draft separated the convention’s ‘purpose’ from its ‘principles’, and left the discussion on ‘general principles’ for article 2.53 Further, the Working Group’s article 1 was now entitled ‘Purpose’.54 It read: The purpose of this Convention shall be to ensure the full, effective and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities.55

The working group also produced an alternative formulation, which read: The purpose of this Convention shall be to protect and promote the rights of persons with disabilities.56

47   Arlene S Kanter, ‘The Promise and Challenge of the United Nations Convention on the Rights of Persons with Disabilities (2007) 34 Syracuse J Int’l L & Com 287. 48   The tentative title for the convention had been ‘Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities’. There was a suggestion to revise the title to the ‘International Convention on the Rights of Persons with Disabilities’ during the seventh session. Daily summary of discussions (Seventh Session] (n 42). 49  UN Press Release, ‘Disability Convention Drafting Committee Discusses International Monitoring, International Cooperation, Definition of Disability’ UN Doc SOC/​4709 (15 August 2006). 50 51 52   Kayess and French (n 3) 23.   Working Paper by Mexico (n 41) art 1.  ibid. 53 54 55 56   Working Group (n 42).  ibid.  ibid.  ibid.

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There was support for both formulations,57 and the text was subsequently discussed at the third, fourth, seventh, and eighth sessions. One of the terms discussed was ‘to ensure’. Some states preferred that it be replaced with ‘to promote and to protect’,58 whereas there was also a lot of support for the term to be retained.59 Liechtenstein argued that the term ‘to ensure’ ‘is the highest level of abstraction that can be used, because “protecting” human rights is more negative and has less to do with positive obligations’,60 and Sierra Leone argued that it is a ‘key term’ ‘because it is action-​oriented and requires states to do something’.61 The term was kept in the Chair’s draft at the end of the fourth session,62 disappeared from the Chair’s draft before the seventh session (as it had been replaced with ‘fulfil’),63 but reappeared in the text agreed at by the end of the seventh session,64 at the insistence of the International Disability Caucus (IDC).65 The IDC had proposed replacing ‘fulfil’ with ‘ensure’, noting, first, that governments must refrain from interfering with the human rights of persons with disabilities, second, that they must prevent third parties from interfering, but must also take proactive measures to protect persons’ rights, and third, that the language in the provision needed to reflect this.66 The IDC thus argued that ‘ensure’ would be useful to reflect this intention,67 and would make sure that the aimed outcome would be achieved.68 The terms ‘to protect and promote’ found in the Working Group’s alternative formulation received a lot of support.69 In contrast, the EU preferred the Working Group’s original formulation that used the term ‘enjoyment’, as it noted precedents in other human rights conventions, such as the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (CESCR).70 Further, Ireland noted a distinction between using the formulation ‘rights’ or ‘the enjoyment of rights’, suggesting that the use of the phrase ‘rights of persons with disabilities’ could be understood as a different set of rights; whereas the latter formulation would make clear that persons with disabilities do not have more or different human rights under the convention, and importantly, that the convention’s purpose is to ensure ‘the enjoyment’ of human rights by persons with disabilities.71 The Chair’s draft at the 57   At the third session, the working group’s article 1 text received support from Ireland, Jordan, the Russian Federation, and the Asia Pacific Forum of NHRIs; whereas the working group’s alternative formulation for article 1 received more support from Argentina, China, El Salvador, Eritrea, Japan, Mali, Mexico, and South Africa—​Daily summary of discussions [Third Session] (n 42). 58  ibid. 59   There was also a lot of support for the draft text’s term ‘to ensure’ to be kept, by Bahrain, Liechtenstein, Norway, Serbia Montenegro, Sierra Leone, and the EDF—​Daily summary of discussions [Fourth Session] (n 42). 60 61 62  ibid.  ibid.  ibid. 63   UNGA, ‘Letter dated 7 October 2005 from the Chairman to all members of the Committee’ A/​AC265/​ 2006/​1 (2006). 64   ‘Report 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 on its seventh session’ UN Doc A/​AC265/​2006/​2 (13 February 2006). 65   Marianne Schulze, ‘A Handbook on the Human Rights of Persons with Disabilities Understanding the UN Convention on the Rights of Persons with Disabilities’ (Handicap International 2010). 66   UN Enable ‘Article 1—​Purpose—​Seventh Session—​Comments, proposals and amendments submitted electronically’, available at: . 67 68  ibid.   Schulze (n 65). 69   Canada, Eritrea, Guatemala, Kenya, Mali, Morocco, Thailand, Trinidad and Tobago, supported the alternative formulation, which included the terms ‘to promote and protect’—​Daily summary of discussions [Fourth Session] (n 42). 70 71  ibid.  ibid.

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end of the fourth session,72 and before the seventh session,73 as well as the text agreed at by the end of the seventh session,74 included both sets of the terms ‘to promote, protect’ but also ‘enjoyment’. Although the Working Group’s draft had separated the convention’s ‘purpose’ (article 1) from its ‘general principles’ (article 2),75 there was a lot of discussion as to the inclusion of certain principles in article 1, in particular the principle of ‘dignity’. There was very little support for the inclusion of the concept of ‘international cooperation’ during the third session,76 as it was not considered necessary to be included in article 1,77 and thus did not appear in any subsequent drafts of article 1.78 There was discussion as to whether the principle of ‘non-​discrimination’ should be included.79 Although there was support,80 its inclusion was mostly deemed unnecessary,81 given that it already featured in the articles dealing with ‘general principles’ and ‘non-​discrimination’.82 The result was that the principle of ‘non-​discrimination’ did not appear in any subsequent drafts of article 1.83 There was some support for the inclusion of the principle of active or social ‘participation’ during the third and fourth sessions,84 and this was inserted in the Chair’s draft at the end of the fourth session;85 however, it disappeared from the Chair’s draft before the seventh session,86 and did not reappear in the text agreed at by the end of the seventh session.87 The only principle that made it into the final text of article 1 was that of ‘dignity’. There was support for the inclusion of the principle of ‘dignity’ during the third,88 fourth,89 and seventh sessions.90 People with Disability Australia (PWDA) encouraged the inclusion of the principle of ‘dignity’ explaining that the recognition of persons with disabilities’ human rights alone may not necessarily entail that they are also treated with dignity.91 The principle of dignity was inserted in the Chair’s draft at the end of the fourth session,92 disappeared from the text before the seventh session,93 but reappeared in the agreed text by the end of the seventh session in the articulation of ‘promote respect for their inherent dignity’, as its inclusion was supported by many delegations and the IDC.94 Discussion 73  ibid.   Letter from the Chairman (n 63). 75   Report of the Ad Hoc Committee on its seventh session (n 64).   Working Group (n 42). 76   eg, it was supported by Bahrain and Yemen in the third session—​Daily summary of discussions [Third Session] (n 42). 77   Jordan and Mexico did not consider it to be necessary to be included in article 1 in the third session. ibid. 78 79   Daily summary of discussions [Fourth Session] (n 42).  ibid. 80   Support was expressed by Eritrea, India, Morocco, and Sierra Leone. ‘Report of the third session 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’ UN Doc A/​AC265/​2004/​5 (9 June 2004). 81   It was considered unnecessary by Canada, Mexico, New Zealand, Serbia Montenegro, and the EDF. ibid. 82   eg, it was considered unnecessary by Canada, Jamaica, Mexico, Norway, New Zealand, and Thailand in the fourth session. Daily summary of discussions [Fourth Session] (n 42). 83  ibid. 84   eg in the third session the Philippines stated that it should include ‘responsibility to take part in society’—​Daily summary of discussions [Third Session] (n 57); eg in the fourth session Venezuela suggested ‘active participation’—​Daily summary of discussions [Fourth Session] (n 42). 85 86   Daily summary of discussions [Fourth Session] (n 42).   Letter from the Chairman (n 63). 87   Report of the Ad Hoc Committee on its seventh session (n 64). 88   Its insertion was suggested by Mexico—​Daily summary of discussions [Third Session] (n 42). 89   Its insertion was suggested by Mexico, Morocco, and the PWDA—​Daily summary of discussions [Fourth Session] (n 42). 90   Daily summary [Seventh Session] (30 January 2006) 8(11) (n 42). 91 92   Daily summary of discussions [Fourth Session] (n 42).  ibid. 93   Letter from the Chairman (n 63). 94   Report of the Ad Hoc Committee on its seventh session (n 64); Daily summary [Seventh Session] (30 January 2006) 8(11) (n 42). 72 74

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on the inclusion of the principle of ‘dignity’ in article 1 was intertwined with discussion on the content of the convention’s title, during the seventh session.95 Prior to the seventh session, the Chair had raised the question of whether article 1 was necessary to the convention in view of its lengthy title and the drafting practice of other conventions;96 however, states and observers expressed support in their written submissions for its retention.97 The rationale provided included that the convention’s text should be clear and accessible and that a purpose provision would assist with this.98 It was also recognized that although human rights conventions traditionally do not have a ‘purpose’ article, there are UN treaties, such as the Charter of the UN,99 which do.100 Further arguments were made that although domestic and international law differ, it is common practice to include a ‘purpose’ when drafting domestic legislation.101 Although there was support for the insertion of the principle of dignity into article 1,102 a point arose as to whether it was better placed in the title or article 1.103 The IDC’s written submission and comments by Liechtenstein during the seventh session were instrumental in resolving this. The draft title for the convention at this point was the: Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities.104

The IDC had instead suggested the following title: International Convention on the Rights of Persons with Disabilities.105 Lichtenstein supported this, explaining that the title should primarily act as a point of reference and not as a complete description.106 It went on to suggest that the principle of dignity could be included in article 1, since delegations were concerned that the more concise title eliminated important substantive elements, such as the principle of dignity.107 Furthermore, Liechtenstein emphasized the need for caution regarding how the principle was to be applied, noting that rights and dignity differ, in that states can confer the former but not the latter, which is inherent to everyone.108 Thus, it did not support the inclusion of ‘dignity’ in the title, especially in conjunction with the word ‘rights’, but supported its inclusion in article 1.109 Furthermore, it feared that the formulation ‘to promote dignity’ could imply that dignity was not already there. It is for these reasons that the phraseology agreed at the end of the seventh session, at the insistence of the IDC and Liechtenstein, was a reference to ‘respect’ for ‘dignity’.110 The text of article 1 that was agreed by the end of the seventh session read: The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities, and to promote respect for their inherent dignity.111 96  ibid.   Letter from the Chairman (n 63).   The states and observers that favoured retention of a ‘purpose’ article were:  Algeria, China, the EU, India, Kenya, the IDC, the Japan Disability Forum (JDF), and People with Disability Australia (PDA); Art 1, Seventh Session Comments (n 66). 98 99   As expressed by the IDC, ibid.   Art 1 UN Charter. 100   As expressed by the Japan Disability Forum (JDF); Art 1, Seventh Session Comments (n 66). 101  ibid. 102   The states that supported the incorporation of the term ‘dignity’ (or ‘inherent dignity’) in their written submissions were: Algeria, China, and India; ibid. 103   Daily summary [Seventh Session] (30 January 2006) 8(11) (n 42). 104   Letter from the Chairman (n 63). 105 106 107   Daily summary [Seventh Session] (30 January 2006) (n 42).  ibid.  ibid. 108 109 110  ibid.  ibid.   ibid; Schulze (n 65). 111   Report of the Ad Hoc Committee on its seventh session (n 64). 95 97

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Finally, there was one last amendment to this text during the eighth session, in which the word ‘all’ was inserted, between ‘by’ and before ‘persons with disabilities’, at the insistence of the IDC.112

2.2  Description of ‘Disability’ (Article 1, Paragraph 2) What began as article 2 in Mexico’s working paper, ultimately set out ‘definitions’ and included a definition of ‘disability’. Article 2(a) read: ‘Disability’ means a physical, mental (psychic), or sensory impairment, whether permanent or temporary, that limits the capacity to perform one or more essential activities of daily life, and which can be caused or aggravated by the economic and social environment.113

This definition was a verbatim reproduction of the same definition as contained in the Inter-​American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities (IACED) of 1999, the only difference in the formulation being the addition of ‘(psychic)’ in Mexico’s proposal.114 This definition was situated largely in a medical model of disability, as it focused on the types of impairment a person may have and that this may limit a person’s capacity to perform activities; also, it located the ‘problem’ (of ‘disability’) in the individual. However, the definition was not situated solely within a medical model, as it also recognized that limitations may be caused by the social and economic environment. The discussion concerning whether to include a definition of ‘disability’ was situated within a larger discussion about incorporating an article on ‘definitions’ in the convention.115 Some delegations were of the view that a separate article on ‘definitions’ may not be necessary, as pertinent terms may be defined in other articles.116 Other states were opposed to the convention including a definition of ‘disability’, as they were concerned about having a definition at the international level that would differ from states’ domestic legislation,117 and considered that this should be left to states to decide.118 The EU was opposed to the inclusion of a definition of both ‘disability’ or ‘persons with disabilities’, as it considered that such a definition ran the risk of becoming exclusive as opposed to inclusive.119 In contrast, other delegations, DPOs, and NGOs supported the inclusion of a definition of disability.120 For example, National Human Rights Institutions (NHRIS) explained that if a definition of ‘disability’ were not included in the convention there was a danger that states may refuse to ratify it if the convention’s meaning and obligations were uncertain; moreover, without a definition the convention would not provide guidance for domestic law and policy regarding disability awareness.121 113   Marianne Schulze (n 65).   Working Paper by Mexico (n 41) Art 2(a).   Inter-​American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities. 115   eg Colombia and South Africa supported setting aside some time to discuss a ‘definitions’ section—​Daily summary of discussions [Third Session] (n 42). 116   This view was held by Australia, Canada, the EU, New Zealand, and Norway in the Third Session (n 57); and by Bahrain, New Zealand in the Fourth Session (n 42). 117   Japan and Russia—​Daily summary of discussions [Third Session] (n 42). 118   Costa Rica, India in the fourth session—​Daily summary of discussions [Fourth Session] (n 42). 119   Daily summary of discussions [Fourth Session] (n 42). 120   Mexico in the first session (n 41); Yemen in the third session (n 42); Argentina, Chile, China, Holy See, Kenya, Korea, Mali, Mexico, National Human Rights Institutions (NHRIS), PWDA, Save the Children Alliance, WBU, WNSU in the fourth session (n 42); and Yemen in the seventh session (n 42). 121   Daily summary of discussions [Fourth Session] (n 42). 112 114

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Many definitions of ‘disability’ were suggested and discussed. The majority of written submissions noted that there was no single definition of ‘disability’, and that it was frequently context-​dependent.122 Japan submitted that a definition should be universally accepted but also be flexible enough to allow interpretation by individual states and accommodate different legal systems.123 There was support for the inclusion of a definition of ‘disability’ based on the UN World Health Organisation’s (WHO) 2001 International Classification of Functioning, Disability and Health (ICF),124 with Canada suggesting that the definition in the convention should reflect the WHO’s work in order to promote the standardization of international disability terminology and data collection on disability issues.125 There was also support for a medical model of disability. For example, the Russian Federation submitted a definition of ‘persons with disabilities’ that read: persons whose health is impaired by a lasting deterioration of the functions of the organism resulting from disease, injury or deficiencies, creating limitations affecting their daily living and necessitating social protection.126

The PWDA, supported a definition that encompassed all impairment groups, including health conditions such as HIV/​AIDS, and recognized that impartment may be episodic, temporary, transitory, or permanent.127 There was a lot of support for the definition of ‘disability’ as set out in the IACED.128 This definition, however, was rejected by the World Network of Users and Survivors of Psychiatry (WNSUP).129 The International Labour Organization (ILO) considered that a definition of disability would be limiting, but that if the decision to include a definition were taken then ‘it should be broad, inclusive, and reflect the social dimension of disability’; it also made reference to the ILO Convention 159 and Code of Practice on Managing Disability in the Workplace.130 During the second session panel discussions were also held, with one devoted to exploring ‘new and emerging approaches to definitions of disability’ and the implications of these approaches, which had the purpose of determining the convention’s scope.131 The panellists expressed the view that discussion on contextual variables was essential and that the situation of disability should be taken into consideration. They also focused on accessibility, which they considered more important as compared to a definition of disability and drew a distinction between experiences of impairment on the one hand and experiences of disability on the other hand.132

123   Views submitted [Second Session] (n 42).  ibid.   This was supported by Australia, Cuba, and Korea in the fourth session. Daily summary of discussions [Fourth Session] (n 42). It was also supported by UN treaty bodies, organizations, and agencies. Views submitted [Second Session] (n 42). It was supported by the Bangkok Recommendations. Ad Hoc Committee, ‘Bangkok recommendations on the elaboration of a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities—​Outcome of an expert group meeting and seminar held in Bangkok at the headquarters of the Economic and Social Commission for Asia and the Pacific from 2 to 4 June 2003’ UN Doc A/​AC265/​2003/​CRP/​10 (2003). 125 126   Views submitted [Second Session] (n 42).   ibid para 25. 127   PWDA—​Daily summary of discussions [Fourth Session] (n 42), set out the full definition that was suggested. 128   Argentina in the fourth session. ibid; Colombia and Costa Rica in the seventh session (n 42). 129 130  ibid.  ibid. 131   Ad Hoc Committee, ‘Report of the Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities’ [Second Session] UN Doc A/​58/​118 & Corr1 (3 July 2003) para 13. 132  ibid. 122 124

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There was also a lot of support for a definition of ‘disability’ based on the social model of disability.133 DPOs explained that many states’ definitions of ‘disability’ were grounded in a medical model and that its effect was that persons with psychosocial disabilities may be, and usually were, excluded.134 This view was reiterated by Yemen, which was concerned with the link with the medical field and that some psychiatric conditions may not be classified as ‘disability’ in some states, leading to a fear that some states would define disability ‘according to their own preferences’.135 In contrast, Australia suggested that a medical model of disability should be used because although it considered the social model important, its delegation felt that ‘disability seen purely as a function of the environment would render a definition unworkable’, because it considered persons with disabilities in need of being ‘clearly identified’.136 Views also were expressed that a definition should avoid the conceptualization of disability as solely medical, and emphasized that it should reflect social dimensions of disability.137 For example, Norway submitted that a definition should include all types of impairments, such as physical, mental, and sensory, but also the ‘handicaps’ that were imposed on persons with disabilities by society’s and the environment’s demands.138 Similarly, the Economic Commission for Latin America and the Caribbean (ECSCAP) submitted that a definition of disability should recognize multiple forms, including physical, sensory, intellectual, psychiatric, perceived, or temporary.139 In addition, it also submitted that the convention should consider social and environmental factors, and not only medical factors.140 There was also support that a definition should be harmonized with human rights principles141 and that the convention should adopt a human rights-​ based approach and move away from a ‘charity model of disability’.142 The discussion over the inclusion of a definition on ‘disability’ carried on into the seventh session but remained unresolved.143 Whereas some delegations and the Chair did not support the inclusion of a definition of ‘disability’ or of ‘persons with disabilities’; other delegations supported the inclusion of a definition of ‘disability’,144 ‘persons with disabilities’, or both definitions.145 The IDC was also in favour of including a definition at this point because it feared that without a definition states might narrowly interpret the range of persons protected, which would make the convention ‘virtually meaningless’.146 There was also discussion over the position of the definition in the text, with suggestions including that it could be positioned in the preamble,147 rather than in the body of the convention. 133   Yemen in the Third Session (n 42); the DPI, the EDF, National Human Rights Institutions (NHRIS), Guatemala, and Thailand in the Fourth Session (n 42); and Serbia and Montenegro and Yemen in the Seventh Session (n 42). 134   Daily summary of discussions [Fourth Session] (n 42). 135   Daily summary [Seventh Session] (31 January 2006) 8(12) (n 42). 136   Australia—​Daily summary of discussions [Fourth Session] (n 42). 137 138 139 140   Views submitted [Second Session] (n 42).  ibid.  ibid.  ibid. 141 142 143  ibid.  ibid.   Daily summary of discussions [Seventh Session] (n 42). 144   eg Costa Rica considered that a definition of ‘persons with disabilities’ was not necessary but that a definition on ‘disability’ ‘might have merit’ but that it would depend on the Ad Hoc Committee, as a whole, to decide, and supported the IACED definition of ‘disability’; ibid. 145 146  ibid.   Lawson (n 11) 593. 147   Serbia and Montenegro in the seventh session. Daily summary of discussions [Seventh Session] (n 42).

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Concerning content, views included a combination of both a medical model and a social model. For example, Canada reached the view that a definition was problematic, but if it were to be included it should: be based on physical or mental impairment, functional limitations, whether real or perceived, and socially constructed barriers to the full participation in society of persons with disabilities.148

Australia was concerned that a ‘strict’ social model approach may lead to the interpretation that once the barriers created by society are removed the state will have ‘no further obligation toward the person with a disability’.149 It proposed a definition that would be ‘part of the social model . . . but that works on the concept of impairment and disability, so as to recognize the triggers for the protection of the convention’.150 By the end of the seventh session, the overall consensus pointed towards the inclusion of a definition of ‘disability’ or ‘persons with disabilities’ to be included in the article on definitions.151 However, the formulation of the text had not been decided upon. Following the seventh session, the Chair circulated a draft text for discussion that read: ‘Disability’ results from the interaction between persons with impairments, conditions or illnesses and the environmental and attitudinal barriers they face. Such impairments, conditions or illnesses may be permanent, temporary, intermittent or imputed, and include those that are physical, sensory, psychosocial, neurological, medical or intellectual.152

This was considered one of the ‘most difficult issues’;153 with the provision’s formulation and positioning being one of the most time consuming during the eighth and final session,154 which was finally resolved with the assistance of the facilitator’s text.155 This text did two things: firstly, it moved the text that was previously found in the ‘definitions’ provision, into the ‘purpose’ provision (article 1); and secondly, it provided a description as opposed to a definition of ‘persons with disabilities’. It thus read: Persons with disabilities include those who have long-​term physical, mental, or sensory impairments which in interaction with environmental barriers may hinder their full and effective participation in society on an equal basis with others.156

Nevertheless, the negotiations did not stop there, but rather continued with another two changes being made to the final text. The term ‘intellectual’ was introduced to the list of impairments; and the term ‘various’ was introduced before ‘barriers’, replacing ‘environmental’. The final text for article 1(2), which was adopted read: Persons with disabilities include those who have long-​term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.157

149  ibid.  ibid. 151   Daily summary of discussion at the seventh session 31 January 2006 (n 42).  ibid. 152  UN Enable, ‘Possible Definition of “Disability”:  Discussion Text Suggested by the Chair’ [Seventh Session], available at: . 153 154   See (n 49).   Lawson (n 11). 155   UN Enable, ‘Facilitator’s text on Definition of Disability as of 23 August 2006’ [Eighth Session]. 156 157  ibid.   Art 1(2) CRPD. 148 150

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The new placement of, and the formulation of the description (and not a definition), in the convention constituted the compromise that was arrived at, as agreement could not be reached on a definition, or whether the convention should even include one.158 This marked the end of the substantive drafting as it concerned the text of article 1.159

3.  Paragraph 1 3.1 ‘The purpose of the present Convention’ The CRPD is the only core UN human rights convention to have a separate article entitled ‘purpose’. Traditionally, the purpose of UN international human rights conventions has been conveyed through their title and preambular paragraphs, as is the case with the ICCPR, the CESCR, the CRC, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW) and the International Convention for the Protection of All Persons from Enforced Disappearance (CED). In contrast, some international environmental law treaties contain a ‘purpose’ or ‘objectives’ provision.160 The inclusion of such a provision in the CRPD is in line with environmental law treaty drafting practice.161 During the negotiations, there was much discussion on whether there was need for a separate article on the convention’s purpose.162 The inclusion of the provision was not finalized until the seventh session, where it was decided that the convention’s title would be shortened and the ‘purpose’ article be retained.163 The need for a ‘thematic’ human rights convention, which focused on persons with disabilities had arisen from a recognition that persons with disabilities were ‘invisible’ within the core UN human rights conventions; that their particular needs were not being met as none adopted a human rights approach to ‘disability’,164 and existing human rights obligations were not tailored to address the particular barriers persons with disabilities faced in the realization of their human rights.165 The purpose provision in the CRPD ensures that all persons with disabilities fully enjoy all human rights and fundamental freedoms on an equal basis with all other persons.166

  Lawson (n 11).   The remaining issues that were discussed by the drafting committee concerned:  (a) whether the two paragraphs in article 1 should be merged into one; (b) whether the two paragraphs should be numbered; and (c) whether a comma should be placed after the word ‘impairments’. UN Enable, ‘Drafting Group’ [Eighth Session]. 160 161   eg Art 1 of the 1992 Convention on Biological Diversity.   Della Fina (n 10). 162   Daily summary [Seventh Session] (n 42); Schulze (n 65). 163   This was eventually supported by the states: Algeria, Australia, Bosnia and Herzegovina, Chile, China, Colombia, Costa Rica, Ethiopia, the EU, India, Iran, Israel, the Republic of Korea, Lichtenstein, Libya, Mauritius, Mexico, Nigeria, Norway, Serbia and Montenegro, Sudan, Syria, United States of America, and Yemen—​Daily summary of discussions [Seventh Session] (n 42). 164   Janet E Lord, ‘NGO Participation in Human Rights Law and Process:  Latest Developments in the Effort to Develop an International Treaty on the Rights of People with Disabilities’ (2004) 10 ILSA Journal of International & Comparative Law 311; Caroline Harnacke and Sigrid Graumann, ‘Core Principles of the UN Convention on the Rights of Persons with Disabilities: An Overview’, in Joel Anderson and Jos Philips (eds), Disability and Universal Human Rights: Legal, Ethical, and Conceptual Implications of the Convention on the Rights of Persons with Disabilities (Netherlands Institute of Human Rights 2012). Emily Julia Kakoullis, A Shift from Welfare to Rights: A Case Study of the Ratification Process for the Convention on the Rights of Persons with Disabilities in Cyprus, PhD Thesis (University of Bristol 2015); Della Fina (n 10). 165 166   Stein and Lord (n 6).   Kanter (n 1). 158 159

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3.2 ‘to promote, protect, and ensure’ The formulation ‘to promote, protect, and ensure’,167 is a combination of the Working Group’s two draft proposals for article 1: the term ‘to ensure’, was initially found in the Working Group’s draft, and the terms ‘to protect and promote’, in its alternative formulation.168 This particular formulation is unique in international human rights law.169 The three over-​arching obligations on states parties to international human rights conventions effectively encompass the obligations: ‘to respect, to protect and to fulfil’.170 These are explicitly articulated in the CESCR’s General Comment No 15. The obligation ‘to respect’ requires states parties to international human rights conventions to refrain from directly or indirectly interfering with the enjoyment of a person’s human right.171 The obligation ‘to protect’ requires states parties to take measures to prevent third parties from interfering in any way with the enjoyment of a person’s human rights,172 that is, to ensure that no person is denied their human rights.173 This obligation also includes the adoption of necessary and effective legislative and policy measures.174 The obligation ‘to fulfil’ comprises three further obligations, namely:  ‘to facilitate, promote and provide’.175 The obligation ‘to facilitate’ requires states parties to take positive measures to assist persons and communities to enjoy the right.176 The obligation ‘to promote’ requires states parties to take steps to support the upholding of the right,177 including to ensure that there is appropriate education around the right.178 Lastly, the obligation ‘to provide’ requires states parties to provide access to the right when persons or a group are unable to realize the right themselves by the means at their disposal, for reasons that are beyond their control.179 The wording was discussed at the Working Group and the Ad Hoc Committee’s third, fourth, and seventh sessions.180 In advance of the seventh session, the Chairman had disseminated a draft text in which article 1 included the formulation ‘to promote, protect and fulfil’.181 At the seventh session the IDC proposed that ‘fulfil’ be replaced with ‘ensure’, as it was concerned that the language of the article needed to reflect that states parties must refrain from interfering with the human rights of persons with disabilities and prevent third parties from interfering, in addition to taking proactive measures to protect the rights.182 It also argued that the terms ‘ensure’ and ‘respect’ may be useful to reflect that.183 It is noted that if the formulation ‘to respect and to ensure’ had been adopted, it would have matched the formulation used in the articles 2(1) of the ICCPR184 and CRC.185 The term ‘ensure’ was eventually included to replace ‘fulfil’ but the term ‘respect’ was not included. The result was that the text that was finally adopted read: ‘to promote, protect, and ensure’.186 Nevertheless, the text of article 1 encompasses all three over-​arching obligations on states parties to international human rights conventions (‘to respect, to protect and to fulfil’), as the discussions did not aim to exempt state parties 168 169   Art 1 CRPD.   Working Group (n 42).   Schulze (n 65).   CESCR, ‘General Comment No 15: The Right to Water (Arts 11 and 12 of the Covenant)’ UN Doc E/​C12/​2002/​11 (20 January 2003) para 20. 171 172 173   General Comment 15 (n 170) para 21.   ibid para 23.   Schulze (n 65). 174 175 176   General Comment 15 para 23.   ibid para 25.   ibid para 25. 177 178 179   Schulze (n 65).   General Comment 15 (n 170) para 25.  ibid. 180   Working Group (n 42); Daily summary of discussions [Third Session] (n 42); Daily summary of discussions [Fourth Session] (n 42). 181   Letter from the Chairman (n 63). 182 183   Daily summary of discussions [Seventh Session] (n 42).  ibid. 184 185 186   Art 2(1) ICCPR.   Art 2(1) CRC.   Art 1 CRPD. 167 170

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from any obligations, but rather aimed to ensure ‘the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities’. It is also evident that because the CRPD iterates and tailors existing human rights to the needs of persons with disabilities, these three over-​arching obligations ab initio underlie the entire foundation of the CRPD. Furthermore, the human rights nature of the CRPD reaffirms and underpins the universality, indivisibility, interdependence, and interrelatedness of all human rights and fundamental freedoms stipulated therein.187

3.3 ‘full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities’ The phrase ‘human rights and fundamental freedoms’ is central to international human rights law and is found in the UDHR, ICERD, ICCPR, CESCR, CEDAW, CRC, and CED;188 further, the phrase ‘full and equal enjoyment of human rights and fundamental freedoms’ is also found in the ICERD.189 The text of article 1(1) uses this phrase but adds to it the word ‘all’ in front of it; this achieves to ensure that persons with disabilities enjoy the human rights and fundamental freedoms set out in the existing international human rights treaties equally with all other persons.190 The core UN international human rights treaties prior to the CRPD aimed to protect and ensure the rights for all persons, including persons with disabilities; however, in practice they did not afford protection or ensure the implementation of the rights of persons with disabilities on an equal basis with non-​disabled persons.191 Persons with disabilities were ‘invisible’ and their particular needs were not being met by the core UN human rights conventions.192 The intention of the CRPD’s drafters was to ensure that all human rights and fundamental freedoms provided by other international human rights treaties are enjoyed by persons with disabilities, tailored to their needs, and that the states parties’ obligations are set out in detail.193 Therefore, this phrase was intended to reaffirm that all human rights and fundamental freedoms are equally applicable under the three layers of obligations to persons with disabilities. The CRPD therefore complements the other core UN human rights treaties.194 Further, article 1(1), makes explicit that the rights and freedoms are to be enjoyed ‘by all persons with disabilities’. The addition of the word ‘all’, before ‘persons with disabilities’ was added at the insistence of the IDC; this aimed to both highlight the diversity of persons with disabilities, as well as emphasize that some persons may require additional intensive support.195

3.4 ‘to promote respect for their inherent dignity’ The principle of ‘dignity’ is the ‘anchor norm of human rights’ law;196 persons are valued because of their inherent self-​worth.197 Atrocities in Nazi Germany and Japan during the Second World War (WWII), were primary factors that sensitized post-​war governments   CRPD, preambular para c.   In the preamble and Art 26(2) UDHR; Arts 1(1), 1(4), 2(2), and 6 ICERD; Art 41(e) ICCPR; Arts 13(1) and 18 ICESCR; Arts 1 and 3 CEDAW; Arts 29(1)(b) and 40(1) CRC; and in the preamble of the International Convention for the Protection of All Persons from Enforced Disappearance (CPED). 189   Art 2(2) ICERD.    190  Della Fina (n 10).    191  Kanter (n 1). 192 193   Kayess and French (n 3); Harnacke and Graumann (n 164).   Della Fina (n 10). 194 195 196  ibid.   Schulze (n 65).   Quinn and Degener (n 20) 14. 197   Lee Ann Basser ‘Human Dignity’ in Rioux et al (n 17). 187 188

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to adopt the first generation of international human rights, and in turn appreciate the significance of the inviolable and fundamental value of a person as the basis of international human rights law.198 Following the end of WWII, the establishment of the UN, and the adoption of the UDHR, the principle of ‘dignity’ was recognized as a foundational human rights principle. The preamble to the Charter of the United Nations reaffirmed the international community’s commitment to human rights and human dignity (‘the peoples of the United Nations determined to reaffirm faith in fundamental human rights, in the dignity and worth of the human person’), and the preamble to the UDHR recognizes ‘the inherent dignity and . . . equal and inalienable rights of all members of the human family . . .’,199 and emphasizes, in article 1, that ‘[a]‌ll human beings are born free and equal in dignity and rights.’200 The principle of dignity is found in all the core international human rights treaties.201 Regional human rights treaties have also adopted the principle of dignity as a founding value.202 This is equally encountered in domestic law, via the judicial application of international human rights law or as a constitutional or legislative right.203 For example, Germany confers the principle of dignity as an objective legal norm and basic right in its constitution,204 as does South Africa as a foundational value and constitutional right.205 The principle of dignity has been crucial to achieving the ‘paradigm shift’ in conceptualizing ‘disability’, from a medical model of disability, to a social model and a human rights perspective.206 Historically, persons with disabilities were seen and treated as ‘objects’ to be pitied and protected; in contrast, focusing on the inherent dignity of persons with disabilities achieves a powerful shift in reminding society that they ‘have a stake in and claim on society that must be honoured quite apart from any considerations of social or economic utility’.207 The principle of dignity underpins the CRPD and peppers its text.208 Further, the principle is explicitly intertwined with particular rights, such as 198   A  eugenic policy was not unique in Nazi Germany and Japan; Shohei Yonemoto et  al, Eugenics and Human Society (Kohdanshya 2007), state that eugenic policies can also be found in the United States and in the United Kingdom before the Second World War. They argue that the social desire for superiority and efficiency, found in every society, could be an incubator of eugenics. The decision of the US Supreme Court, Bucks v Bell 247 US 200 (1927), expressed a eugenic tendency. It stated, ‘It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v Massachusetts, 197 US 11. Three generations of imbeciles are enough.’ Because of this tendency, it is extremely important to specify human dignity in human rights documents. 199 200   UDHR preamble.   UDHR Art 1. 201   In the preambles of all the core UN human rights treaties, and in Arts 10(1) ICCRP, 13(1) CESCR, and 37(c) CRC. In the preambles to the ICERD, CEDAW, CAT, and CRC, as well as in Arts 23(1), 28(2) CRC; Lastly in Art 19(2) CED. 202   For information on regional treaties, see Aharon Barak, Human Dignity: The Constitutional Value and the Constitutional Rights (CUP 2015) 107, where it is stated that: ‘human dignity is seen as a founding value that expresses the basic concept and rationale underlying the basic rights. It is understood as a value that indicates that human rights are not granted by the state, and thus the state cannot take them away. Indeed, human dignity stands at the foundations of democracy itself.’ 203   Basser (n 196). 204   Art 1 of the Basic law of the Federal Republic of Germany of 1949 states that: ‘Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.’ English translated version of the article available at: . 205 206 207   Basser (n 196).   Quinn and Degener (n 20).   ibid 14. 208   The term ‘inherent dignity’ is found in Art 1, the preamble (paragraphs a and h), and in the provision on ‘general principles’ (Art 3(a)). Further, the term ‘dignity’ is also found in the preamble (paragraph y) and the provision on awareness-​raising (Art 8(1)).

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freedom from exploitation, violence, and abuse (article 16(4)), the right to education (article 24(1)(a)), and the right to health (article 25(d)). The inclusion of the principle of dignity was first suggested by Mexico in its working paper for a convention.209 Similar to the final text of the CRPD, the principle underpinned and peppered the working paper for the convention.210 However, the principle of dignity was not present in the working group’s text for article 1 or the alternative formulation, and Mexico was keen to ensure that the principle would be included in article 1. It thus provided suggestions for amendment to the alternative formulation during the third session, adding ‘and dignity of [persons with disabilities] . . .’.211 This had the support of Colombia, as it was considered to create a single vision.212 Mexico persisted in the fourth session with its suggestion that the principle of ‘dignity’ be included in article 1; this was also supported by Morocco and the PWDA, which argued that the recognition of persons with disabilities’ human rights alone would not necessarily ensure that they are treated with dignity.213 The principle was included in the Chair’s draft at the end of the fourth session which read: ‘The purpose . . . all human rights and fundamental freedoms of [persons with disabilities], their dignity . . .’;214 nevertheless, it was not present in the Chair’s draft before the seventh session.215 During the seventh session, the discussion regarding article 1, the Convention’s title, and the position of the principle of dignity, were eventually resolved by the decision that article 1 would be retained but that the title would be shortened and the principle of dignity be included in article 1, and not in the title.216 As discussed in section 2, key to this resolution were Liechtenstein’s and the IDC’s actions. There was further support for shortening the convention’s title and including the principle of dignity in article 1 from Bosnia and Herzegovina, India, Iran, Jordan, Libya, and Mauritius.217 Although Mexico agreed to a shorter title, it still supported the inclusion of the principle of dignity in the title; this was also supported by Korea and Senegal.218 Moreover, Bosnia and Herzegovina and the IDC suggested that the phrase ‘respect for dignity’ be used in order to avoid implying that dignity may somehow not be inherent; or that it requires promotion, respectively.219 Furthermore, the Chair suggested that the term ‘inherent’ be added and the phrase ‘respect for inherent dignity’ be used so as to resolve concerns around the nature of the principle of dignity and to be consistent with the phrasing used in other human rights treaties.220 Aharon Barak discusses four common connotations of the concept of dignity.221 Firstly, protection and ensuring bodily integrity; including the prohibition of torture, severe punishment, systematic rape, and degradation. Secondly, ensuring basic equality between persons. Thirdly, the protection of the personal identity of the individual, psychological integrity, and intellectual fulfilment. Lastly, ensuring the minimal subsistence of the individual in society. It is argued that the CRPD includes these four connotations in various clauses. For example, article 17 protects the integrity of the person.222 Article 15, in turn, 210   Working Paper by Mexico (n 41).  ibid. 212   Daily summary of discussions [Third Session] (n 57).  ibid. 213 214   Daily summary of discussions [Fourth Session] (n 42).  ibid. 215 216   Letter from the Chairman (n 63).   Daily summary [Seventh Session] (n 42). 217  ibid.   218 ibid.   219 ibid.   220  Della Fina (n 10).    221  Barak (n 209) 237. 222   The IDC stated that: ‘Forced interventions have long been recognized by people with disabilities ourselves as a serious violation of our mental and bodily integrity, comparable to rape and other forms of torture. The definition in the Convention Against Torture includes discrimination as a purpose of torture, which is clearly relevant in the disability context. Measures intended to obliterate the personality or to diminish the physical or mental capacities of the victim are also regarded as torture, in the Inter-​American Convention to Prevent and Punish Torture and by leading commentators. Many forced interventions used against people 209 211

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provides for freedom from torture, cruel, inhuman, or degrading treatment and punishment. Secondly, preambular paragraph (h) stipulates that ‘discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person’.223 Thirdly, in addition to article 17, article 3 CRPD envisages ‘[r]‌espect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons’ and ‘[r]espect for [the] difference and acceptance of persons with disabilities as [a] part of human diversity and humanity’. Fourthly, article 28 protects the right to an adequate standard of living, including adequate food, clothing, and housing; the continuous improvement of living conditions; and social protection.224 These clauses are particularly associated with the principle of dignity. Further, Christopher McCrudden suggests that a basic minimum content of ‘human dignity’ consists of, firstly, that every person ‘possesses an intrinsic worth’ by virtue of being human; secondly, that the intrinsic worth should be both recognized and respected, and that some types of behaviour are ‘inconsistent with respect for this intrinsic worth’; and lastly, that the state exists for the sake of the person, not the other way round.225 Although the principle of dignity is extremely important in human rights law, it has also been criticized for being vague regarding the variations in its judicial interpretation,226 and there is concern over how the principle has been interpreted regarding persons with disabilities by the ECtHR and UK domestic courts because ‘[t]‌here are precious few case reports concerning disabled people that provide a benchmark of judges actually facing a concrete situation and identifying it as [“]indignity[”].’227

4.  Paragraph 2 This paragraph is slightly unusual in terms of UN human rights treaties, as other such treaties, with the exception of the CRC,228 do not contain a provision that includes a description of the convention’s target group as an identifiable group in one of its provisions. As mentioned, the CRPD does not contain a definition of ‘disability’ and/​or ‘persons with disabilities’. Instead, preambular paragraph (e) asserts that ‘disability is an evolving concept’, and article 2, which provides definitions of the CRPD’s key terms, also does not with disabilities would fall into this category, since they are intended to diminish capacities of the individual which are seen as undesirable, or compel people with disabilities to give up their identity as disabled people and mimic non-​disabled reality.’ UN Enable, ‘Article 11: Freedom from Torture or Cruel, Inhuman or degrading Treatment or Punishment—​ Draft Proposal’, available at:  .   CRPD preambular para h.   The interrelation between dignity and an adequate standard of living might be less emphasized than that between dignity and civil and political rights. However, the Constitutional Court of the Republic of South Africa articulated: ‘Our Constitution entrenches both civil and political rights and social and economic rights. All the rights in our Bill of Rights are inter-​related and mutually supporting. There can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter.’ (para 23). ‘A society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom and equality.’ (para 44)—​Government of the Republic of South Africa and Others v Grootboom 2001 (1) SA 46 (CC). 225   Christopher McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 EJIL 655, 723. 226  ibid. 227   Luke Clements, ‘Disability, Dignity and the Cri de Coeur’ (2011) 6 EHRLR 675, 675. 228   Art 1 CRC reads: ‘For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.’ 223 224

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provide a definition of ‘persons with disabilities’. Instead, a description of the CRPD’s target group, ‘persons with disabilities’ is included in article 1(2), as part of the CRPD’s purpose. This paragraph is instrumental to the CRPD. Key to understanding the CRPD, it is important to understand the conceptualization of ‘disability’ that it employs.229 The CRPD’s drafting and negotiation process was a unique, participatory, and collaborative process, within which persons with disabilities’ voices were heard and listened to, forming a central part of the process. During the negotiations and drafting for the CRPD, the social model of disability was a motto of the International Disability Movement and was used as a powerful tool that enabled DPOs to demand legal reform at the international level.230 Through the participatory process, a particular conceptualization of disability was enabled to shape the text. Article 1(2) (and preambular paragraph e) rejects a conceptualization of ‘disability’ grounded exclusively in a medical model of disability; rather, it shifts focus away from impairment and the individual, towards attitudinal, environmental, and societal barriers such as infrastructure, social, legal, and economic, processes and structures. The conceptualization is underpinned by the social model of disability because it explicitly makes reference to the interaction between persons with impairments on the one hand, and societal barriers on the other;231 with the CRPD being ‘the highest legal manifestation and confirmation of the social model of disability on the international stage’.232 The CRPD thus reflects a ‘paradigm shift’ in conceptualizing ‘disability’.233 It is important to understand, however, that the significant influence the social model of disability had over the drafting and negotiation process came from a ‘populist conceptualization of the social model as a disability rights manifesto and its tendency towards a radical social constructionist view of disability, rather than from its contemporary expression as a critical theory of disability’.234 In view of the fact that treaty negotiation is a highly politically charged process, ‘reductionism in the use of the social model is comprehensible’.235 Lastly, to consider the conceptualization of ‘disability’ in article 1(2), as underpinned exclusively and solely by the social model of disability, would be to ignore the language it employs.

4.1 ‘Persons with disabilities’ Article 1(2), the CRPD’s title and text, use the phrase ‘persons with disabilities’.236 Viewed through a social model of disability ‘lens’, the use of the phrase ‘persons with disabilities’ appears at odds, because situated through such a ‘lens’ the term ‘disabled people’ better   Harnacke and Graumann (n 164).   Degener ‘A New Human Rights Model of Disability’ in Della Fina et al (n 10). 231   Waddington (n 13); Janet E Lord and Michael Ashley Stein, ‘The Domestic Incorporation of Human Rights Law and the United Nations Convention on the Rights of Persons with Disabilities (2008) 83 Washington Law Review 449; Raymond Lang, Maria Kett, Nora Groce, and Jean-​Francois Trani, ‘Implementing the United Nations Convention on the Rights of Persons with Disabilities: Principles, Implications, Practice and Limitations’ (2011) 5 ALTER European Journal of Disability Research 206; Kelley Johnson, ‘The UN Convention on the Rights of Persons with Disabilities’ (2013) 7 Ethics and Social Welfare 218–​31; UN OHCHR, ‘The Convention on the Rights of Persons with Disabilities Training Guide Professional Training Series No. 19’ (2014). 232   Waddington (n 13). 233   Moriarity and Dew (n 46); Gauthier de Beco, ‘Case Note: Is Obesity a Disability? The Definition of Disability by the Court of Justice of the European Union and its Consequences for the Application of EU Anti-​Discrimination Law’ 22 (2016) Colum J Eur L 381. 234 235   Kayess and French (n 3) 7.   Degener (n 230) 56. 236   eg the title reads: ‘Convention on the Rights of Persons with Disabilities’. 229 230

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reflects the social model as it is societal and environmental factors that disable persons with impairments. Although article 1 is underpinned by the social model of disability its formulation reveals that it also employs PFL, which is the dominant language terminology in the international disability rights field.237 Further, the term ‘disability’ and not ‘impairments’ (or ‘conditions’) was used, which would better reflect the social model of disability, as it is societal and environmental barriers that disable persons with impairments. An examination of the language of article 1 (and the CRPD text) reveals that it is also underpinned by the minority group approach to disability, that is, it involves the identification of persons that (self )identify as ‘persons with disabilities’ in order to be entitled to human rights protection under the CRPD. Lastly, another issue concerns linguistic/​translation, translating the distinction between the term ‘disability’ and ‘impairments’ into different languages. Translation to other states parties’ languages is required as the CRPD is available in the UN’s six official languages.238 Article 1(2) distinguishes between the term ‘impairment’ and the term ‘disability’.239 This may pose a challenge for states parties that do not have a corresponding term in their language to the English language term ‘impairment’.240

4.2 ‘include those who have long-​term physical, mental, intellectual or sensory impairments’ An exclusive conceptualization of a social model of disability based on the text of article 1, may have read ‘include those who have impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’, and not included a list of impairments or temporal limitation. Article 1(2), however, also includes a list of impairment types, these are:  ‘physical, mental, intellectual, or sensory’.241 There was a lot of discussion concerning the list of impairment types; this had two aspects, one aspect concerned the language/​terminology employed, and the second the potential distributive impact of including a definition. Following the seventh session the Chair had circulated a draft text for discussion and the negotiations on this provision were only eventually resolved at the eighth and final session with the aid of a facilitator’s text. Both the Chair and facilitator’s texts included the term ‘impairment’, which the IDC was extremely concerned about because it ‘reject[ed] the use of the term “impairment” to refer to intellectual or psychosocial disability’,242 and preferred that the 238   Shakespeare (n 24).   These are: Arabic, Chinese, English, French, Russian, and Spanish.   This situates the conceptualization of disability within the social model of disability. 240   eg in Cyprus, in contrast to the UN English language version, the official Cypriot Greek language CRPD translation employs the term ‘disabilities’ (in Greek:  ‘αναπηρίες’); with no distinction being made between the terms ‘disability’ and ‘impairment’. The outcome is the confusing Greek translated formulation of article 1: ‘disability arises from the interaction between persons with disabilities and . . . barriers . . .’. The implication is that the linguistic difference, in which the English term ‘impairment’ does not have a corresponding term in Greek, renders interpreting the Greek translated CRPD text of article 1 difficult within the context of the social model of disability; Kakoullis (n 164) 224. Further, in the Nordic states, the distinction between the term ‘impairment’ and ‘disability’ is difficult to translate, because ‘there are not separate words which can capture the sense of individual bodily experience and social-​contextual experience’; Shakespeare (n 18) 25. 241   Art 1(2) CRPD. 242  International Disability Caucus (IDC), ‘International Disability Caucus News page for 23 August [2006]’, available at: . 237 239

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term ‘condition’ be used instead, which would have been ‘more inclusive and less stigmatizing’.243 The IDC had thus proposed: ‘physical, sensory, psychosocial, intellectual, neurological and medical impairments and conditions’.244 Eventually, however, the term ‘impairment’ was maintained in the final draft but not ‘conditions’. Regarding the contents of the list, the Chair’s draft, circulated after the seventh session, mirrored almost verbatim the IDC’s proposal, as it stated: ‘physical, sensory, psychosocial, neurological, medical or intellectual’.245 It was an open and non-​exhaustive list.246 The facilitator’s draft, however, removed the terms ‘psychosocial’, ‘neurological’ and ‘intellectual’, and replaced these with the term ‘mental’.247 The IDC would have preferred that a formulation included terms such as ‘psychosocial’ and ‘neurological’,248 because that is the language/​terminology preferred by the leading organizations of the persons concerned, which the IDC was representing.249 Furthermore, the IDC explained that the term ‘mental’ was no longer used because it ‘confuses very distinct forms of disabilities and does not explicitly cover psycho-​social disabilities’.250 During the eighth and final session the term ‘intellectual’ was re-​inserted back into the provision; however, the term ‘mental’ impairment remained, referring to the ‘psychosocial dimension’.251 Although article 1(2) includes a list of impairment types, it is not exclusive as it is premised on the words ‘include those’ persons.252 One of the concerns that some delegations with large populations, such as China, India, and Russia, expressed during the negotiations, regarded the potential distributive impact of including a definition of ‘disability’ or ‘persons with disabilities’.253 Some delegations wanted a narrow scope of ‘disabilities’ as they were worried that otherwise it would ‘open the floodgates’, with the implication of obligating states parties to recognize and afford protection to a large number of persons from impairment groups, such as persons with HIV/​AIDS or psychosocial conditions, which traditionally were not viewed as ‘persons with disabilities’ within the objecting states’ societies and cultures.254 In contrast, DPOs, NGOs, and other delegations, wanted to make sure that the convention would apply to all persons with disabilities, that is, persons from all impairment or condition groups.255 The final text eventually adopted did not contain an exclusive list of impairment types. Paragraph 2 does, however, include a temporal limitation, as it reads: ‘. . . those who have long-​term . . . impairments’.256 Formulations that were suggested during the negotiations included: Australia’s draft: ‘. . . (h) may presently exist; or (i) may have previously existed but no longer exists; or (j) may exist in the future; or (k) may be imputed to a person’;257 the Chair’s draft: ‘may be permanent, temporary, intermittent or imputed’;258 and the IDC’s draft: ‘imputed, perceived, temporary and intermittent’.259 None of these 244 245   Lawson (n 11) 594.   Schulze (n 65) 38.   UN Enable (n 152). 247   Schulze (n 65) 38.   UN Enable (n 155). 248   UN Enable, ‘Article 2—​Definitions—​Seventh Session—​Comments, proposals and amendments submitted electronically’, available at:  . 249 250   Anna Lawson (n 11) 594.   Schulze (n 65) 38. 251   Tina Minkowitz, ‘The United Nations Convention on the Rights of Persons with Disabilities and the Right to be Free from Nonconsensual Psychiatric Interventions’ 34 (2007) Syracuse J Intl L & Com 405, 407. 252 253 254   Art 1(2) CRPD.   Kayess and French (n 3) 23.  ibid. 255 256   Schulze (n 65) 36.   Art 1(2) CRPD. 257   UN Enable, ‘Seventh Session—​Proposed modifications by Governments -​Proposed changes to draft articles made by Australia’ [Seventh Session], available at:  . 258 259   UN Enable (n 152).   Schulze (n 65) 38. 243 246

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formulations included the term ‘long-​term’. The term ‘long-​term’ was present in the UK’s Disability Discrimination Act (DDA 1995) and at the time the CRPD was being negotiated, the DDA was being challenged ‘as arbitrary and unnecessarily restrictive’ and was under review.260 However, the term was included in the facilitator’s text at the eighth session.261 Although the IDC opposed the term’s insertion, it was unsuccessful.262

4.3 ‘which in interaction with various barriers’ As already discussed, the central thrust of the social model is that attitudinal, environmental and structural barriers disable persons who have impairments. Therefore, the formulation ‘. . . impairments which in interaction with various barriers . . .’ in article 1, paragraph 2,263 crystallizes and ensures the ‘legal anchoring’ of the ‘paradigm shift’ to the social model of disability in the CRPD.264 It is noted, however, that in paragraph 2, the formulation merely makes reference to ‘various barriers’ and does not describe any of these. This is because, although during the negotiations suggestions were made to describe the ‘barriers’ as ‘environmental and attitudinal’ or ‘social’, consensus could not be achieved and so only the term ‘various’ was used.265 Nevertheless, concerning the interpretation of ‘barriers’ in article 1, guidance is provided in preambular paragraph e, which states: ‘. . . the interaction between persons with impairments and attitudinal and environmental barriers . . .’. This wording also reflects the Chair’s draft text that was circulated after the seventh session which read: ‘environmental and attitudinal barriers’.266 It is clear that ‘barriers’ in article 1, concern both attitudinal and environmental societal barriers.

4.4 ‘may hinder their full and effective participation in society’ There was initially some support for the inclusion of the principle of active or social ‘participation’ during the third and fourth sessions;267 however, despite the fact that the IDC’s suggestion submitted in advance of the seventh session included reference to, ‘ability to lead an inclusive life in the community of his/​her own choice is limited by . . .’,268 the Chair’s draft text did not include a reference to participation in society.269 A background document that was used during the eighth session was that of ‘Definition[s]‌of disability in selected national legislation’, which drew on various states’ domestic definitions of ‘disability’, ‘disabled persons’, and ‘persons with disabilities’.270 Some of the definitions (found in French, Mauritian, Peruvian, and Zimbabwean law), made reference to participation in society.271 Further, the EU suggested that the term ‘may’ be inserted, in order ‘to avoid a too close linkage between the impairment and the barrier(s)’.272 The facilitator’s text made reference to participation in society, and read: ‘may hinder their full

261 262   Lawson (n 11) 594.   UN Enable (n 155).   Schulze (n 65) 38. 264 265 266   Art 1(2) CRPD.   Schulze (n 65) 39.  ibid.   UN Enable (n 152). 267   eg in the third session the Philippines stated that it should include ‘responsibility to take part in society’—​Daily summary of discussions [Third Session] (n 57); eg in the fourth session Venezuela suggested ‘active participation’—​Daily summary of discussions [Fourth Session] (n 42). 268   UN Enable, Seventh Session—​NGO Comments on the draft text—​Chairman’s text amended by the IDC, available at: . 269   UN Enable (n 152). 270   UN Enable, Documents of the Eighth Session—​Definition[s]‌of disability in selected national legislation, available at: . 271 272  ibid.   Schulze (n 65) 39. 260 263

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and effective participation in society’.273 This is also the formulation found in the final version, which was adopted.

4.5 ‘on an equal basis with others’ The formulation ‘on an equal basis with others’ is not found in other UN human rights treaties. During the drafting and negotiations for the CRPD, a plethora of at least fifty domestic law definitions of disability were examined, including Serbian legislation which included the phrase ‘. . . on an equal basis with others . . .’.274 In addition to the phrase’s position in article 1, paragraph 2, it is also found in many other CRPD provisions.275 This phrase seeks to ensure that persons with disabilities have their human rights respected, protected, fulfilled, monitored, and evaluated on an equal basis with others, but it also serves as a caveat to make sure that persons with disabilities are not provided with ‘more’ human rights protection than other persons in some states parties, for example where some states continue to impose the death penalty.276 Although the CRPD was heavily shaped and influenced by the social model of disability, it is more recently considered that the CRPD goes beyond the social model, and that through the CRPD a ‘human rights model of disability’ has been developed.277 It has been argued that the human rights model of disability and the social model of disability differ in six ways:278 Firstly, where the social model of disability explains ‘disability’ (or ‘disablement’), the human rights model of disability includes principles and values that acknowledge the human dignity of persons with disabilities. Secondly, the human rights model of disability goes beyond anti-​discrimination rights and encompasses civil and political, and economic, social, and cultural rights. Thirdly, the human rights model of disability acknowledges experiential elements, such as the importance of impairment in people’s everyday lives and the pain some people may experience, and demands that these are considered. Fourthly, the human rights model of disability allows space for identity politics, such as minority and cultural (self )identification. Fifthly, it recognizes the need for health prevention services in the context of the human right to health. Lastly, the human rights model of disability seeks to achieve social justice.279 Importantly, the human rights model of disability (or ‘disability human rights paradigm’) recognizes the intrinsic value of every person for their own end, ‘rather than focusing on a lack of overall capabilities as measured against a functional baseline’.280 Eleven years following the CRPD’s adoption in 2006, most states parties continue to face challenges in interpreting and implementing the human rights model of disability conceptualization enshrined in article 1(2). This is revealed by the examination of states parties’ reports submitted to the CRPD Committee on the Rights of Persons with Disabilities (Committee) in view of article 35281 and the CRPD Committee’s concluding observations. In the examination of the CRPD Committee’s concluding observations from 2011 to 2017, four recurring challenges were identified that states parties to the CRPD are facing globally: ‘Definitions’ (or the ‘concept’) of ‘disability’ or ‘persons with disabilities’, situated in laws, regulations, or policies that are based on the medical model 274   UN Enable (n 155).   Schulze (n 65) 35.   These are the preambular para e, and Arts 2, 9, 10, 12, 13, 14, 15, 17, 18, 19, 21, 22, 23, 24, 27, 29, and 30. 276 277 278 279   Schulze (n 65).   Degener (n 230) 56.  ibid.  ibid. 280 281   Stein (n 35) 107.   Degener (n 35). 273 275

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of disability and not on the human rights model of disability. For example, in the case of Cyprus, the Persons with Disabilities Law of 2000,282 defines ‘disability’ as: any form of inadequacy or disadvantage which causes permanent or of an unspecified duration physical, intellectual or mental restriction to persons who taking into consideration their [medical] history and other personal data of the person in question substantively limits or excludes the possibility of carrying out one or more activities or functions that are considered normal and substantive for the quality of life of every person of the same age who does not have such an inadequacy or disadvantage.283

This definition reflects a medical model of disability, as it focuses on, and reduces ‘disability’ to, the impairment a person may have. The CRPD Committee noted with concern that Cyprus’s domestic legislation has not incorporated a human rights-​based approach to disability in line with article 1; it also urged Cyprus to adopt and implement a human rights model of disability and to review all legislation and policies in collaboration with Cypriot DPOs.284 Similarly, in the case of Italy, the Committee found that ‘disability’ ‘continues to be defined through a medical perspective’, and recommended that Italy adopts a concept of disability that is in line with article 1.285 Legislation (legislative framework), regulations, policies, measures or programmes, are in need of amendment, in order to embody and reflect the human rights model of disability. For example, the Committee expressed concern that Belgium’s regulations primarily reflect a medical model of disability.286 It also noted with concern that domestic legislation on persons with disabilities adopted before the CRPD was ratified by Morocco, Qatar, and UAE, has not been harmonized with the CRPD and does not reflect the human rights model of disability.287 ‘Disability determination’ or ‘disability assessment criteria’ are used by states parties, which are based on the medical model of disability and not on the human rights model. For example, in the case of Bolivia, the Committee noted with concern that the criteria used to certify ‘disability’ continue to reflect the medical model of disability, and that they do not take into account the barriers persons with disabilities face or the human rights model of disability.288 Further, in the case of Colombia, the Committee noted with concern that the single register for locating and classifying persons with disabilities, employs criteria that are based on the medical model of disability for the purposes of calculating pension and social assistance benefits.289 The Committee recommended that 282   CRPD Committee, ‘Concluding Observations on the Initial Report of Cyprus’ UN Doc CRPD/​C/​ CYP/​1 (27 February 2015) para 20. The Persons with Disabilities Law of 2000 (L 127(I)/​2000) with amendments 57(I)/​2004; 72(I)/​2007; 102(I)/​2007; 63(Ι)/​2014; 22(Ι)/​2015, available at:  . 283   The Persons with Disabilities Law of 2000 (n 282) Art 2 (author’s translation). 284   Cyprus Concluding Observations (n 282) paras 5, 6. 285   CRPD Committee, Concluding Observations on the Initial Report of Italy’ UN Doc CRPD/​C/​ITA/​ CO/​1 (6 October 2016), paras 5, 6. 286   CRPD Committee, ‘Concluding Observations on the Initial Report of Belgium’ UN Doc CRPD/​C/​ BEL/​CO/​1 (28 October 2014) para 7. 287   CRPD Committee, ‘Concluding Observations on the Initial Report of Morocco’ UN Doc CRPD/​C/​ MAR/​CO/​1 (25 September 2017) paras 6, 7; CRPD Committee, ‘Concluding Observations on the Initial Report of Qatar’ UN Doc CRPD/​C/​QAT/​CO/​1 (2 October 2015) paras 7, 8; CRPD Committee, ‘Concluding Observations on the Initial Report of the UAE’ UN Doc CRPD/​C/​ARE/​CO/​1 (3 October 2016) paras 7, 8. 288   CRPD Committee, ‘Concluding Observations on the Initial Report of the Plurinational State of Bolivia’ UN Doc CRPD/​C/​BOL/​CO/​1 (4 November 2016) para 7. 289   CRPD Committee, ‘Concluding Observations on the Initial Report of Colombia’ UN Doc CRPD/​C/​ COL/​CO/​1 (30 September 2016) para 12.

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they review and amend their criteria for certifying (Bolivia) and classifying (Colombia) ‘disability’, so that the criteria reflect the human rights model of disability. Lastly, ‘derogatory terminology’ against persons with disabilities is present in legislation and/​or policies, which needs to be removed. For example, in the case of Iran, the Committee noted with concern that domestic Iranian legislation contains derogatory terms such as ‘mentally ill’, ‘insane’, and ‘retarded’.290 Also, in the case of Lithuania, it noted again with concern, that in domestic legislation and data collection, where reference is made to persons with disabilities, derogatory language, such as ‘deaf-​mute’ and ‘disorder’, is used.291 In both these situations, the Committee recommended that the states in question eliminate the use of all derogatory language when referring to persons with disabilities. It is also notable in view of that it is in the UK where the (‘strong’) social model of disability was originally developed,292 that in 2017 the Committee found a lack of consistency across the UK in the understanding and application of the human rights model of disability.293 Overall, the challenges experienced by states parties, demonstrate that the ‘paradigm shift’ in conceptualizing ‘disability’ embodied in the CRPD is not reflected in the majority of states parties to the CRPD.294 Further, the CRPD places an obligation on states parties to collect appropriate statistical and research data so to enable them to formulate and implement policies to give effect to the CRPD’s provisions and to assess the implementation of their obligations.295 Prior to ratifying the CRPD some states parties may not have had adequate data collection and analysis methods in place regarding ‘disability’ to enable them to assess the extent to which all persons with disabilities are exercising all of their rights under the CRPD296 and subsequently sought to introduce such data collection systems.297 During the negotiations for the CRPD, the WHO’s ICF (2001) had been suggested. Following the adoption of the CRPD, suggestions have been made that the conceptualization of ‘disability’ in the CRPD ‘is in line with the ICF’,298 and calls have been made for the ICF to be used for data collection and to monitor the implementation of the CRPD.299 These 290   CRPD Committee, ‘Concluding Observations on the Initial Report of Iran’ UN Doc CRPD/​C/​IRN/​ CO/​1 (10 May 2017) para 8(c). 291   CRPD Committee, ‘Concluding Observations on the Initial Report of Lithuania’ UN Doc CRPD/​C/​ LTU/​CO/​1 (11 May 2016) para 7. 292   Shakespeare (n 24) 11. 293   CRPD Committee, ‘Concluding Observations on the Initial Report of the United Kingdom’ UN Doc CRPD/​C/​GBR/​CO/​1 (3 October 2017) para  6. 294 295   Degener (n 35).   Art 31 CRPD. 296   CRPD Committee, ‘Concluding Observations on the Initial Report of Armenia’ UN Doc para 55; Cyprus (n 295)  para 61; CRPD Committee, ‘Concluding Observations on the Initial Report of Thailand’ UN Doc CRPD/​C/​THA/​CO/​1 (12 May 2016) para 63; CRPD Committee, ‘Concluding Observations on the Initial Report of Serbia’ UN Doc CRPD/​C/​SRB/​CO/​1 (21 April 2016) para 63; European Union Agency for Fundamental Rights (FRA), ‘From Institutions to Community Living Part III: Outcomes for Persons with Disabilities’ (FRA 2017). 297   eg Cyprus; Michalis Demosthenous, A Critique on the Classification System of Disability and Functionality [author’s translation] (Parga Publishers 2013). 298   Della Fina (n 10) 97; Jerome E. Bickenbach, ‘Disability, Culture and the UN Convention’ (2009) 31 Disabil Rehabil 1111; Katerina Kazou ‘Analysing the Definition of Disability in the UN Convention on the Rights of Persons with Disabilities: It Is Really Based on a ‘Social Model’ Approach?’ (2017) 23 IJMHCL 25. 299  Jerome E Bickenbach, ‘Monitoring the United Nation’s Convention on the Rights of Persons with Disabilities: Data and the International Classification of Functioning, Disability and Health’ (2011) 11 BMC Public Health 1. The UN Development Group (UNDG) Guidance Note for UN Country Teams (UNCTs) and implementing partners on including the rights of persons with disabilities in view of the CRPD in UN programming at country level ‘proposes th[e]‌[WHO ICF] definition as a possible reference’; United Nations Development Group (UNDG), ‘Including the Rights of Persons with Disabilities in [UN] Programming at

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suggestions and calls need to be treated with utmost caution, as the ICF ‘explicitly relies on a medicalised understanding of disability’,300 which does not accord with article 1(2), of the CRPD. Further, it is significant to note that although the ICF is used as an analytical, statistical, and planning tool’,301 the drafting process and the text of the CRPD sought to explicitly ‘break away’ from the ICF being potentially used to implement the CRPD. This is illustrated in preambular paragraph f, of the CRPD.302 The ‘paradigm shift’ embodied in article 1(2) of the CRPD is also about the instruments and programmes at the UN human rights law level. Preambular paragraph f, explicitly demarcates the continuity and discontinuity of the CRPD with previous UN documents and activity,303 as it explicitly links the CRPD to the World Action Programme concerning Disabled Persons (1982) and the Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993).304 Concurrently, it seeks to explicitly ‘break away’ from the Declaration on the Rights of Mentally Retarded Persons (1971), the Declaration on the Rights of Disabled Persons (1975), the Principles for the Protection of Persons with Mental Illness, and the ICF (2001); by excluding reference to these in the CRPD’s preamble.305 This ‘break’ was deliberate. The ICF (2001) is ‘seen as inadequate’ by many within the International Disability Rights Movement,306 and during the drafting and negotiations for the CRPD the IDC ‘vehemently opposed’ reference to it on the basis that it reflected a medical model of disability and that it was part of the ‘old paradigm’ human rights problem persons with disabilities experienced that the CRPD sought to overcome with article 1.307 The exclusion of the ICF from any reference in the CRPD suggests that it is not compatible with the CRPD. Furthermore, the Committee has expressed concern regarding how the ICF is implemented and its compatibility with the CRPD in its concluding observations on Mongolia.308 Another state party that has recently implemented the ICF (2001), and established an ‘assessment centre’, including the special training of doctors and other health professionals, is Cyprus.309 The decision to introduce the ICF in Cyprus was taken without asking DPOs and was implemented despite DPOs’ written objections.310 Other tools that could be used by states parties for data collection and monitoring are those developed by the Disability Rights Promotion International (DRPI) and the Academic Network of European Disability Experts’ (ANED).311 Historically, case law by the CJEU reflected a medical model of disability; however, since ratifying the CRPD it has held that the concept of ‘disability’ must be interpreted in view of article 1 CRPD. Chacon Navas in 2006 presented the CJEU with the opportunity to interpret the concept of ‘disability’ in the Employment Equality Framework Directive Country Level—​A Guidance Note for Country Teams and Implementing Partners’ (UNDG 2011) 70; Jerome E Bickenbach, ‘The ICF and Disability Studies’ in Nick Watson, Alan Roulstone, and Carol Thomas (eds), Routledge Handbook of Disability Studies (Routledge 2012) 59. 300  Steven R Smith, ‘Social Justice and Disability’, in Kristjana Kristiansen, Simo Vehmas, and Tom Shakespeare (eds), Arguing about Disability (Routledge 2009) 17. 301   Rachele Cera, ‘Preamble’ in Della Fina et al (n 10).    302  CRPD preambular para f. 303 304 305 306   Cera (n 301).   CRPD preambular para f.  ibid.   Smith (n 300) 17. 307   Kayess and French (n 3) 25. 308   CRPD Committee, ‘Concluding Observations on the Report of Mongolia’ para 5. 309   Department for Social Inclusion of Persons with Disabilities, ‘The Project’, available at: . 310   Demosthenous (n 297) 25. 311   Marcia H Rioux, Paula C Pinto, and Gillian Parekh, Disability, Rights Monitoring, and Social Change—​ Building Power out of Evidence (Canadian Scholars’ Press 2015).

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of 2000 (Directive). The concept of ‘disability’ was not defined in the Directive, nor did the Directive refer to EU member states’ domestic law for a definition.312 This conceptualization was heavily grounded in the medical model of disability. In 2013, after the EU had ratified the CRPD, the CJEU was provided with another opportunity to interpret the concept of ‘disability’ in the context of the same Directive, in HK Danmark. In this case it acknowledged its earlier judgment in Chacon Navas and then went on to explain that subsequently the EU had ratified the CRPD and hence the conceptualisation must be interpreted in view of article 1 CRPD. This time it built on the conceptualisation in Chacon Navas.313 It also stated that the impairment must be ‘long-​term’ in light of article 1 CRPD.314 Its interpretation of the concept of ‘disability’ thus reflected article 1 CRPD. A year later, the CJEU affirmed its interpretation in Z v A Government department.315 The ‘paradigm shift’ in conceptualizing ‘disability’ embodied in the CRPD can thus also be seen in EU disability anti-​discrimination law. Further, EU member states must follow the CJEU’s interpretation of the Directive. In view of this, this may have the implication that the CJEU becomes an important actor in the implementation of the CRPD within EU member states. Case law before the ECtHR has been slower than the CJEU to reflect the ‘paradigm shift’ in conceptualizing ‘disability’ that is embodied in the CRPD. However, the case of Glor v Switzerland,316 decided in 2009, suggests that the CRPD’s provisions may be likely to influence the ECtHR’s interpretation of the ECHR when considering cases regarding persons with disabilities.317 In Glor, the ECtHR found a violation of article 14 in conjunction with article 8. It was the first time the ECtHR used the CRPD upon which to base the ‘European consensus’ on the need to protect persons with disabilities from discrimination.318

313 314   Chacon Navas (n 40) para 43.   HK Danmark v Dansk (n 38) para 38.  ibid.   Z v A Government department, The Board of management of a community school [2014] C-​363/​12 (18 March 2014) para 76. 316   Glor v Switzerland (application no 13444/​04) para 53. 317   Jill Stavert, ‘Case Comment—​Glor v Switzerland: Article 14 ECHR, Disability and Non-​Discrimination’ (2010) 14 Edinburgh Law Review 141; Sandra Fredman, ‘Emerging from the Shadows: Substantive Equality and Article 14 of the European Convention on Human Rights’ (2016) 16 HRLR 273. 318   Glor (n 316). 312 315

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Article 2 Definitions For the purposes of the present Convention: ‘Communication’ includes languages, display of text, Braille, tactile communication, large print, accessible multimedia as well as written, audio, plain-​ language, human-​ reader and augmentative and alternative modes, means and formats of communication, including accessible information and communication technology;

or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;

‘Language’ includes spoken and signed languages and other forms of non spoken languages;

‘Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.

‘Discrimination on the basis of disability’ means any distinction, exclusion, or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil

‘Universal design’ means the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. ‘Universal design’ shall not exclude assistive devices for particular groups of persons with disabilities where this is needed.

1. Introduction 2. Background and Travaux Préparatoires 3. ‘Communication’ 4. ‘Language’ 5. ‘Discrimination on the basis of disability’ 5.1 ‘on the basis of disability’ 5.2 ‘which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise’ 5.3 ‘on an equal basis with others’ 5.4 ‘all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’ 5.5 ‘all forms of discrimination’ 6. ‘Reasonable accommodation’ 6.1 ‘necessary and appropriate’ 6.2 ‘not imposing a disproportionate or undue burden’ 7. ‘Universal design’

64 64 68 69 71 72 73 74 75 76 78 80 80 82

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1. Introduction Article 2 CRPD explains the meaning of key terms of the Convention.1 It should be noted at the outset that article 2 is not the only provision in the treaty that clarifies the scope and content of important terms; article 1, for example, delineates the ratione personae (‘persons with disabilities’) of the Convention and the preamble includes a description of ‘disability’. The reasons for incorporating a specific article on definitions was primarily to clarify the scope of the state obligations laid down in the CRPD and thereby to contribute to the effective implementation of the treaty. The term ‘discrimination’ had acquired a specific meaning under international human rights law, which may differ from how it is interpreted in domestic law. ‘Universal design’, on the contrary, was a fairly new expression in human rights law and thus in need of clarification. In addition, the drafters of the treaty wanted to make visible the disability-​specific aspects of the terms listed in article 2 so that they were not excluded or forgotten. The purpose of including ‘communication’, for example, was not to establish a general definition of the term, but to ensure that specific forms of communication are not ignored at the domestic level.

2.  Background and Travaux Préparatoires Whether or not the CRPD ought to define certain key concepts was debated early on in the negotiation process. Already the first drafts suggested that certain terms, such as ‘disability’ and ‘discrimination’, ought to be defined.2 Much of the discussions on definitions during the first four sessions before the Ad Hoc Committee concerned whether the treaty text should define ‘disability’ and, if so, how.3 A plethora of different definitions were discussed and rejected.4 As highlighted by several participants during the negotiations, our understanding of ‘disability’ has changed significantly over time, from medically oriented approaches to socially constructed ones and varied between different fields of law.5 Within the field of non-​discrimination, ‘disability’ has often been conceptualized in relatively broad terms whereas ‘disability’ in domestic legislation concerning entitlements to economic benefits and social services has been interpreted in a more restrictive manner. Due to the difficulties involved in capturing such a complex phenomenon, negotiating parties eventually agreed not to include a definition of ‘disability’ in article 2. Instead, the preamble describes disability as an evolving concept and as the outcome of the interaction 1   The author wishes to thank the Ragnar Söderberg Foundation which supported the larger research project ‘Proportionality in the Application of International Law: In Search of Coherence’, within which this text was developed. 2   ‘Draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities’, Annex 1 to the Report of the Working Group to the Ad Hoc Committee UN Doc A /​AC265/​2004/​WG1 (16 January 2004) 9–​10 article 3. 3   Ibid 10, fns 12, 13. Daily Summaries of the Fourth Session of the Ad Hoc Committee related to Article 3 Definitions (23 August 2004), available at:  (accessed 25 October 2017). 4   This includes proposals based on domestic definitions of ‘disability’ as well as approaches to disability included in human rights instruments such as the Committee on Economic, Social and Cultural Rights’ ‘General Comment No 5 on Persons with Disabilities’ UN Doc E/​1995/​22 (9 December 1994) para 3, and ‘the Standard Rules on the Equalization of Opportunities for Persons with Disabilities’ UN Doc A/​RES/​48/​ 96 (20 December 1993) para 17. 5   Daily Summaries 23 August 2004 (n 3), statements by Canada, Norway, and Republic of Korea.

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between persons with impairments and various barriers that hinders their full and effective participation in society on an equal basis with others.6 As already noted, article 1 describes the rights-​holders under the CRPD. The terms ‘language’, ‘discrimination on the basis of disability’, and ‘reasonable accommodation’ also generated intense discussions over their proper meaning. The inclusion of a definition of ‘language’ came about as a response to the resistance among some negotiating parties to recognize sign languages as fully fledged languages.7 For persons with hearing impairments or difficulties to express themselves by speech,8 sign languages are of key importance to ensure access to education, information, and social interaction. For this reason, the World Federation of the Deaf (WFD) and the International Disability Caucus (IDC) advocated successfully for the explicit recognition of sign languages as (natural) languages.9 Key controversies over the definition of disability-​based discrimination concerned whether this definition should refer to the concepts of direct and indirect discrimination and how it should delineate the protected group, ie the group of persons who may be discriminated ‘on the basis of disability’. Starting with the first question, the member states of the EU advocated that the treaty text should define direct and indirect discrimination along the lines of EU law, in particular the Employment Equality Directive.10 This proposal was discussed intensively and resisted for different reasons. Government representatives as well as representatives from civil society contended that the distinction between direct and indirect discrimination maintained in EU law was often difficult to uphold in concrete situations.11 There was some support to include references to these forms of discrimination, leaving further elaboration on their normative content to future case law or concluding observations.12 Eventually, it was decided to leave out explicit references to direct and indirect discrimination. Not because the situations that are typically labelled as direct and indirect discrimination ought to fall outside the scope of the Convention, but because of the lack of clarity regarding the precise meaning of ‘direct’ and ‘indirect’ and the delineation between these.13 The debate over who may benefit from the prohibition of disability-​based discrimination mainly concerned whether such discrimination should include discrimination   Preamble (e) CRPD.   Liisa Kauppinen and Marku Jokinen, ‘Including Deaf Culture and Linguistic Rights’ in Maya Sabatello and Marianne Schulze (eds), Human Rights and Disability Advocacy (University of Pennsylvania Press 2013) 133 and 142. 8   People may experience difficulties to communicate verbally for different reasons, including as a consequence of a stroke, head injury, or a neurological condition. 9   Kauppinen and Jokinen (n 7) 134, 140–​43. 10   Council Directive 2000/​78 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/​16, see Art 2(2). 11   Daily Summaries of the Third Session of the Ad Hoc Committee related to article 7 Equality and Non-​ discrimination (25 May 2004), recorded statements by Mexico, Japan, Canada, Yemen, European Disability Forum (EDF), World Blind Union (WBU), and World Network of Users and Survivors of Psychiatry (WNUSP), available at:  (accessed 25 October 2017). 12   Daily Summaries of the Fourth Session of the Ad Hoc Committee related to article 7 on Equality and non-​discrimination (2 September 2004), see recorded statements by Canada, Ghana (on behalf of the African Group), and Israel during the afternoon session, available at:  (accessed 20 October 2017). 13   Anna Bruce, Which Entitlements and for Whom? The Convention on the Rights of Persons with Disabilities and its Ideological Antecedents (Lund University 2014). 6 7

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based on perceived or past impairments, and whether it should cover situations where someone is put in a disadvantageous situation because of his or her association with a person with a disability. The case in point would be a parent of a child with a disability who is overlooked in a recruitment process because the employer fears that he/​she will not be as engaged as other job applicants because of his/​her responsibilities as a parent. Early drafts of the treaty text referred to past, perceived, and imputed disabilities as grounds for discrimination.14 It also classified discrimination by association with a person with a disability as a form of discrimination.15 These drafts were inspired by the definition of discrimination included in the Inter-​American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities16 and expressed the view that a broad definition of disability-​based discrimination was essential to ensure that it captured the current problems encountered by persons with disabilities.17 None of these specifications, however, made it to the final text. Discussions about ‘reasonable accommodation’ essentially revolved around two questions:  Should failure to undertake such accommodation be recognized as a form of discrimination? And, if so, how should the duty to accommodate be formulated and demarcated? The treaty text clearly answers the first question in affirmative. The question was, however, subject to intensive discussions during within the Working Group established by the Ad Hoc Committee in June 2003 to draw up a draft treaty text. A number of state representatives feared that a general duty to accommodate would have serious implications on public resources and argued for a separation of the notion of ‘reasonable accommodation’ from the concept of discrimination.18 By the end of the fourth session of the Ad Hoc Committee, there was general agreement among the drafters to incorporate a duty to accommodate into the definition of disability-​based discrimination.19 Focus of the discussion then turned to the second question concerning the scope and content of this obligation. To aid the discussion, the Department of Economic and Social Affairs (DESA) prepared a paper illustrating how national legislation in various countries

14   ‘Compilation of Proposed Revisions and Amendments made by the Members of the Ad Hoc Committee to the Draft Text Presented by the Working Group as a Basis for Negotiations by Member States and Observers in the Ad Hoc Committee’, Annex II to the Report of the Third Session 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 UN Doc A/​AC265/​2004/​5 (9 June 2004) article 7(2)(b). 15  ibid. 16   The Inter-​American Convention defines discrimination against persons with disabilities as ‘any distinction, exclusion, or restriction based on a disability, record of disability, condition resulting from a previous disability, or perception of disability, whether present or past, which has the effect or objective of impairing or nullifying the recognition, enjoyment, or exercise by a person with a disability of his or her human rights and fundamental freedoms’ [emphasis added]. The Inter-​American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities AG/​RES 1608 (XXIX-​O/​99) (9 June 1999) Art 1(2). 17   Daily Summaries 2 September 2004 (n 12), recorded statements by Australia, Ghana (on behalf of the African Group), Canada, Israel, Jamaica, Mexico, and the United States. 18   ‘Working Group Draft’ (n 2) 14 fn 27; as Quinn puts it, there was a fear that the notion of reasonable accommodation could ‘become a Trojan horse for the enforceability of more and more slices of social and economic rights’—​Gerard Quinn, ‘A Short Guide to the United Nations Convention on the Rights of Persons with Disabilities’ in Gerard Quinn and Lisa Waddington (eds), European Yearbook of Disability Law, Vol 1 (Intersentia 2009) 100. 19   Daily Summaries of the Fourth Session of the Ad Hoc Committee related to article 7 on Equality and non-​discrimination (3 September 2004), see recorded statements by the Coordinator, Israel, the Netherlands (on behalf of the EU), and Thailand, available at:  (accessed 20 October 2017).

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had framed the duty to make reasonable accommodations.20 The paper showed that states have used a variety of terms to connote the measures that must be taken to ensure the right to equality for persons with disabilities, including the following:  reasonable accommodation, reasonable adjustments, adaptations or measures, and effective or suitable modifications. It further illustrated the diverse terminology that has been used to mark the limits of this duty.21 In the discussion that followed during the seventh session of the Ad Hoc Committee, delegates discussed mainly two alternative ways to qualify the duty to accommodate, namely that it must not impose a ‘disproportionate burden’ or cause ‘undue hardship’ on the duty bearer.22 Delegates in favour of ‘undue hardship’ argued that the term ‘burden’ should be avoided because of its negative connotations and that ‘disproportionate burden’ as a threshold was not demanding enough.23 Other delegates contended that it was too high. A merger of the two terms facilitated agreement.24 A general challenge throughout the drafting process was to find a proper balance between the interest of establishing clear and specific definitions that dispel uncertainties about the scope and content of state obligations and thereby assist effective implementation of the treaty in the domestic context, on the one side, and on the other side, the interest of ensuring that the treaty stays relevant over time.25 The meanings of several of the terms described in article 2 are under constant development, in part because of scientific developments and changing social realities, but also because of altering views on morals and ethics. For example, ‘universal design’ is about creating products and environments that are usable for everyone, to the greatest extent possible, without further accommodations.26 It is about exploring various design solutions and pushing boundaries to strive for inclusion. Technical advances, of course, affect how far we can get towards this goal. New technologies also affect how we interact socially to impart and exchange information, that is how we ‘communicate’, which is another term explained in article 2. Moreover, our views of what constitutes unlawful ‘discrimination’ and what type of obligations states and private actors are required to undertake in order to comply with non-​discrimination law has evolved significantly in legal jurisprudence over the last decades.27 International human rights law often responds to this dilemma by formulating the substantive provisions in relatively abstract and general terms to be interpreted in light of present-​day circumstances.28 20   ‘The Concept of Reasonable Accommodation in Selected National Disability Legislation: Background conference document prepared by the Department of Economic and Social Affairs’ UN Doc A/​AC265/​2006/​ CRP 1 (7 December 2005). 21   ibid—​this included terms such as ‘undue burden’, ‘unjustifiable hardship’, ‘undue hardship’, ‘unreasonable disruption’, ‘unreasonable requirement’, and ‘significantly increased costs’. 22   Daily Summaries of the Seventh Session of the Ad Hoc Committee related to Article 2 Definitions (31 January 2006) see the Chair’s summary in the end of the session, available at:  (accessed 25 October 2017). 23   ibid, recorded statements by Canada, Australia, New Zealand, and People with Disabilities Australia. 24   ibid, see the Chair’s summary in the end of the session. 25  ibid, recorded statements by Australia, Qatar, Syrian Arab Republic, Iraq, South Africa, Senegal, and Chile. 26  Art 2 CRPD which corresponds to the meaning ascribed to ‘universal design’ within the field of architecture—​see sub-​section ‘Universal design’. 27   Oddný Mjöll Arnardóttir describes and discusses this development in a meritorious manner in her chapter ‘A Future of Multidimensional Disadvantage Equality?’ in Oddný Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Martinus Nijhoff 2009) 41–​66. 28   This method of interpretation is arguably most developed by the European Court of Human Rights, but also the UN treaty bodies, which have held that the treaties they are set up to monitor are ‘living instruments’

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3. ‘Communication’ The description of ‘communication’ lists different means for imparting, exchanging, and accessing information commonly used by persons with disabilities. This includes language, display of text, Braille, tactile communication, large print, accessible multimedia, written, audio, plain-​ language, human-​ reader, augmentative and alternative modes, means and formats of communication, and information and communication technology. The list is not exhaustive and the drafters’ intention was not to establish a comprehensive definition of communication, but to ensure that specific forms of communication are not excluded from states parties’ understanding of the term.29 The meaning of the first term, ‘languages’ (including sign languages), is described at length in the next section. ‘Display of text’ includes the use of subtitles to communicate speech and sound effects. ‘Braille’ is a tactile system of writing mainly used by persons who are visually impaired. Using six dots (three rows of two dots), this system embodies representations of letters, numbers, and even musical symbols. It produces words as a series of dots for people to read using their fingers.30 Braille users can read and write on embossed paper and communicate electronically with braille displays and devises. The latter are still expensive devises but the search for low-​cost alternatives is on-​going.31 ‘Tactile communication’ is communication by touch. Touching, handshaking, etc, conveys messages from sender to receiver, the content of which depend on various contextual factors. Tactile sign language, mainly used by persons who are deaf-​blind, is another form of tactile communication where the receiving person typically places one or more hands on those of the signer in order to follow what is signed. Braille would be another example of tactile communication in the written form. As we see the different means of communication listed here are not mutually exclusive categories and the fact that a means of communication is mentioned explicitly, such as ‘Braille’ does not mean that it cannot be subsumed under a broader category, such as ‘tactile communication’. ‘Large print’ refers to the use of fonts larger than usual in books and other texts. The meaning of ‘multimedia’ was not given much attention during negotiations; the term typically refers to the use of a combination of different means (text, audio, video, animations etc) to communicate.32 ‘Plain-​language’ is language that is clear and adapted to the intended audience so that they can understand and use the information that is communicated. The term does not appear in other provisions of the Convention, but the related concept ‘easy to read’ is mentioned twice in the treaty text.33 Easy to read refers to written information that is easy for persons with intellectual disabilities to understand. Such texts that must be interpreted in light of changing realities and ethics. See Birgit Schlütter, ‘Aspects of Human Rights Interpretation by the UN Treaty Bodies’ in Hellen Keller and Gier Ulfstein, UN Human Rights Treaty Bodies—​ Law and Legitimacy (CUP 2012) 265 and 282ff.   Daily Summaries 31 January 2006 (n 22) recorded statement by the Chair summarizing the discussion.   The system was created by Louis Braille (1809–​52), a French teacher who became blind at the age of three following an accident. In order to make his instruction easier, he drew in Charles Baribier’s system for writing in the dark designed for secret communication of diplomatic and military information and developed the Braille system. See Javier Jiménez, Jesús Olea, Jesús Torres, Inmaculada Alonso, Dirk Harder, and Konstanze Fischer, ‘Biography of Louis Braille and Invention of the Braille Alphabet’ (2009) 54 Survey of Ophthalmology 142. 31  See eg, Alexander Russomanno, Sile O’Modhrain, Brent R Gillespie, and Matthew W M Rodger, ‘Refreshing Refreshable Braille Displays’ (2016) 8 IEEE Transactions on Haptics 287. 32  cf English Oxford Living Dictionary, available at:  (accessed 20 October 2017). 33   Arts 9 (2)(d), 29(a)(i) CRPD. 29 30

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are written in short sentences and plain language without complex vocabulary, metaphors, acronyms, and similar features that may confuse and obstruct understanding of the text. In many countries, self-​advocacy groups have developed or initiated the development of guidelines for making information easy to read and understand.34 Information about the CRPD and translations of the treaty text are available in easy to read formats in several countries.35 ‘Human-​reader’ simply refers to the practice of reading a text out loud. Last but not least the description of communication refers to ‘augmentative and alternative modes, means and formats of communication’. This reference serves to remind us that there are many ways to communicate and that the examples given above (Braille, display of text, plain language etc) are but examples of various means and modes that can enable effective communication. From the jurisprudence of the CRPD Committee, we can add steno captioning (ie real-​time captioning) to the list.36 Communication includes ‘information and communication technology’ (ICT), which is an umbrella term for various systems for storing, retrieving, and sending information.37 This includes a wide range of technologies, such as radio, television, satellite, mobile phones, fixed lines, computers, network hardware and software.38 The importance of these technologies lies in their ability to provide access to information and services that have been out of reach for persons with disabilities and to offer opportunities for interaction and participation in society.39

4. ‘Language’ The term ‘language’, in the context of the CRPD, includes spoken and signed languages as well as other forms of non-​spoken languages.40 Sign languages are languages which chiefly use hands, arms, and facial expressions to convey meaning. They arise when deaf people converge and form a community and are important parts of local deaf cultures41 and are not visual representations of spoken languages through the use of the hands. Sign languages are independent languages, each with its own vocabulary, grammar, and 34  eg Inclusion Europe, ‘Information for All—​ European Standards for Making Information Easy to Read and to Understand’ (2009), available at:  (accessed 20 October 2017). 35   eg in Japan and Sweden. 36   CRPD Committee, Gemma Beasley v Australia, Communication No 11/​2013 (1 April 2016) para 8.8 and Michael Lockrey v Australia, Communication No 12/​2013 (1 April 2016) para 8.8. 37  cf English Oxford Living Dictionary, available at:  (accessed 20 October 2017). 38   CRPD Committee, ‘General Comment No 2 on Art 9: Accessibility’ UN Doc CRPD/​C/​GC/​2 (22 May 2014) para 5. 39   For a discussion of ICT’s potential to open political space for persons with disabilities and the risk that ignorance of ICT accessibility will entrench political marginalization, see Janet E Lord, ‘Accessible ICT and the Opening of Political Space for Persons with Disabilities’ in Jonathan Lazard and Michael Ashley Stein (eds), Disability, Human Rights, and Information Technology (Pennsylvania University Press 2017) 24. Persons with disabilities still face many barriers when trying to access the web and use mobile applications, but progress is being made. 40   Art 2 speaks of ‘signed language’ and other treaty provisions use the term ‘sign language’. Both terms refer to the same concept. The word ‘signed’ in article 2 is used to logically accompany ‘spoken’ when referring to languages. Other articles speak of sign language only. Under such circumstances, the term ‘sign language’ is more appropriate. Daily Summaries 31 January 2006 (n 22) statement by representative from the International Disability Caucus (IDC). 41   cf Art 30(4) which entitles persons with disabilities to equal recognition and support of their specific cultural and linguistic identity, including sign languages and deaf culture.

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structure.42 They vary locally between, and sometimes within, countries in a manner that does not entirely map on to the spoken languages.43 The 2017 edition of Ethnologue lists 140 national sign languages spoken by little over 13 million people all over the world.44 In addition to these languages there are a wealth of regional sign languages and ‘home signs’ (ie gestural communication that arises when a deaf child grows up within a family where none of the family members knows a conventional sign language). Some national sign languages have obtained legal recognition in their domestic context, others have not. Today, about thirty state parties to the CRPD have recognized their respective sign language(s) in domestic legislation.45 Some states (eg Austria, Ecuador, Kenya, and New Zealand) have recognized their respective sign languages in their constitutions.46 Other states parties (e.g. Brazil, Czech Republic, Poland, and Sweden) give recognition to sign languages in general laws on language or in specific laws on sign language.47 The type of legislation does not necessarily reflect the weight attached to protecting and promoting sign languages in the domestic context. Constitutional protection appears as the most prestigious from a legal point of view but it can be purely symbolic.48 Whilst legal recognition might satisfy article 2 of the CRPD, other provisions of the treaty set forth the specific state obligations related to the actual protection and promotion of these languages.49 Furthermore, article 2 asserts that the term ‘language’ includes ‘other forms of non spoken languages’. The meaning of this expression is not easily grasped.50 The reference was introduced during the seventh session of the Ad Hoc Committee.51 At this session there was a discussion about what constitutes a language. As noted above, sign languages were, after lengthy debates and advocacy, recognized as genuine languages. The question was raised whether tactile communication can constitute languages, but no agreement on this matter can be discerned from the records over the debate before the Ad hoc 42   Within research on linguistics, sign languages have been recognized as full, complex, and independent human languages since the1960s. See Roland Pfau, Markus Steinbach, Benice Woll (eds), Sign Language: An International Handbook (De Gruyter Mouton 2012) 1. 43   Unlike spoken British and American English, British and American Sign Language vary significantly from each other. Perhaps the most obvious difference is that American Sign Language uses a one-​handed fingerspelling alphabet while British Sign Language uses a two-​handed alphabet. British, Australian, and New Zealand Sign Language, on the other hand, are often viewed as dialects of a single parent language, BANZSL (British, Australian, and New Zealand Sign Language). 44   Available at:  (accessed 24 October 2017). According to the same source there are over 7,000 spoken languages. The number of users of sign language indicate that only a small percentage of the world’s approximately 70 million deaf people in the world have the opportunity to learn and use a sign language. 45   Martjee de Meulder, ‘The Legal Recognition of Sign Languages’ (2015) 8 Sign Languages Studies 498. 46   ibid  500–​01. 47   ibid 503. The Czech and Polish laws cover sign languages as well as other means of communication. 48   ibid 501. 49   Art 24(3)(b) CRPD on education asserts that deaf pupils have the right to learn in sign language; Art 30(4) CRPD entitles deaf people to recognition and support of their cultural and linguistic identity, ie sign languages and deaf culture; Art 21(b) and (e) CRPD on freedom of expression obliges states to promote the use of sign languages, and Art 9(2)(e) CRPD on accessibility requires states parties to provide sign language interpreters. 50   Some would say that it is linguistically impossible to understand. Kauppinen and Jokinen, ‘Including Deaf Culture’ (n 7) 143. 51  ‘International Convention on the Rights of Persons with Disabilities—​Working Text’, Annex II to the Report 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 on its Seventh Session UN Doc A/​AC265/​2006/​2 (13 February 2006) Art 2.

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Committee.52 Arguably tactile sign languages constitute a sub-​category of signed languages and thus enjoy the status of being a language under the Convention.53 A possible, and sympathetic, interpretation of this reference is that it reflects a desire among drafters to be inclusive. There may be, or may in the future arise languages, besides spoken and singed ones that are or will become important to persons with disabilities and which, therefore, deserve to be recognized as languages under the CRPD.

5.  ‘Discrimination on the basis of disability’ Discrimination is a key concept in the CRPD and runs throughout the text of the Convention. The term appears in four provisions in the preamble and—​besides article 2—​in nine provisions in the treaty text. This includes article 3, which sets forth the general principles of the CRPD and article 4, detailing states parties’ general obligations to ensure full realization of the protected rights in the domestic context.54 Discrimination can take many forms; it may be direct or indirect, assume the form of sexual harassment or denial of reasonable accommodation. And the prohibition of these different forms of discrimination can be said to serve different but related purposes. As Fredman has demonstrated, anti-​discrimination norms serve to redress comparative disadvantage and counter prejudice, stigma, and stereotyping based on a protected identity marker.55 They can enable social and political participation of marginalized groups and offset social exclusion.56 Discrimination on the basis of disability is defined as certain practices (acts or omissions), namely disability-​based distinctions, exclusions, or restrictions, which have the purpose or effect of impairing or nullifying the recognition, enjoyment, or exercise, on an equal basis with others, of human rights and fundamental freedoms. The definition resembles its sister provisions in previous UN human rights instruments, such as CEDAW and CERD,57 and it is almost identical to the definition of disability-​based discrimination provided by the Committee on Economic, Social and Cultural Rights in its well-​known and pioneering General Comment No. 5 from 1994.58 The definition is formulated in abstract terms and during the negotiations it was discussed whether the definition ought to include a more elaborate description of the practices that may constitute discrimination.59 The drafters, however, agreed to use the same language as is used in CEDAW and

52   Comment by People with Disability Australia on Article 2 submitted electronically during the Seventh Session, available at:  (accessed 10 January 2018); see also Daily Summaries 31 January 2006 (n 22). 53   Tactile signers have a more limited array of communicative means than other signers. Nonetheless, tactile sing languages are comprehensive languages independent from spoken languages—​see eg Johanna Mesch ‘Tactile Sign with One-​Handed Perception’ (2013) 13 Sign Languages Studies 238, 239f. The CRPD Committee also speaks of tactile sign languages and tactile signing rather than tactile communication when referring to this form of communication—​see eg CRPD Committee, ‘General Comment No 2’ (n 38) paras 29–​30. 54   See paras c, d, h, and p in the preamble and Arts 3, 4, 5, 6, 23, 24, 25, 27, and 28 CRPD. 55 56   Sandra Fredman, ‘Substantive Equality Revisited’ (2016) 14 ICON 712, 727.  ibid. 57   Art 1 CEDAW and Art 1 CERD. 58   Committee on Economic, Social and Cultural Rights, ‘General Comment No 5’ (n 4) para 15. 59   eg Israel suggests that in addition to distinction, exclusion, and restriction, the text should mention ‘condition, act, policy or requirement’ as examples of practices that may constitute discrimination. The proposal, however, received limited support. Daily Summaries 2 September 2004 (n 12), see recorded statements by China, the Coordinator, Israel, the Netherlands (on behalf of EU), and Norway.

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CERD and thereby link the definition of disability-​based discrimination to an existing body of non-​discrimination jurisprudence.60 In this jurisprudence from UN treaty bodies and regional human rights courts, direct discrimination is commonly thought of as practices that prevent members of protected groups from enjoying or exercising an entitlement that is protected under human rights law (eg voting or accessing education) for reasons that are somehow related to a discriminatory ground. Direct discrimination is probably the most obvious form of discrimination occurring when a person is treated less favourably than another person in a similar situation for reasons that are directly linked to a discriminatory ground.61 Denying a student with a psychosocial condition access to a university education because of his diagnosis would be one obvious example. Dismissing testimonies from a victim of violence in court proceedings because the victim is a woman with an intellectual disability is another example.62 The presence of an impairment or a disability63 does not, however, have to be the sole reason for exclusion. The prohibition of discrimination has been interpreted to cover also disadvantageous treatment that is based on reasons that appear to be neutral, but which produce a disparate impact on protected groups. This is often called indirect discrimination.64 The ensuing three sections address the key prerequisites that make up the definition of disability-​based discrimination. This is followed by a discussion of its scope of application and an overview of the forms of discrimination that are covered by the affirmation that disability-​based discrimination ‘includes all forms of discrimination’.

5.1 ‘on the basis of disability’ Whilst the CRPD protects persons with disabilities against discrimination on any ground, as well as combination of grounds, the definition of discrimination in article 2 concerns disability-​based discrimination. As noted above, the proper scope of such discrimination generated much discussion during the negotiation process. A contentious question was whether the definition should cover disadvantageous treatment based on perceived or past impairments or disabilities, and whether it should extend to situations where someone is put in a disadvantageous situation because of his or her association with another person with disabilities. Early drafts of the treaty text explicitly referred to past, perceived, and 60   ibid; see also ‘Report of the Coordinator to the Fourth Session of the Ad Hoc Committee’ Annex IV to the Report 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 on its fourth session, UN Doc A/​59/​360 (14 September 2004) para 22. 61   CRPD Committee, ‘General Comment No 3 on Women and Girls with Disabilities’ UN Doc CRPD/​ C/​GC/​3 (26 November 2016) para 17 and ‘General Comment on Equality and Non-​discrimination (Art 5)—​ First draft as at 31 August 2017’ para 20(a), available at the Committee’s website:  (accessed 27 October 2017); see also European Court of Human Rights, D H and Others v the Czech Republic, App no 57325/​00) 13 November 2007 para 175. 62  ibid. 63   The definition of discrimination refers to the term ‘disability’ and not impairment. This should not be misunderstood to imply that the definition of discrimination would not cover situations where, for instance, an employer refuses to hire qualified blind people simply because of their impairments. During the negotiations, delegates often used the term ‘disability’ to cover both the phenomena of disability and impairment. This may be explained by its fluid usage in different discourses. It may also be the result of the negotiating parties’ (laudable) ambition to describe deficits in social inclusion as being the result of disability and not impairment per se—​cf Stefan Trömel, ‘A Personal Perspective on the Drafting History of the United Nations Convention on the Rights of Persons with Disabilities’ (2009) 1 European Yearbook of Disability Law 124. 64   CRPD Committee, ‘General Comment No 3’ (n 61) para 17.

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imputed disabilities as grounds for discrimination, but none of these terms made it to the final text.65 This does not, however, necessarily mean that they are not part and parcel of the definition. As argued by several negotiating parties, the phrase ‘on the basis of disability’ may certainly be interpreted to include discriminatory treatment based on actual and perceived, past and present, personal and associated disabilities.66 In its jurisprudence, the CRPD Committee has interpreted the prohibition of disability-​based discrimination to include disadvantageous treatment based on perceived disability and by reason of association with a person with a disability.67 European regional courts68 and domestic law in some states parties69 have taken the same position. This indicates that the focus of the prohibition of disability-​based discrimination is not whether the person placed in a disadvantageous position actually has an impairment, but whether a certain disadvantageous practice is based on illegitimate reasons, or whether it may be otherwise justified.70

5.2 ‘which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise’ This reference to the harmful ‘purpose or effect’ of a discriminatory practice originates from the definitions of discrimination in CEDAW and CERD. In jurisprudence, it has been interpreted to imply that the prohibition of discrimination in international human rights law covers not only practices which are motivated by a discriminatory purpose but also practices that have a discriminatory ‘effect’.71 Thus discrimination does not need to be driven by prejudice or hatred versus a certain group. It can be an (inadvertent) result of practices and policies that are set up to serve legitimate aims but which have disparate impacts on protected groups. For example, job advertisements stating that applicants must possess a driver’s licence will have a disparate impact on persons with certain disabilities   Compilation of Proposed Revisions, Third Session (n 14) article 7(2)(b).   Daily Summaries 2 September 2004 (n 12) see recorded statements by Canada and Netherlands (on behalf of the EU). This question is at its core an issue of the coverage of the CRPD in terms of who is protected, and was negotiated simultaneously as a question concerning the scope of discrimination as well as the scope of ‘persons with disabilities’. See Bruce, Which Entitlements (n 13) 311–​13. 67   CRPD Committee, ‘General Comment No 3’ (n 61)  paras 17(c) and 53, ‘Concluding Observations on the Initial Report of Spain’ UN Doc CRPD/​C/​ESP/​1 (19 October 2011) paras 19–​20, and ‘Concluding Observations on the Initial Report of Belgium’ UN Doc CRPD/​C/​BEL/​CO/​1 (28 October 2014) paras 11–​12. 68   S Coleman v Attridge Law and Steve Law [2008] C–​303/​06. The case concerned a non-​disabled mother of a child with a disability who was dismissed from her employment for reasons related to her parenting responsibilities. The Court of Justice of the EU (CJEU) did not expressly label this malpractice as ‘discrimination by association’ but it held that that principle of equal treatment applies not to a particular category of persons but to a set of grounds, and that the prohibition of direct discrimination is not limited to people who are themselves disabled; see paras 38 and 50–​56; the European Court of Human Rights has held that the prohibition of discrimination in Art 14 of the ECHR covers instances in which an individual is treated less favourably on the basis of another person’s status or protected characteristics (emphasis added). Guberina v Croatia App no 23682/​13 (22 March 2016) para 78. 69   Even before S Coleman v Attridge Law and Steve Law (n 68) a few EU member states had chosen to explicitly prohibit discrimination by association on the basis of disability—​see Lisa Waddington, ‘S. Coleman v Attridge Law and Steve Law’ (2009) 46 CMLRev 665, 672f. The concept of discrimination by association is perhaps most established under the Americans with Disabilities Act (1990), § 12112(b)(4). The USA, however, has signed but not ratified the CRPD. 70   Trömel, ‘A Personal Perspective’ (n 63) 124. 71   The UN HRCtee clarifies this point in Joseph Frank Adams v the Chez Republic Communication No 586/​ 1994, 23 July 1996 para 12.7. The European Court of Human Rights has expressed the same position in D H and Others v the Czech Republic (2008) 47 EHRR 3 para 184. 65 66

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and therefore need to be justified to comply with the prohibition of discrimination.72 Tax fees for persons who do not carry out military service would be another example.73 According to the CRPD Committee, an inaccessible environment can also give raise to indirect discrimination.74 During the negotiations of the CRPD attempts were made to elaborate further on the distinction between direct and indirect discrimination in the treaty text.75 In the end it was decided to leave out explicit references to direct and indirect discrimination. Not because practices that are typically labelled as direct and indirect discrimination fall outside the scope of the Convention, but because the precise meaning of ‘direct’ and ‘indirect’ and the delineation between these was difficult to pin down.76 Indeed, the CRPD Committee has confirmed that disability-​based discrimination can be direct or indirect,77 with or without discriminatory intent,78 and take several other forms (see below, section ‘all forms of discrimination’).

5.3 ‘on an equal basis with others’ The definition of discrimination asserts that persons with disabilities are entitled to enjoy human rights and fundamental freedoms ‘on an equal basis with others’. That phrase is not confined to the definition of discrimination in article 2; rather, it appears like a mantra repeated thirty-​one times throughout the treaty text, the preamble included. Often, the introduction of this phrase was intended to signal that the drafters were not aiming to create ‘new rights’ for persons with disabilities (ie entitlements over and above those granted to persons without disabilities), but to explicate the normative content of existing human rights when applied to the disability context.79 Similar phrases are included in the definitions of discrimination in CERD and CEDAW,80 and its incorporation in the CRPD’s definition of discrimination is maybe best understood against this background. Having discussed the normative content of the prohibition of discrimination at length, the drafters of the CRPD agreed to formulate the definition of disability-​based discrimination in language that closely resembled the definition in CEDAW.81 On occasion, the CEDAW Committee has used the similar phrase ‘on the basis of equality’ to stress that the non-​discrimination norms codified in CEDAW do not stop at requiring states to ensure that men and women have equal rights 72   Suppose it is a taxi company that is seeking to hire new staff. If the company is looking for administrative staff working in-​house, then being able to drive may not be an essential qualification for the job and therefore unjustified. If, on the other hand, the company is looking for taxi drivers, few would say that the requirement that applicants must possess a driver’s licence discriminates on the basis of disability. 73  cf Glor v Switzerland App No 13444/​04 (30 April 2009). 74   In its ‘General Comment No 3’ (n 61), the CRPD Committee uses the case of inaccessible examination beds for gynaecological screenings as an example of indirect discrimination of women with disabilities—​see para 17(b). 75 76   See Background and Travaux Préparatoires.  Bruce, Which Entitlements (n 13) 228. 77   CRPD Committee, ‘General Comment No 3’ (n 61) para 17. 78  CRPD Committee, Marlon James Noble v Australia, Communication No 7/​ 2012, (2 September 2016) para 8.3. 79   For a thorough and theoretical analysis of the matter of ‘new rights’, see Frédéric Mégret, ‘The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?’ (2008) 30 HRQ 494. 80   The definition of discrimination against women in CEDAW includes the phrase ‘on a basis of equality of men and women’ (Art 1) and the definition of discrimination in CERD incorporate the phrase ‘on an equal footing’ (Art 1). 81   cf ‘Report of the Coordinator’ (n 60) para 22.

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de jure. States must take action to ensure that women and men enjoy equal rights in practice.82 The HRCtee has interpreted this phrase to signal that equal enjoyment of rights and freedoms does not mean ‘identical treatment’.83 Differential treatment is permissible under human rights law; under certain circumstances it is even required.84 The CRPD Committee has expressed the same idea. In a case concerning permission to build an indoor hydrotherapy pool, the key question was whether the refusal of such permission, because it conflicted with the city development plan, could constitute discrimination.85 Given the importance of the pool for the claimant—​without it, she would have to move from home to a specialized health care institution—​the Committee held that refusal to grant building permission was discriminatory because absent an objective and reasonable justification it failed to ‘treat differently persons whose situations are significantly different’.86

5.4 ‘all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’ The reference to ‘all human rights and fundamental freedoms’ [my italics] indicates that the prohibition of discrimination on the basis of disability covers not only rights that are provided by the CRPD but also other human rights entitlements protected in other sources of international law. This coheres with the object and purpose of the Convention which is to ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities.87 And the end phrase ‘any other field’ implies that the prohibition of discrimination on the basis of disability covers not only public but also private life. The formulation is taken from the definition of discrimination against women in CEDAW.88 When read in combination with 4(e) CRPD, which obliges states to combat discriminatory practices ‘by any person, organization or private enterprise’, this amounts to a clear recognition of the need to address discriminatory practices that occur in the private sphere. This has been recognized for long. Already in 1994, the 82   CEDAW Committee, ‘General Recommendation No 28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women’ UN Doc CEDAW/​C/​GC/​28 (16 December 2010) para 9. For a discussion on this point, see Andrea 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 (Intersentia 2015) 92f. 83  HRCtee, ‘General Comment 18:  Non-​discrimination’ UN Doc HRI/​GEN/​1/​Rev 1 (10 November 1989) para 8. The Committee use the phrase ‘on an equal footing’. This phrase occurred in early drafts of the CRPD but was replaced with ‘on an equal basis with others’ because the latter was considered as more appropriate language. 84   The HRCtee takes Art 6 of the Covenant (the right to life) as an example and points to how this provision proscribes the imposition of a death sentence on some segments of the population (minors and pregnant women) but not others; ibid. 85   CRPD Committee, H M v Sweden, Communication No 3/​2011 (19 April 2012) para 4.12. 86   ibid para 8.3. The same phrase figures in jurisprudence from the European Court of Human Rights—​see eg Thlimmenos v Greece (2000) 31 EHRR 411 para 44; for a discussion of the meaning of the terms ‘objective and reasonable’, see Anna Nilsson, ‘Objective and Reasonable? Scrutinising Compulsory Mental Health Interventions from a Non-​discrimination Perspective’ (2014) 14 HRLR 459. 87   Art 1 CRPD. 88   Art 2 CEDAW.  cf the definition of racial discrimination in article 1 in CERD which is confined to human rights in ‘the political, economic, social, cultural or any other field of public life’ (emphasis added). Still, the CERD requires its states parties to prohibit racial discrimination ‘by any persons, group or organization’ (Art 2(d)) and to ensure that victims of discrimination have access to an effective remedy for the harm suffered by such discrimination (Art 6). For a thorough analysis of the problèmatique of extending human rights obligations to private subjects see Andrew Clapham, Human Rights Obligations of Non-​state Actors (OUP 2006).

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Committee on Economic, Social and Cultural Rights took note of the trend to privatize public services and emphasized the need to subject private employers, private suppliers of goods and services, and other non-​public entities to non-​discrimination norms in relation to persons with disabilities.89

5.5 ‘all forms of discrimination’ The definition of discrimination in the CRPD explicitly states that it includes ‘all forms of discrimination, including denial of reasonable accommodation’. The duty to accommodate figured in pre-​CRPD soft-​law90 and is one of the defining features of American91 and EU92 disability-​discrimination law. With the CRPD it is embedded in a binding human rights treaty and the importance of this obligation can hardly be overestimated.93 It requires employers, teachers, shop owners, public authorities, and other duty-​bearers to remove barriers that prevent persons with disabilities from participation in social activities on a daily basis. The precise scope of this obligation is discussed further below. The remaining part of this section identifies and discusses the other forms of discrimination covered by the definition. We know from the aforementioned discussion in this chapter that the definition certainly covers both direct and indirect discrimination, and arguably also disadvantageous treatment based on past and perceived disabilities, as well as discrimination by association.94 In addition, the treaty text refers to harassment and multiple discrimination against women.95 ‘Harassment’ is a term that has not been subject to much discussion; up until now there are very few references to the term in the negotiating records and the outputs of the CRPD Committee. In its draft General Comment on Equality and Non-​discrimination, the Committee describes harassment as an unwanted conduct related to disability or other prohibited grounds which have the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating, or offensive environment.96 This includes making fun of an impairment. Bullying and hatred expressed on the Internet constitute particularly harmful forms of harassment.97 This understanding of harassment concurs with how the term is defined in EU non-​discrimination directives.98

  See eg Committee on Economic, Social and Cultural Rights, ‘General Comment No 5’ (n 4) para 11.   ibid para 15 and Standard Rules 1993 (n 4) rule 7. 91  See eg Michael Ashley Stein, ‘Same Struggle Different Difference:  ADA Accommodations as Anti­ discrimination’ (2004) 153 U Pa L Rev 579. 92  Employment Equality Directive 2000 (n 10)  Art 5.  See also European Commission, ‘Reasonable Accommodation for Disabled People in Employment: A Legal Analysis of the Situation in EU Member States, Iceland, Liechtenstein and Norway’ (2016) prepared by Delia Ferri and Anna Lawson on the basis of country reports provided by the European network of legal experts in gender equality and non-​discrimination. 93   As Lawson puts it ‘the success of any policy to promote the full inclusion of disabled people in mainstream society is likely to depend, in part, on the extent to which it is underpinned by effective reasonable accommodation obligations’—​Anna Lawson, ‘The UN Convention on the Rights of Persons with Disabilities and European Disability Law: A Catalyst for Cohesion?’ in Oddný Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Martinus Nijhoff 2009) 93. 94 95   See sub-​section ‘on the basis of disability’.   Arts 6 and 27(1)(b) on work and employment. 96   CRPD Committee, ‘Draft General Comment on Equality and Non-​discrimination’ (n 61) para 20(d). 97  ibid. 98   Harassment features as a specific type of discrimination in several EU non-​discrimination directives—​see eg Employment Equality Directive 2000 (n 10) Art 2(3). 89 90

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‘Multiple discrimination’ of women occurs when a woman experiences discrimination on two or more grounds, leading to discrimination that is ‘compounded or aggravated’.99 The compounded effect can be sequential; for example, a woman with a disability can be discriminated because of her sex/​gender on one occasion (eg in the health care context) and because of her impairment/​disability on another (eg in the labour market). It can also be that the woman is discriminated because of her sex and disability on the same occasion.100 A woman can be turned down for a job for several reasons, such as her gender or disability. Several states parties recognize such multiple discrimination in their domestic jurisdictions.101 In addition to the above forms of discrimination, the CRPD Committee has included the following terms under the umbrella phrase ‘all forms of discrimination’: intersectional discrimination, systemic, or structural discrimination.102 Other UN treaty bodies have produced similar lists over different types of discrimination that fall within the ambit of international human rights law.103 As has been pointed out by several authors, the terms ‘multiple discrimination’, ‘intersectional discrimination’, ‘systemic discrimination’, and ‘structural discrimination’ have been conceptualized in various ways and there is currently no settled terminology in international human rights law and literature.104 The CRPD Committee describes ‘structural’ and ‘systemic’ discrimination as referring to the same phenomena, namely hidden or overt patterns of discriminatory institutional behaviour, cultural traditions and social norms and/​or rules.105 The Committee on Economic, Social and Cultural Rights has depicted this problem in similar terms. It has held that disadvantageous treatment of some groups is pervasive and ‘deeply entrenched in social behaviour and organization’.106 Systemic discrimination can manifest itself through legal rules, policies, practices, and cultural attitudes in either the public or private sector which create relative disadvantages for some groups and privileges for others.107 ‘Intersectional discrimination’ refers to a situation where several grounds interact with each other at the same time in such a way as to be inseparable.108 It can (and has been) be 99   CRPD Committee, ‘General Comment No 3’ (n 61) para 4(c). Already in its General Comment No 5 (n 4), the Committee on Economic, Social and Cultural Rights noted the ‘double discrimination’ faced by many women with disabilities (para 19); see also CEDAW Committee, ‘General Recommendation No 28’ (n 82)  para 18, and Committee on Economic, Social and Cultural Rights, ‘General Comment No 20 on Non-​discrimination in Economic, Social and Cultural Rights (Art 2, para 2)’ UN Doc E/​C12/​GC/​20 (2 July 2009) paras 17 and 27. 100  cf Sandra Fredman, ‘Intersectional Discrimination in EU Gender Equality and Non-​discrimination Law’ (European Commission 2016) 27. 101   See eg the FYROM Law on the Prevention and Protection Against Discrimination (2010) Art 12, and the Austrian Federal Equal Treatment Act (1993) BGBI 1993/​100 § 19a. 102   CRPD Committee, General Comment No 3’ (n 61) para 17. Early drafts of the CRPD did include an explicit reference to ‘systematic discrimination’. Negotiating parties, however, thought the term was unclear and demonstrated little willingness to clarify its meaning in the treaty text. Instead, it was removed—​see Daily Summaries 2 September 2004 (n 12), recorded statements by Australia, Canada, Israel, Netherlands (on behalf of EU), Norway, and Serbia and Montenegro. 103   Committee on Economic, Social and Cultural Rights, ‘General Comment No 20’ (n 99) paras 10, 12, 17, and 27, CEDAW Committee, ‘General recommendation No 28’ (n 82) paras 9, 16, and 18. 104   See eg Fredman, ‘Intersectional Discrimination’ (n 100) 27 and Ben Smith, ‘Intersectional Discrimination and Substantive Equality: A Comparative and Theoretical Perspective’ (2016) 16 Equal Rts Rev 73. 105   CRPD Committee, ‘General Comment No 3’ (n 61) para 17 (e). 106   Committee on Economic Social and Cultural Rights, ‘General Comment No 20’ (n 99) para 12. 107  ibid. 108   CRPD Committee, ‘General Comment No 3’ (n 61) 4(c). For an overview of the grounds additional to disability present in the negotiations and the final text of the CRPD see Bruce, Which Entitlements (n 13) 330–​41.

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viewed as a sub-​category of multiple discrimination because it involves disadvantageous treatment that is related to more than one ground or power structure (sexism, racism, ableism, etc).109 The interplay between these power structures can be very complex, and in some situations it is difficult to link a certain practice to one or more grounds because the disadvantage experienced by one group of women is not necessarily the same as the disadvantage experienced by other groups of women.110 For example, employers may well employ women and men with disabilities but still reject women with disabilities, or women with disabilities above a certain age.111 Or, a state’s efforts to combat violence against women may fail to address the specific needs of women residing in institutions and/​or who belong to minorities. An intersectional approach to such situations aims to make visible the different power structures at play in such situations and how they intersect to cause specific types of disadvantage. Precisely how this heightened consciousness of different and interrelated forms of oppression ought to affect discrimination analysis in concrete cases is still a matter of contention. In the European context, there is a growing body of jurisprudence that draws on the insights upon which intersectionality theories rest.112

6.  ‘Reasonable accommodation’ The concept of reasonable accommodation builds on the idea that it takes more than restraint of biased and ignorant behaviour to ensure equal enjoyment of human rights. Persons with disabilities face not only attitudinal barriers when engaging in society but also physical, environmental, administrative, and legal ones, as well as technical and language-​related barriers that circumscribe their access to information and opportunities to communicate with others. Removing such obstacles requires positive action and allocation of resources. The legal construct of reasonable accommodation originates from the United States and the context of discrimination based on religious belief.113 The concept spread to the Rehabilitation Act (1973) and was subsequently incorporated into the Americans with Disabilities Act (1990). In 2000, the duty for employers to accommodate was introduced in EU law (Employment Equality Directive).114 With the entry into force of the CRPD in 2008 this duty was extended beyond the labour market to cover all spheres of life protected under human rights law. Recently, the European Court of Human Rights (ECtHR) held that the prohibition of disability-​based discrimination laid   Smith, ‘Intersectional Discrimination’ (n 104) 80.  Intersectionality and intersectional discrimination originates from Kimberly Crenshaw’s pioneering work, see eg Kimberly Crenshaw, ‘Demarginalizing the Intersection of Race and Sex:  A Black Feminist Critique of Anti-​discrimination Doctrine, Feminist Theory, and Anti-​racist Policies’ (1989) University of Chicago Legal Forum 139; in this article, Crenshaw critiqued American anti-​discrimination law for failing to protect black women. 111   In many countries employment rates for women with disabilities are lower than the rates for non-​ disabled women and disabled men, WHO and WB, ‘World Report on Disability’ (2011) 237. 112   eg the European Court of Human Rights has recognized the particular vulnerability of an African woman working as a prostitute in a case concerning failure to investigate claims of racist violence. B S v Spain App No 47159/​08 (24 July 2012) para 62; eg the Court of Justice of European Union has dealt with the specific disadvantage experienced by older women and pregnant women. For an overview, see Fredman, ‘Intersectional Discrimination’ (n 100) 71ff. 113  Leticia Campos Velho Martel, ‘Reasonable Accommodation:  The New Concept from an Inclusive Constitutional Perspective’ (2011) 8 IJHR, 84, 88. 114   Employment Equality Directive 2000 (n 10) Art 5. 109 110

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down in the European Convention of Human Rights (ECHR) must be read in light of the CRPD and that it consequently covers refusal to make reasonable accommodation.115 The CRPD includes other obligations to transform the places, goods, and services that are available to the public so that persons with disabilities can access and use them on an equal basis with others. Article 4 obliges states parties to promote the development of universally designed goods and services, mobility aids, and other forms of assistive technology.116 And article 9 requires states to take action to ensure that persons with disabilities have equal access to the built environment, to transportation, to information and communications, and to other facilities and services that are open or provided to the public.117 The difference between the obligations enshrined in articles 4 and 9 compared to the duty to take reasonable accommodation is not clear-​cut, but the latter is construed as an ex nunc duty that arises from the moment an individual requires some degree of accommodation.118 This duty is immediate, in the sense that failure to accommodate violates the prohibition of discrimination.119 Accessibility obligations in articles 4 and 9, on the other hand, are understood as ex ante obligations. This means that the work towards a more accessible society should continue systematically and not be driven by individual claims.120 In some jurisdictions, the concept of ‘anticipatory accommodations or adjustments’ is used to capture this obligation to remove foreseeable general barriers to inclusion.121 In addition, it is recognized that the transition towards inclusive societies will take time. As the Committee states, accessibility is achieved through ‘gradual implementation’.122 Reasonable accommodations can take many forms. As the jurisprudence of the CRPD Committee illustrates it includes workplace-​related accommodations (adaptions of computer systems),123 provision of sign language interpretation,124 and installation of audio systems at tram stops to communicate real-​time information on the direction of the trams, their arrival and departure times, and disruptions of services.125 It also covers adjustments of local policies (concerning building permits),126 and modifications of health care settings so that women with disabilities can undergo mammogram,127 The intricate question is often to determine whether such accommodations and adjustments are reasonable under the circumstances at hand. The term ‘reasonable’ can be taken to mean that the accommodation should not confer undue costs on the employer. It can also be taken to imply that it must be effective and enable the individual to enjoy or exercise a certain right. And it can be interpreted to both limit the duty-​bearers’ obligations and ensure

115   Çam v Turkey, App No 51500/​08 (23 February 2016) paras 65 and 67. It had been a long and winding road for the Court to incorporate the concept of reasonable accommodation in its jurisprudence. For an overview of previous case-​law, see Lawson, ‘A Catalyst for Cohesion’ (n 93) 94–​104. 116 117   Art 4(f ) and (g) CRPD.   Art 9(1) CRPD. 118 119   CRPD, ‘General Comment No 2’ (n 38) para 26.   Art 5(3) CRPD. 120   See ‘General Comment No 2’ (n 38) paras 14, 25, and 27. 121  See eg Americans with Disabilities Act (1990), Title III on public accommodations. For a discussion on the concept in relation to the CRPD, see Maria Ventegodt Liisberg, ‘Accessibility of Services and Discrimination:  Concentricity, Consequence, and the Concept of Anticipatory Reasonable Adjustment’ (2015) 15 IJDL 123. 122   ‘General Comment No 2’ (n 38) para 24. 123   CRPD Committee, Marie-​Louise Jungelin v Sweden, Communication No 5/​2011 (2 October 2014). 124   Beasley v Australia and Lockrey v Australia (n 36). 125   CRPD Committee, F v Austria Communication No 21/​2014 (21 August 2015). 126 127   H M v Sweden (n 85).   CRPD Committee, ‘General Comment No 3’ (n 61) para 17(d).

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effective accommodations from the perspective of the individual rights-​holder.128 In the following subsections, we discuss this question in more detail.

6.1 ‘necessary and appropriate’ The concept of ‘reasonable accommodation’ seeks to balance the interests of social inclusion and participation with the financial and autonomy-​related interests of the of the employer, education provider or other actor who bears the duty to accommodate. On one side of the balance we have the interest of the individual concerned to carry out a certain job assignment, access a service, cast a vote or similar. To this we can add the interest of society at large to ensure inclusion and participation of persons with disabilities. On the other side of the balance, we have the duty bearers’ interests of productivity, of efficient spending of resources, and of control over their enterprise.129 The term ‘necessary’ signifies that the modification should correspond to a real need and the term ‘appropriate’ connotes that it ought to be suitable under the circumstances at hand. It must, for example, be possible or feasible from a legal and a practical perspective.130 An appropriate accommodation cannot be impractical or illegal. This marks the outer limits of the duty. The term ‘appropriate’, however, also implies that the accommodation must be effective. It must serve its aim and de facto facilitate enjoyment of one or several entitlements under human rights law. The CRPD Committee affirmed this point in a case concerning provision of Auslan131 interpretation to enable jury duty. In defence of its failure to ensure such interpretation, the responding state held that it did accommodate many people with disabilities who were summoned for jury duty. For example, it provided hearing loops and infrared technology. The Committee noted that such accommodations would not enable the claimant to perform jury duty and therefore could not justify failure to accommodate the needs of the claimant in this case.132 This concurs with how the concept was depicted during the negotiation process.133

6.2 ‘not imposing a disproportionate or undue burden’ The duty to make reasonable accommodations ceases at the point where the adjustment required constitutes a ‘disproportionate or undue burden’. As discussed in the previous section, the terms ‘necessary’ and ‘appropriate’ give certain guidance as to how far the duty to accommodate stretches. The accommodating measures must be legal and feasible, they should correspond to a real need and be effective towards their end(s). The notion of 128   cf Lisa Waddington, ‘Reasonable Accommodation’ in Dagmar Schiek, Lisa Waddington, and Mark Bell (eds), Cases, Materials and Text on National, Supranational and International Non-​discrimination Law (Hart 2007) 635, 669–​70. 129   For a thoughtful discussion on how the weight of these interests can be assessed and balanced in economic terms, see Michael Ashley Stein, ‘The Law and Economics of Disability Accommodations’ (2003) 53 Duke LJ 79. 130   OHCHR, ‘Equality and Non-​discrimination under Article 5 of the Convention on the Rights of Persons with Disabilities’ UN Doc A/​HRC/​34/​26 (9 December 2016) paras 37–​38. 131   Australian sign language. 132   Beasley v Australia (n 36) paras 4.1 and 8.5; see also Jungelin v Sweden (n 123) Joint dissenting opinion of Committee members Carlos Rios Espinosa, Theresia Degener, Munthian Buntan, Silvia Judith Quan-​Chang, and Maria Soledad Cisternas Reyes, para 4. 133   See eg Compilation of Proposed Revisions, Third Session (n 14) fn 27, and Daily Summaries 3 September 2004 (n 19); see recorded statements by Australia, Costa Rica, Israel, the Netherlands (on behalf of the EU), New Zealand, the United States, and Thailand.

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disproportionate and undue burden duty-​bearers adds that such measures must be proportionate in view of their costs and benefits, non-​pecuniary costs and benefits included. As described above, the precise formulation of this limitation was discussed at length during the negotiations of the treaty. Though the phrases ‘disproportionate burden’ and ‘undue hardship’ were discussed as alternatives during the negotiations, they appear as additives in the final text, suggesting that duty-​bearers can lawfully refuse to accommodate in situations where it would impose either a disproportionate or an undue burden.134 The CRPD Committee has not been entirely clear on what this qualification of the duty to accommodate means. The Committee’s reasoning on the merits in individual cases, however, supports the conclusion that the phrase ‘disproportionate or undue burden’ is essentially a requirement of proportionality taking all relevant circumstances into account.135 It has, however, been less specific about what constitutes relevant factors. The financial costs imposed on the duty-​bearer are certainly relevant, as is the value generated by the accommodation for the individual concerned. It may, for example, be proportionate to require employers to spend significant resources on accommodations that enable their employees to carry out job assignments in an efficient manner, but disproportionate to require him or her to do the same if the accommodation does very little to improve the situation for the worker concerned.136 The costs must also be considered in relation to the duty-​bearer’s ability to pay for them.137 Whilst small private companies cannot be required to spend large sums on accommodations, more can be required from public entities and large private enterprises. When reasoning about costs and benefits, it ought to be noted that accommodation measures can generate benefits for the duty-​ bearer and that not all accommodations result in net costs. For example, employers who accommodate for their employees with disabilities by installing ramps, ergonomic furniture, or computer soft wear may gain in increased productivity.138 Moreover, other employees (present and future) may benefit from these accommodations, and it may have a positive impact on their customer base.139 Good arguments exist to include other factors in the balance, such as third-​party interests. Such interests can speak in favour as well as against a particular form of accommodation. In the case concerning jury service mentioned above, the respondent state argued that providing sign language interpretation during court proceedings would not only be costly, but would impact the duration of the trial. Moreover, if the interpretation service were to extend to the deliberations between the jury members and the judge, then this would breach the principle of confidentiality.140 On the other hand, accommodations can benefit more people than the individual for which it is primarily intended. As noted above, co-​workers and future customers can benefit from employment-​related accommodations. In addition, there is a gain reaped by society in having economically viable persons employed instead of dependent on social benefits.141 When considering the 134   Rosemary Kayess and Phillip French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8 HRLR 1, 20. 135   H M v Sweden (n 85) para 8.5 and Beasley v Australia (n 36) paras 8.4–​5; see also CRPD Committee, ‘Draft General Comment on Equality and Non-​discrimination’ (n 61) para 27 (d) and (e). 136   cf Stein, ‘The Law and Economics’ (n 129) 144–​45 and 167–​74. 137  Broderick, The Winding Road (n 82) 169. 138 139   Waddington, ‘Reasonable Accommodation’ (n 128) 727.  ibid. 140   Beasley v Australia (n 36) paras 6.2 and 7.4. 141   For a discussion on how this gain can be assessed in economic terms, see Stein, ‘The Law and Economics’ (n 129) 141–​44 and 174–​77.

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proportionality of a certain accommodation, states parties to the CRPD enjoy a margin of appreciation.142 States parties must, however, ensure that such an assessment is made in a ‘thorough and objective manner, covering all the pertinent elements, before reaching a conclusion’.143

7.  ‘Universal design’ Universal design is a relatively new concept in human rights law.144 It originates from the field of architecture and signifies an approach to design that recognizes the diversity of human abilities and focuses on the usability of products and environments.145 These ideas have spread to other areas such as the field of education.146 The CRPD defines universal design as the ‘design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design’.147 This definition is almost a carbon copy of the definition of universal design provided by the Center for Universal Design (CUD) at North Carolina State University.148 The only difference is that the centre’s definition is limited to the design of products and environments. The CRPD extends the concept to cover also programmes and services.149 According to the CUD, universal design encompasses seven principles.150 These are:  equitable use, flexibility in use, simple and intuitive use, perceptible information, tolerance for error, low physical effort, and size and space for approach and use. The principles are accompanied by a set of guidelines clarifying their meaning. The principle of equitable use, for example, implies that the design should be useful to people with diverse abilities. The composition of environments and products should be identical whenever possible; equivalent when not. It must avoid segregating or stigmatizing its users. Provisions for privacy, security, and safety should be equally available to all users. And the design should be appealing to all users.151 The guidelines further clarify that 143   Jungelin v Sweden (n 123) para 10.5.   Beasley v Australia (n 36) para 8.4.   The Council of Europe has recognized the value to universal design in terms of facilitating inclusion and participation in resolutions preceding the CRPD; see eg Resolution ResAP (2001) 1 of the Committee of Ministers on the Introduction of the Principles of Universal Design into the Curricula of All Occupations Working on the Built Environment (15 February 2001). 145   Edward Steinfeld and Jordana L Maisel, Universal Design: Creating Inclusive Environments (John Wiley & Sons 2012) 15. Within the design community there are other concepts and approaches with a similar focus on removing barriers and creating products and environments that are accessible and usable for a diverse population, such as ‘inclusive design’ and ‘Design for All’ which have had more impact in the European context; ibid  28–​29. 146   See eg Sheryl Burgstahler, ‘Universal Design: Implications for Computing Education’ (2011) 11 ACM Trans Comput Educ, article 19. 147   Art 2 CRPD. 148   cf The Center for Universal Design ABOUT UD, available at:  (accessed 27 October 2017). The definition was proposed by the Chairman of the Ad Hoc Committee in a letter to the members of the Committee before the seventh session. The same letter informs us of the origin of the definition. ‘Letter dated 7 October 2005 from the Chairman to all members of the Committee’ UN Doc A/​AC265/​2006/​1 (14 October 2005) para 20. 149   Canada noted at the seventh session of the Ad Hoc Committee that ‘its proposal to add “programmes and services” to the definition of universal design would strengthen the definition and bring it into greater consistency with the reference in Art 4.1(f )(i)’; Daily Summaries 31 January 2006 (n 22). 150   Bettye Rose Connell, Mike Jones, Ron Mace, Jim Mueller, Abir Mullick, Elaine Ostroff, Jon Sanford, Ed Steinfeld, Molly Story, and Gregg Vanderheiden, ‘The Principles of Universal Design’ (1997) NCSU, Center for Universal Design. 151   ibid principle 1. 142 144

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universal design must accommodate a wide range of abilities and preferences, it should be easy to understand regardless of the user’s experience, knowledge, and language skills, and it should communicate information effectively to the user regardless of their sensory abilities.152 The commonalities between the principles underpinning universal design and the general principles of the CRPD are quite obvious. Both set of principles acknowledge that people have different abilities but are equally entitled to access public goods and services and respect for dignity and personal preferences.153 Within the human rights context, universal design is viewed as a strategy or a tool to achieve inclusive and participatory societies with barrier-​free environments and accessible goods and services.154 The principles and guidelines behind universal design can be applied to evaluate existing designs, to guide the process of new design projects and to educate designers, decision-​makers, and consumers about the characteristics of accessible products and inclusive environments.155 Experience has shown that adherence to these principles from the very beginning of design projects can be cost-​efficient. For example, making a building accessible from the outset typically adds relatively little to the total costs of the construction. The costs of subsequent adaptations to remove built-​in barriers can, however, be significant.156 Thus, the more a state party invests in creating an accessible society, the less barriers will exist that necessitate individual accommodation, and vice versa.157 This does not mean that the application of universal design will automatically eliminate the need for individual aids and reasonable accommodation. Given the variety of impairments and ways in which access to goods and services may be hindered, and the difficulties of finding solutions that fit everyone, it is reasonable to expect that the need for individual accommodations will decrease rather than disappear. Article 2 clarifies that the use of universal design by no means replaces states parties’ duty to undertake reasonable accommodation.158

  ibid principles 2, 3, and 4.   Art 3 CRPD; all principles in Art 3 speak to this value base, but see in particular paras (a), (d)–​(e), and (h). 154  CRPD Committee, ‘General Comment No 2’ (n 38)  para 15. For the European context, see also Recommendation CM/​Rec (2009) 8 of the Committee of Ministers to Member States on Achieving Full Participation Through Universal Design (1 October 2009). 155   Connell et al, ‘The Principles’ (n 150) see the introduction. 156   CRPD Committee, ‘General Comment No 2’ (n 38) para 15. Hence universal design is primarily relevant for states when implementing their ex ante accessibility obligations under articles 4 and 9. 157  Lawson has described the relationship between reasonable accommodation and accessibility obligations as ‘strong and mutually reinforcing’. Anna Lawson, ‘Reasonable Accommodation and Accessibility Obligations: Towards a More Unified European Approach?’ (2010) 11 Eur Anti-​Disc L Rev 11, 21. 158   The second sentence of the definition of ‘universal design’ states that such design ‘shall not exclude assistive devices for particular groups of persons with disabilities where this is needed’. 152 153

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Article 3 General Principles The principles of the present Convention shall be: a. Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; b. Non-​discrimination; c. Full and effective participation and inclusion in society;

d. Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; e. Equality of opportunity; f. Accessibility; g. Equality between men and women; h. Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

1. Introduction 2. Background and Travaux Préparatoires 3. Paragraph (a) 3.1 ‘Respect for inherent dignity’ 3.2 ‘Individual autonomy’ 3.3 ‘Independence of persons’ 4. Paragraph (b)—​‘Non-​discrimination’ 5. Paragraph (c)—​Full and Effective Participation and Inclusion in Society 6. Paragraph (d)—​Respect for Difference and Acceptance of Persons with Disabilities as Part of Human Diversity and Humanity 7. Paragraph (e)—​Equality of Opportunity 8. Paragraph (f)—​Accessibility 9. Paragraph (g)—​Equality between Men and Women 10. Paragraph (h)—​Respect for the Evolving Capacities of Children with Disabilities and Respect for the Right of Children with Disabilities to Preserve their Identities

84 86 90 90 92 94 95 97 99 100 102 103

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1. Introduction As an international human rights treaty, the Convention on the Rights of Persons with Disabilities (CRPD)1 is peculiar compared to other core United Nations (UN) international conventions.2 In part, its peculiarity finds expression in article 3, which lays   UNGA Res 61/​106 (13 December 2006).   As it stands, there are nine core international human rights treaties, the CRPD being the latest. For a list of the nine core international human rights instruments, see the UN Human Rights Office of the High Commissioner, available at: . 1 2

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down the General Principles that should guide states parties when enforcing the purpose of the Convention3 and implementing its provisions. Whilst the establishment of general principles is relatively common in international treaty law, the novelty of the CRPD is that it enshrines these principles in a stand-​alone article. Prior to the CRPD, general principles were inferred from core articles of a treaty4 or from preambles.5 In this sense, the introduction of a stand-​alone article on General Principles departs from the architecture of previous international human rights treaties, in particular the Convention on the Rights of the Child  (CRC).6 The CRC and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) have both been influential in the design of the CPRD.7 Not only does article 3 emulate a practice that is prevalent in UN environmental conventions,8 it also represents an innovative feature of the architecture of the UN Convention.9

2.  Background and Travaux Préparatoires The discussion relating to the inclusion of an article dedicated to articulating the general principles underlying the Convention began at the early stage of the drafting process. During the first session of the Ad Hoc Committee, Mexico submitted a working paper to the effect that principles would not be explicitly mentioned in the Convention, but

  Art 1 CRPD.   eg in ‘General Comment 5 on General measures of implementation of the Convention on the Rights of the Child’ (Arts 4, 42, and 44(6)) UN Doc CRC/​GC/​2003/​5 (27 November 2003) the Committee on the Rights of the Child infers four general principles from Arts 2, 3(1), 6, and 12 CRC that should guide states parties in implementing the ‘whole Convention’. The first principle identified by the Committee is the ‘non-​ discrimination principle of equal access to rights’, which should not be interpreted as ‘identical treatment’ (para 12). Second, the Committee infers from Art 3(1) the principle of the best interests of the child, which shall be ‘a primary consideration in all actions concerning children’ (ibid). Third, it identifies the optimal development principle for all children, understood broadly as referring to the ‘child’s physical, mental, spiritual, moral, psychological and social development’ (ibid 5). Fourth, the Committee highlights the right’s of the child to express his/​her views freely as the last general principle that states parties shall consider when adopting measures implementing the Convention (ibid 5). 5   For instance, the preambles to the ICCPR and ICESCR refer to the principles of ‘dignity and equality inherent in all human beings’ affirmed in the Charter of the UN, whilst the preamble to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) affirms the ‘principle of the inadmissibility of discrimination’. 6   UNGA Res 44/​25 (20 November 1989). 7   As pointed out by Stein and Lord, the architecture of the CRC has been influential in the design of the CRPD. For further analysis, see Michael Ashley Stein and Janet Lord, ‘Future Prospects for the UN Convention on the Rights of Persons with Disabilities’ in Odny M Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons With Disabilities: European and Scandinavian Perspectives (Brill 2009) 7, 23 (who note that the design of the Convention is modelled on the CRC, in particular as it embodies both civil and political rights and economic, social, and cultural rights). For further analysis on the holistic nature of the Convention, see Michael Ashley Stein, ‘Disability Human Rights’ (2007) 95 California Law Review 75, 94–​98; Michael Ashley Stein and Penelope J S Stein, ‘Beyond Disability Civil Rights’ (2006–​07) 58 Hastings Law Journal 1203, 1212–​14. 8   For instance, principles are set out in Art 3 of The UN Framework Convention on Climate Change (1992), Art 3 of the UN Convention on Biological Diversity (1992), and Art 3 of the UN Convention to Combat Desertification (1994). 9   For a recent account, see Charles F Sabel and Jonathan Zeitlin, ‘Learning from Difference: The Architecture of Experimentalist Governance in the EU’ (2008) 14 European Law Journal 271; Charles F Sabel and Jonathan Zeitlin, ‘Experimentalist Governance’ in David Levi Faur (ed), The Oxford Handbook of Governance (OUP 2011) ch 12. 3 4

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would instead fall within the scope of the first article on the object of the Convention.10 Put another way, the initial Mexican proposal considered general principles as instrumental to the purpose of the Convention.11 During the preparation of the Draft Convention by the Working Group,12 two issues arose: the first related to the structure and placement of an article on general principles; the second concerned the content of the principles to be included. With respect to article placement, three approaches were debated. First, the European Union (EU) suggested a stand-​alone article on general principles that would immediately follow the article on the object of the Convention.13 Second, several delegations, including Venezuela,14 India,15 the African Regional Workshop,16 the Commonwealth and Asia Pacific Region Workshop,17 and China,18 strengthened the initial Mexican approach, according to which general principles should not be explicitly included in an article, but should instead fall within the scope of the article on the object of the Convention.19 Third, Japan,20 supported by New Zealand,21 and in compliance with the position adopted by the Chair of the Ad Hoc Committee,22 recommended a single article that would combine the objectives of the Convention with the underlying principles.23 With respect to the principles to be included, various proposals were similarly discussed. The EU was of the view that the principles of ‘non-​discrimination, equality of opportunity, autonomy, participation and inclusion’ should represent the ‘fundamental principles’ of the Convention.24 Japan proposed a variant of the principle of participation and inclusion in the form of ‘normalisation’, aimed at ‘providing the conditions and environments under which persons with disabilities can live as ordinary citizens in communities together with those without disabilities’.25 The African and Commonwealth Workshops referred only to the principles of non-​ discrimination and equality of 10   ‘Working Paper by Mexico’, UN Doc A/​AC.265/​WP1 (29 July–​9 August 2002), available at: . 11   This is significant as it was not known at that time that there would be a Convention. I am grateful to Michael Ashley Stein for adding this comment. 12   ‘Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities’, UN Doc A/​58/​118 (3 July 2003). 13   Art 2 of the EU proposal, available at: . 14   In particular, Art 1 referred to the concepts of non-​discrimination, participation, and equality of opportunity; UN Doc A/​AC265/​2003/​WP1 (16–​27 June 2003), available at: . 15  Art 1 of India’s proposal, available at:  . accessed April 2017. 16   Para 22, available at: . 17   Para 15, available at: . 18   Art 1 of China’s proposal, available at:  . 19   See below. Draft Art 1 referred to the concepts of non-​discrimination, participation, and equality of opportunity, available at: . 20   Art 2(1) of Japan’s Proposal, available at: . 21   Art 22 of New Zealand’s Proposal, available at: . 22  Art 1 of the Chair’s Draft Elements of a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities (December 2003), available at: . 23 24   Art 2(1) of Japan’s Proposal (n 20).   Art 2 of the EU proposal (n 13). 25   Art 2(1) of Japan’s Proposal (n 20).

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opportunity.26 The European Disability Forum suggested the incorporation of the principles of ‘integrity, liberty, social justice, self-​determination and self-​representation’ to the list of principles to be embodied in the Convention,27 whilst Inclusion International put forward the principles of autonomy, diversity, full citizenship, and social inclusion as key human rights principles.28 Finally, the Chairman of the Ad Hoc Committee suggested the following four principles: a. the principles of autonomy and self-​determination of persons with disabilities to lead full and independent lives; b. the principle of full inclusion of persons with disabilities as equal citizens and participants in all aspects of life; c. the principle of diversity and recognition of the right to be different; and d. the principle of equality of women and men, girls and boys.29

In light of these proposals, the Working Group drafted article 2 of the Convention. One will note that the EU was largely influential in the drafting of this article. First, the Working Group adopted the position of the EU with respect to the design of the article; it suggested a stand-​alone article on general principles that would immediately follow the purpose of the Convention. Second, the Working Group adopted the EU’s proposal relating to the four principles, to which it added a fifth principle, that of ‘respect for difference and acceptance of disability as part of human diversity and humanity’. Accordingly, draft article 2 of the Convention read as follows: The fundamental principles of this Convention shall be: a. dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; b. non-​discrimination; c. full inclusion of persons with disabilities as equal citizens and participants in all aspects of life; d. respect for difference and acceptance of disability as part of human diversity and humanity; e. equality of opportunity.30

Subsequent to this draft text, it became apparent that the purpose of articulating general principles at the outset of the Convention was intended to help the interpretation and implementation of the Convention.31 During the third session of the Ad Hoc Committee, a general consensus emerged with respect to the five principles suggested by the Working Group.32 Several delegations 26   (nn 16 and 17)—​the African Workshop emphasized the concept of equality as being the common thread in the Convention (n 16). 27   EDF’s proposal, available at: . 28   Art 3, available at: . 29  Art 1 of the Chair’s Draft Elements of a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities (n 22). 30   Ad Hoc Committee, Working Group to draft a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, ‘Report to the Ad Hoc Committee’ Annex I, (16 January 2004), available at:  . 31   Comments made by the Landmine Survivors Network, available at: . 32  Art 2 of the Draft Text in Annex II of Report of the third session 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, available at:  .

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proposed to incorporate additional principles.33 In particular, some governments took the position that reference should be made to ‘international cooperation’,34 ‘equality between men and women’,35 ‘affirmative action to correct disadvantage occasioned by disability’,36 and ‘accessibility and universal design’.37 In addition, India drew particular attention to the situation of persons with severe, intellectual, and multiple disabilities and to the consideration that the social model of disability should be explicitly referred to instead of the medical model.38 Interestingly, the EU, supported by India, Mexico, and Thailand, suggested to incorporate a new paragraph, based on article 4(2) CRC, which would focus on the progressive realization of economic, social, and cultural rights.39 As pointed out by Ireland, representing the EU during the third session, the purpose of this second paragraph was to emphasize that whilst parts of the Convention would be implemented progressively much of the ‘Convention should not be progressive, for example, non-​discrimination’.40 At a later stage, it was decided that this paragraph would be better suited in respect of the provision dealing with general obligations.41 Few changes were made during the fourth session of the Ad Hoc Committee.42 In light of the numerous principles suggested during the third session, the Netherlands, representing the EU, recommended a short article on general principles, instead of a long enumeration of concepts that did not represent principles.43 In addition, at the request of Japan and Mexico, as supported by China, it was noted that general principles should be binding, as opposed to merely guiding; they were to ‘guide the interpretation of the

33  For a compilation of the proposals to amend the draft text, see Compilation of proposals for a Comprehensive and Integral Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities (A/​AC265/​2003/​CRP13 and Add 1), available at: , and ‘Daily summary of discussions related to Article 2 General Principles’, available at: . 34   This proposal was supported by Mali, Sudan, Eritrea, and Jordan. Thailand suggested a more specific principle in the form of ‘disability inclusive international cooperation’; Compilation (n 33). 35   This principle was suggested by Canada, Mexico, Norway, and Costa Rica, who also suggested an emphasis on ‘personal development in and enjoyment of all stages of life’. Compilation (n 33). Interestingly, the EU was opposed to incorporate this principle into Art 2 and suggested placing it instead in the preamble. Daily summary (n 33). This view changed, however, during the fourth session of the Ad Hoc Committee. See ‘Daily summary of discussions related to Article 2’, Fourth Session of the Ad Hoc Committee, available at: . 36   Kenya was the only delegation supporting this amendment. Compilation (n 33). 37   South Africa and Thailand proposed to include these two principles in Artart 2, although they were already mentioned in Draft Art 19; Japan also suggested a similar principle of ‘a barrier-​free environment’. Compilation (n 33). 38   In the final draft of the Convention, article 1 adopted the interactionist approach to disability rather than a social model perspective. For further analysis on the differences between the interactionist approach to disability and the social perspective, see Dimitris Anastasiou and James M Kauffman, ‘The Social Model of Disability: Dichotomy between Impairment and Disability’ (2013) 38 Journal of Medicine and Philosophy 441; Tom Shakespeare (ed), Disability Rights and Wrongs (Routledge 2006). 39   ‘With regard to economic, social and cultural rights, states parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation.’ Compilation (n 33). Interestingly, Sierra Leone, supported by Sudan and Mexico, was of the view that this latter paragraph should be moved to Art 4 on obligations, emphasizing that ‘[p]‌rinciples are different from obligations’. Daily summary (n 33). 40 41   Daily summary (n 33).   ibid; see also Fourth Session of the Ad Hoc Committee (n 35). 42   See ‘Daily summary of discussions related to Article 2’, Fourth Session of the Ad Hoc Committee (n 35). 43   This observation was also supported by New Zealand (n 35).

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convention in accordance with the Vienna Convention on the Law of Treaties’.44 Finally, Sierra Leone drew particular attention to the need to interpret the ‘convention as a whole to ensure that the principles [were] reflected in it’. From this observation, it became apparent that the principles listed in draft article 2 would be intertwined with substantive provisions of the Convention.45 The final draft of the article was put forward during the seventh session of the Ad Hoc Committee. Two principal changes were made. First, the article placement was modified; draft article 2 was moved after the provision on definitions, adopting the model of environmental treaties.46 Second, the content of the article was amended. The new draft added three principles to the previous five proposed by the Working Group, namely ‘accessibility’, ‘equality between men and women’, and ‘respect for evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities’.47 The first two additional principles, ‘accessibility’ and ‘equality between men and women’, had already been suggested by several delegations during the third and fourth sessions of the Ad Hoc Committee.48 In this sense, they reflected a general consensus that emerged during the negotiation on the drafting of article 3.  The third principle, ‘respect for evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities’, constituted, however, an innovative addition suggested by the International Disability Caucus during the seventh session.49 As discussed further below, this principle has clear connections with article 7 CRPD on children with disabilities. Most of the principles incorporated in the final text of article 3 were already affirmed in other international human rights instruments. As we shall see, the Convention on the Rights of the Child, the UN Standards rules on Equalization of Opportunities for Persons with Disabilities,50 and the core UN international treaties have all been influential in the identification of general principles. The novelty of the CRPD concerns the fact that it compiles existing principles in the context of disability in a stand-​alone article, whilst also highlighting them in its preamble.

44   In particular, Art 31 of the Convention (23 May 1969) 1155 UN Treaty Series 331, which establishes the general rule of interpretation. 45   For instance, Sierra Leone noted that ‘[i]‌n Article 5, there is a reference to respect and inclusion, which is related to dignity. Article 7 references equality and non-​discrimination, Article 9 references equality under the law, Article 10 references liberty and security of the person, Article 14 references respect for difference, Article 15 references independence and autonomy, or self determination, Article 18 references participation, Articles 19 and 20 references accessibility and personal mobility. These are all principles that should be reflected in Article 2. Gender equality, if included in Article 2, must be reflected in the convention. International cooperation should be in Article 2 because consensus is emerging for its coverage in the convention, especially in implementation. The Mexican proposal in 2(a) referencing the universality, indivisibility and interdependence of all human rights, should be the first general principle. The other principles to be included are those that are reflected in the convention as a whole.’ (n 35). 46  For instance, Art 3 of the UN Framework Convention on Climate Change and Art 3 of the UN Convention on Biological Diversity (n 8). 47   Draft Art 3, Working Text of the International Convention on the Rights of Persons with Disabilities, available at: . 48   See (nn 33 and 35). 49   See Chairman’s Text as Amended by the International Disability Caucus (1/​17/​2006) available at: . This principle is further discussed below. 50   UNGA Res 48/​96 (20 December 1993).

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3.  Paragraph (a) 3.1 ‘Respect for inherent dignity’ The concept of dignity has a long pedigree in international human rights law. Since the Universal Declaration of Human Rights,51 the concept of ‘dignity’ or ‘human dignity’ has played a central role in thinking about law and human rights.52 In 1986, the UN General Assembly provided, in its guidelines for new human rights instruments, that such instruments should be ‘of fundamental character and derive from the inherent dignity and worth of the human person’.53 Reference to dignity is commonplace in the core UN human rights architecture; it has been affirmed in the preambles to each of the UN Conventions constituting the International Bill of Human Rights as a founding principle of human rights.54 The concept of ‘inherent dignity’ is often intertwined with other human rights concepts. For instance, it is associated with the concept of liberty as it finds expression in article 10 ICCPR,55 article 17 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families56 and article 37(c) CRC.57 It is also associated with the right to education, as expressed in article 13 ICESCR58 and article 28 CRC.59 At the regional level, the European Convention on Human Rights (ECHR) does not explicitly refer to the concept of human dignity.60 Its importance has been, however, recognized by the European Court of Human Rights (ECtHR) in two cases. First, in Pretty v United Kingdom, the Court affirmed that human dignity is ‘the very essence of the Convention’;61 second, in Refah Partisi and others v Turkey, the Court held that the Convention forms an ‘integrated system for the protection of human dignity’.62

51   UNGA Res 217A (III), UN Doc A/​810 (10 December 1948) 71. The preamble to the Declaration begins with the ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family’. 52   See, generally, David Kretzmer and Eckart Klein (eds), The Concept of Human Dignity in Human Rights Discourse (Brill 2002); Michael Rosen, Dignity: Its History and Meaning (HUP 2012). For a criticism of the concept of dignity, see Christopher McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 655. For an account of dignity as an expressive norm, see Tarunabh Khaitan, ‘Dignity as an Expressive Norm: Neither Vacuous Nor a Panacea’ (2012) 32 Oxford Journal of Legal Studies 1. 53   UNGA Res 41/​120 (4 December 1986) quoted in Andrew Clapham (ed), Human Rights Obligations of Non-​State Actors (OUP 2006) 538; see also McCrudden (n 52) 669. 54   The concept of dignity is referred to in the preambles of all of the nine core UN human rights treaties. 55   Art 10 CCPR provides that: ‘[a]‌ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.’. 56   UNGA Res 45/​158 (18 December 1990), art 17. 57   According to art 37(c) CRC, ‘[e]‌very child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, [ . . . ]’. 58   UNGA Res 2200 A (XXI) (16 December 1966). Art 13(1) provides ‘[ . . . ] education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms.[ . . . ]’. 59   Art 28(2) CRC. 60   In subsequent Council of Europe conventions, the concept has been included, notably in the Revised European Social Charter (ETS No 163 (1996), preamble, art 26) and in the Convention on Human Rights and Biomedicine (CETS No 164 (1997), preamble, Art 1). 61   ECHR, 29 April 2002, Application no 2346/​02, para 65. 62   ECHR, 31 July 2001, Application no 41340/​98, para 43.

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Interestingly, within the EU constitutional framework, dignity is also a fundamental feature of the EU Charter of Fundamental Rights.63 Within the CRPD, the concept of dignity has a special place. It is generally referred to in paragraphs (a), (h) (discrimination),64 and (y)65 of the preamble, and in articles 1 (Purpose)66 and 8 (Awareness-​raising) of the Convention.67 More specifically, it is associated with substantive provisions, such as freedom from exploitation, violence, and abuse (article 16),68 the right to education (article 24),69 and the right to health (article 25).70 The principle relating to respect for dignity was first suggested by Mexico in its working paper in 2002.71 At this stage, the principle was placed in the preamble of the Convention, reflecting the common architecture of the core UN international human rights framework. Paragraph (p) of the preamble to the Mexican draft read as follows: Motivated by the principles of dignity and equality intrinsic to human beings and the values of dignity k[ . . . ].72 During the second session, the Danish Human Rights Institute provided a ‘Discussion Paper on Founding Principles of a Convention on Rights of Persons with Disabilities’,73 in which it highlighted the importance of the concept of human dignity as the ‘anchor norm of human rights’.74 Its importance was further debated during the third session, in which several delegations discussed the concept of dignity as included in draft article 2(a) prepared by the Working Group. Mexico, supported by South Africa,75 proposed to add the concept of ‘human dignity’ in paragraph (d) instead of the concept of humanity. Similarly, India proposed to include the concept of dignity when affirming the principle of participation in society. The Landmines Survivors Network suggested to refer to the concept of ‘inherent dignity’ in paragraph (a) instead of ‘dignity’ so as to be in compliance with the language used in other human rights conventions. Finally, National Human Rights Institutions (NHRIs) proposed adding in paragraph (a) ‘respect for human’ before the word ‘dignity’.76 They pointed out that the human rights model focuses on the 63   Whilst the preamble to the EU Charter recognizes that the Union is founded on the ‘universal values of human dignity, freedom, equality and solidarity’, article 1 of the Charter (2000/​C 364/​01), OJ (2000) C 364/​ 1 is exclusively dedicated to the protection and respect of human dignity. In addition, the Court of Justice of the EU has confirmed that a fundamental right to human dignity is part of Union law (judgment of 9 October 2001 in Case C-​377/​98 Netherlands v European Parliament and Council [2001] ECR I-​7079, 70–​77). 64 65   See para (h) preamble.   See para (y) preamble. 66   Art 1 provides that: ‘[t]‌he purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.’ This article is analysed in a previous chapter. 67   Art 8(a) refers to the measures to be adopted by member states in order to raise awareness and ‘foster respect for the rights and dignity of persons with disabilities’. 68   Art 16(4) relates to the environment in which recovery and reintegration should take place when persons with disabilities have been victim of abuse. 69   Art 24(1)(a) relates to the role of the education system in guaranteeing the ‘full development of human potential and sense of dignity and self-​worth, [ . . . ]’. 70   Art 25(d) requires ‘health professionals to provide care of the same quality to persons with disabilities as to others, [ . . . ] by, inter alia, raising awareness of the human rights, dignity, [ . . . ] of persons with disabilities [ . . . ].’. 71 72   Working Paper by Mexico, UN Doc A/​AC265/​WP1 (n 10).  ibid. 73   Statement available at: . 74  ibid. 75   One will note that the Constitution of the Republic of South Africa (18 December 1996) gives a central place to dignity, which is referred to in Arts 1, 7, 10, 35, 36, 39, 165, 181, 196, and Sch 2. 76   See ‘Daily summary of discussions related to Article 2 General Principles’, available at:  .

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inherent value of human dignity, which is a ‘crucial concept with regard to human rights in general and in the context of people with disability specifically’.77 This latter proposal was welcomed by the South Africa Human Rights Commission and European Disability Forum (EDF) during the fourth session78 and reaffirmed during the seventh session.79 As observed by the International Disability Caucus (IDC) ‘one is already born with dignity’. Accordingly, it is a matter of ensuring that dignity is respected.80 It results that none of the rights laid down in the Convention may be used to harm the dignity of persons with disabilities. Despite its importance and ubiquity in human rights discourse, the use of ‘dignity’, ‘inherent dignity’, or ‘human dignity’ remains relative, ambiguous, and contested in academic and legal literature. As it stands, a basic minimum understanding of human dignity suggests that each human being possesses an intrinsic worth that should be respected and that some behaviours are inconsistent with respect for this intrinsic worth.81 Beyond this basic understanding, McCrudden points out that ‘[a]‌ll that is left of dignity . . . is the relatively empty shell [ . . . ], when the concept comes to be applied [ . . . ], [it] is culturally relative, deeply contingent on local politics and values, resulting in significantly diverging, even conflicting, conceptions.’82 The Committee on the Rights of Persons with Disabilities has yet to clarify its conceptions of dignity in the context of the CRPD. In particular, it will be interesting to see if the Committee establishes a distinction between dignity, human dignity, and inherent dignity as these concepts seem to appear interchangeably throughout the CRPD.

3.2 ‘Individual autonomy’ The introduction of the concept of individual autonomy as a general principle is another peculiarity of the CRPD. None of the core UN conventions, aside from the CRDP, refers directly to the principle of individual—​or personal—​autonomy in their preamble or core text. Similarly, the ECHR and the EU Charter of Fundamental Rights are both silent with respect to this concept. Whilst the European Court of Human Rights has observed that the principle of autonomy is a founding principle of human rights, it has not yet established that a right to personal autonomy or self-​determination is contained in the Convention.83 During the second session of the Ad Hoc Committee, the Danish Human Rights Institute observed that individual autonomy is closely intertwined with the concept of freedom.84 It further noted that autonomy, as a general concept, embodies five specific rights, which are interrelated, namely: 77   See National Human Rights, Asia Pacific Forum, available at:  at para 45. 78   See ‘Daily summary of discussions related to Article 2 General Principles’, available at:  . 79  See compilations of comments, proposals, and amendments during the seventh session, available at: . 80 81 82  ibid.   McCrudden (n 52) 723.   ibid 698. 83   Pretty v United Kingdom (n 61) para 61; see also Keenan v United Kingdom (3 April 2001, Application no 27229/​95) para 91. 84   See the Danish Human Rights Institute (n 73)  which quotes Jacob Dahl Rendtorff and Peter Kemp, ‘Basic Ethical Principles in European Bioethics and Biolaw, Vol 1 Report to the European Commission of the BIOMED-​II Project’ (Centre for Ethics and Law, Copenhagen, Institut Borja de Bioethica, Barcelona, 2000) 25–​26.

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1 .  right to personal development, to create ideas and goals for life; 2.  right to privacy; 3.  right to integrity, liberty and freedom from coercion; 4.  right to inclusion in community life; and, 5.  right to participate actively in political processes.85 Unlike the concept of autonomy, most of these rights are expressly referred to in the core UN human rights treaties. For instance, the right to privacy is guaranteed in the Universal Declaration of Human Rights (article 12), the ICCPR (article 17), the CRC (article 16), and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (article 14). Similarly, the right to liberty and freedom from coercion is protected in the Universal Declaration of Human Rights (article 3), the ICCPR (articles 9, 10, and 12), the CRC (article 37(b)), and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (articles 16 and 17). During the drafting process of article 3, the main debate related to whether the concept of autonomy should be replaced by the concept of self-​determination. The Danish Human Rights Institute pointed out that, where autonomy is a principle underlying human rights law, the right to self-​determination of people is a fundamental right that has been mostly used in the context of colonial countries, indigenous peoples, and national minorities.86 Although not defined expressly in the Convention, autonomy is understood as referring to the freedom of being in charge of one’s own life and of making one’s own choices, which is highlighted in the preamble as being of importance to persons with disabilities.87 Interestingly, the Office of the UN High Commissioner of Human Rights has pointed out that ‘respect for the individual autonomy of persons with disabilities means that persons with disabilities have, on an equal basis with others, reasonable life choices, are subject to minimum interference in their private life and can make their own decisions, with adequate support where required’.88 Whilst the concept of autonomy is intertwined with several provisions of the Convention,89 its apex finds expression in article 12, which recognizes the principle of legal capacity of persons with disabilities. In this context, it is not surprising that the first general Comment of the CRPD Committee concerned article 12 (equal recognition before the law).90 Although the Committee did not elaborate a definition of the meaning of autonomy, it provided some guidance as to how this concept should be interpreted. The Committee drew particular attention between, on the one hand, freedom from discrimination in the recognition of legal capacity and, on the other hand, autonomy and respect of the human dignity of the person.91 In this sense, the Committee observed that the freedom to make one’s own choice is closely intertwined with legal capacity, which is one right, amongst others, related to autonomy.92 86 87   Danish Human Rights Institute (n 73).  ibid.   Para (n) preamble.   UN OHCHR, ‘Monitoring the Convention on the Rights of Persons with Disabilities: Guidance for Human Rights Monitors’ (UN 2010) 19. 89   eg reference is made in Art 16(4) (Freedom from exploitation) and Art 25(d) (Health). 90   Committee on the Rights of Persons with Disabilities, ‘General Comment No. 1—​Article 12: Equal recognition before the law’, UN Doc CRPD/​C/​GC/​1 (11 April 2014). 91   ibid para 33. 92   ibid para 29. For a detailed analysis of the right to autonomy in the context of the CRPD, see Frédéric Mégret, ‘The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?’ (2008) 30 Human Rights Quarterly 494, 510–​14. 85 88

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With respect to intellectual disability, the principle of autonomy raises interesting challenges. As pointed out by Dimopoulos, some persons with intellectual disabilities have limited autonomy or no autonomy.93 In this context, a liberal approach to autonomy, which heeds autonomous moral agency and freedom to make one’s one choice, may prove inefficient. This begs the questions of how the CRPD Committee should interpret the principle in the context of intellectual disability and how the freedom of persons with intellectual disabilities should be fostered.94

3.3 ‘Independence of persons’ The right to independent living is another aspect of the principle of autonomy. The Danish Human Rights Institute observed that independence underlines the ‘right to live a life outside of institutions, where barriers for full social inclusion are removed and the necessary technical aids and personal assistance are provided’.95 It further noted that the right to independence is narrower than the overarching principle of autonomy. In particular, it does not serve as a bridge for civil and political rights and economic, social, and cultural rights.96 The right to independence is closely intertwined with several provisions of the Convention, such as accessibility (article 9), independent living and inclusion in society (article 19), personal mobility (article 20), parental autonomy (article 23(2)), and habilitation (article 26). The CRPD Committee has recently noted in relation to article 9 on accessibility that ‘[a]‌ccessibility is a precondition for persons with disabilities to live independently and participate fully and equally in society’.97 Similarly, writing in the context of article 12, the Committee has observed that article 19 is intended to ensure that persons with disabilities have the opportunity to live independently in the community and to make choices and to have control over their everyday lives, on an equal basis with others.98 In this sense, the right to independence is closely associated with the principle of participation in society, which is discussed below.99

4.  Paragraph (b)—​‘Non-​discrimination’ The principle of non-​discrimination is a well-​established principle in international human rights treaties.100 As pointed out by the UN Human Rights Committee, it constitutes a

  Andreas Dimopoulos, Issues in Human Rights Protection of Intellectually Disabled Persons (Routledge  2010).   Dimopoulos provides a thorough analysis of how the concept of human dignity may be used as a means for fostering the autonomy of persons with intellectual disabilities, even though their autonomy is limited in liberal terms. Dimopoulos (n 93) ch 2. 95   Statement available at:  (n 73). 96  ibid. 97   Committee on the Rights of Persons with Disabilities, ‘General Comment No 2—​Article 9: Accessibility’ UN Doc CRPD/​C/​GC/​2 (11 April 2014). 98   CRPD Committee (n 88) paras 44–​45. It is expected that further clarification on the scope and meaning of article 19 will be provided in the General Comment 5, which is currently under draft. For further details, see chapter on article 19. 99   See under para (c), section 5 pp 97–99. 100  Provisions on non-​discrimination are incorporated in all core international human rights treaties, including regional treaties, namely the ECHR (Art 14), the American Convention on Human Rights (Art 24), the African Charter on Human and People’s Rights (Art 2), and the EU Charter of Fundamental Rights (Art 21). 93 94

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‘basic and general principle relating to the protection of human rights’.101 Despite its international status, discrimination based on disability is not widely recognized in the core UN human rights treaties.102 The CRC is the first UN human rights treaty recognizing discrimination based on disability.103 The ICCPR and ICESCR, the CEDAW and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families do not list disability as a ground of discrimination.104 The same observation may be made with respect to article 14 of the ECHR, which excludes disability as a ground of discrimination, whereas the EU Charter of Fundamental Rights, which entered into force subsequent to the CRPD, does include disability as a ground of discrimination.105 Within the CRPD, the principle of non-​discrimination is overarching. It is mentioned in paragraphs (h) and (p) of the preamble; it is defined in article 2; it is erected as a general principle in article 3; it constitutes a general obligation under article 4; it is enshrined in a stand-​alone provision in article 5; and it is expressed in several substantive provisions relating to the home and family (article 23), education (article 24), health (article 25), and employment (article 27). Accordingly, the principle of non-​discrimination is pivotal. It reflects the scope of the Convention, the purpose of which is not to create new rights, but to reaffirm existing human rights to the lived experience of persons with disabilities.106 The salience of this principle is two-​fold. First, it bridges conceptually civil and political rights, on the one hand, and economic, social, and cultural rights, on the other hand.107 In this sense, the concept reflects a novel feature of the Convention, which goes beyond the traditional discriminatory model that was initially suggested by the EU during the drafting process, to also encompass substantive rights.108 Second, and in contrast to the other principles listed in article 3, the principle of non-​ discrimination is defined, albeit broadly, in article 2 CRPD. As it stands, discrimination refers to ‘any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment, or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation’, which is defined as referring to ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the 101   UN OHCHR, ‘CCPR General Comment No 18:  Non-​discrimination’ (UN 1989)  para 1, available at: . 102   For further analysis, see Stein and Lord (n 7); Arnardóttir, ‘A Future of Multidimensional Disadvantage Equality?’ (n 7) 41. The EU Charter of Fundamental Rights also recognizes discrimination based on disability (Art 21). 103 104   Art 2(1) CRC.   Art 2 ICESCR; Arts 2 and 26 ICCPR. 105   According to article 21(1) of the Charter, ‘[a]‌ny discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.’ (2012/​C 326/​02). 106   Art 1 CRPD; for further analysis see Mégret (n 92). 107   For further analysis see Gerard Quinn and Eilionóir Flynn, ‘Transatlantic Borrowings:  The Past and Future of EU Non-​Discrimination Law and Policy on the Ground of Disability’ (2012) 60 American Journal of Comparative Law 23, 26. 108   For a detailed analysis of the influence of the EU in the drafting process of the Convention see Gráinne de Búrca, ‘The EU in the Negotiation of the UN Disability Convention’ (2010) 35 European Law Review 174.

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enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’.109 Whilst the concept is further discussed in other chapters within this volume, two aspects of this definition are noteworthy. First, the content of the principle is relatively broad to encompass both direct and indirect discrimination, even though no explicit reference to these concepts is made. Second, for the first time in an international human rights treaty, it includes denial of reasonable accommodation as part of the definition of discrimination.110 This inclusion was proposed by NHRIs during the third session of the Ad Hoc Committee111 and further discussed during the fourth session.112 In particular, it was observed that the concept of reasonable accommodation is an important addition to the principle of non-​discrimination as it is particularly tailored to the situation of persons with disabilities. It is noteworthy that the concept of reasonable accommodation was already expressed in the UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities,113 the General Comment of the UN Committee on Economic, Cultural and Social Rights,114 and more specifically in the EU Directive 2000/​78 on employment equality.115 In this respect, the CRPD brings to the fore a holistic approach to discrimination that is closely intertwined with the concept of equality and tailored to the situation of persons with disabilities.

5.  Paragraph (c)—​Full and Effective Participation and Inclusion in Society The principle of participation in society is a novel principle in international human rights treaty law. Like autonomy, this principle is not recognized per se in the core international treaties. 109   Art 2 CRPD; for further analysis on the provision of reasonable accommodation in the context of disability, see Michael Ashley Stein, ‘Same Struggle, Different Difference:  ADA Accommodations as Antidiscrimination’ (2004) 153 University of Pennsylvania Law Review 579; Michael Ashley Stein, Anita Silvers, Bradley A Areheart, and Leslie P Francis, ‘Accommodating Every Body’ (2014) 81 The University of Chicago Law Review 689; Lisa Waddington and Mark Bell, ‘Exploring the Boundaries of Positive Action under EU Law: A Search for Conceptual Clarity’ (2011) 48 Common Market Law Review 1503; Lisa Waddington and Aart Hendriks, ‘The Expanding Concept of Employment Discrimination in Europe: From Direct and Indirect Discrimination to Reasonable Accommodation Discrimination’ (2002) 18 International Journal of Comparative Labour Law and Industrial Relations 403; Lisa Waddington, ‘Reassessing the Employment of People with Disabilities in Europe: From Quotas to Anti-​Discrimination Laws’ (1996) 18 Comparative Labor Law Journal 62. 110   See de Búrca, ‘The EU in the Negotiations of the UN Disability Convention’ (n 108). For further details, see also the chapter on article 5. 111  Comments, proposals, and amendments submitted electronically during the third session, available at: . 112  See Daily summary, fourth session, available at:  —​New Zealand, Serbia Montenegro, the South Africa Human Rights Commission, and EDF were strong proponent for including a principle of reasonable accommodation. 113   COM (25 November 1999) 565; in particular, rule 7(2) provides that ‘States should also encourage employers to make reasonable adjustments to accommodate persons with disabilities.’. 114  CESCR Committee, ‘General Comment No. 5:  Persons with Disabilities’, UN Doc E/​1995/​22 (9 December 1994) para 15. 115   In particular, Art 5 provides that: ‘In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures

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Traditionally, participation is linked to two types of rights and entitlements. First, it is associated with the right to political participation as expressed in the Universal Declaration of Human Rights,116 the ICCPR,117 and the ECHR.118 This right to political participation has also a direct bearing on freedoms of thought, expression, assembly, and association, which have a strong pedigree in international and regional human rights treaties.119 Second, participation is associated with the right to participate in cultural life, recreation, leisure, and sport, as provided in the Universal Declaration of Human Rights120 and the ICESCR.121 Whilst the CRPD recognizes both aspects of participation,122 it expands significantly the scope of the concept and affirms a general principle of full and effective participation in society. It is noteworthy that, where the affirmation of a general principle is novel, the importance of participation in the context of disability is not. The World Programme of Action Concerning Disabled Persons of 1982,123 the Standard Rules of 1993,124 the CRC,125 the Revised European Social Charter,126 and the EU Charter of Fundamental Rights,127 all guarantee and promote the participation of persons with disabilities in society.128 In this context, the CRPD reaffirms this principle in general terms, whilst tailoring it to the rights of persons with disabilities. The principle of participation is a quintessential feature of the design of the CRPD.129 Unlike previous international treaty negotiations, the drafting of the CRPD was novel. First, the process was transparent; second, it involved the participation of NGOs, international organizations, disability experts, and human rights institutions representing persons with disabilities.130 Furthermore, like the principle of non-​discrimination, the principle of participation is ubiquitous within the Convention. It is included in the definition of disability,131 would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.’ Interestingly, de Búrca notes that the introduction of denial of reasonable accommodation is the result of strong advocacy from the Commission and, in this sense, reflects the influence of the EU in expanding further the definition of discrimination. See de Búrca, ‘The EU in the Negotiations of the UN Disability Convention’ (n 108) 193. 116   Art 21 provides both a right and an opportunity to ‘take part in the conduct of public affairs’ and ‘to vote and be elected’. 117   Art 25 recognizes the ‘right and the opportunity [ . . . ] to take part in the conduct of public affairs’, ‘to vote and be elected’, and to ‘have access to public service’ in the country in which one lives. 118   First Protocol to the European Convention of Human Rights, Art 3 (free elections). 119   eg freedom of expression is guaranteed in article 5(d) of the International Convention on the Elimination of All Forms of Racial Discrimination, article 19 ICCPR, article 13 CRC, article 13 of the International Convention on the Protection of the Rights of All Migrant Workers, article 21 CRPD, article 10 ECHR, and article 11 EU Charter of Fundamental Rights. 120   Art 27(1) provides that ‘[e]‌veryone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.’ 121   Art 15 recognizes the ‘right of everyone to take part in cultural life’. 122   eg political participation is guaranteed in article 29 (Participation in political and public life) and cultural participation is provided in article 30 (Participation in cultural life, recreation, leisure, and sport). 123 124 125   UNGA Res 37/​52 (3 December 1982) para 1.  Preamble.   Art 23 CRC. 126 127   Council of Europe, ETS 163, 03.V.1996, Art15.   Art 26 EU Charter. 128   One will also recall the slogan adopted by NGOs, ‘Nothing about us without us’, borrowed from James Charlton, Nothing About Us Without Us (UCP 1998). 129   For a thorough analysis of the active consultation with persons with disabilities and NGOs during the drafting process, see Tara Melish, ‘The UN Disability Convention:  Historic Process, Strong Prospects, and Why the U.S. Should Ratify’ (2007) 14 Human Rights Brief 37, 43–​47. 130 131   See Melish (n 129); Stein and Lord (n 7).   Para (e) preamble; Art 1 CRPD.

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associated with the lived experience of persons with disabilities and with their continued social and societal disadvantages,132 it is elevated as an objective of the Convention,133 a general principle and a general obligation,134 and expressed in many of the substantive provisions of the CRPD.135 Finally, the participatory dimension is a notable feature of the monitoring process of the Convention136 and of the composition of the CRPD Committee.137 Whilst neither the Convention nor the Committee provides a definition of the meaning of participation, it is manifest that this principle is closely intertwined with the concepts of inclusion, equality, and respect for the inherent dignity of all in society. As pointed out by the Danish Human Rights Institute, ‘participation has positive connotations and ensures a modern and rights-​based approach to the widespread marginalisation and isolation of persons with disabilities’.138 It evokes ‘a society where persons with disabilities play an active role as partners in all aspects of life and are entitled and enabled to live a life in mainstream settings’.139 In addition, the reference to the concept of inclusion highlights the paradigm shift from a medical model of disability to a human rights model.140 During the drafting process, some delegations suggested that the principle of full inclusion should take precedence over the principle of participation in draft article 2. For instance, during the third session of the Ad Hoc Committee, the Asia Pacific Forum suggested that participation was an aspect of inclusion and that ‘full inclusion’ required ‘social structures that ensure active participation’ of persons with disabilities. It also associated inclusion with the principles of equality and respect for the inherent dignity of all human beings.141 In contrast, the EU proposed to place greater emphasis on the principle of participation ahead of the principle of inclusion.142 This latter approach was further supported by Mexico and Costa Rica during the fourth session143 and adopted during the seventh session.144 As it stands, the essence of the relationship between the two principles is ambiguous. Some provisions place the concept of inclusion ahead of the principle of participation; this may be observed in the articles relating to independent and community living145 and habilitation.146 Other provisions refer to the principle of inclusion as being separate from the principle of participation; this is notably the case in relation to education147 and   Para (k) preamble.   The second objective relates to the promotion and protection of human rights and fundamental freedoms of persons with disabilities. See paras (m) and (y) preamble. 134   Art 4(3) CRPD obliges states parties to involve persons with disabilities in the development and implementation of legislation and policies to implement the Convention. 135   In particular, provisions relating to education (articles 24(1) and 24(3)), habilitation (article 26), political participation (article 29), cultural participation (article 30), and participation in international cooperation (article 32(1)). 136 137 138 139   Art 33(3) CRPD.   Art 34(4) CRPD.   See (n 73).  ibid. 140   For further analysis on the paradigm shift, see Stein, ‘Disability Human Rights’ (n 7); Stein and Stein, ‘Beyond Disability Civil Rights’ (n 7); Sarah Arduin, ‘Implementing Disability Rights in Education In Ireland: An Impossible Task?’ (2013) 36 Dublin University Law Journal 93. 141   Daily summary, available at: , accessed April 2017. 142  Daily summary, available at:  . 143   Daily summary, available at: . 144  Daily summary, available at:  . 145 146 147   Art 19 CRPD.   Art 26(1) CRPD.   Art 24(1) CRPD. 132 133

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employment.148 Finally, some provisions exclusively refer to the principle of participation without referring to the concept of inclusion; this is particularly manifest in paragraphs (e), (k), (m), and (y) of the preamble, article 1 (purpose) and article 9 (accessibility) of the Convention. In this context, further clarification is needed in order to determine the extent to which the concept of inclusion functions as an instrument for guaranteeing full and effective participation of persons with disabilities in specific aspects of their life.149 With respect to the meaning of ‘full and effective’, the CRPD Committee has not elaborated on the meaning of the provision yet. It may be argued that the expression highlights the conceptual difference between the concept of integration, previously referred to,150 and the concept of inclusion. Although a thorough analysis of these two concepts is outside the scope of this chapter, suffice it to say that, unlike inclusion, integration relates to an assimilationist model that emphasizes a formal approach to participation and places the burden on persons with disabilities to adapt to society. As per the CRPD Committee writing in the context of the fourth General Comment on Inclusive Education, integration is a ‘process of placing persons with disabilities in existing mainstream [  . . .  ] institutions, as long as the former can adjust to the standardized requirements of such institutions’.151

6.  Paragraph (d)—​Respect for Difference and Acceptance of Persons with Disabilities as Part of Human Diversity and Humanity The principle of respect for difference and acceptance of disability is particularly tailored to the situation of persons with disabilities. The principle has been welcomed as reflecting the paradigm shift of the Convention. As discussed further in other chapters of this volume, the human rights model of disability emphasizes diversity, pluralism, and human difference as part of humanity.152 Under this approach, persons with disabilities are recognized as actors and rights holders. In addition, the onus of proof shifts to society to adapt and be accessible to all on an equal basis. In this sense, the principle of difference is closely intertwined with the concept of disability as defined in article 1 of the Convention. The architecture of the Convention reflects the importance of the principle of respect for difference and acceptance. The principle is referred to in paragraph (i) of the preamble and in article 8, which requires states parties to raise awareness regarding persons with disabilities and to ‘foster respect’ for their rights and dignity.153 As will be discussed below, 148   Art 27(1) CRPD. Although article 27 does not explicitly refer to the principle of participation, it may be inferred from article 27(1)(e), (f ), (g), (h), (j), and (k). 149   This observation was made during the third session following the Danish Human Rights Institute report (n 73) in which the Institute noted that the principle of inclusion does not have the same broad application on all aspects of life in the community as the principle of participation. 150   UNESCO, ‘The Salamanca Statement on Principles, Policy and Practice in Special Needs Education’ (UNESCO, 1994). 151   Committee on the Rights of Persons with Disabilities, ‘General Comment No 4—​Article 24: Right to inclusive education’, UN Doc CRPD/​C/​GC/​4 (26 August 2016) para 11, quoting OHCHR, ‘Thematic study on the right of persons with disabilities to education’ UN Doc A/​HRC/​25/​29 (18 December 2013) para 4 and UNICEF, ‘The Right of Children with Disabilities to Education: A Right-​Based Approach to Inclusive Education’ (Geneva 2012). 152 153   For further analysis on the human rights model see (n 140).   Art 8(1)(a) CRPD.

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the principle is closely intertwined with the principles of equality of opportunity and respect for the inherent dignity of persons with disabilities. Interestingly, during the third session of the Ad Hoc Committee, the Asia Pacific Forum pointed out that the principle of difference is ‘based on, and states quite effectively, the concept that disability is a universal feature of the human condition and that legislation, social policies and environments should accordingly reflect the full range of diversity of abilities that exist in society’.154 This emphasis on diversity was a prevalent theme in subsequent sessions. For instance, Chile suggested, during the fourth session, to redraft the principle of difference in terms of respect for ‘diversity as an essential element of the human condition’.155 Similarly, Mexico proposed to replace the term ‘humanity’ with the concept of ‘human dignity’, whilst the NHRIs recommended that the reference to ‘respect for difference’ be changed to the more universal ‘respect for human diversity’.156

7.  Paragraph (e)—​Equality of Opportunity Like the principles of non-​discrimination and participation, the principle of equality of opportunity is a cornerstone of the Convention. Whilst distinct from the principle of non-​discrimination,157 the two principles are often read together and have been identified as the ‘twin-​pillars’ of the Convention.158 In this sense, the concept of equality reaffirms the essence of the Convention, which is not to create new rights, but to reaffirm existing human rights in the context of disability.159 The principle of equality of opportunity is ubiquitous; it is enshrined in international treaties,160 national constitutions,161 and statutory provisions in several jurisdictions.162 Scholars have argued that this principle establishes a compromise between a somewhat weak egalitarian distributive goal and the use of equal treatment as the ‘normal’ practice.163 For instance, Fredman suggests that equality of opportunity seeks   Available at: .   Available at: . 156  ibid. 157   This distinction between the two principles of non-​discrimination and equality is apparent from the design of article 3.  Each principle is enshrined in a different paragraph. For further analysis on the difference between non-​discrimination norms and equality norms, see Nicholas Bamforth, ‘Conceptions of Anti-​ Discrimination Law’ (2004) 24 Oxford Journal of Legal Studies 693, 704; Hugh Collins, ‘Discrimination, Equality and Social Inclusion’ (2003) 66 Modern Law Review 16; Hugh Collins, ‘Social Inclusion: A Better Approach to Equality Issues?’ (2005) 14 Transnational Law and Contemporary Problems 897; Elisa Holmes, ‘Anti-​Discrimination Rights without Equality’ (2005) 68 Modern Law Review 175; Tarunabh Khaitan, A Theory of Discrimination Law (OUP 2015); Colm O’Cinneide, ‘The Uncertain Foundations of Contemporary Anti-​Discrimination Law’ (2011) 11 International Journal of Discrimination and the Law 7. 158 159   Mégret (n 92) 501.   This is reflected in the purpose of CRPD (Art 1). 160   Equality of opportunity is referred to in article 7(c) ICESCR (employment), article 4(1) CEDAW, articles 28 (education) and 31(cultural participation) CRC, preamble and rule 4 UN Standard Rules, chapter F on Equalization of Opportunities, paras 21–​30 of the World Programme, UNGA Res 37/​52 (3 December 1982), preamble, para 20 and articles 20 and 27 Revised European Social Charter, and preamble and article 4 ILO Convention Concerning Vocational Rehabilitation and Employment (Disabled Persons) No 159 (ILO Convention, 1983). 161   Section 16, Constitution of Finland (2011), s 15 Canadian Charter and Constitution of SA. 162   For instance, Equality Act 2010, s 149 (UK) and the Human Rights and Equality Commission Act 2014, s 42(1) (Ireland). 163   Collins, ‘Discrimination, Equality and Social Inclusion’ (n 153) 20; Timothy Macklem, ‘Equality and Opportunity—​Reconciling the Irreconcilable’ (2005) 68 Modern Law Review 1016, who notes that this compromise is, in essence, political and reconciles many parties, who would otherwise fight against one another (1033). 154 155

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to equalize a starting position, by removing material obstacles at the starting line.164 To quote Fredman, ‘[o]‌nce all have equal opportunities, they should be judged on individual merits.’165 Fredman points out that this conception of equality is compatible with inequality in results.166 In the context of disability, equality of opportunity places greater emphasis on institutional and environmental barriers. The principle presupposes that by removing institutional barriers, persons with disabilities who have been historically excluded will be in the position to achieve substantive equality.167 For the purposes of this chapter, and without delving further into this debate,168 suffice it to say that the concept of equality was, from the outset of the drafting process, associated with a substantive approach. According to the Danish Institute, equality of opportunity is closely intertwined with the concept of ‘difference’. In addition, it noted that this concept takes into account both personal and environmental barriers and that positive actions may be required to accommodate differences.169 Put another way, equality of opportunity is distinct from the equality of treatment principle, which is observed in other provisions of the Convention.170 It is closely associated with the principles of respect for difference and respect for the inherent dignity of all human beings regardless of difference. When read together, these principles reflect the purpose of the Convention, which is not only about reaffirming the intrinsic worth of each human being and their dignity, but also about their equal inherent self-​worth. Within the architecture of the Convention, the concept of equality is referred to in most of the substantive provisions with few exceptions.171 Aspects of equality are further enshrined in article (3)(g) discussed below and in two stand-​alone articles, namely article 5 and article 12, concerning equality before the law, which are discussed further elsewhere in this volume. It is noteworthy that the principle of equality of opportunity is of particular importance in the context of socio-​economic rights. This is reflected in provisions relating to independent living,172 education,173 and employment.174

8.  Paragraph (f)—​Accessibility The principle of accessibility has long been recognized in international human rights law. Aspects of the principle may be found in article 25(c) ICCPR,175 article 5(f ) of 164   For further analysis on the meaning of equality of opportunity, see Sandra Fredman, Discrimination Law (OUP 2002), ch 1; Sandra Fredman, ‘Substantive Equality Revisited’ (2016) 14 International Journal of Constitutional Law 712; Collins, ‘Social Inclusion: A Better Approach to Equality Issues?’ (n 153). 165 166   Fredman, ‘Substantive Equality Revisited’ (n 164).  ibid. 167   For further discussion of the principle of equality of opportunity in the context of disability, see Marcia Rioux and Christopher Riddle, ‘Values in Disability Policy and Law: Equality’ in Marcia Rioux, Lee A Basser, and Melinda Jones (eds), Critical Perspectives on Human Rights and Disability Law (Brill 2011) 37, 44. 168   For an in-​depth analysis of the debate relating to the meaning of equality, see (n 157); Arnardóttir (n 102). 169   Statement available at:  (n 73). 170   According to this Aristotelean approach, like cases should be treated alike and unlike cases unalike. For instance, gender equality refers to the equality treatment principle as does equality before the law enshrined in art 12 CRPD. 171   Only articles 16, 20, and 26 CRPD do not refer to a form of equality. 172   Art 19(a) relates to the opportunity to choose one’s place of residence. 173   Art 24(1) refers to equality of opportunity in the context of an inclusive education system. 174   Art 27(1) reaffirms the right of persons with disabilities to the opportunity to gain a living. 175   Art 25(c) enshrines the right of every citizen to have access, on general terms of equality, to public service in his or her country.

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the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),176 and rule 5 of the UN Standard Rules.177 In addition, the importance of this principle in the context of disability has been emphasized by the UN Committee on Economic, Social and Cultural Rights,178 the UN Committee on the Rights of the Child,179 and the report on disability by the World Bank.180 Within the Convention, the principle of accessibility serves as a powerful instrument for realizing the purpose of the CRPD, that is for guaranteeing the full and effective participation of persons with disabilities in society. Indeed, the CRPD Committee views the principle as ‘a disability-​specific reaffirmation of the social aspect of the right of access’ and as a ‘precondition for the effective and equal enjoyment of civil, political, economic, social and cultural rights by persons with disabilities’.181 In this sense, the principle of accessibility, together with the principles of autonomy and equality, reflect the indivisibility and interdependence of all human rights.182 The CRPD Committee places a strong emphasis on the relationship between accessibility and equality of opportunity, noting that ‘[w]‌ithout access to the physical environment, to transportation, to information and communication, including information and communications technologies and systems, and to other facilities and services open or provided to the public, persons with disabilities would not have equal opportunities for participation in their respective societies.’183 The Committee also observes that a denial of accessibility ‘should be viewed in the context of discrimination’, although accessibility should be differentiated from reasonable accommodation in the sense that the latter is individually focused, whereas the former is group focused.184 Accordingly, it seems that accessibility is a cornerstone of both the principles of non-​ discrimination and equality and the principles of participation and inclusion.

176   Art 5(f ) guarantees that everyone has the right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafes, theatres, and parks. 177   Rule 5 affirms the ‘overall importance of accessibility in the process of the equalization of opportunities in all spheres of society. For persons with disabilities of any kind, States should (a) introduce programmes of action to make the physical environment accessible; and (b) undertake measures to provide access to information and communication.’ (n 113). 178   CESCR Committee, ‘General Comment No 5: Persons with Disabilities’ (n 114) paras 17 and 33. 179   CRC Ctee, ‘General Comment No. 9: Children with Disabilities’ UN Doc CRC/​C/​GC/​9 (27 February 2007), in which the Committee noted that ‘the physical inaccessibility of public transportation and other facilities, including governmental buildings, shopping areas and recreational facilities, was a major factor in the marginalisation and exclusion of children with disabilities and markedly compromised their access to services, including health and education’ (para 39). 180   UN World Health Organization, ‘World Report on Disability: Summary’ UN Doc WHO/​NMH/​VIP/​ 11.01 (2011), in which the World Bank observed that the built environment, transport systems, and information and communication are often inaccessible to persons with disabilities. It further noted that this lack of access often prevents persons with disabilities from enjoying some of their basic rights, such as health, education, employment, and participation (10). 181   CRPD Committee, ‘General Comment No 2’ (n 97) para 1. 182   The universality and interdependence of all human rights is reaffirmed in paragraph (c) preamble. 183   CRPD Committee, ‘General Comment No 2’ (n 97) para 1. 184  Committee on the Rights of Persons with Disabilities, ‘General Comment No 2’ (n 97)  paras 24 and 25.

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9.  Paragraph (g)—​Equality between Men and Women The principle of gender equality is a well-​established principle in international human rights law. It is enshrined in the ICESCR,185 the ICCPR,186 the CRC, and most of the substantive provisions of the CEDAW.187 In General Comment No. 16, the UN Committee on Economic, Social and Cultural Rights clarified that the concept of equality in the context of gender refers both to de jure (formal) and de facto (substantial) equality.188 In this sense, it pointed out that the achievement of de facto equality requires more than simply enacting laws or adopting policies that are prima facie gender-​neutral.189 In the context of the CRPD, the principle of gender equality reaffirms the general ethos of the Convention as a non-​discrimination and equality instrument. Interestingly, gender equality was not initially included in the draft prepared by the Working Group. However, during the third and fourth sessions, several delegations supported the view that the issue of gender should be explicitly addressed by the Convention.190 As it stands, the Convention goes beyond guaranteeing equality in and before the law191 to also guaranteeing gender equality in practice. This holistic approach to equality is particularly preponderant in article 6, which addresses the specific rights of women with disabilities. Read in conjunction with the provisions of the CEDAW, the principle of gender equality further emphasizes the compounded (intersectional) forms of discrimination that women with disabilities face in practice.

10.  Paragraph (h)—​Respect for the Evolving Capacities of Children with Disabilities and Respect for the Right of Children with Disabilities to Preserve their Identities Whilst gender equality heeds the situation of women with disabilities, the principle of respect for the evolving capacities of children addresses the specific rights of children with

185   Art 3 ICESCR provides that ‘[t]‌he States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant’. 186   Like the ICESCR, Art 3 ICCPR provides that ‘[t]‌he States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant’. 187   For instance, reference to the principle of equality between men and women may be found in the preamble and in Arts 2, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 23 CEDAW. 188   UN Committee on Economic, Social and Cultural Rights, ‘General Comment No 16: The Equal Right of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights’ UN Doc E/​C12/​2005/​4 (11 August 2005) paras 17–​21, available at: . 189   UN Committee on Economic, Social and Cultural Rights, ‘General Comment No 16’ (n 184) para 8. 190   Costa Rica, Canada, Mexico, and Norway were the initial proponents for including a gender perspective on equality. The proposal was also supported by Chile, Republic of Korea, International Disability Caucus, International Save the Children Alliance, and People with Disability Australia during the fourth session of the Ad Hoc Committee. Interestingly, the EU was initially reluctant to introduce this principle, although its view quickly changed in the fourth session of the Ad Hoc Committee. See Daily summary, session 3, available at:  and session 4, available at: . 191   Art 12 CRPD.

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disabilities, which are further mentioned in paragraph (r) of the preamble192 and protected in article 7 of the Convention.193 The principle of respect for the evolving capacities of children with disabilities is a novel principle in international human rights law. The CRC, which is the first human rights treaty that prohibits discrimination against children on the basis of disability194 and recognizes the rights of children with disabilities to have access to special care and assistance in the domestic legal orders,195 does not explicitly refer to the principle of respect for the evolving capacities of children with disabilities. The two provisions that come the closest to the principle of respect for the evolving capacities of children with disabilities are article 5 CRC, which refers to the evolving capacities of children, and article 23(1) CRC, which requires states party to ‘ensure dignity, promote self-​reliance and facilitate the active participation [of a child with disability] in the community’. As mentioned above, this principle was suggested during the seventh session of the Ad Hoc Committee by the International Disability Caucus (IDC).196 The IDC was of the view that, in general, children have a different legal status than adults, in the sense that they lack autonomy in the exercise of their rights. The IDC noted: [t]‌hese rights are granted to their parents who have responsibilities for decision-​making in respect of their children. Only gradually, as they acquire capacity, do these rights transfer to them. The principle that children should acquire the right to take responsibility for the exercise of their rights is embodied in article 5 of the CRC. However for children with disabilities, this process of gradual transfer of decision-​making responsibility is widely denied. There is too little recognition or willingness to allow them to exercise their rights for themselves. Children and young people with disabilities argue strongly for greater respect for their capacities and the right to independent decision-​making.197

The main concern that emerged during the negotiation of this principle was that the absence of a provision dealing exclusively with the rights of children with disabilities would have the effect of excluding children from the scope of the Convention.198 This concern was also expressed by UNICEF, which drew particular attention to the ineffective implementation of the CRC in the context of children with disabilities.199 In its statement to the Ad Hoc Committee, UNICEF observed that, although the CRC applies in theory to all children, including children with disabilities: ‘evidence from monitoring the implementation of the CRC suggests that governments do not give consideration to the rights of children with disabilities except with respect to the provisions of article 23’.200 In this context, UNICEF was supportive of the inclusion of a principle that pays particular attention to children with disabilities and that subsequently imposes obligations on governments to ensure that they are afforded equal respect for their rights. 192   Para (r) preamble reaffirms the principle according to which ‘children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children’ and recalls the ‘obligations undertaken by States Parties to the Convention on the Rights of the Child’. 193 194   For further details, see chapter discussing article 7 of the Convention.   Art 2 CRC. 195   Art 23 CRC. 196  The draft of the IDC was supported by other delegations, in particular South Africa, the Russian Federation, Canada, Costa Rica, Israel, Kenya, and Bosnia and Herzegovina. 197   Available at: . 198  This concern was also expressed by UNICEF in its Statement for the Seventh Session of the Ad Hoc Committee 16 January–​3 February 2006, available at:  . 199   UNICEF (n 198).    200  ibid para 3(2).

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As it stands, the principle of respect for the evolving capacities of children is closely intertwined with the principle of participation. Article 12 CRC recalls that children should participate in decision-​making that relates to their life and that the views of children should be given ‘due weight in accordance with [their] age and maturity’. Like the principle of gender equality, the inclusion of a principle concerning respect for the evolving capacity of children with disabilities has a double effect. First, it complements the provisions of the CRC with respect to children with disabilities. Second, it heeds the situation of girls with disabilities, who are often more vulnerable than other children due to gender discrimination.201 As pointed out by the Committee on the Rights of the Child, some children with disabilities, such as girls with disabilities, indigenous girls with disabilities, and children with disabilities living in rural areas are specially vulnerable due to multiple forms of discrimination.202

201

  See paras (p) and (q) preamble and Art 6 CRPD.   CRC Ctee, ‘General Comment No 9’ (n 179) para 8.

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Article 4 General Obligations 1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake: (a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention; (b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities; (c) To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes; (d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention; (e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise; (f) To undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in article 2 of the present Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines; (g) To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and

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communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost; (h) To provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities; (i) To promote the training of professionals and staff working with persons with disabilities in the rights recognized in this Convention so as to better provide the assistance and services guaranteed by those rights. 2. With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights, without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law. 3. In the development and implementation of legislation and policies to implement the present Convention, and in other decision-​ making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations. 4. Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of persons with disabilities and which may be contained in the law of a State Party or international law in force for that State. There

Article 4 shall be no restriction upon or derogation from any of the human rights and fundamental freedoms recognized or existing in any State Party to the present Convention pursuant to law, conventions, regulation or custom on the pretext that the present Convention does not

recognize such rights or freedoms or that it recognizes them to a lesser extent. 5. The provisions of the present Convention shall extend to all parts of federal states without any limitations or exceptions.

1. Introduction 2. Background and Travaux Préparatoires 3. Paragraph 1 3.1 Ensure and Promote the Full Realization of All Human Rights and Fundamental Freedoms for All Persons with Disabilities 3.2 Without Discrimination of Any Kind on the Basis of Disability 4.1 Paragraph 1(a)

4.1.1 All Appropriate Legislative, Administrative, and Other Measures

4.2 Paragraph 1(b) 4.3 Paragraph 1(c) 4.4 Paragraph 1(d) 4.5 4.6 4.7 4.8 4.9

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Paragraph 1(e) Paragraph 1(f ) Paragraph 1(g) Paragraph 1(h) Paragraph 1(i)

4.9.1 ‘Training of professionals and staff working with persons with disabilities’

5. Paragraph 2 5.1 Progressive Realization 5.2 Maximum of Available Resources 6. Paragraph 3 7. Paragraph 4 7.1 Provisions which are More Conducive to the Realization of the Rights of Persons with Disabilities 7.2 No Restriction upon or Derogation from 8. Paragraph 5: All Parts of Federal States

107 108 116 116 117 119 119 120 121 122 122 122 125 127 129 129 129 131 131 132 134 137 137 137 138

1. Introduction The UN Convention on the Rights of Persons with Disabilities (CRPD) sets forth a host of obligations in article 4 thereof, with a view to encouraging national legal and policy reform and guiding domestic implementation of the Convention. The content of article 4 CRPD is of cross-​cutting application, since it contains overarching principles that permeate the text of the Convention as a whole. The obligations contained in article 4 CRPD thus seek to contextualize the interpretation of the substantive provisions of the Convention. Article 4 enumerates both general obligations and specific obligations, including the obligation to universally design structures. This distinguishes it broderick

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from similar provisions in other human rights treaties,1 which are more in the nature of general obligations of compliance. As Della Fina has pointed out, article 4 is ‘a key provision’ in fully understanding the duties undertaken by states parties to the Convention ‘as the norm defines the scope of these obligations and their legal nature’.2 During the negotiating sessions leading up to the adoption of the CRPD, states themselves recognized ‘the importance of article 4 as a guide [ . . . ] on the nature and implementation of their legal obligations’.3 It is to those negotiating sessions that we now turn, in order to extract vital information to allow us to understand the key provisions of article 4 CPRD.

2.  Background and Travaux Préparatoires The drafting of article 4 proved to be a difficult task. In the seventh session of the Ad Hoc Committee, the Chairman of the Committee, Don MacKay (Ambassador of New Zealand), noted that the draft article on general obligations (draft article 4) was to contain a great deal of material that had been moved from other articles of the Convention ‘in order to consolidate up front elements perceived to be of a general, generic and cross-​ cutting nature’.4 The objective of this was ‘to reinforce their overall applicability and reduce the textual overload created by constant repetition of particular points throughout the various articles’.5 Among the principles incorporated into the final version of article 4 are universal design of goods, services, equipment, and facilities; new technologies; accessible information; consultation with, and active involvement of, persons with disabilities (through their representative organisations) in the development of legislation and policies to implement the Convention, as well as language relating to the progressive realization of economic, social and cultural obligations. The discussions on draft article 4 were wide-​ranging in scope. During the negotiations at the third session of the Ad Hoc Committee, a proposal was put forward by some countries6 to include a specific provision on the right to remedies. The Bangkok recommendations7 noted that ‘there should be enforcement mechanisms, including provision of remedies, within institutional and/​or judicial systems’.8 Notwithstanding this, the original Working Group text of draft article 4 did not include any reference to remedies and

  See eg Art 2 ICCPR and Arts 2 and 3 CEDAW.   Valentina Della Fina, ‘Article 4 [General Obligations]’ in Valentina Della Fina, Rachele Cera, and Giussepe Palmisano (eds), The United Nations Convention on Human Rights: A Commentary (Springer 2017) 141. 3   See the comments of Canada, Ad Hoc Committee, ‘Daily Summary of discussions at the fourth session of UN Convention on the Rights of Persons with Disabilities (24 August 2004), available at: . 4   Ad Hoc Committee, ‘Daily Summary of discussions at the seventh session of UN Convention on the Rights of Persons with Disabilities’ (30 January 2006), available at:  . 5 6  ibid.   Inter alia, the African group and Thailand. 7   Bangkok Recommendations:  Expert Group Meeting and Seminar on an International Convention to Protect and Promote the Rights and Dignity of Persons with Disabilities, Bangkok, Thailand, 2–​4 June 2003. 8   Ad Hoc Committee, ‘Compilation of Proposals for Elements of a Convention’ (15 January 2004) 86, available at:  (accessed 6 April 2017). This document is comprised of the Compilation of proposals for a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, UN Doc A/​AC265/​ 2003/​CRP/​13 (New York, 16–​27 June 2003) and the NGO contributions to the elements of a convention, UN Doc A/​AC.265/​2003/​CRP.13/​Add.1 (New York, 16–​27 June 2003). 1 2

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many delegations commented on this omission.9 A footnote was added to the Working Group’s report on draft article 4, which stated that previous versions of that article had included specific provisions on the right to an effective remedy.10 These had not been incorporated into the Working Group’s final draft due to the concern that there was insufficient consensus in international human rights law on the issue to justify including a specific article on the right to an effective remedy or access to justice.11 The Asia-​Pacific Forum of National Human Rights Institutions (APF) suggested a rather long addition to the draft of article 4, to include references to remedies.12 However, some delegations13 at the negotiating sessions noted that while the ICCPR14 includes such a provision, the ICESCR15 does not. They noted that it may be difficult, therefore, to include such an article in a convention that elaborates the rights contained in both Covenants. No consensus was reached on the issue of including a provision on remedies in article 4 at the third session and this issue would return several times as a topic of lengthy discussion in later sessions of the Ad Hoc Committee. On a separate topic, Ireland, speaking on behalf of the EU, stated that it had looked carefully at draft articles 4, 5, and 7, because it believed that these three articles ‘dealt to a large extent with non-​discrimination and ways and means to assure non-​discrimination’.16 For that reason, the EU delegation made a proposal which provoked controversy during the negotiations at the third session of the Ad Hoc Committee. The proposal related to the merging of draft article 4 with draft article 5 (on positive attitudes to persons with disabilities) and draft article 7 (on equality and non-​discrimination) to form a single article. The EU delegation suggested that these merged provisions would establish a set of principles needed to secure non-​discrimination for persons with disabilities. The delegation proposed a new title for the proposed article, namely ‘Non-​Discrimination’ and sought to amend the chapeau of paragraph 1 of draft article 4 to focus on securing non-​ discrimination for persons with disabilities. Several delegations, including Mexico, expressed ‘deep concern’ at the direction of the debate, which the Mexican delegation felt was ‘very quickly moving away from the [Working Group] text’.17 Mexico was of the opinion that should the EU proposal form the basis of the provision on general obligations, it would ‘mutilate’ the Working Group text.18 The Kenyan delegation felt that the Convention went ‘beyond fighting discrimination’ and therefore that the EU proposal should not be adopted. The European Disability Forum (EDF) also objected to the EU 9   See Ad Hoc Committee, Working Group to draft a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, ‘Report to the Ad Hoc Committee, Annex I’ (16 January 2004)  fn 18, available at:  . 10 11   ibid fn 18.  ibid. 12   See United Nations Enable, ‘NGO Comments on the draft text: Draft Article 4, Proposal by Asia Pacific Forum of National Human Rights Institutions’ (25 May 2004), available at: . 13   Japan, for instance, associated itself with the comments of South Korea, Australia, New Zealand, Canada, and Serbia and Montenegro, stating that it was cautious about a general obligation on remedies. Ad Hoc Committee, ‘Daily Summary of discussions at the fourth session of UN Convention on the Rights of Persons with Disabilities’ (30 August 2004), available at:  . 14 15   UNGA Res 2200A (XXI) (16 December 1966).  ibid. 16   Ad Hoc Committee, ‘Daily Summary of discussions at the third session of UN Convention on the Rights of Persons with Disabilities’ (24 May 2004), available at: . 17 18  ibid.  ibid.

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proposal to merge the draft article on general obligations with a non-​discrimination provision, in particular restricting the chapeau to non-​discrimination. The general consensus was that the EU’s proposal would substantially narrow the scope of the Convention and that the chapeau of the article on General Obligations should be in line with the purpose of the Convention in article 1.19 Ireland, speaking on behalf of the EU, responded to the comments of delegations regarding the foregoing proposal as follows: The EU advocated four basic principles—​non-​ discrimination, equality of opportunity, autonomy, and participation/​inclusion—​and the EU sought to ensure that those principles remained at the core of the final draft. Non-​ discrimination is an essential element, which needs to be reflected in the Convention. This is why the EU proposed strengthening the language of non-​discrimination, but its intention was not ‘to dilute’ article 4.20 During the third session of the Ad Hoc Committee, the EU also put forward a proposal to reword paragraph (c) of draft article 4,21 which required states parties to mainstream disability issues into all economic and social development policies and programmes. The following rewording was suggested by the EU:  ‘States shall ensure that the needs and concerns of [persons with disabilities] are incorporated into economic and social development plans and policies, and not treated separately’.22 The rewording was put forward by the EU in order to address its concerns with regard to the use of the word ‘mainstreaming’ in an international legal instrument. Liechtenstein also maintained that another wording should be used, particularly that which was contained in draft article 4(1)(c), as it claimed that the term ‘mainstreaming’ was difficult to translate into other languages.23 However, EDF objected to the phrase: ‘not treating persons with disabilities separately’, as proposed by the EU, as it was of the opinion that mainstreaming requires a twin-​track approach, calling for specific programs while promoting inclusion in regular ones. On a separate issue, Canada advocated24 the removal of the words ‘within their jurisdiction’ from paragraph 1 of draft article 4, which contained the following chapeau: ‘States parties undertake to ensure the full realisation of all human rights and fundamental freedoms for all individuals within their jurisdiction’. The draft article also contained a footnote,25 which stated that the phrase ‘within their jurisdiction’ would need closer 19   Lebanon, New Zealand, Costa Rica, Jordan, and others questioned whether the EU proposal supported the underlying purposes of the Convention. National Human Rights Institutions (NHRIs) felt that focusing on non-​discrimination would substantially narrow the scope of the Convention and would signal a move away ‘from a comprehensive international instrument’. Ad Hoc Committee, Daily Summary of discussions at the third session of UN Convention on the Rights of Persons with Disabilities (25 May 2004), available at: . 20  Ad Hoc Committee, Daily Summary of discussions at the third session of UN Convention on the Rights of Persons with Disabilities (25 May 2004), available at: . 21  Ad Hoc Committee, Daily Summary of discussions at the third session of UN Convention on the Rights of Persons with Disabilities (24 May 2004), available at: . 22  ibid. 23   Serbia also expressed general support for the EU’s proposal, as it felt that ‘mainstreaming’ was ‘a term that people who are not from the disability movement might not know’. 24   See (n 21). 25   See Ad Hoc Committee, Working Group to draft a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, ‘Report to the Ad Hoc Committee, Annex I’ (16 January 2004) fn 18, available at:  .

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examination by the Ad Hoc Committee. The footnote pointed to the fact that the phrase was reproduced from article 2 of the Convention on the Rights of the Child (CRC) and ‘may be too inclusive and imply, for example, that rights that are not guaranteed for non-​ citizens could be extended to non-​citizens with disabilities’. The Canadian delegation maintained that the inclusion of the phrase ‘within their jurisdiction’ presented complications with regard to the personal scope of the Convention. During the negotiations at the fourth session of the Ad Hoc Committee, The Netherlands (speaking for the EU) withdrew the EU’s previous proposal to merge draft articles 4, 5, and 7 into a separate and stand-​alone article 3.26 The EU also withdrew its amendment to draft article 4(1)(c), given feedback (in particular from NGOs) that the wording ‘and not treated separately’ might ‘create a false impression that the EU is against specific disability programmes or policies’.27 The Facilitator at the fourth session noted that the phrase ‘within their jurisdiction’ is ‘limiting’,28 and there appeared to be quite a lot of support for the deletion of that phrase. The Facilitator acknowledged that it did not really ‘make sense’29 to engage in a debate on the issue if the whole sentence was going to be reshaped in light of article 1 of the Convention. The phrase ‘within their jurisdiction’ was not retained in the final text of the CRPD, which simply clarifies the personal scope of the Convention as encompassing all persons with disabilities, including those who have ‘long-​term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’.30 Discussions began about the issue of progressive realization at the fourth session of the Ad Hoc Committee. The language proposed by delegations on progressive realization was largely drawn from article 2(1) International Covenant on Economic, Social and Cultural Rights (ICESCR) and article 4 CRC. Israel proposed the addition of a third paragraph to draft article 4 based on the text of article 4 CRC. The Israeli delegation was of the opinion that the second sentence of its proposed text should be amended to cite the Convention articles to which progressive realization would apply. Several delegations later rejected adding specific articles to the text on progressive realization.31 Israel also suggested that the second sentence of its proposed text should be amended so that the phrase ‘with a view to achieving progressively the full realization of such rights’ (based on article 2 (1) ICESCR) would replace the last phrase on international cooperation.32 26   Ad Hoc Committee, Daily Summary of discussions at the fourth session of UN Convention on the Rights of Persons with Disabilities (24 August 2004), available at:  . 27  ibid. 28   Ad Hoc Committee, Daily Summary of discussions at the fourth session of UN Convention on the Rights of Persons with Disabilities (31 August 2004), available at:  . 29 30  ibid.   Art 1 CRPD. 31   Liechtenstein stated that the proposal to specifically enumerate the provisions that were to be subject to progressive realisation was ‘not useful’ as almost all the articles in the convention are ‘somewhat heterogeneous in themselves’, and there is also ‘no clear distinction between civil and political rights and economic, social and cultural rights’. Furthermore, it was felt that it was ‘unnecessary to reference articles which can be given immediate effect by States and is not possible because the specific circumstances of each State will differ’—​see (n 26). 32   Ad Hoc Committee, Daily Summary of discussions at the fourth session of UN Convention on the Rights of Persons with Disabilities (25 August 25 2004), available at: .

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The Coordinator of the session asked delegations to indicate whether they had a preference for the CRC or ICESCR language. Most countries favoured the CRC language, as it mentions economic, social and cultural rights explicitly. The EU noted that the language from the CRC was adequate from its perspective.33 India noted that there were differences in support among delegations for the CRC and ICESCR formulations, and a number of delegations had suggested the need to introduce the concept of progressive realization itself in the draft text (and not just the concept of ‘maximum resources’). India proposed merging textual references from article 4 CRC and article 2 ICESCR, noting that a combination of the wording in the two provisions ‘would cater to the legitimate concerns of developing countries’, where resource constraints only permit progressive realization of economic, social and cultural rights. India proposed adding a reference to progressive realization in draft article 4 CRPD, while retaining article 4 CRC as a basis. Thus, it was proposed to add the following text: ‘With a view to achieving progressively the full utilization of these rights’ after the phrase ‘States parties shall undertake such measures’ (in Israel’s proposed text above). According to Lebanon, clearly referencing the aim of progressive realization was ‘absolutely necessary’ if the CRC wording was to be adopted. Canada also supported a blend of article 4 CRC and the phrase ‘progressive realization’ or ‘progressively realized’ from the ICESCR. Canada agreed with India’s proposal to add text, such as ‘with a view to achieving progressively the full realization of these rights’. Since the language mirrors the language used by the Committee on Economic, Social and Cultural Rights (CESCR) in its elaboration on the obligations inherent in article 2(1) ICESCR, Canada was of the opinion that the language would be appropriate in the context of the CRPD. The Coordinator of the session noted that the language proposed acknowledges the fact that ‘different countries may vary in their capacity (particularly economic capacity) to implement economic, social and cultural rights at a particular time’. He noted that delegations appeared open to expressly referencing progressive realization in draft article 4 (noting support from Lebanon, Canada, Costa Rica, and others). Thailand was concerned, however, that not expressly referencing the need to give immediate effect to rights could lead to some forms of non-​discrimination being subject to progressive realization. The Coordinator requested delegations to address the concerns of Thailand and its proposal that the language from article 4 CRC be used but stated that language should also be added ‘specifying an affirmative obligation to give immediate effect to those aspects of economic, social and cultural rights capable of immediate implementation’.34 The final text of article 4(3) CRPD reflects this suggestion put forward by Thailand, as will be outlined below. The next issue for consideration at the fourth session of the Ad Hoc Committee was the proposal to combine provisions that addressed the involvement of persons with disabilities in activities and decision-​making that affect them, since there was considerable overlap and repetition throughout the draft set of articles proposed by the Working Group. Participants at the negotiating sessions also raised the issue of inclusion of families of persons with disabilities. India, for instance, wanted to incorporate the words ‘and 33   Ad Hoc Committee, Daily Summary of discussions at the fourth session of UN Convention on the Rights of Persons with Disabilities (30 August 2004), available at:  . 34  ibid.

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their families where appropriate’ to the draft proposed by the Working Group,35 which simply read as follows: In the development and implementation of policies and legislation to implement this convention, states parties shall do so in close consultation with, and include the active involvement of, persons with disabilities and their representative organisations.36

Thailand did not object to the Indian proposal but considered it difficult to identify the circumstances in which such consultation would be appropriate.37 The Coordinator of the session noted that there was considerable divergence of views and that a substantial number of delegations were ‘not entirely comfortable with’ including references to families ‘on the same level as persons with disabilities’.38 Some delegations expressed concern that a reference to families in the general obligations would weaken the focus of the convention. Norway was ‘a bit skeptical’ about the introduction of the concept of families in an article on general obligations.39 Mexico agreed with Norway (and others) that the focus ‘should be on persons with disabilities, their rights, and empowering them to develop autonomously’.40 One alternative suggested by the Coordinator of the session was the option to reference families on an article-​by-​article basis, rather than introducing it as a general obligation. This is what was done in the end.41 The issue of remedies came up again in the fourth session of negotiations of the Ad Hoc Committee, when Lebanon reiterated its support for the inclusion of a provision on remedies as a general obligation, finding support for its position in paragraph 5 of the CESCR’s General Comment No 3. The Coordinator of the session noted the generally strong support that was evident with regard to including a provision on remedies in the Convention, with many supporting its incorporation in the provision dealing with general obligations and some suggesting that it would be best placed in draft articles 7 (non-​discrimination) or 9 (legal capacity).42 At the beginning of the negotiations at the seventh session of the Ad ​Hoc Committee, several states submitted lengthy written proposals on various issues of debate.43 Austria, on behalf of the EU, proposed the insertion of a non-​retrogression clause to ensure that the Convention did not ‘grant lower rights’ to people with disabilities than those that were currently available. It suggested text drawn from article 5(2) ICCPR, as reflected in its written proposal.44 With regard to the debate surrounding a provision on remedies and enforcement, Canada expressed concern about introducing remedies with regard to the rights contained in the CRPD. It pointed out that to include the concept in the CRPD would represent a significant departure from legal precedent. It noted that economic and social rights are of a different nature than civil and political rights and questioned

 ibid.  United Nations, Working Group to draft a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, Report to the Ad Hoc Committee, Annex I  (16 January 2004), available at:  . 37 38 39 40   See (n 33).  ibid.  ibid.  ibid. 41 42   See the final text of Art 16(2), Art 23(3), Art 28(1), and Art 28(2)(c).   See (n 33). 43  Written proposals were received from:  Australia, available at:  ; Chile, available at:  ; Kenya, available at:  ; and the EU, available at: . 44   See . 35 36

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whether they should be implemented through direct remedies, particularly in dualist systems such as that found in Canada. Even though there was much debate surrounding, and much support expressed for, the inclusion of a provision on remedies, in the end the proposal was not adopted. It was concluded that a general provision on remedies was not appropriate as there was no international consensus45 on remedies in relation to economic, social, and cultural rights, and that no such provision exists in the ICESCR. It was felt that any provision adopted on remedies in the CRPD in relation to civil and political rights would create unnecessary distinctions between civil and political rights and economic, social, and cultural rights, and, moreover, the ICCPR already provides for remedies.46 Discussions on the issue of progressive realization were also resumed at the seventh session of the Ad ​Hoc Committee. Senegal, on behalf of the African Group, proposed amending the end of the draft provision on progressive realization, as proposed in earlier sessions by Israel (and outlined above). In order to ensure that immediate effect was given to those aspects of economic, social, and cultural rights capable of immediate implementation, Senegal suggested adding the following phrase: ‘With a view to achieving progressively the full realization of these rights, except where this would result in discrimination on the basis of disability’.47 The delegation of National Human Rights Institutions (NHRIs) expressed the view that ‘immediate application of social and cultural rights goes well beyond non-​discrimination’48 and that this was not accurately reflected in the Senegalese proposal. It also noted that some rights described in the treaty could be classified as ‘hybrid rights’, for instance accessibility, ‘of which some aspects could take effect immediately and some only progressively’.49 NHRIs requested that the text be amended to give immediate effect to those rights that ‘can be put into immediate effect, including, but not limited to, non-​discrimination’.50 Austria, on behalf of the EU, suggested adding the following phrase instead of the phrase proposed by the Senegalese delegation: ‘Without prejudice to the immediately applicable obligations emanating from international human rights law’.51 The final text of article 4(2) CRPD reflects the proposal by Austria. It reads as follows: With 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, without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law.52

Regarding the concerns that some delegates had surrounding the use of the word ‘mainstreaming’ in an international human rights treaty, the International Disability Caucus (IDC) suggested that there should be an alternative wording to draft article 4(1)(c) of the 45   See eg Ad Hoc Committee, Daily Summary of discussions at the seventh session of UN Convention on the Rights of Persons with Disabilities (30 January 2006), available at: . 46   See eg the comments of New Zealand, Ad Hoc Committee, Daily Summary of discussions at the fourth session of UN Convention on the Rights of Persons with Disabilities (25 August 2004), available at:  (accessed 14 April 2017). 47   See (n 45). 48   Ad Hoc Committee, Daily Summary of discussions at the seventh session of UN Convention on the Rights of Persons with Disabilities, (31 January 2006), available at:  . 49 50 51 52  ibid.  ibid.   See (n 45).   Art 4(2) CRPD.

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Working Group53 in order to ensure integration of persons with disabilities in all policies and programs, not only those related to economic and social development.54 The EU suggested the following wording to replace draft article 4(1)(c): ‘That the protection and promotion of the human rights of persons with disabilities should be taken into account in all policies and programmes’,55 and the delegation from Serbia and Montenegro slightly refined the EU’s chosen language. The wording adopted in the final text of article 4(1) (c) reflects the language proposed by Serbia and Montenegro, namely that states parties are required ‘to take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes’.56 Concerning the issue of participation of persons with disabilities in the implementation of the Convention, the original draft article 4(2), which would later become article 4(3), was worded as follows: In the development and implementation of policies and legislation to implement this convention, states parties shall do so in close consultation with, and include the active involvement of, persons with disabilities and their representative organisations.57

The Arab Organization of Disabled People noted that draft article 4(3) ‘could potentially be interpreted to sideline representative organizations by allowing governments to say that they had negotiated with persons with disabilities’ and wished to avoid this possibility by deleting the word ‘and’ (in italics above) and replacing it with ‘through’ or ‘by means of ’.58 In the final text of article 4(3) CRPD, this suggestion has been taken on board—​it provides that ‘States parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations’.59 After lengthy discussion on article 4 CRPD, the negotiating sessions of the Ad Hoc Committee regarding that article came to an end. The final text of article 4 incorporates some elements of the original draft of the article suggested by the Working Group. However, following the discussions that took place at the various sessions and the contentious issues that arose therefrom, the content of the final provision on general obligations was altered quite significantly. The final text of article 4 is considerably longer than that put forward by the Working Group in 2004 and includes elements that had not previously been included, most notably the provision on non-​retrogression and progressive realisation. The provision on progressive realisation, in particular, was the subject of detailed and sometimes contentious negotiations on the part of states parties, particularly developing states. Other alterations made to the original draft of article 4 relate to subtle, but significant, textual changes to the draft article (as highlighted above), which alter in some way the interpretation of article 4 obligations for states parties to the CRPD. In the following sections of this chapter, the constituent elements of article 4 CRPD will be broken down in order to delineate the various legal duties arising from the provision itself. Guidance will be drawn from, among others, the general comments and

53   As noted above, draft Art 4(1)(c) of the Working Group required States to mainstream disability issues into all economic and social development policies and programmes. 54   See (n 45). 55 56   See (n 48).  ibid. 57   Ad Hoc Committee, Working Group to draft a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, Report to the Ad Hoc Committee, Annex I, (16 January 2004), available at: . 58 59   See (n 48).   Art 4(3) CRPD, emphasis added.

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concluding observations of the Committee on the Rights of Persons with Disabilities (CRPD Committee), relevant academic commentary and other secondary sources.

3.  Paragraph 1 3.1 Ensure and Promote the Full Realization of All Human Rights and Fundamental Freedoms for All Persons with Disabilities By undertaking to ‘ensure and promote’60 the full realization of the rights of persons with disabilities under the Convention, states parties have vowed to adopt several concrete positive measures in safeguarding the full spectrum of rights contained in the Convention. State responsibility in respect of human rights obligations has been characterized61 as arising at three levels, namely obligations to respect, to protect, and to fulfil. The obligation to ‘ensure’ contained in article 4(1) CRPD corresponds broadly to the final level of the tripartite typology of human rights—​the duty to fulfil. The CESCR has broken down the duty to ‘fulfil’ into obligations to facilitate, to provide and to promote.62 The Committee has asserted that the obligation to fulfil (facilitate) ‘requires states to take positive measures that enable and assist individuals and communities to enjoy’63 a particular right. The Committee observes that states parties are obliged to fulfil (provide) a specific right in the Covenant ‘when an individual or group is unable, for reasons beyond their control, to realize the right themselves by the means at their disposal [ . . . ].’64 The obligation to promote is related to education and awareness-​raising duties for states.65 The obligation to ensure the full realization of rights will entail a duty for states parties to remove manifold barriers, both legal and structural, in order to pave the way towards increased participation and inclusion in society as well as guaranteeing that third parties do so. In that regard, states parties must take account of the underlying theoretical framework of the Convention. According to the embodiment of the social model contained in the CRPD66 (upon which the Convention’s foundations are built), states parties are 60   Notably, it was the Federation of and for People with Disabilities in Kenya that proposed adding ‘and to promote’ after ‘ensure’ in the first line of article 4(1), believing that states ‘cannot ensure the full realization of the rights of persons with disabilities in all instances but they can always promote them’. See (n 48). 61   Henry Shue (ed), Basic Rights, Subsistence, Affluence and U.S. Foreign Policy (2nd edn, Princeton University Press 1996); see also Asbjørn Eide, ‘Realisation of Social and Economic Rights and the Minimum Threshold Approach’ (1989) 10 Human Rights Law Journal 36, 37. 62  For further elaboration on these obligations see, Andrea 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 (Intersentia 2015) at 80–​81. 63   CESCR, General Comment No 13 on the right to education, UN Doc E/​C12/​1999/​10 (8 December 1999) para 47. 64 65  ibid.  ibid. 66   It is important to note that in its original form, the social model of disability was not viewed as ‘interactional’ (unlike its formulation in article 1 CRPD). The fundamental premises of the social model were developed initially by the Union of the Physically Impaired Against Segregation (UPIAS), a British organization advocating for the rights of people with physical disabilities. UPIAS made a distinction between ‘impairment’ and ‘disability’ (defined as ‘the disadvantage or restriction of activity caused by a contemporary social organisation which takes no or little account of people who have physical impairments and thus excludes them from participation in the mainstream of social activities’. UPIAS, Fundamental Principles of Disability, London, 1976, 3–​4). The phrase ‘social model of disability’ was coined by Michael Oliver and was extended by other scholars and activists—​such as Vic Finkelstein, Paul Abberley, and Colin Barnes—​to other forms of disability; see Michael Oliver, ‘If I Had a Hammer’ in Colin Barnes and Geoffrey Mercer (eds), Implementing the Social Model of Disability: Theory and Research (Leeds: The Disability Press 2004), at 18–​31. For more information

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required to target disabling and discriminatory barriers in society, which in interaction with impairment, hinder the full and equal participation of persons with disabilities. The social model is further bolstered by the human rights-​based approach to disability, under which ‘disabled people are viewed as holders of rights, entitled to exercise all human rights and fundamental freedoms on an equal basis with others, entailing the provision of material support where necessary’.67 The duty to promote the full realization of rights for persons with disabilities ties in with article 8 CRPD on awareness-​raising, pursuant to which states parties have undertaken to adopt effective and appropriate measures: (a) To raise awareness throughout society, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities;68 (b) To combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life;69 and (c) To promote awareness of the capabilities and contributions of persons with disabilities.70

The obligation to promote the rights of persons with disabilities can also be seen in article 24(4) CRPD, which requires states parties to ensure the provision of training and incorporation of disability awareness for professionals working at all levels of education, as well as article 25(d) CRPD, which requires states parties to raise awareness of human rights, dignity, autonomy and the needs of persons with disabilities through training and the promulgation of ethical standards for public and private health care.

3.2 Without Discrimination of Any Kind on the Basis of Disability Pursuant to article 4(1) CRPD, states parties are required to ensure and promote the full realization of the substantive rights contained in the Convention ‘without discrimination of any kind on the basis of disability’. The non-​discrimination and equality norms have been described as the ‘leitmotif ’ of the CRPD.71 The Convention endorses a substantive and transformative approach to equality. The CESCR highlights the fact that the substantive model of equality focuses on ‘the effects of laws, policies and practices and with ensuring that they do not maintain, but rather alleviate, the inherent disadvantage that particular groups experience’.72 This will involve, among others, the adoption of widespread positive measures, in the form of reasonable accommodations73 and positive action measures74 (such as quotas and preferential treatment for persons with disabilities in certain circumstances). According to Byrnes, transformative equality goes one step further and can be seen ‘as a form of substantive equality with systemic and structural dimensions’.75 A transformative approach on the social model generally and the shift in disability theory from the medical to the social model, see Tom Shakespeare, Disability Rights and Wrongs (Routledge: London 2006), at 15–​22. 68 69   Broderick (n 62) 1.   Art 8(a) CRPD.   Art 8(b) CRPD.   Art 8(c) CRPD. 71  Oddný Mjoll Arnardóttir, ‘A Future of Multidimensional Disadvantage Equality’ in Oddný Mjoll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Martinus Nijhoff 2009) 41. 72   CESCR, General Comment No 16 on the equal right of men and women to the enjoyment of all economic, social and cultural rights, UN Doc E/​C12/​2005/​4 (11 August 2005), para 7. 73 74   Arts 2 and 5(2) CRPD.   Art 5(4) CRPD. 75   Andrew Byrnes, ‘Article 1’ in Marsha A Freeman, Christine Chinkin, and Beate Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination Against Women (OUP 2012) 56. 67 70

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to equality ‘seeks to address the socially constructed barriers, stereotypes, negative customs, and practices which hinder the full enjoyment of rights by marginalised groups’.76 The non-​ discrimination obligation features heavily throughout the text of the Convention, like a ‘red thread’.77 An important aspect of the definition of discrimination in the CRPD lies in the fact that it has a broad remit. ‘Discrimination on the basis of disability’ has been defined in article 2 of the Convention. ‘Reasonable accommodation’ is also defined in article 2 CRPD. The accommodation duty signifies ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden’ on the duty bearer. The duty to accommodate reflects both the human rights-​based model and the social model of disability. Under the accommodation duty, a wide variety of social actors will be required to modify existing customs, policies, laws and environments to facilitate the enjoyment of rights by persons with disabilities. Other than specifying that a denial of reasonable accommodation is a form of discrimination, the CRPD does not provide further detail on the forms of discrimination to be prohibited by states parties. Of course, article 2 CRPD clearly prohibits direct discrimination. Moreover, the concept of indirect discrimination, whereby laws, policies or practices appear neutral at face value, but have a disproportionately negative impact on persons with disabilities, is inherent in article 2 by virtue of the provision’s reference to the ‘effects’ of any distinctions. It has been acknowledged that ‘since the definition of discrimination under the CRPD covers ‘all forms of discrimination’, it can be taken to mean that harassment is covered, as well as an instruction to discriminate’.78 Prohibiting all forms of discrimination ‘on the basis of disability’ can also be construed as including those who have been discriminated against as a result of their association with a disabled individual,79 or those who experience discrimination due to a past or perceived impairment.80 Several references were made throughout the negotiating sessions to the foregoing elements of disability-​based discrimination81 and the original text of the Working Group also included some of these

  Broderick (n 62) 36.   Lisa Waddington, ‘Equal to the Task? Re-​Examining EU Equality Law in Light of the United Nations Convention on the Rights of Persons with Disabilities’ (2013) 4 European Yearbook of Disability Law 169. 78   Lisa Waddington and Andrea Broderick, ‘Disability law and the duty to reasonably accommodate beyond employment: A legal analysis of the situation in EU Member States, report prepared for the European Network of Legal Experts on Gender Equality and Non-​Discrimination’ (European Commission 2016), available at: . 79   This interpretation is confirmed by prominent scholars in the field. See eg Michael Ashley Stein and Janet Lord, ‘Future prospects for the United Nations Convention on the Rights of Persons with Disabilities’ in Arnardóttir and Quinn (n 71) 28. 80  ibid. 81  The Chair of the Ad  ​Hoc Committee presented Draft Elements for a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities to the Working Group, in which discrimination was defined as including: ‘The less favourable treatment of an associate of a person with a disability because of that other person’s disability or because of the association, and a reference to disability includes a suspected, imputed, assumed or possible future disability, perceived disability, a past disability or the effects of a past disability, or the characteristics of a disability.’ (Draft Elements for a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities to the Working Group, Proposed by the Chair of the Ad Hoc Committee (December 2003)), available at: . 76 77

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aspects in its definition of discrimination.82 None of these aspects of disability-​based discrimination are referred to specifically in the final text of the CRPD. Notwithstanding this, the CRPD Committee has confirmed the expansive interpretation of disability-​ based discrimination. In its concluding observations to Spain, the Committee urged the state authorities to expand the protection of discrimination on the grounds of disability to cover explicitly ‘multiple disability, perceived disability and association with a person with a disability’. The Committee has also recommended that the Spanish Government ensure protection from denial of reasonable accommodation, as a form of discrimination, regardless of the level of disability.83 Trömel observes that this expansive understanding of the definition of disability-​based discrimination will have implications for UN member states ‘when implementing the Convention and, in particular, when drafting national anti-​discrimination legislation’.84 In those states where none, or only some, of the above-​mentioned forms of disability-​ based discrimination are covered, substantial amendments to existing laws will be required in order to bring them in line with Convention obligations. The requirement to prohibit discrimination on the basis of disability is an immediate obligation, also in connection with socio-​economic rights.85 The application of the non-​ discrimination norm, and particularly the duty to reasonably accommodate persons with disabilities across the Convention’s substantive socio-​economic rights, demonstrates part of the transformative power of the CRPD on the whole.

4.1 Paragraph  1(a) 4.1.1 All Appropriate Legislative, Administrative, and Other Measures The obligation incumbent on states parties to give effect to CRPD obligations at the domestic level by adopting ‘all appropriate legislative, administrative and other measures’ is a broad one, which must also be read in light of state parties’ obligations under article 4(1)(b) CRPD below. The requirement to adopt appropriate legislative measures in implementing CRPD rights is also contained in the substantive articles of the Convention, such as article 15(2) (on freedom from torture or cruel, inhuman or degrading treatment or punishment), articles 16(1) and 16(5) (on freedom from exploitation, violence, and abuse) and article 27(1) (on work and employment). While the adoption of legislative measures is indispensable, obligations under article 4(1)(b) encompass a panoply of duties that is much broader than the mere adoption of legislation. The CESCR understands the term ‘appropriate means’ to include the provision of judicial or other remedies, where appropriate, as well as ‘financial, educational and social measures’.86 States parties to the CRPD must take this broad mandate into account 82   Draft article 7(2) of the Working Group stated that: ‘Discrimination shall include all forms of discrimination, including direct, indirect and systemic, and shall also include discrimination based on an actual or perceived disability’, available at: . 83   CRPD Committee, ‘Concluding Observations on Spain’ UN Doc CRPD/​C/​ESP/​CO/​1 (19 October 2011) para 20. 84   Stefan Trömel, ‘A Personal Perspective on the Drafting History of the United Nations Convention on the Rights of Persons with Disabilities’ (2009) 1 European Yearbook of Disability Law 124. 85   CESCR, General Comment No 3 on the nature of States Parties obligations UN Doc E/​1991/​23 (14 December 1990) para 1. 86   ibid para 7.

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when devising ‘other measures’ to implement the Convention. The CESCR has affirmed that ‘it is desirable that states parties’ reports should indicate not only the measures that have been taken but also the basis on which they are considered to be the most “appropriate” under the circumstances’. Moreover, the Committee reminds states parties that ‘the ultimate determination as to whether all appropriate measures have been taken remains one for the Committee to make’.87 The same logic applies to states parties’ obligations under the CRPD, whereby domestic authorities should clearly indicate why they opted for various measures and why those measures are the most appropriate in the national context. The ultimate determination will then be for the CRPD Committee to make based on the facts before it.

4.2 Paragraph  1(b) The obligation contained in article 4(1)(b) of the Convention, requiring states parties to modify or abolish existing laws, regulations, customs, and practices that constitute discrimination, is similar to that contained in article 2 CERD and article 2 CEDAW. The requirement contained in article 4(1)(b) CRPD links in with the requirement of ‘equal protection of the law’ in article 5(1) CRPD. The latter provision essentially mandates that domestic legislatures do not adopt or maintain laws that discriminate against people with disabilities. Pursuant to article 4(1)(b) CRPD, states parties are required to adopt a wide variety of positive measures in order to bring their domestic laws, policies and practices in line with the Convention. In terms of adopting legislative measures, this will entail ensuring in the first instance that the various forms of discrimination identified above,88 including the unjustified denial of reasonable accommodation, are included as a distinct form of discrimination in national legislation. Furthermore, states must ensure that laws do not contain any provisions that inhibit fulfilment of the duty to eliminate discrimination in its various guises.89 The core human rights treaty bodies consider the elimination of de jure discrimination (discrimination in law) to be an essential pre-​requisite for the attainment of de facto equality (equality in fact).90 In its General Comment No. 11 (1999), the CESCR has stated that ‘non-​discrimination must be implemented fully and immediately’. In line with the pronouncements of other treaty bodies, domestic authorities should initiate the process of law reform as quickly as possible and establish a concrete programme for reform of discriminatory legislation and policies.91 The CRPD Committee itself has highlighted the importance of national action plans in bringing laws, policies, and practices in line with the Convention.92 When adopting legislative measures, the comments of the CRPD Committee must be borne in mind, namely that states must revise their domestic laws, including national constitutions, in order to bring them into line with the general principles and obligations contained in the Convention. Furthermore, the revision should cover civil, family, criminal, labour, and education law.93 88 89   ibid para 8.   See section 3(2) above.   Broderick (n 62) 115.   See the views of Wouter Vandenhole, Non-​Discrimination and Equality in the View of the UN Human Rights Treaty Bodies (Intersentia 2005) 27. 91  CEDAW Committee, Concluding Observations:  Gabon UN Doc CEDAW/​ C/​ GAB/​ CC/​ 2–​ 5 (15 February 2005) para 23. 92   CRPD Committee, Concluding Observations on Austria UN Doc CRPD/​C/​AUT/​CO/​1 (8 October 2012) para 4. 93   CRPD Committee, Concluding Observations on Costa Rica UN Doc CRPD/​C/​CRI/​CO/​1 (12 May 2014) para 8. 87 90

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Once laws have been abolished or modified in line with the Convention’s non-​ discrimination mandate, monitoring mechanisms should be put in place by states parties to the CRPD.94 This remark should be viewed in light of article 33 CRPD, which requires states parties to designate one or more focal points within government for matters relating to the implementation of the Convention and to give due consideration to the establishment or designation of a coordination mechanism within government to facilitate related action in different sectors and at different levels. Article 4(1)(b) of the Convention highlights the fact that legislation is not the only means by which to combat discrimination. In addition to legislative measures, states parties are required to keep a firm eye on the elimination of discriminatory customs and practices. Shadow reports, submitted through the state reporting system, are an effective means by which the CRPD Committee will be alerted to ongoing discriminatory customs and practices. The CRPD Committee has already expressed its concern over discriminatory practices related, for instance, to major anomalies in access to free and compulsory primary education for disabled children, after the Peruvian National Confederation of People with Disabilities drew attention to the fact that 87.1 per cent of school-​age children with disabilities in Peru remain outside of the education system.95 Other discriminatory practices relate, for example, to widespread state laws and practices excluding persons with disabilities from political participation and affecting the voting rights of persons with psychosocial disabilities, in particular.96 In modifying and abolishing existing laws, regulations, customs and practices that constitute discrimination, states are under an obligation to consult with, and actively involve, people with disabilities, through their representative organizations, at all stages of the decision-​making and legal reform process, in line with article 4(3) CRPD (considered below).

4.3 Paragraph  1(c) Paragraph 4(c) of the Convention encapsulates the obligation of disability mainstreaming, reflecting Rule 14 of the United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities.97 A disability mainstreaming approach contends that the full realization of the rights of persons with disabilities can only be ensured by including disability rights in all policies and programmes, both disability-​specific and non-​disability related policies and programmes. The CRPD Committee has commented on the obligation to mainstream disability rights on several occasions. For instance, in its remarks to the Czech Republic, the Committee has urged domestic authorities to 94   CERD Committee, Concluding Observations on Saudi Arabia UN Doc CERD/​C/​62/​CO/​8 (2 June 2003)  para 11; See also CERD Committee, Concluding Observations on Nepal UN Doc CERD/​C/​304/​ Add108 (1 May 2001) para 10. 95  See the Alternative Report on the Compliance with the Convention on the Rights of Persons with Disabilities submitted by the Peruvian National Confederation of People with Disabilities, available at: . 96  On this point, see The European Union Agency for Fundamental Rights, The Right to Political Participation of Persons with Mental Health Problems and Persons with Intellectual Disabilities (Publications Office of the European Union 2013); see also European Union Agency for Fundamental Rights, The Right to Political Participation of Persons with Disabilities: Human Rights Indicators (Publications Office of the European Union 2014). 97  United Nations, Standard Rules on the Equalization of Opportunities for Persons with Disabilities UNGA Res 48/​96, annex (20 December 1993).

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mainstream a disability perspective in existing policies related to protection from violence, abuse and exploitation.98 With respect to the obligation to ensure protection against multiple discrimination, as contained in article 6 of the Convention, the Committee has recommended that states parties should mainstream disability in all legislation and policies on gender equality and that a gender perspective should be mainstreamed in all legislation and policies on disability rights.99 Notably, the Committee has also recommended that states parties ensure that CRPD rights are mainstreamed in the national implementation and monitoring of the 2030 Agenda for Sustainable Development and the Sustainable Development Goals and that those processes be undertaken in close cooperation with organizations of persons with disabilities.100

4.4 Paragraph  1(d) Paragraph 4(1)(d) of the Convention establishes the negative obligation, according to which states must refrain from engaging in any act or practice that is inconsistent with the CRPD. This is reflective of the obligation contained in article 26 of the Vienna Convention on the Law of Treaties that ‘every treaty in force is binding on the parties and must be performed by them in good faith’.

4.4.1 Public Authorities and Institutions In addition to the foregoing negative obligation, there is also a positive obligation incumbent on states parties under paragraph 4(1)(d) CRPD to ensure that public authorities and institutions act in conformity with the Convention. There is no definition of the scope of ‘public authorities and institutions’ contained in the Convention, as this definition is meant to be defined at the domestic level. The wide reach of the CRPD is evident in this provision, by virtue of the fact that all public authorities and institutions will have to comply with the specific obligations laid down in each of the substantive provisions of the Convention. This will include, for instance, the specifically enumerated obligation to employ persons with disabilities in the public sector, set out in article 27(1)(g) CRPD and the obligation to ensure access by persons with disabilities to public housing programmes, contained in article 28(2) (d) CRPD. In addition, public authorities and institutions will be subject to the far-​ reaching, overarching obligations imposed on all state (and non-​state) actors under the Convention, most notably the duty to provide reasonable accommodation and the accessibility obligation.

4.5 Paragraph  1(e) Paragraph 4(1)(e) CRPD is modelled on article 2(e) CEDAW.101 It makes clear that states parties are required not only to ensure that discrimination against persons with disabilities 98   CRPD Committee, Concluding Observations on Czech Republic UN Doc CRPD/​C/​CZE/​CO/​1 (15 May 2015) para 35. 99  CRPD Committee, Concluding Observations on Slovakia UN Doc CRPD/​C/​SVK/​CO/​1 (17 May 2016) para 22. 100  CRPD Committee, Concluding Observations on Italy UN Doc CRPD/​C/​ITA/​CO/​1 (6 October 2016) para 80; see also CRPD Committee, Concluding Observations on Slovakia UN Doc CRPD/​C/​SVK/​ CO/​1 (17 May 2016) para 35. 101   Art 2(e) CEDAW requires states parties to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise.

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by the state and its organs is prohibited, but also to ensure that the prohibition of discrimination is extended to the private sphere. This illustrates, once again, the wide reach of the CRPD, whereby discriminatory acts against a disabled person by a private employer or private service provider (transport providers, internet providers, shops, banks), among others, are covered by the Convention’s material scope.102 While enforcement mechanisms for international human rights law103 address themselves solely to states, the doctrine of horizontal application of human rights law has developed, whereby human rights obligations have been extended to non-​state actors in certain circumstances104—​in other words, a violation of a human right by a private entity against an individual or another private entity can be deemed to constitute a breach of a given state’s obligations under international human rights law. Several cases taken before international mechanisms supervising human rights norms provide clear indications that state responsibility for the actions of private or non-​state actors is being established.105 Many CRPD obligations can only be fulfilled by states parties where the obligations are ‘passed on’ in some shape or form to non-​state actors.106 The CRPD contains explicit references to private actors in articles 9(2)(b) on accessibility, 21(c) on freedom of information and expression, 25(d) on health, and 27(1)(h) on employment. States parties must exercise due diligence with regard to the obligation to protect against disability-​based discrimination in the exercise of those, and all of the rights, contained in the Convention. The CESCR has underlined the importance of the regulation of discrimination in the private sphere in the context of persons with disabilities in its General Comment No 5 (1994). The Committee has emphasized the ‘obligation to protect’, which is incumbent on states, namely that states are required to ensure that the enjoyment of rights by persons with disabilities is not hampered by third-​party actors in the private sphere. The Committee states that ‘it is essential that private employers, private suppliers of goods and services, and other non-​public entities be subject to both non-​discrimination and equality norms in relation to persons with disabilities’.107 Frederic Mégret argues furthermore that

102   In addition, discriminatory conduct by one private individual against another arguably falls within the sphere of responsibility of states parties to the CRPD. In practice, this latter form of discrimination will be difficult to regulate but would presumably include the establishment of effective remedies and sanctions in private or criminal law, as appropriate, to deter discriminatory acts by private individuals; Broderick (n 62) 103. 103   With the exception of international criminal law. 104   On the human rights obligations of non-​state actors, see Ilias Bantekas and Lutz Oette, International Human Rights Law and Practice (2nd edn, CUP 2016) 761–​83; Andrew Clapham, Human Rights Obligations of Non-​State Actors (OUP 2006); see further Andrew Clapham, Human Rights and Non-​State Actors (Edward Elgar Publishing 2013); see also Phillip Alston, Non-​State Actors and Human Rights (OUP 2004). 105   See the comments of the Inter-​American Court of Human Rights in the case of Velásquez Rodríguez v Honduras, Inter-​American Court of Human Rights (Ser C) No 4 (1988) para 172: ‘An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to the international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the [American Convention on Human Rights]’. Respondent states have also been held responsible by the European Court of Human Rights in certain circumstances for failure to prevent violations of human rights by private actors. [See eg X v Netherlands, application no 8978/​80 (1985) and A v United Kingdom, application no 25599/​94 (1988).] 106   See Lisa Waddington, ‘Implications of the CRPD for the Private Sector: National Disability Legislation and Strategies and Access to, and Supply of, Goods and Services’ (Conference presentation), available at: . 107  CESCR, General Comment No 5 on Persons with disabilities UN Doc E/​1995/​22 (9 December 1994) para 11.

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‘state involvement in preventing negative encroachments occurring in the private sphere covers an ‘important dimension of the experience of persons with disabilities’.108 The prohibition of discrimination in the private sphere can also be found in article 2(1)(d) CERD. Wouter Vandenhole points to the fact that the CERD Committee ‘has emphasised the importance of adequately prohibiting and penalising acts of discrimination, whether they are committed by individuals or associations’.109 The CESCR has acknowledged that if states fall short of the obligation to remedy discrimination in the private sphere, then: The ability of persons with disabilities to participate in the mainstream of community activities and to realize their full potential as active members of society will be severely and often arbitrarily constrained.110

Since many of the fields covered by the CRPD, such as employment, accessibility, health, public transport and access to information involve private actors, the Office of the High Commission on Human Rights (OHCHR) advises states to ‘seek active collaboration with the non-​state sector, including by increasing cooperation with chambers of commerce, labour unions, private school federations and religious institutions, among others’.111 In that regard, states parties to the CRPD should provide ‘technical assistance, guidelines and information, in particular on reasonable accommodation, accessibility and universal design’ as this ‘is crucial to advance[ing] equality and to reduc[ing] dependency on legal actions to enforce rights’.112 In the context of accessibility of facilities, the CRPD Committee has delivered a decision in Nyusti & Takacs v Hungary113 concerning a claim that the state party’s authorities had failed to eliminate discrimination on the ground of disability by a private credit institution, and had, furthermore, failed to ensure that persons with visual impairments had unimpeded access to the services provided by ATMs on an equal basis with other clients.114 In terms of the application of the non-​discrimination principle, it is important to distinguish between existing barriers to accessibility and new or emerging barriers. States parties to the Convention will not be required to make the existing environment, information and communications systems, as well as goods and services accessible overnight. The Committee has stated, in its General Comment 108   Frederic Mégret, ‘The Disabilities Convention: Towards a Holistic Concept of Rights’ (2008) 12 The International Journal of Human Rights 261, 266. 109  CERD Committee, Concluding Observations on Liberia UN Doc A/​56/​18 (2001) para 434 and Concluding Observations on Ukraine UN Doc A/​56/​18 (2001) para 369 (cited by Wouter Vandenhole, Non-​ Discrimination and Equality in the View of the UN Human Rights Treaty Bodies (Intersentia 2005) 193). 110   ibid 59. 111   OHCHR, ‘Equality and non-​discrimination under Article 5 of the Convention on the Rights of Persons with Disabilities’ UN Doc A/​HRC/​34/​26 (9 December 2016) para 17. 112  ibid. 113   CRPD Committee, Individual Communication taken by Szilvia Nyusti and Péter Takács (represented by counsel, Tamás Fazekas, Hungarian Helsinki Committee), Communication No 1/​2010 UN Doc CRPD/​ C/​9/​D/​1/​2010 (21 June  2013). 114   The Committee was of the view that the state party in question had failed to fulfil its obligations under Art 9, para 2(b) CRPD, which requires States to ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities. The Committee recommended that the State should remedy the lack of accessibility for the authors to the banking card services provided by the ATMs operated by OTP. The Committee also recommended that the State should take measures to prevent similar violations in the future, including by establishing minimum standards for the accessibility of banking services provided by private financial institutions for persons with visual and other types of impairment. Finally, the Committee held that the State should also ensure that all newly procured ATMs and other banking services are fully accessible for persons with disabilities.

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No 2 on accessibility that barriers inhibiting access to existing objects, facilities, goods, and services aimed at or open to the public shall be removed gradually in a systematic and, more importantly, continuously monitored manner, with the aim of achieving full accessibility.115 However, states parties should not create new barriers to the accessibility of disabled persons and should, furthermore, monitor the emergence of new barriers in the private sphere.116 Failure to do so may amount to discrimination, according to the CRPD Committee,117 and it is this aspect that is relevant in terms of states’ obligations under article 4(1)(e).

4.6 Paragraph  1(f) The wording of paragraph 4(1)(f ) CRPD seems to give states considerable leeway concerning implementation.118 While the obligation ‘to undertake’ is considerably stronger than that of simply promoting research and development of universally designed goods, services, equipment and facilities, the wording of the paragraph leaves a margin of appreciation to choose whether to undertake or promote research and development in the context of universal design. As outlined above, the obligation ‘to undertake’ research and development related to universal design falls within the duty to fulfil the rights of persons with disabilities, and the obligation ‘to promote’ requires education and awareness-​ raising. The CRPD Committee has stated that ‘awareness-​raising should promote the application of universal design and the idea that designing and building in an accessible way from the earliest stages is cost-​effective and economical’.119 Additionally, the Committee has stated that ‘awareness-​raising should be carried out in cooperation with persons with disabilities, their representative organizations and technical experts’.120 According to article 2 of the Convention, the aim of universal design is to ensure the ‘design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design’. The general obligation to universally design structures contained in article 4(1)(f ) is part of the holistic human rights-​based approach to disability, which seeks to ensure widespread structural change in society and increased participation and inclusion for persons with disabilities. In practice, the development of universally designed structures necessitates taking into account the seven key principles of universal design:121 ‘Equitable design’ (design that is useful and marketable to people with diverse abilities); flexible in use (accommodating a wide range of individual preferences and abilities); simple and intuitive (easy 115   CRPD Committee, General Comment No 2 on accessibility UN Doc CRPD/​C/​GC/​2 (22 May 2014) para 14. 116   ibid para 31. 117  ibid: ‘As a minimum, the following situations in which lack of accessibility has prevented a person with disabilities from accessing a service or facility open to the public should be considered as prohibited acts of disability-​based discrimination: [emphasis added]: Where the service or facility was established after relevant accessibility standards were introduced; and where access could have been granted to the facility or service (when it came into existence) through reasonable accommodation’. 118   Notably, the first draft of this paragraph contained only the obligation to ‘promote’—​see draft Art 4, fn 21, available at: . However, the wording was strengthened somewhat by the addition of the obligation to ‘undertake’ following a suggestion of the Working Group to the Ad Hoc Committee: UN Doc A/​AC265/​2004/​WG/​1 (27 January 2004). 119 120   CRPD Committee (n 115) para 35.  ibid. 121   The Seven Principles of Universal Design were developed in 1997 by a working group of architects, product designers, engineers, and environmental design researchers, led by the late Ronald Mace at North Carolina State University.

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to understand); perceptible information (communicating necessary information effectively to the user, regardless of ambient conditions or the user’s sensory abilities); tolerance for error (minimising hazards and the adverse consequences of accidental or unintended actions); and design of appropriate size and space (for reach, manipulation and use, regardless of mobility and other factors). Although the obligation to universally design products is not the same as the duty to provide reasonable accommodations, there is a clear link between the two duties. The reasonable accommodation duty usually requires the adaptation of structures in an individualized manner at the request of a person with a disability. The objective of universal design is to ensure maximum accessibility for all individuals (persons with disabilities and non-​disabled individuals), regardless of their type of impairment, age, etc. It is based on the idea that societal structures should ‘benefit all, not merely accommodate the few’.122 Universal design should reduce the need for individualized measures, such as reasonable accommodations. However, article 2 CPRD also states that the concept of universal design does not exclude assistive devices for particular groups of persons with disabilities, where this is needed. In that regard, it is notable that the CRPD Committee has recommended the provision of assistive technology by states parties in some of its concluding observations.123 The concept of universal design evolved from accessible design features, and it is therefore linked to the overall concept of accessibility, but it goes further in requiring consideration of the whole spectrum of human diversity—​from persons with disabilities to older people, parents and children, among others. In its General Comment No 2 on accessibility, the CRPD Committee has drawn attention to the fact that implementation of the Convention’s accessibility obligations under article 9 should be carried out in accordance with the principle of universal design contained in the Convention. The Committee also observes the fact that ‘the strict application of universal design to all new goods, products, facilities, technologies and services should ensure full, equal and unrestricted access for all potential consumers, including persons with disabilities, in a way that takes full account of their inherent dignity and diversity’.124 The CRPD Committee has, furthermore, stated that domestic legislation ‘should incorporate, and be based on, the principle of universal design’.125 There are a handful of examples of states parties to the CRPD that take account of the universal design duty in their laws and policies. Some states parties have also linked the duty itself to the non-​ discrimination norm. For instance, Norway’s Anti-​Discrimination and Accessibility Act126 contains the obligation of universal design, breach of which is a form of discrimination under the Act, pursuant to section 13.127 In addition, Spain’s National Accessibility Plan 122  Richard Jackson, ‘National Centre on Accessing the General Curriculum, Curriculum Access for Students with Low-​Incidence Disabilities: The Promise of Universal Design for Learning (2011) 2, available at: . 123   See eg CRPD Committee, Concluding Observations on Azerbaijan, UN Doc CRPD/​C/​AZE/​CO/​1 (12 May 2014) para 41(a); see also CRPD Committee, Concluding Observations on Belgium UN Doc CRPD/​C/​ BEL/​CO/​1 (28 October 2014) para 37. 124 125   CRPD Committee (n 115) para 15.   ibid para 28. 126  Norway, Act relating to a prohibition against discrimination on the basis of disability (the Anti-​ Discrimination and Accessibility Act) (2008), available at:  . Norway’s Anti-​Discrimination and Accessibility Act is a disability-​specific nationwide non-​discrimination act which contains the legally enforceable standard of universal design. 127   Section 12 of the Anti-​Discrimination and Accessibility Act.

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was created in the context of Act 51/​2003 on Equal Opportunities, Non-​discrimination and Universal Access for People with Disabilities to enable the Spanish Government to foster implementation of the legislation. Activities considered under the plan include training on accessibility and ‘Design for All’ in universities, promotion of research in this area and co-​operation between different actors.128

4.7 Paragraph  1(g) The obligation to ‘undertake or promote’ research and development of, and to promote, the availability and use of new technologies accords quite a considerable margin for states in implementation, similar to the obligation contained in paragraph 4(1)(f ) of the Convention, outlined above. The obligation contained in article 4(1)(g) must be read in conjunction with states parties’ obligations throughout the Convention’s substantive provisions. In the first instance, article 9(g) requires states parties to promote access for persons with disabilities to new information and communications technologies and systems, including the Internet. Furthermore, under article 9(h), states parties have undertaken to promote the design, development, production and distribution of accessible information and communications technologies (ICT) and systems at an early stage, so that these technologies and systems become accessible at minimum cost. This obligation to take into account affordability overlaps with General Obligation 4(1)(g), which requires states parties to undertake or promote research and development, and to promote the availability and use, of new technologies suitable for persons with disabilities, giving priority to technologies, including information and communications technologies, at an affordable cost. With regard to this cost dimension, the CRPD Committee has stated that accessibility of information and communication, including ICT, should be ‘achieved from the outset because subsequent adaptations to the Internet and ICT may increase costs’.129 According to the Committee, it is ‘therefore more economical to incorporate mandatory ICT accessibility features from the earliest stages of design and production’.130 The general obligation contained in article 4(1)(g) shares symmetries with article 20(b) CRPD (on personal mobility), under which states have undertaken to facilitate access, at an affordable cost, for persons with disabilities to quality mobility aids, devices, assistive technologies, and forms of live assistance and intermediaries. In addition, article 26 CRPD (on habilitation and rehabilitation) requires states parties to promote ‘the availability, knowledge and use of assistive devices and technologies, designed for persons with disabilities, as they relate to habilitation and rehabilitation’.131 In the framework of international cooperation, article 32(1)(d) CRPD requires states parties: To provide, as appropriate, technical and economic assistance, including by facilitating access to, and sharing of, accessible and assistive technologies, and through the transfer of technologies.132

128   Søren Ginnerup in co-​operation with the Committee of Experts on Universal Design, ‘Achieving full participation through Universal Design’ (Council of Europe Publishing, 2009), available at: . 129 130 131   CRPD Committee (n 115) para 15.  ibid.   Art 26 CRPD. 132   Art 32(1)(d) CRPD.

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The CRPD Committee maintains that measures taken to ensure international cooperation under article 32 of the Convention should constitute ‘a significant tool in the promotion of accessibility and universal design’ and recommends that international development agencies recognize the significance of supporting projects aimed at improving ICT and other access infrastructure’.133 The Committee also points to the fact that ‘international cooperation should be used not merely to invest in accessible goods, products and services, but also to foster the exchange of know-​how and information on good practice in achieving accessibility in ways that will make tangible changes that can improve the lives of millions of persons with disabilities worldwide’.134 In this connection, it is interesting to consider the interaction between the relevant CRPD norms and the Marrakesh Treaty (MVT)135 (2013).136 The primary objective of the MVT is to create a set of mandatory limitations and exceptions to copyright rules in order to enable reproduction and distribution, and increase the availability, of published works in accessible formats for the benefit of blind, visually impaired and otherwise print disabled individuals (VIPs). The goals of the MVT intersect somewhat with the CRPD, which establishes the right of all persons with disabilities to have access to information in accessible formats and technologies on an equal basis and without discrimination.137 and the right to take part in cultural life and have access to cultural materials on an equal basis with others.138 Article 30(3) CRPD imposes an obligation on states parties to take appropriate measures to ensure, in accordance with international law, that intellectual property rights, such as copyright protection, do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials in accessible formats.139 A report commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs, upon request by the Committee on Petitions (PETI), recommends that states: Establish a mechanism to ensure that the objectives of the Marrakesh Treaty are actually achieved in practice. To this end, Member States could rely upon Art. 33 CRPD independent monitoring bodies and their national IP [intellectual property] Office to comply with their duty under Art. 10(1) Marrakesh Treaty [namely, the obligation ‘to adopt measures necessary to ensure application of this Treaty’.]140

Other scholars claim that the Marrakesh Treaty provides a concrete illustration of an ‘integrationist’ approach, which ‘employs the legal policy tools of copyright law to advance human rights ends’.141 In this way, the symmetries with the CRPD norms above are evident. 134   CRPD Committee (n 115) para 47.  ibid.   The MVT is a recent addition to the existing body of international copyright treaties administered by the World Intellectual Property Organisation (WIPO). 136   Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (MVT) (2013). 137 138   Art 21 CRPD.   Art 30 CRPD. 139   César Ramirez-​Montes, The Marrakesh Treaty:  Study for the PETI Committee, commissioned by the European Parliament Policy Department for Citizens’ Rights and Constitutional Affairs (European Union 2016). 140   ibid 58. 141   ibid 56, citing Laurence Helfer, ‘Human Rights and Intellectual Property: Mapping an Evolving and Contested Relationship’ in Rochelle Cooper Dreyfuss and Justine Pila, The Oxford Handbook of Intellectual Property Laws (OUP forthcoming), available at:  . 133 135

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4.8 Paragraph  1(h) The obligation ‘to provide’ accessible information to persons with disabilities regarding mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities imposes a stronger positive obligation on states than that contained in paragraphs 1(f ) and 1(g) above, since there is no discretion left to states parties. This requires states parties to ensure that concrete policies are drawn up enshrining the relevant obligation to ensure provision of accessible information on accessible technologies, assistance etc at the domestic level. It will also require that states parties formulate policies ensuring that measures are put in place to monitor the provision of accessible information to persons with disabilities in the private sector, where a large proportion of these technologies will be produced and assistance etc will be provided. The obligation contained in paragraph 4(1)(h) is clearly linked to that contained in paragraph 4(1)(g) above, since promoting the availability and use of new technologies will certainly require the provision of accessible information on such technologies. The provision of accessible information is important for all persons with disabilities, but the CRPD Committee points specifically to the fact that: Persons with intellectual and psychosocial disabilities, as well as deaf-​blind persons, face barriers when attempting to access information and communication owing to a lack of easy-​to-​read formats and augmentative and alternative modes of communication.142

The requirement in article 4(1)(h) to provide accessible information on new technologies, etc must be read in conjunction with the various sub-​paragraphs of article 9 CRPD. More specifically, paragraph 2(d) of article 9 provides that buildings and other places open to the public should have signage in Braille and in easy-​to-​read and understand forms. Without such signage, accessible information and support services may not become a reality for many persons with disabilities. Article 9(2)(f ) is also relevant in this context, since it requires states parties to promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information. Moreover, article 21(a) of the Convention ties in with General Obligation 4(1)(h), as it obliges states parties to take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including access to information. In that regard, states parties must ensure that information intended for the general public is provided to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities, in a timely manner and without additional cost.

4.9 Paragraph  1(i) 4.9.1 ‘Training of professionals and staff working with persons with disabilities’ States parties are required, pursuant to article 4(1)(i) of the Convention, to promote the training of professionals and staff working with persons with disabilities in order to ensure that such professionals can provide the assistance and services guaranteed by CRPD rights in a disability-​sensitive manner. While all persons with disabilities face barriers related to the lack of adequate training of professionals, the CRPD Committee has specifically highlighted the fact that ‘persons with intellectual and psychosocial disabilities,   CRPD Committee (n 115) para 7.

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as well as deaf-​blind persons, face barriers when attempting to access services due to prejudices and a lack of adequate training of the staff providing those services’.143 As well as featuring in the general obligations of the Convention, the requirement to ensure training of professionals and staff is replicated in the substantive provisions of the CRPD. For instance, article 8(2)(d) requires states parties to promote training programmes focused on creating awareness regarding persons with disabilities and their rights. Furthermore, in its General Comment No 2, the CRPD Committee remarks on training obligations under article 9(2)(c) of the Convention, when it observes that ‘since a lack of accessibility is often the result of insufficient awareness and technical know-​how, article 9 requires that states parties provide training to all stakeholders on accessibility for persons with disabilities’.144 In the context of implementing article 9 of the Convention, the Committee has also recommended training for judges and other judicial officials dealing with accessibility issues in the case of Nyusti & Takacs v Hungary.145 In order to ensure the practical application of accessibility standards, the Committee has stated that it is also important to put in place training and monitoring systems for various other groups, including ‘the authorities that issue building permits, broadcasting boards and ICT licences, engineers, designers, architects, urban planners, transport authorities, service providers, members of the academic community and persons with disabilities and their organizations’.146 The reference to training of staff and professionals is replicated in article 20(c) of the Convention, pursuant to which states are mandated to ensure training for specialist staff working with persons with disabilities on personal mobility issues. Furthermore, under the terms of article 24(4) CRPD, states are required to train professionals and staff who work at all levels of education. Such training must incorporate disability awareness and the use of appropriate augmentative and alternative modes, means and formats of communication, educational techniques and materials to support persons with disabilities. The CRPD Committee asserts that ‘the core content of teacher training’ must address: A basic understanding of human diversity, growth and development, the human rights model of disability and inclusive pedagogy that enables teachers to identify students’ functional abilities (strengths, abilities and learning styles) to ensure their participation in inclusive educational environments.147

Article 25(d) CRPD also requires training of professionals in the context of healthcare provision, while article 26(2) of the Convention requires states parties ‘to promote the development of initial and continuing training for professionals and staff working in habilitation and rehabilitation services’. Training of professionals is also important in the context of the provision of remedies and sanctions. In its concluding observations to several states parties, the CRPD Committee has recommended the provision of training to all departments dealing with sanctions and remedies under the CRPD in order to ensure that persons with disabilities have information on lodging complaints and seeking remedies.148 144 145  ibid.   ibid para 9.   CRPD Committee (n 113) para 10(2)(b).   CRPD Committee (n 115) para 19. 147  CRPD Committee, General Comment No 4 on the right to inclusive education (2016) UN Doc CRPD/​C/​GC/​4 (2 September 2016) para 71. 148   See CRPD Committee, Concluding Observations on Italy UN Doc CRPD/​C/​ITA/​CO/​1 (6 October 2016) para 8. 143 146

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5.  Paragraph 2 5.1 Progressive Realization In its preamble, the CRPD reaffirms ‘the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms’. Nonetheless, article 4(2) CRPD retains the traditional distinction between rights that are subject to immediate implementation (civil and political rights) and those that are to be realized progressively (economic, social and cultural rights).149 Article 4(2) recognizes that states are allowed to realize socio-​economic rights progressively, with a view to achieving their full realization over time. The OHCHR has stated that progressive realization is ‘a practical device that acknowledge(s) the real world challenges’ and ‘helps to avoid overburdening states, employers and other duty-​bearers’.150 Progressive realization clauses are enshrined in numerous international human rights treaties. Article 2 ICESCR and article 4 CRC require states to realize progressively the rights contained therein. Article 23(2) CRC refers specifically to the progressive realization of rights relating to children with disabilities. Some guidance can be drawn from the remarks of the CESCR on the duty to progressively realize human rights. The CESCR has stated that progressive realization ‘should not be misinterpreted as depriving the obligation [to give effect to rights] of all meaningful content’; rather, it imposes an obligation on states to move ‘as expeditiously and effectively as possible’ towards the goal of full realization of rights.151 The Committee has elaborated on this by stating that steps taken by states should be ‘deliberate, concrete and targeted’ towards the full realization of rights.152 The OHCHR has provided several examples of steps that might be deemed sufficient to meet the foregoing obligation. In the first instance, states should assess the state of enjoyment of economic, social and cultural rights, including by ensuring ‘adequate mechanisms to collect and assess relevant and suitably disaggregated data’. Secondly, states ‘should formulate strategies and plans, incorporating indicators and time-​bound targets’, which should be ‘realistic, achievable and designed to assess progress in the realisation of these rights’, and they should regularly monitor and assess progress made in the implementation of national plans and strategies. In the third instance, states ‘should adopt the necessary laws and policies, and make adequate funds available to put the plans and strategies into practice’. Lastly, states should establish ‘grievance mechanisms so that individuals can complain if the state is not meeting its responsibilities’.153

149   The traditional dichotomy of the two sets of rights has been increasingly eroded in scholarly discourse and it is now acknowledged that both sets of rights may give rise to positive duties—​see eg Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (OUP 2008). The CRPD itself blurs the dividing lines between civil and political rights and economic, social and cultural rights by incorporating immediately realizable reasonable accommodation duties into many of the Convention’s socio-​economic rights. In fact, the Convention blends civil and political rights with economic, social and cultural rights, not only within its overall structure, but also within individual articles. 150  Office of the High Commissioner of Human Rights, From Vision to Action:  The Road to Implementation of the Convention (2007) 5, available at: . 151 152   CESCR (n 85) para 9.   ibid para 2. 153   Office of the High Commissioner of Human Rights, Frequently Asked Questions on Economic, Social and Cultural Rights: Factsheet 33, 16, available at: .

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The CRPD Committee has not commented extensively on the obligation to progressively realize CRPD rights and sometimes oversteps the mark on obligations of progressive versus immediate implementation.154 Nonetheless, the Committee has made some cursory remarks on the progressive realization duty in the context of article 24 (the right to inclusive education). According to the Committee, ‘progressive realization must be read in conjunction with the overall objective of the Convention’. In that regard, ‘states parties are encouraged to redefine budgetary allocations for education, including by transferring part of their budgets to the development of inclusive education’, and the Committee has stated that ‘any deliberately retrogressive measures [ . . . ] must not disproportionately target learners with disabilities at any level of education’.155 In addition, the CRPD Committee has noted that ‘progressive realization does not prejudice those obligations that are immediately applicable’.156 Therefore, states parties should implement the following core rights with immediate effect: (a)  Non-​discrimination:  States must urgently take steps to remove all legal, administrative and other forms of discrimination impeding the right of access to inclusive education; (b)  Reasonable accommodation: States must ensure non-​exclusion from education for persons with disabilities; and (c)  Compulsory, free primary education available to all:  The Committee urges states parties to ensure access to, and completion of, quality education for all children and youth. This should include at least twelve years of free, publicly funded, inclusive and equitable quality primary and secondary education, of which at least nine years are compulsory, as well as access to quality education for out-​of-​school children and youth through a range of modalities, as outlined in the Education 2030 Framework for Action.157

5.2 Maximum of Available Resources States parties to the CRPD are required to invest the maximum of available resources in ensuring the full realization of socio-​economic rights. Since the CRPD Committee has not yet commented to a large degree on the obligation to allocate the maximum use of available resources, some guidance will be drawn from the comments of the CESCR. The CESCR maintains that the ‘availability of resources,’ although an important qualifier to the obligation to take steps, ‘does not alter the immediacy of the obligation, nor can resource constraints alone justify inaction’.158 The Committee has already emphasized the fact that even in times of severe resource constraints, states parties must protect the most disadvantaged and marginalized members or groups of society by adopting relatively low-​cost targeted programmes.159 It is well recognized that the obligation to invest the maximum of available resources refers to both the resources existing within a state and those available from the international community through international cooperation and 154   Indeed, the CRPD Committee sometimes does not draw a clear enough line between obligations of immediate effect and progressively realisable obligations; see eg para 30 of General Comment No 1 on the Right to Equal Recognition before the Law UN Doc CRPD/​C/​GC/​1 (19 May 2014). 155 156 157   CRPD Committee (n 147) para 40.  ibid.  ibid. 158  CESCR, ‘Statement:  An evaluation of the obligation to take steps to the “Maximum of Available Resources” Under an Optional Protocol to the Covenant’, UN Doc E/​C12/​2007/​1 (21 September 2007) para 4. 159  ibid.

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assistance.160 The obligation to seek assistance, where needed, through the framework of international cooperation is provided for specifically in article 4(2) CRPD. This will be a particularly important aspect of the progressive realization of rights in developing countries that are parties to the CRPD. Notwithstanding existing guidance on the concept of allocating the maximum of a state’s available resources, the definition of the obligation remains vague, particularly in terms of priority-​setting. Benchmarks have been developed to help states understand the duty to realize rights to the maximum of available resources. In her summary of a report related to the duty, Sandra Fredman has stated that three elements of government appropriations are highlighted as being capable of concrete assessment, namely: (a) the sufficiency of government spending/​investment; (b) the equity of expenditure patterns; and (c) the efficiency of expenditure.161 Fredman explains that ‘sufficiency is assessed by comparing actual expenditure with a benchmark figure, such as the proportion of [Gross Domestic Product], or of total government spending’. Also of importance, she asserts, is ‘the way in which budgeting has changed over time’. If government spending on realization of a right has been dropping, relative to GDP or other government spending, this ‘strongly suggests that there are available resources but the duty has not been prioritized’. Regarding the second criterion of equity, Fredman states that ‘if spending is inequitable between genders, classes, regions or ethnic groupings, the government would be in breach of its duty’. Fredman claims that while efficiency of spending is more difficult to assess, ‘where a sum has been clearly budgeted and not used, a very strong argument can be made to compel a government to fulfil its obligations’.162 While it has been acknowledged that budget analysis is a ‘powerful tool for understanding government priorities’,163 many questions remain unanswered with regard to ‘how effectively or efficiently the money is being spent, or whether the resources allocated are reaching their intended purpose’.164 The remarks of de Beco reflect this criticism. He points to the fact that the progressive realization of socio-​economic rights remains problematic on account of both timing and prioritisation issues, in particular which criteria will be applied ‘in determining whether a state’s priorities are acceptable’ or the ‘best option’ in the context of the maximum of available resources.165 In its 2007 Statement, entitled ‘An Evaluation of the Obligation to Take Steps to the “Maximum of Available Resources” Under an Optional Protocol to the Covenant’,166 the CESCR laid out general considerations which it deems relevant to assessing whether measures taken by states are ‘reasonable or adequate’ and all of those criteria can be

  CESCR (n 85) 13.   Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford University Press 2008), 82, citing Helena Hofbauer, Ann Blyberg, and Warren Krafchik ‘Dignity Counts: A Guide to Using Budget Analysis to Advance Human Rights’, (Fundar, IBP, IHRIP) (2004): . 162  ibid. 163   Helena Hofbauer, Ann Blyberg, and Warren Krafchik. ‘Dignity Counts:  A Guide to Using Budget Analysis to Advance Human Rights, (Fundar, IBP, IHRIP, 2004)’ 36, available at: . 164  ibid. 165   Gauthier de Beco, ‘Interplay between Human Rights and Development the Other Way Round:  The Emerging Use of Quantitative Tools for Measuring the Progressive Realisation of Economic, Social and Cultural Rights’ Human Rights and International Legal Discourse 4 (2010): 265–​87. 166   CESCR (n 158) para 8. 160 161

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deemed relevant to a determination of the reasonableness of state action in the context of the progressive realization of CRPD rights: (a)  The extent to which the measures taken were deliberate, concrete and targeted towards the fulfilment of economic, social and cultural rights; (b)  Whether the state party exercised its discretion in a non-​discriminatory and non-​ arbitrary manner; (c)  Whether the state party’s decision (not) to allocate available resources is in accordance with international human rights standards; (d)  Where several policy options are available, whether the state party adopts the option that least restricts Covenant rights; (e)  The time frame in which the steps were taken; and (f )  Whether the steps had taken into account the precarious situation of disadvantaged and marginalized individuals or groups and, whether they were non-​discriminatory, prioritising grave situations or situations of risk. In the context of persons with disabilities, the CESCR has stated that the obligation of states to promote progressive realization of the relevant rights to the maximum of a state’s available resources ‘clearly requires governments to do much more than merely abstain from taking measures which might have a negative impact on persons with disabilities’. Rather: The obligation in the case of such a vulnerable and disadvantaged group is to take positive action to reduce structural disadvantages and to give appropriate preferential treatment to people with disabilities in order to achieve the objectives of full participation and equality within society for all persons with disabilities.167

As the Committee acknowledges, ‘this almost invariably means that additional resources will need to be made available for this purpose and that a wide range of specially tailored measures will be required’.168 In this context, the CRPD Committee has advised states parties to regularly evaluate domestic budgets and to ensure that their use of European structural and investment funds is compliant with the CRPD, with a view to guaranteeing that the maximum available resources are being used for the realization of the rights of persons with disabilities, in accordance with article 4 (2) of the Convention.169

6.  Paragraph 3 Article 4(3) of the CRPD is a crucial provision in the context of the Convention as a whole. It requires ‘close consultation with, and active involvement of, persons with disabilities, through their representative organisations, in the development and implementation of legislation and policies and in all decision-​making processes concerning issues relating to persons with disabilities’.170 The working group to the Ad  ​Hoc Committee included twelve non-​governmental organisations (‘NGOs’). Stein asserts that ‘the inclusion of NGOs at this stage was 168   CESCR (n 85) para 9.  ibid.   CRPD Committee, Concluding Observations on Spain UN Doc CRPD/​C/​ESP/​CO/​1 (19 October 2011) para 20. 170   Art 4(3) CRPD. 167 169

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unprecedented in the normal course of treaty development at the United Nations, and can be interpreted as acquiescence to NGOs’ assertion of “nothing about us without us” ’,171 the slogan adopted by the disability rights movement during the negotiating process. The final text of article 4(3) CRPD certainly reflects that slogan. Obligations under article 4(3) will be relevant in the implementation of the substantive rights contained in the Convention. This has been recognized by the CRPD Committee in various contexts, including in the development of minimum standards for all newly procured goods and services provided by private and public enterprises.172 In its concluding observations to states parties, the CRPD Committee has recommended the establishment of a permanent consultative body, which ‘effectively and meaningfully’173 consults with persons with disabilities through their representative organisations ‘in the development of all laws, policies and programmes at all levels, and within all sectors of the state’.174 The Committee has further recommended that such a body should ‘reflect the diversity of individuals’ backgrounds by ensuring that a broad range of individuals are represented, including with regard to age, sex, faith, race, sexual orientation, migrant status and impairment groups’.175 It is important not to sideline the role of children with disabilities and their representative organisations under article 4(3) (taken in conjunction with article 7 CRPD). In its concluding observations to Costa Rica, among others, the CRPD Committee has recommended the establishment of permanent consultation mechanisms with organisations of persons with disabilities, ‘respecting their autonomy and taking into account the diversity of persons with disabilities, including children and women with disabilities, and the country’s indigenous population’.176 Examples of states parties that have already sought to ensure a consultative process in implementation of disability rights and reform measures are quite plentiful.177 The Austrian Federal Disability Act (BundesbehindertenG)178 has enabled the setting up of a Federal Disability Advisory Board as a consultative body. The Board has an advisory function in all disability related law and policy-​making and is comprised of seven representatives of non-​governmental organizations representing persons with disabilities. Cypriot legislation179 contains similar provisions regarding consultation with persons 171   Michael Ashley Stein, ‘Disability Human Rights’ (2007) 95 California Law Review 75, 84 (fn 41); see similar comments to that effect:  Mental Disability Advocacy Center, ‘Building the Architecture for Change: Guidelines on Article 33 of the UN Convention on the Rights of Persons with Disabilities’ (2011), available at:  . 172   CRPD Committee (n 115) para 30. 173  CRPD Committee, Concluding Observations on Italy UN Doc CRPD/​C/​ITA/​CO/​1 (6 October 2016) para 8. 174 175  ibid.  ibid. 176   CRPD Committee Concluding Observations on Costa Rica UN Doc CRPD/​C/​CRI/​CO/​1 (12 May 2014) para 10. 177   For further examples, see The Fundamental Rights Agency, DPO involvement, Indicators on political participation of persons with disabilities (2014), available at: . 178  Available at:  . 179   Cyprus, The Consultation process between the Government and other Services for issues concerning Persons with Disabilities Law of 2006 (L.143 (I) /​2006)(Ο περί της Διαδικασίας Διαβούλευσης Κρατικών και Άλλων Υπηρεσίων σε Θέματα που Άφορούν Άτομα με Αναπηρία Νόμος του 2006 (Ν.143(Ι)/​2006)), available at: .

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with disabilities. Each public department must consult with the Cyprus Confederation of Organizations of the Disabled on decisions that directly or indirectly affect persons with disabilities. The confederation has nine DPO members, including the Pancyprian Blind People’s Organization, the Pancyprian Organization for the Rehabilitation of Disabled People and Cyprus Paraplegic Association, etc.180 In Denmark, the consultation and participation of DPOs in the conduct of public affairs has been ‘formalised by means of the creation of disability councils in all local councils and at central state level’.181 It has been acknowledged that particular attention should be paid to the involvement of persons with disabilities in the establishment of national disability rights action plans and the process of state reporting before the CRPD Committee.182 Notably, the Australian government sought the views of DPOs ‘at several key stages of drafting Australia’s initial report to the CRPD Committee’.183 DPOs were invited to submit their initial views on information that they wanted to see included in the report, or issues that they felt needed to be addressed. The Australian government also invited DPOs and members of the public to submit comments on draft report and issues raised were considered in revising the report.184 Useful guidance has been provided by various actors on participation of persons with disabilities and DPOs in implementation of the Convention. For instance, the International Disability Alliance (IDA) issued a Guidance Document185 in May 2010, which contains recommendations for DPOs on how to draft parallel reports to inform and influence the CRPD Committee. Likewise, Spanish authorities organized a seminar in 2007, together with the United Nations Department of Economic and Social Affairs, which led to the Madrid Declaration. The declaration formulates recommendations to UN member states and to civil society aimed at ensuring the participation of civil society in implementation of the CRPD and in the follow-​up process.186 As well as involving persons with disabilities through their representative organisations in implementation of the CRPD, it is imperative that any monitoring structures that are set up under the Convention should take into account consultation with, and active involvement of, persons with disabilities and their representative organisations. In that regard, article 4(3) CRPD must be read in conjunction with article 33 CRPD, which requires states parties to give due consideration to the establishment or designation of a coordination mechanism within government to facilitate related action in different sectors 180  Information obtained from the website of the Cyprus Confederation of Organizations of the Disabled (Κυπριακή Συνομοσπονδία Οργανώσεων Αναπήρων), available at:  . 181   Information taken from The Fundamental Rights Agency (n 177). 182   Federal Public Service Social Security, The UN Convention on the Rights of Persons with Disabilities: an Integral and Integrated Approach to the Implementation of Disability Rights, Background document prepared for the international conference ‘Work Forum for the Implementation of the UN Convention on the Rights of People with Disabilities’ (18–​19 November 2010, Brussels, Belgium) 48, available at: . 183   United Nations Office of the High Commissioner for Human Rights, Participation of Persons with Disabilities in Political and Public Life—​Australia’s response to the Officer of the High Commissioner’s Request, available at: . 184  ibid. 185   ‘Effective Use of International Human Rights Monitoring Mechanisms to Protect the Rights of Persons with Disabilities’, available at: . 186   The Declaration can be accessed at: . Information taken from Federal Public Service Social Security (n 182).

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and at different levels. Article 33(3) stipulates that civil society, in particular persons with disabilities and their representative organizations, shall be involved and participate fully in the monitoring process. It is notable that Cypriot authorities have appointed the Pancyprian Council for Persons with Disabilities as the coordination mechanism within the Cypriot government to facilitate related actions in different sectors and at different levels for the implementation of the Convention. Τhe Persons with Disabilities Law187 provides that members of the Pancyprian Council for Persons with Disabilities shall be composed, inter alia, of four representatives of DPOs.188

7.  Paragraph 4 7.1 Provisions which are More Conducive to the Realization of the Rights of Persons with Disabilities Article 4(4) CRPD embodies a key principle in international human rights law, the principle of non-​retrogression.189 That article applies the principle of non-​retrogression to the realization of the rights of persons with disabilities. There was broad support for the inclusion of such a provision during the negotiating sessions of the CRPD. Della Fina contends that through this ‘saving clause’, the Convention ‘safeguards the human rights of disabled people granted [ . . . ] both in national law and under an international treaty to which the state is bound’.190

7.2 No Restriction upon or Derogation from Under Article 4(4) CRPD, states parties are also required to ensure that there is no restriction upon, or derogation, from any of the human rights and fundamental freedoms recognized or existing in any state party to the Convention pursuant to law, conventions, regulation or custom. Article 4(4) mandates explicitly that states parties are not allowed to have restrictions upon, or derogations from the CRPD, ‘on the pretext that the Convention does not recognize such rights or freedoms or that it recognizes them to a lesser extent’.191 This sub-​provision reflects similar provisions in article 5(2) ICESCR and ICCPR, respectively. According to the UN Human Rights Committee’s interpretation of article 5(2) ICCPR, no derogations to human rights treaties are allowed, ‘where such derogation would entail a breach of the state’s other international obligations, whether based on treaty or general international law’.192 187   Cyprus, Persons with disabilities Law of 2000 (127(Ι)/2000), (Ο Περί Ατόμων με Αναπηρίες Νόμος) last amended 102(I)2007, available at: . 188  Information obtained from Department for Social Inclusion of Persons with Disabilities, (Τμήμα Κοινωνικής Ενσωμάτωσης Ατόμων με Αναπηρία). 189   For more analysis of the principle of non-​retrogression in international human rights law, see generally María Magdalena Sepúlveda Carmona, The Nature of the Obligations Under the International Covenant on Economic, Social and Cultural Rights, School of Human Rights Research Series, Vol 18 (Intersentia 2003) 127; see also Diane Desierto, Public Policy in International Economic Law: The ICESCR in Trade, Finance and Investment (Oxford 2015) 87–​90; See further, Ben TC Warwick, ‘Socio-​Economic Rights during Economic Crises:  A Changes Approach to Non-​Retrogression’ International and Comparative Law Quarterly 65(1) (2016) 249–​66; see Committee on Economic, Social and Cultural Rights, General Comment No 3, The Nature of States Parties’ Obligations para 9. 190 191   Della Fina (n 2) 152.   Art 4(4) CRPD. 192   Human Rights Committee, General Comment 29 on states of emergency (2001) UN Doc CCPR/​C/​ 21/​Rev1/​Add 11 (31 August 2001) para 9.

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8.  Paragraph 5: All Parts of Federal States Article 4(5) of the Convention reflects the wording contained in, among others, article 50 ICCPR.193 Article 4(5) CRPD is designed to indicate to federal states that they cannot escape their implementation obligations under the Convention by reason of their federal structure of governance. The implementation of the CRPD in federal states will be complex194 and may present difficulties, since various duties will be set out in several pieces of legislation, which may not use the same terminology. Federal states should be particularly careful to ensure consistency when they are establishing cross-​cutting CRPD obligations, such as the reasonable accommodation duty, as that duty will be divided over various levels of government. Best practice in that connection has been evidenced by Belgium, where a compulsory Cooperation Agreement was adopted in 2008 by the Federal Government, the Regions and the Communities in order to ensure a common understanding of the concept of reasonable accommodation as contained in various Belgian legislative enactments and to ensure its uniform implementation throughout Belgium.195 The Agreement also establishes a monitoring mechanism, requiring each authority (at all levels of the state) to collect information on reasonable accommodation and examples of best practice. In its concluding observations, the CRPD Committee has made several remarks which ought to be borne in mind by federal states in their implementation of the CRPD. In its concluding observations to Austria, the Committee has expressed concern that the federal system of governance there has led to undue fragmentation in policy development, particularly since the Länder (regions) are the providers of social services. The Committee is of the opinion that fragmentation is most evident in the development of the National Disability Action Plan, in which the participation of the Länder was ‘intermittent and uneven,’ as well as ‘in the different definitions of disability, different accessibility standards and different protections against discrimination across the various Länder’.196 In light of the foregoing, the Committee has recalled that article 4(5) of the Convention clearly provides that ‘the administrative difficulties of a federal structure do not allow a state to avoid its obligations under the Convention’.197 The Committee has further recommended that Austria should ensure that federal and regional governments consider 193   Art 50 ICCPR states as follows: ‘The provisions of the present covenant shall extend to all parts of federal states without any limitations or exceptions.’ 194   The federal structure of the USA, for example, has caused difficulties in upholding the central government’s obligations under international law, specifically under the Consular Convention (Vienna Convention on Consular Relations, April 24, 1963, 21 UST 77, 596 UNTS 261). In three cases, the International Court of Justice (ICJ) held that the United States had violated the Convention by not allowing consular access to foreign nationals (Avena and Other Mexican Nationals (Mexico v USA), 2004 ICJ 12, 17 (March 31); the LaGrande Case (FRG v US) 2001 ICJ 446, 474 (June 27); and Vienna Convention on Consular Relations (Para v US), 1998 ICJ 248, 249 (April 9)). However, in Medellín v Texas (Medellín II) 128 S Ct 1346 (2008), the US Supreme Court declined to give binding effect to the Avena and other cases, holding that ICJ decisions under the Consular Convention are not binding federal law. 195   Protocole du 19 juillet 2007 entre l’État fédéral, la Communauté flamande, la Communauté française, la Communauté germanophone, la Région wallonne, la Région de Bruxelles-​ Capitale, la Commission communautaire commune, la Commission communautaire française en faveur des personnes en situation de handicap, OJ (Moniteur belge), 20 September 2007, available at: . Information taken from Waddington and Broderick (no 78) 150/​151. 196  CRPD Committee, Concluding Observations on Austria, UN Doc CRPD/​ C/​ AUT/​ CO/​ 1 (13 September 2013) para 10. 197  ibid.

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adopting an overarching legislative framework and policy on disability, in conformity with the Convention.198 In the implementation process, federal or decentralized states must be particularly careful to ensure inclusion of persons with disabilities at all levels. In the Belgian context, the CRPD Committee notes that persons with disabilities are represented by the National Higher Council for Persons with Disabilities at the federal level. However, it has stated that it ‘regrets the absence of advisory councils in the Flemish Region and in the French and German-​speaking communities’.199 The Committee has urged Belgium to establish, and allocate adequate resources to, advisory councils in all regions. These advisory councils should be closely involved in the development, implementation and monitoring of legislation and policies.200 The establishment of an effective coordination mechanism is also vital in the context of federal or decentralized states, which share responsibility with the regional or local levels for implementation of the CRPD and the development of disability rights policies. Internally, it has been asserted that: The presence of a platform which, preferably, transcends and is supported by the various levels of governance can therefore at least serve to stimulate an open and transparent disability rights policy and at best act as the coordinator of a coherent national disability rights policy.201

From the perspective of the external dimension, it has been argued that ‘a coordination mechanism is all the more necessary in federal states to act as the focal point for the international level’, in discussions with the CRPD Committee (for instance), since ‘one central point, often the federal level, will officially be [the] interlocutor even when a particular issue may concern a regional level’.202

  ibid para 11.   CRPD Committee, Concluding Observations on Belgium, UN Doc CRPD/​C/​BEL/​CO/​1 (28 October 2014) para 9. 200   ibid para 10.    201  Federal Public Service Social Security (n 182).    202 ibid. 198 199

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Article 5 Equality and Non-​Discrimination .  States Parties recognize that all persons are 1 equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.

.  In order to promote equality and eliminate 3 discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.

.  States Parties shall prohibit all discrimin2 ation on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.

. Specific measures which are necessary to 4 accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.

1. Introduction 2. Background 3. Travaux Préparatoires 4. General Framework of Article 5 5. Paragraph 1 6. Paragraph 2 7. Paragraph 3 8. Paragraph 4

140 142 147 155 157 160 164 167

1. Introduction The Convention on the Rights of Persons with Disabilities (CRPD)1 is an innovative treaty that promises to expand not only disability rights but also international human rights law (IHRL) more generally.2 Chief amongst these expansions are the concepts of equality and non-​discrimination articulated in Article 5 of the convention. This chapter explores the myriad advances embodied in Article 5 and analyses the legal import of each paragraph. It also considers the potential challenges to implementing Article 5, including clashes between the CRPD Committee’s (the Committee’s) interpretation and that of states parties, and conflicts between equality rights, such as the right to abortion and arguments that non-​discrimination under the CRPD requires bans on aborting

1   The author acknowledges research assistance and input from Ailsa McKeon; additional research assistance from Donia Khaled El Maghrabi and Sudipta Purkayastha, and helpful commentary from Monica Arango, Inés E de Escallón, and Raquel Jelinek. 2   Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3.

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disabled foetuses. What emerges is a picture of equality and non-​discrimination born of ‘a three-​dimensional view of the reality of life as a person with a disability’.3 It is the CRPD’s emphasis on the realities of life with a disability that demands a more holistic, pragmatic, and further reaching scope than previous IHRL. Before exploring the CRPD’s treatment of equality and non-​discrimination, it is important to note that here is no one definition of equality or non-​discrimination in IHRL, nor have UN treaty bodies produced consistent commentary on these principles.4 Yet, equality is ‘the most important principle imbuing and inspiring the concept of human rights’5 and achieving equality and non-​discrimination is ‘the dominant and recurring theme of international human rights law’.6 Equality has meant, and can mean, many things, such as consistent treatment; equality of opportunity; equality of outcomes; transformative equality; or equality as a structural principle.7 Further, equality and non-​ discrimination can be separated into categories such as de jure and de facto; intentional and non-​intentional; direct and indirect; multiple, systemic, private, and more.8 And, while closely interrelated, equality and non-​discrimination are distinct concepts, with equality referring to a state of being, and non-​discrimination referring to a corresponding ban on prejudicial or unfair treatment that produces inequality. One of the major advances of the CRPD is the codification of a relatively recent concept of equality, known as transformative or inclusive equality.9 Article 5 of the CRPD, and indeed the entirety of the convention, should be understood as enshrining and promoting transformative equality. Building on previous thematic conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), the CRPD advances the equality of persons with disabilities (PWDs) by obligating states parties to make both structural and individually tailored adjustments in order to achieve full inclusion of PWDs. Analysing the CRPD and in particular Article 5 through Fredman’s four aims of transformative equality—​1) overcoming the cycle of disadvantage; 2)  promoting respect for dignity and worth; 3)  accommodating difference through structural change; and 4) promoting social and political inclusion and participation10—​reveals a transformative equality approach. Article 5 either explicitly addresses these inclusive and transformative dimensions, such as by requiring reasonable accommodations (RAs) that promote participation and promoting specific measures that redress disadvantage, or implicitly addresses these features, as seen in the

3   Gerard Quinn and Anna Arstein-​Kerslake, ‘Restoring the “Human” in “Human Rights”:  Personhood and Doctrinal Innovation in the UN Disability Convention’ in Conor Gearty and Costas Douzinas (eds), Cambridge Companion to Human Rights Law (CUP 2012) 38. 4   Wouter Vandenhole, Non-​Discrimination and Equality in the View of the UN Human Rights Treaty Bodies (Intersentia 2005) 33, 289. 5   Manfred Nowak, UN Covenant on Civil and Political Rights:  CCPR Commentary (2nd edn, NP Engel 1993) 458. 6  Anne Bayefski, ‘The Principle of Equality or Non-​Discrimination in International Law’ (1990) 11 HRLJ 1, 2. 7   Jarlath Clifford, ‘Equality’ in Dinah Shelton (ed), The Oxford Handbook of International Human Rights Law (OUP 2013) 420–​45. 8 9   Vandenhole (n 4) 33–​36.   Clifford (n 7) 430. 10   Sandra Fredman, Discrimination Law (2nd edn, Clarendon 2011) 25.

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Committee’s draft General Comment on Article 5 arguing for eliminating negative stereotypes11 and full inclusion and participation of PWDs.12 Thus, article 5, and the analysis of it in this chapter, should be read with the goals of transformative equality in mind. The structure of this chapter is as follows. Section II examines the history of equality and non-​discrimination in IRHL and explores the drafting history of article 5, which reveals substantial debate over key issues such as the burden on States to provide RAs and how, if not always why, it came to be that article 5 contains phrases not found in other IRHL treaties. Section III analyses each of the four paragraphs of article 5 in turn, providing interpretation, highlighting potential or actual conflicts, and noting innovations. The chapter concludes with a focus on how the CRPD’s distinctive formulation of equality helps reimagine key concepts such as inclusion, autonomy, community, and human flourishing.

2. Background The notion that all human beings are equal is a twentieth-​century development. For centuries prior to this, equality before the law referred to the rule of law, and the notion that all laws should be applied equally.13 Yet, despite their relatively recent origins, the principles of equality, non-​discrimination, and human dignity are at the heart of IHRL. Equality and non-​discrimination are the only human rights mentioned in the UN Charter,14 and in 1948, the Universal Declaration of Human Rights (UDHR) promoted equality as a central tenet of IHRL via articles 1 and 2.15 The UDHR states that ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’,16 thereby making equality a necessity for securing the UN’s mission. This formulation of equality was repeated in the International Covenant on Civil and Political Rights (ICCPR)17 and the International Covenant on Economic, Social and Cultural Rights (ICESCR),18 further enshrining equality as the cornerstone of IHRL. Every major human rights treaty that followed codified the principle of equality and non-​discrimination in some way. Many other treaties, such as key international 11  CRPD Committee, ‘Draft General Comment on Equality and Non-​discrimination (Article 5)’ (31 August 2017)  (‘Draft General Comment’), available at:  , paras 1, 2, 8, 28, and 44. 12   ibid paras 9, 40, 54, 60, 65, 73, 74, 76(e), and 77. 13   This dates back at least to Thucydides’ notion of procedural equality as the key to democracy in classical Greece, and continues to be associated with liberal democracy: see eg George L Abernethy, Introduction to the Idea of Equality: An Anthology (John Knox 1959) 15–​24. 14   Charter of the United Nations (adopted 26 June 1945) 1 UNTS XVI (UN Charter), Preamble para 2, Art 55, Art 56 15  See Navanathem Pillay, ‘Foreword’ in William A Schabas (ed), The Universal Declaration of Human Rights: The Travaux Préparatoires (CUP 2013) xliii; Gordon Brown (ed), The Universal Declaration of Human Rights in the 21st Century (Open Book 2016) 35–​36, 41. 16   Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217A(III) (UDHR) Preamble para 1. 17   International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171. 18   International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3.

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humanitarian law (IHL) instruments, followed suit, underscoring the centrality of these principles in protecting human dignity, a goal shared by both IHRL and IHL.19 The profundity of the shift from equal application of the law to the inherent equality of all peoples cannot be overstated. In the former, equality is procedural, even though it guarantees substantive goods. The latter formulation opens the door to substantive equality rights and the structural changes needed to ensure them. Disability has only recently been treated as a human rights issue,20 having been ignored by human rights bodies for decades21 and treated instead as a medical and individual issue.22 After years of advocacy by PWDs and their allies,23 the CRPD joined—​and arguably advanced—​a longer line of human rights treaties. This ‘reclassification’ of disability as a human rights issue24 expands the protections and enforceability of equality for disabled persons, particularly because the principle of non-​discrimination and the human rights of minority groups are likely non-​derogable.25 The new ‘social model’ for disability, which stresses that the exclusion of disabled persons from full participation in society is a result of discriminatory attitudes and emphasizes that society must adapt to be inclusive,26 finds a natural counterpart in human rights laws that prohibit such discrimination. The social model shifts the emphasis from an individual’s needs to what the state and society owe the individual. This reclassification was ‘inspired by the values that underpin human rights: the inestimable dignity of each and every human being . . . [and] the inherent equality of all regardless of difference’.27 Given that the CRPD is situated squarely in a broader human rights lineage, and that the origins of human rights law derives from the protection and participation of minority groups,28 it is useful to consider article 5 in this broader context. At present, the CRPD reads as an apex treaty, consolidating and advancing seventy years of human rights law. By briefly tracing the history of equality in IHRL, both the foundations and the innovations of article 5 come into relief.

19   Cordula Droege, ‘The Interplay Between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’ (2007) 40 Isr L Rev 310, 312. 20   Anna Lawson, ‘Disability, Degradation, and Dignity: The Role of Article 3 of the European Convention on Human Rights’ (2006) 56 NILQ 462; Janet E Lord and Rebecca Brown, ‘The Role of Reasonable Accommodation in Securing Substantive Equality for Persons with Disabilities: The UN Convention on the Rights of Persons with Disabilities’ (2011) Critical Perspectives HR Disability L 273. 21   Michael L Perlin, International Human Rights and Mental Disability Law: When the Silenced are Heard (OUP 2012) 8–​9. 22   See eg International Classification of Impairments, Disabilities and Handicaps: A Manual of Classification Relating to the Consequences of Disease (WHO 1980). 23   Maya Sabatello and Marianne Schulz, Human Rights and Disability Advocacy (University of Pennsylvania Press 2013) 13–​14. 24   Theresia Degener, ‘International Disability Law—​A New Legal Subject on the Rise: The Interregional Experts’ Meeting in Hong Kong, December 13–​17, 1999’ (2000) 18 Berkeley J Intl L 180, 199. 25   See HRCtee, ‘General Comment 29:  States of Emergency (Article 4)’ (2001) UN Doc CCPR/​C/​21/​ Rev 1/​Add 11 paras 8 and 13(c). Minority rights in IHRL have traditionally referred to ethnic, linguistic, or religious minorities; see eg James Crawford, Brownlie’s Principles of Public International Law (8th edn, OUP 2008) 647–​49. However, there is no reason why PWDs cannot become legally protected as a ‘minority’ group. 26   Katharina Heyer, Rights Enabled: The Disability Revolution, from the US, to Germany and Japan, to the United Nations (University of Michigan Press 2015) 23–​24. 27   Gerard Quinn and Theresia Degener (eds), Human Rights and Disability:  The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability (UN 2002) 1. 28   See eg Frank Koszorus, Jr, ‘The Forgotten Legacy of the League of Nations Minority Protection System’ in Bela K Kiraly, Peter Pastor, and Ivan Sanders (eds), Total War and Peacemaking: A Case Study on Trianon (Brooklyn College Press 1982) 547.

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The earliest formulations of equality bear some similarities to article 5, but mostly, they highlight a predominantly civil and political rights focused model of equality without concern for disability. The UN Charter speaks of equality between men and women, and between nations.29 It also calls for the ‘universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’.30 ‘Distinction’ would be replaced in subsequent human rights conventions with a prohibition on discrimination. Following this, the UDHR similarly enshrined the equality of men and women,31 and the right to equal pay for equal work.32 Article 7 of the UDHR is a predecessor to the CRPD’s article 5(1) and 5(2), articulating equality before the law and equal protection of the law, as well as a prohibition on discrimination.33 Article 21 of the UDHR provides for equal participation in government,34 a form of civil and political equality that speaks to the need for inclusiveness and participation. Reiterating equality between men and women,35 the ICESCR expanded the concept of equality in IHRL to include equal opportunities for ‘all’ to such goods as employment,36 the enjoyment of physical and mental health,37 and access to education.38 These rights remain of particular importance to PWDs, particularly because disability is too often correlated with poverty,39 exclusion from work and school,40 and unique health care challenges.41 Accordingly, rights to equal opportunities and reasonable accommodations in work, education, and health have been enshrined in articles 27, 24, and 25 of the CRPD, thereby providing a context in which to interpret the meaning of equality under article 5. In 1994, the ICESCR Committee issued ‘General Comment No 5: Persons with Disabilities’. The comment noted that ‘[e]‌ven in countries that have a relatively high standard of living, persons with disabilities are very often denied the opportunity to enjoy the full range of economic, social and cultural rights recognized in the Covenant’,42 and outlined reasons why and ways in which states parties must do more to correct this. The ICCPR’s article 26 is another important predecessor to the CRPD’s article 5(1), as article 5(1) builds on its language. Given this, state practice and jurisprudence regarding article 26 may be helpful in interpreting article 5(1). Compared to previous human rights instruments, article 26 provides an expanded list of prohibited grounds for discrimination. While disability could be read into ‘or other status’, to date there is very little article 26 jurisprudence regarding disability. The case of Manuel Wackenheim v France from 1999 appears to be one of the only, if not the only, instances in which the HRC addressed disability directly.43 In Wackenheim the HRC considered the claim that France’s ban on dwarf tossing violated Mr Wackenheim’s rights and constituted discrimination. Prior to the ban, which France argued was for the protection of human dignity and public order, Mr Wackenheim had been employed for the purposes of dwarf tossing for

30 31   UN Charter, preamble para 2.   ibid Art 55.   UDHR, preamble para 5. 33 34 35   ibid Art 23(2).   ibid Art 7.   ibid Art 21.   ICESCR (n 18) Art 3. 36 37 38   ibid Art 7.   ibid Art 12(1).   ibid Art 13. 39   Jean-​Francois and Mitchell M Loeb, ‘Trani Poverty and Disability:  A Vicious Circle? Evidence from Afghanistan and Zambia’ (2012) Brown School Faculty Publications 25. 40   Committee on Human Rights, Parliament of Britain, A Life Like Any Other?: Human Rights of Adults with Learning Disabilities, Seventh Report of Session 2007–​08 Vol 2: Oral and Written Evidence (The Stationery Office 2008) 186. 41   J Francois and M Loeb, ‘Trani Poverty and Disability’ (n 39). 42   CESCR, ‘General Comment No 5: Persons with Disabilities’ (9 December 1994) UN Doc E/​1995/​22 1. 43   HRCtee, Communication No 854/​1999 (2002) UN Doc CCPR/​C/​75/​854/​1999. 29 32

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entertainment.44 The Committee concluded that his article 26 rights had not been violated because the ban was based on objective criteria and further that the ban was enacted to uphold human dignity.45 This decision was devoid of any discussion of how disability in particular or Mr Wackenheim’s dwarfism interacts with equality under article 26. Additional precursors to article 5 can be found in the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).46 Equal protection of and before the law, and freedom from discrimination, are enshrined in CERD’s preamble.47 Their placement in the preamble and the preceding phrase ‘considering that’ suggests that such equalities form a pre-​existing foundation on which the more specific subsequent articles rest. CERD’s article 1(4) is significant to the development of disability rights in that it introduced the idea of ‘special measures,’ reiterated in the CRPD’s article 5(4). Like the CRPD, CERD lays out provisions of civil, political, economic, social, and cultural rights.48 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) similarly protects women’s equal enjoyment of all of these rights49 and calls for special measures to obtain both equality of opportunity and equality of treatment.50 Like the ICESCR, CEDAW stresses the need for equality and non-​discrimination in education,51 employment,52 and health,53 and article 15(1) provides for equality before the law. While CEDAW takes care to consider specific situations that affect a minority of women and augment their vulnerability, for example prostitution or a rural setting,54 it makes no mention of disability. While these treaties provided some of the building blocks for the CRPD’s articulation of equality, non-​discrimination, and special measures, it was not until the Convention on the Rights of the Child (CRC)55 that disability was directly addressed. Article 2(1) instructs states parties to ensure the full protection of all children’s rights regardless of disability, but, confusingly, in article 2(2)’s articulated prohibitions on discrimination, disability is not listed as a protected basis.56 Article 23 of the CRC is dedicated solely to the topic of children with disabilities and their ‘active participation in the community,’ including disabled children’s rights to ‘effective access’ regarding education, recreation, health, preparation for employment, and more. Given that international human rights conventions had until this moment been silent regarding disability, article 23 represents a major advancement. It is also of particular note that no state party entered a reservation to article 23, indicating a ripe political climate allowing for the development of the CRPD. Interestingly, the CRC was drafted in the 1980s and came into force in 1990, just before the international disability rights movement began to coalesce into a force that propelled the creation of the CRPD.57 ‘General Comment No 9 on Article 23’, published in 2006, notes that these 45   ibid paras 2.1–​2.3.   ibid para 7.4.  International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195. 47 48   ibid Preamble paras 1–​3.   ibid Art 5. 49   Convention on the Elimination of All Forms of Discrimination against Women, Art 1. 50 51 52 53   ibid Art 4(1).   ibid Art 10.   ibid Art 11.   ibid Art 12. 54   ibid Arts 6 and 14. 55   Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3. 56   CRC Ctee, ‘General Comment 9: The Rights of Children with Disabilities’ (2006) UN Doc CRC/​C/​ GC/​9 para 8 nevertheless contends that Art 2 prohibits disability as a ground for discrimination. 57   Sharan E Brown and Michael J Guralnick, ‘International Human Rights to Early Intervention for Infants and Young Children with Disabilities: Tools for Global Advocacy’ (2015) Adults and Young Children PMC 2, 6, 8. 44 46

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decades in particular were key in drawing the world’s ‘positive focus’ on disability rights.58 This underscores the significance of disability advocacy in reshaping IHRL. Of particular relevance to interpreting article 5(3)’s instruction to provide reasonable accommodation are article 23’s references to provisions ‘subject to available resources’ (23(2)); the need to provide assistance free of cost ‘whenever possible’ (23(3)); and the directive to engage in international cooperation to share information that can help developing countries in particular to provide disabled children with the health care and other opportunities their unique needs require (23(4)).59 State practice and jurisprudence on this may be relevant to securing the reasonable accommodations mandated by article 5(3) of the CRPD, particularly because, as discussed in section III of this chapter, some developing countries have already entered reservations regarding their ability to comply with the CRPD’s provisions that entail cost. When the CRC Committee issued General Comment No 9, it noted that very little international exchange had been taking place, and further that it was unclear how the needs of developing countries to fulfil the rights of disabled children were being taken into account.60 Towards that end, paragraph 22 of the comment made concrete suggestions on how the international community might fund the necessary programmes in developing countries. The comment also directed states parties to allocate the maximum budgets possible,61 a phrase that, while appropriate and useful, nevertheless seems difficult to monitor or enforce.62 Indeed, the CRC committee has been critiqued for failing to fulfil its economic and social rights obligations towards children when such measures as rights-​based budget analysis are available.63 Beyond the core international treaties, several regional treaties and UN declarations helped pave the way for article 5. Article 13 of the African Charter on the Rights and Welfare of the Child established the right of every disabled child to special measures, with the caveat that these are subject to progressive realization and available resources.64 The entire focus of the Inter-​American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities (IACEDPD)65 is on non-​discrimination, and commits the states parties to ‘collaborate effectively’ with each other to create conditions of equality.66 Interestingly, while both mention dignity, neither the United Nations Declaration on the Rights of Mentally Retarded Persons (UNDRMRP)67 nor the UN Declaration on the Rights of Disabled Persons (UNDRDP)68 articulate principles of equality or non-​discrimination in such terms. However, the World Programme of Action Concerning Disabled Persons 69 promoted ‘equalization of opportunities’ as a core tenet, the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care stressed equal enjoyment of rights and non-​discrimination70 and 59   CRC Ctee (n 56) para 2.   CRC (n 56) Art 22. 61 62   See CRC Ctee (n 57) paras 15, 16.   ibid Art 14(a).   See ibid Art 20. 63   See Aoife Nolan, ‘Economic and Social Rights, Budgets and the Convention on the Rights of the Child’ (2013) 21 Intl J Children’s Rts 248. 64   African Charter on the Rights and Welfare of the Child (adopted 1 July 1990, entered into force 29 November 1999) Art 13. 65   Inter-​American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities (adopted 7 June 1999, entered into force 14 September 2001). 66 67   ibid Art 4(2)(b).   UNGA Res 2856 (XXVI) (20 December 1971). 68   UNGA Res 3447 (XXX) (9 December 1975). 69   ‘World Programme of Action Concerning Disabled Persons’ UNGA Res 37/​52 (3 December 1982). 70   ‘Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care’ UNGA Res 46/​119 (17 December 1991), Principles 1(4) and (1)5. 58 60

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the right to live and work in the community,71 and—​as its name makes clear—​the UN’s Standard Rules on the Equalization of Opportunities for Persons with Disabilities72 focused on securing equality for PWDs, including in education, employment, family life, and more. Article 22 of the Vienna Declaration and Programme of Action, adopted by the UN World Conference on Human Rights in 1993,73 stressed the equal rights of PWDs, ‘including their active participation in all aspects of society,’ article 29 reiterated the special vulnerability of PWDs during conflict, and articles 63–​65 were dedicated solely to securing equal opportunity for PWDs. Regionally and in country specific situations, legal advancements for the equality of PWDs continued via the Situation of Persons with Disabilities in the American Hemisphere74 and the Panama Commitment to Persons with Disabilities in the American Hemisphere.75 It was in this context of the long overdue thematic focus on the rights of PWDs that the authors of the CRPD began their work. The next section focuses on how article 5 developed through the eight sessions through which the CRPD was drafted.

3.  Travaux Préparatoires Equality and non-​discrimination featured in the very earliest drafts of the CRPD. At the First Session, the Ad Hoc Committee (Committee) received general statements from representatives of twenty-​two nations, as well as seven non-​governmental organizations (NGOs), the International Labour Organization and the Office of the United Nations High Commissioner for Human Rights (UNHCHR).76 The Committee additionally had before it a working paper submitted by Mexico, position papers of the European Union and China, compilations of existing norms and standards, and several symposia reports.77 The Mexican working paper contained a draft convention text,78 which referred in several draft articles to the concepts of equality and non-​discrimination. Many of these draft articles seemed built upon foundations laid in the human rights documents reviewed in the previous section of this chapter. For example, draft article 4 mentioned ‘compensatory measures’ and ‘specific measures to protect,’ akin to CERD and CEDAW’s special measures; draft article 5 appeared to borrow from CEDAW’s instructions to eliminate cultural stereotypes; and the draft as a whole was focused on articulating and eliminating discrimination in all forms. The EU’s position paper referred to existing standards within

  ibid Principle 3.   ‘Standard Rules on the Equalization of Opportunities for Persons with Disabilities’ UNGA Res 48/​96 (20 December 1993). 73   ‘Vienna Declaration and Programme of Action of the World Conference on Human Rights’ (12 July 1993) UN Doc A/​CONF 157/​23. 74   Situation of Persons with Disabilities in the American Hemisphere (adopted 9 June 1995) OAS Doc AG/​ RES 1356 (XXV-​O/​95). 75  Panama Commitment to Persons with Disabilities in the American Hemisphere (adopted 5 June 1996) OAS Doc AG/​RES 1369 (XXVI-​O/​96). 76  ‘Report of the Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities’ (27 August 2002) UN Doc A/​57/​357 (First Committee Report) para 7. 77   ibid para 6. 78  See ‘Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities: Working Paper Submitted by Mexico’ (2004) UN Doc A/​AC265/​WP 1. 71 72

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the bloc,79 which similarly emphasized equality and non-​ discrimination, while the Chinese contribution was of a more general nature.80 It was then decided to divide the Committee’s work according to thematic areas, including equality in civil and political rights, and equality in economic, social, and cultural (ESC) rights.81 The Committee finally recommended to the UN General Assembly a resolution adopting the Committee’s report on its First Session, which included many references to ‘equalizing opportunities’, and making recommendations for future sessions and contributions.82 At this stage, article 5 in its current form had yet to take shape. At its Second Session, article 5—​originally designated as article 7—​began to emerge. The Committee considered reports of the Secretary-​General on issues and emerging trends related to the advancement of persons with disabilities,83 and on progress in the equalization of opportunities by, for, and with persons with disabilities.84 As regards the former, representations were made on behalf of the USA, the EU, Japan, Mexico, New Zealand, Thailand, Chile, Qatar, Canada, Fiji, South Africa, Uganda, the UN Economic and Social Commission for Asia and the Pacific, and the ILO. Discussion of the latter also featured submissions from several National Human Rights Institutions (‘NHRIs’), individually and collectively, as well as from China, Brazil, the UN Mine Action Service, and the Office of the High Commissioner for Human Rights.85 In addition, the Committee had before it a number of documents, several of which placed emphasis on the principles of equality and non-​discrimination.86 The Committee held general debates on various matters.87 Three panel discussions were also arranged, the second of which examined the principles of non-​discrimination and equality from a disability perspective.88 This panel featured four presenters: Ms Cynthia 79  See ‘Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities:  Position Paper Submitted by the European Union’ (2004) UN Doc A/​AC265/​WP  2. 80  See ‘Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities: Position Paper Submitted by the China’ (2004) UN Doc A/​AC265/​WP 3. 81 82   First Committee Report (n 77) para 8.   ibid para 16. 83   See ‘Issues and Emerging Trends related to Advancement of Persons with Disabilities’ (2003) UN Doc A/​AC265/​2003/​1 and ‘Overview of Issues and Trends related to Advancement of Persons with Disabilities’ (2003) UN Doc A/​AC265/​2003/​2. 84  See ‘Progress in Equalization of Opportunities by, for and with Persons with Disabilities’ UN Doc A/​AC265/​2002/​3. 85   See ‘Statements: Second Session of the Ad Hoc Committee on a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities’ (UN 2003–​2004), available at: . 86   See ‘Letter from the Executive Director of the Danish Institute for Human Rights addressed to the Secretary 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’ (26 May 2003) UN Doc A/​AC265/​2003/​CRP/​9; ‘Bangkok Recommendations on the Elaboration of a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities’ (2003) UN Doc A/​AC265/​CRP 10; ‘Beirut Declaration and Recommendations on the Elaboration of a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities’ (2003) UN Doc A/​AC265/​CRP 12; ‘Compilation of Proposals for a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities’ (2003) UN Doc A/​AC265/​CRP 13 Add 1 & Add 2; and ‘Letter from the Deputy Permanent Representative of Venezuela to the United Nations addressed to the Secretary 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’ (18 June 2003) UN Doc A/​AC265/​2003/​WP 1. 87  See ‘Report of the Second Session of the Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities’ (3 July 2003) UN Doc A/​58/​118 & Corr 1 (Second Session Report) paras 10–​11. 88   For further detail of the panel discussions, see ibid Annex II.

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Waddell (USA) spoke on accessibility as a human rights issue; Ms Charlotte McClain (South Africa) on that nation’s experience with the application of the principles of non-​ discrimination and equality; Dr Rangita de Silva (Sri Lanka) on gender perspectives and analysis; and H E Ambassador Leandro Despouy (Argentina) on the historical evolution of human rights and disability.89 It was concluded from this panel that a binding instrument would best progress human rights of persons with disability.90 Finally, the Committee decided to establish a Working Group for the purpose of preparing and presenting a draft text for negotiation.91 The Working Group met from 5 to 16 January 2004, with the aim of presenting a draft text at the Third Session of the Committee later that year. In the draft eventually prepared by the Working Group, the principles of equality and non-​discrimination became the subject of draft Article 7.92 This early version of article 5 included requirements that states parties: [P]rovide reasonable accommodation, defined as necessary and appropriate modification and adjustments to guarantee to persons with disabilities the enjoyment or exercise on an equal footing of all human rights and fundamental freedoms, unless such measures would impose a disproportionate burden.

Whether or not such measures ‘impose a disproportionate burden,’ how to make this determination, and what rights remain available to PWDs under article 5 in the face of states parties arguing that such a burden prevents accommodations remain key issues for the interpretation and implementation of article 5(3), despite the fact that this language did not make the final cut. Special measures were also included in this draft article, and the early language resembled that of CERD and CEDAW’s special measures provisions.93 A footnote regarding RAs sheds further light on what the drafters intended for article 5(3). Footnote 27 states that: There was widespread agreement in the Working Group on the need to keep the notion both general and flexible in order to ensure that it could be readily adapted to different sectors (e.g., employment, education, etc.) and in order to respect the diversity of legal traditions.

This could cut both ways: it could allow for a more expansive interpretation that provide greater protections to PWDs, or, particularities of a legal tradition could be used to deny RAs. This paragraph accomplishes several things. It protects the autonomy, decision-​making power, and unique needs of PWDs. At the same time, it grants some measure of flexibility to the entity providing RAs, which might reduce the burden of provision. Following this, the footnote states that: There was general agreement that the availability of state funding should limit the use of ‘disproportionate burden’ as a reason by employers and service providers not to provide reasonable accommodation. 89   See ‘Panel II. The Principle of Non-​Discrimination and Equality from Disability Perspective:  Critical Issues Concerning Special Measures and Disability—​Summary’ (UN 2004), available at: . 90 91  ibid.   See Second Session Report (n 87) para 15. 92   See ‘Working Group on a Convention’ (UN 2007), available at: . 93   ‘Special measures aimed at accelerating de facto equality of persons with disabilities shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; those measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.’

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This shifts the burden to states parties to help ensure that private entities provide RAs. It does not, however, address the issue of when states parties argue that funding prevents them from such assistance. Next, the footnote states that: Some members of the Working Group supported the proposition that a failure to ‘reasonably accommodate’ should in itself constitute discrimination, some of those members highlighted General Comment 5 of the Committee on Economic, Social and Cultural Rights as supporting this view. Other members of the Working Group considered that the Convention should be achieved or framed under relevant domestic legislation. Specifically, they took the view that it was inappropriate for an international legal instrument designed primarily to engage State responsibility to frame a failure to ‘reasonably accommodate’ on the part of private entities as a violation of the non-​discrimination principle.

The important relationship between state responsibility and private entities in regards to equality and non-​discrimination is addressed in section III of this chapter. The debate evidenced in the travaux highlights the complexity of this legal issue. At the Third Session, the Committee was presented with two reports of the Working Group.94 At this session, a recommendation was made that PWDs and experts advise the UN on how to increase accessibility in the drafting process, including improving access ‘to the premises, technology, and documents.’95 Discussion of draft article 7 of the Working Group’s proposed text took place over a period of two hours on 25 May 2004.96 During this period, seventeen national governments and various NGOs made representations. Issues raised included the distinction between and need for separation of equality and non-​discrimination; multiple, direct, and indirect discrimination; reasonable accommodation; and the language of ‘special measures’, ‘disproportionate burden’, and regarding equality in relation to the law.97 At the Third Session, the contours of article 5(1) began to take shape, with suggestions made about the meanings of ‘equality before the law’, and ‘non-​discrimination’. Mexico suggested that equality before the law means formal equality,98 similar to the pre-​ human rights meaning that all laws should be applied equally. It was also at this session that Canada proposed language that would become part of the final draft, namely ‘and under the law’ as well as ‘equal benefit of the law’.99 Andrea Broderick has pointed out that no other international human rights treaties includes these additional phrases, and that ‘equal benefit of the law’ appears to be derived from section 15(1) of the Canadian Charter of Rights and Freedoms.100 Broderick has also noted that the travaux provide little information about the substantive differences meant via these distinct phrases, apart from a comment at the Fifth Session that equality under the law could be achieved ‘through

94   ‘Report of the Working Group to the Ad Hoc Committee’ (2004) UN Doc A/​AC265/​2004/​WG/​1 and ‘Report of the Working Group Looking at the Protection of the Rights of Persons with Disabilities’ (2004) UN Doc A/​AC265/​2003/​CRP  2. 95   ibid para 12. 96   ‘Daily Summary of Discussions Related to Article 7 Equality and Non-​Discrimination’ (UN 2003-​04), available at:  (Daily Summary on Article 7). 97 98 99  ibid.  ibid.  ibid. 100   Andrea 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 (Intersentia 2015) 83.

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strict respect for non-​discrimination.’101 Indeed, the absence of travaux commentary on these phrases leaves them open to interpretation, at least until the forthcoming General Comment on article 5 is published, as this will perhaps shed some additional light on the subject. Several delegations commented on special measures, as well as on budgetary constraints that may impact reasonable accommodations. Costa Rica argued against the language ‘disproportionate burden’, ‘because this would add an economic element which may be counter to the rights of PWD’.102 Following this, NGOs continued with arguments that a failure to provide reasonable accommodations would result in a failure of ESCR, that notions of a ‘disproportionate burden’ regarding RAs could lead to accommodation, and that exceptions to RAs must be limited.103 A definition of RAs appears in article 2 of the final text. At its Fourth Session, the Committee completed its first reading of the Working Group’s draft text, and reviewed articles 1–​15 and 24 bis, with further review of the draft convention to ensue at subsequent sessions.104 The Committee also considered a report of the Coordinator of informal discussions, Ambassador Don MacKay of New Zealand, regarding their progress.105 This relates directly to how article 5(2) will be interpreted in light of intersectionality. Broderick states that, based on Ambassador MacKay’s insistence that draft article 7 should not contain a list of the multiple grounds of discrimination but rather that this list should appear in the preamble, article 5(2) must therefore be interpreted together with a reading of paragraph (p) of the Preamble,106 an idea that will be revisited in section III. In these discussions, there was general agreement as to the substance of draft article 7, although it was remarked that existing paragraph 3 had a high risk of being misinterpreted.107 This paragraph, which had stated that ‘Discrimination does not include a provision, criterion or practice that is objectively and demonstrably justified by the State Party by a legitimate aim and where the means of achieving that aim are reasonable and necessary’,108 was therefore deleted. This was a wise decision, as such a paragraph would have been difficult to interpret without definitions of ‘legitimate aims’, and further because its focus on a defence for states parties clashes with the purposes of article 5. At this session, draft article 7(1) contained almost word for word what would become article 5(1) and 5(2). Similarly, the text of draft article 7(4) presented at this session would become, after some small modifications, article 5(3). Also at this session, the summary of discussions on draft article 4 declared that ‘Non-​discrimination is not subject to the

101   ibid 87, referencing ‘Daily Summary of Discussions at the Fifth Session: 24 January 2004’ (UN 2003-​ 04), available at: . 102 103   Daily Summary on Article 7 (n 96).  ibid. 104   ‘Report 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 on its Fourth Session’ (14 September 2004) UN Doc A/​59/​360 para 9 (Fourth Session Report). 105 106   ibid; see Annex IV.   Broderick (n 100) 104. 107   Fourth Session Report (n 104) para 25. 108   ‘Report of the Third Session 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’ (9 June 2004)  UN Doc A/​AC265/​2004/​5 Annex II:  Compilation of Proposed Revisions and Amendments Made by the Members of the Ad Hoc Committee to the Draft Text Presented by the Working Group as a Basis for Negotiations by Member States and Observers in the Ad Hoc Committee, available at: .

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doctrine of progressive realization’,109 a statement that may serve as an interpretive aid for article 5. Formal discussion of article 7 ensued on 25 August 2004, and on 1–​3 September.110 An important change made during this session was the replacement of the term ‘on an equal footing’ with the phrase ‘on a basis of equality with others’ in draft article 7(2). This language was not included in the final text of article 5, but it does appear in articles 12 and 29. Those interested in an analysis of its meaning might refer to Broderick’s discussion.111 Proposals from the previous session continued to have support; for example, the EU expressed new willingness for equality and non-​discrimination to be addressed in separate articles. Thailand put forward a suggestion, which proved controversial, that denial of reasonable accommodation should be included in the definition of discrimination. Other aspects of this definition were also discussed, as well as the concepts of indirect and direct discrimination, and perceived or imputed disability. At the Fifth Session, informal discussions took place with respect to articles 7(5) to 15 of the draft convention and proposed additional articles.112 Draft article 7(5) was discussed on 24 January 2005,113 as well as the following day in connection with draft article 9’s provision for equal recognition as a person before the law.114 A bracketed text of article 7(5) was produced, highlighting issues surrounding ‘positive’ or ‘special’ measures; clarification that such measures will not result in unequal or separate standards; and inclusion of an effective sunset clause for when such measures are no longer required.115 Of note was the conclusion that: Following an extensive discussion of paragraph 5 of draft article 7, there was general agreement that the words ‘measures aimed at accelerating de facto equality of persons with disabilities shall not be considered discrimination’ should remain in the text. There was, however, no agreement on whether the word ‘measures’ should be qualified by an adjective such as ‘special’, or ‘positive’, and if so, which adjective would be preferable.116

Draft article 7(5) would go on to become article 5(4); ‘special’ as an adjective preceding ‘measures’ would be agreed at Session Seven. The Committee also considered various amendments proposed to date.117 Following these deliberations, the Committee adjourned further consideration of the draft convention to its next session.118 At the Sixth Session, the Committee completed its consideration of draft Articles 15, 15bis, and 24bis that had been adjourned from the Fifth Session.119 Informal discussions took place with respect to these provisions; consideration was given to draft article 7 110   Fourth Session Report (n 104) para 7.   Daily Summary on Article 7 (n 96).   Broderick (n 100) 92–​93. 112   ‘Report 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 on its Fifth Session UN Doc A/​AC265/​2005/​2 (23 February 2005) (Fifth Session Report) para 9. 113   See ‘Daily Summary of Discussion at the Fifth Session 24 January 2005’ (UN 2005), available at: . 114   See ‘Daily Summary of Discussion at the Fifth Session 25 January 2005’ (UN 2005), available at: . 115 116   See Fifth Session Report (n 112) Annex II para 7.   ibid Annex II para 4. 117   ibid para 7. 118   Report 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 on its Fifth Session UN Doc A/​AC265/​2005/​2 (23 February 2005) para 15. 119   See ‘Proposed Organization of Work’ (UN 2005), available at: ,  fn1. 109 111

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insofar as it was relevant to the provisions being given primary consideration at this session.120 In addition, the Committee had before it two background documents prepared by the Office of the UNOHCHR, the first on the concept of ‘special’ measures in international human rights law,121 and the second on legal capacity.122 At the Seventh Session, the Committee continued its review of the draft convention, based on a draft text proposed by the Chair.123 In this draft, equality and non-​ discrimination appeared for the first time as draft article 5 rather than 7, reflecting delegates’ expressions of the importance of these concepts.124 The Committee reviewed three background conference documents prepared by the UNOHCHR, the first on the concept of RAs,125 the second on accessibility of information and communications in respect of visual impairments,126 and the third on the draft final provisions of the convention.127 Informal discussions took place with respect to articles 1 to 34, the preamble, and the title of the draft convention as well.128 Draft article 5 was discussed in detail on 16 January 2006.129 Written proposals on this provision had been submitted by the EU, Israel, and NGO the International Disability Caucus (‘IDC’). Austria, speaking on behalf of the EU, expressed that Article 5(4) should refer to ‘specific’ measures, as ‘special’ was disfavoured by NGOs and ‘positive’ caused concern amongst several delegations.130 ‘Specific measures’ won out in the final text. Once again, a proposal was made for the language ‘on the equal basis with others’; Kenya submitted that this should be included in article 5(3) ‘to go further than’ RAs alone.131 While Australia expressed that the phrase instructing states parties to ‘take appropriate steps’ to provide RAs was ‘a move backwards from the current position under international law’, as this may remove the burden placed on the states to treat RAs as fundamental rights, and Israel stressed that it agreed with the NGO community that article 120   See ‘Report 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 on its Sixth Session’ (17 August 2005) UN Doc A/​60/​266, Annex II, and ‘UN Convention on the Rights of People with Disabilities Sixth Session of the Ad Hoc Committee—​Daily Summary of Discussions by Date’ (UN 2005), available at: . 121  ‘The Concept of “Special” Measures in International Human Rights Law:  Background Document Prepared by the Office of the United Nations High Commissioner for Human Rights’ (2005) UN Doc A/​ AC265/​2005/​CRP  4. 122  ‘Legal Capacity:  Background Document Prepared by the Office of the United Nations High Commissioner for Human Rights’ (2005) UN Doc A/​AC265/​2005/​CRP 5. 123   ‘Report 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 on its Seventh Session’ (13 February 2006) UN Doc A/​AC265/​2006/​2 para 2. 124   ibid Annex II. The full draft text and explanations of certain changes were given in a ‘Letter from the Chairman to All Members of the Committee’ (14 October 2005) UN Doc A/​AC265/​2006/​1 paras 37–​38. 125   ‘Background Conference Document on Reasonable Accommodation’ (7 December 2005) UN Doc A/​ AC265/​2006/​1. 126   ‘Background Conference Document on Accessibility to Information and Communication’ (11 January 2006) UN Doc A/​AC265/​2006/​CRP  3. 127   ‘Background Conference Document prepared by the Office of the High Commissioner for Human Rights:  Draft Final Provisions’ (UN 2006), available at:  . 128  Report of Seventh Session of the Ad Hoc Committee UN Doc A/​AC265/​2006/​2 (13 February 2006) para 9; see Annex II. 129  See ‘Daily Summary of Discussion at the Seventh Session 16 January 2006’ (UN 2006), available at: . 130 131  ibid.  ibid.

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5(3) should do more to ensure that states parties took ‘active steps’,132 ‘take all appropriate measures’ prevailed in the final text. As in previous sessions, there was support for the inclusion of ‘equal and effective protection’ ‘to remind states that including non-​ discrimination in laws is not sufficient and that active measures are required’.133 The final text of 5(2) instructs states parties to ‘guarantee . . . equal and effective legal protection’. Also repeated from earlier discussions was the suggestion that article 5(2) include punitive measures to be applied to those that discriminate,134 a proposal that did not make the final cut. At the end of the first day, the position was summarized by the Chair: paragraph (1) was generally accepted without amendment; discussion regarding paragraph (2) centred on the EU’s proposal aimed at streamlining the text; while with respect to paragraph (3) regarding reasonable accommodation, there was disagreement as to whether its terms should be amplified, as well as whether ‘measures’ should be ‘specific’. There was also consideration of IDC’s proposal for provision that persons with disability should accept such measures, and a discussion ensued regarding how states parties could ensure this; acceptance did not comprise the final text. Draft article 5 was also the subject of brief discussions on 17, 26, 30, and 31 January 2006, as delegates sought to ensure consistency between this and other articles.135 At the end of this session, the Committee adopted a draft report on its seventh session, which contained a complete working text of the draft International Convention on the Rights of Persons with Disabilities.136 At the Eighth Session, national governments, UN agencies, NHRIs, NGOs, intergovernmental organizations, and facilitators proposed a variety of amendments. However, no alterations to draft article 5 were recommended at this stage.137 On 25 August 2006, the Committee adopted the draft Convention on the Rights of Persons with Disabilities, including a draft Optional Protocol, as a whole, without a vote.138 To date, the CRPD Committee has made Concluding Observations regarding article 5 of the Convention in relation to over sixty states parties. Common themes include the unduly narrow scope of various states parties’ legislation with respect to persons with disability, absence of appropriate provisions or sanctions in respect of denial of reasonable accommodation, multiple and intersectional discrimination, and a lack of publicly available information.139 133 134  ibid.  ibid.  ibid.  See ‘Daily Summary of Discussion at the Seventh Session 17 January 2006’ (UN 2006), available at: ; ‘Daily Summary of Discussion at the Seventh Session 26 January 2006’ (UN 2006), available at:  ; ‘Daily Summary of Discussion at the Seventh Session 30 January 2006’ (UN 2006), available at:  ; and ‘Daily Summary of Discussion at the Seventh Session 31 January 2006’ (UN 2006), available at: . 136   ‘Draft Report 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 on its Seventh Session’ (2006) UN Doc A/​AC265/​2006/​L 3. 137   See ‘Revisions and Amendments at the Eighth Session of the Ad Hoc Committee’ (UN 2007), available at: . 138   ‘Final Report 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’ (6 December 2006) UN Doc A/​61/​611; see Annex I for the full text adopted. 139   For a compilation of all Concluding Observations adopted as at November 2017, see International Disability Alliance, Compilation of the CRPD Committee’s Concluding Observations (International Disability Alliance 2017), available at:  . 132 135

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4.  General Framework of Article 5 This section analyses the potential legal meaning of each paragraph of article 5 in turn. Before doing so, it is worth noting some overarching guidance to interpreting article 5 provided via the CRPD Committee’s (the Committee’s) draft general comment on the article (Draft General Comment No 6/​the draft comment).140 Statements made in this draft, and in the responses of the fourteen states parties that provided written submissions in response, may highlight interpretive questions that could influence how equality and non-​ discrimination are implemented moving forward. Important general issues include the medical model and charity model of disability; the idea that states parties may be engaging in discrimination against PWDs via policies described as helpful to PWDs; the centrality of ‘dignity’ to equality in the CRPD; and the fact that defining ‘on an equal basis with others’ will be essential to give effect to all of the substantive articles in the Convention. First, the Committee made clear at the outset of the draft comment that its interpretation of article 5, and of the Convention in general, rejects the ‘medical model’ and ‘charity model’ as ‘incompatible’ with the Convention, and noted that these approaches are still evidenced in various states parties ‘laws, policies, the media and practices’.141 It called for a rights holder model instead.142 This interpretation was opposed by Australia and the UK in their responses,143 highlighting that at least some states parties seem reluctant to adjust their existing disability law, and bringing practical import to the fact that there is no one definition of equality or non-​discrimination under IRHL. Given the Committee’s statements that use of the medical and charity models present ‘one of the main remaining challenges regarding the persistence of disability-​based discrimination’,144 this represents a substantial disagreement regarding the interpretation of Article 5. Second, the Committee critiqued public authorities as ‘acquiescen[t]‌’ to persistence discrimination against PWDs, and stated that disability-​based discrimination is often ‘justified’ as in the best interest of PWDs rather than being recognized as a violation of the Convention.145 This statement, read together with the draft comment’s disapproval of the medical model and charity model and the insistence that PWDs retain their legal capacity at all times,146 presents a strong critique of current state practice. Further, it could be read as a warning to states parties that practices classified as helpful to PWDs 140   Draft General Comment (n 11).  After this chapter was completed, a General Comment on Article 5 was adopted, and can be found at . The analysis in this chapter is based on the draft comment, which is very similar to, but not exactly the same as, the final General Comment. 141   ibid para 2.    142 ibid. 143   See Australian Government, Submission to the Committee on the Rights of Persons with Disabilities: Draft General Comment on the Right of Persons with Disabilities to Equality and Non-​discrimination (Article 5)  (15 November 2017)  paras 8–​9, available at:  ; Government of the United Kingdom and Northern Ireland, Submission to the Committee on the Rights of Persons with Disabilities:  Draft General Comment on the Right of Persons with Disabilities to Equality and Non-​discrimination (Article 5) (30 November 2017) para 8, available at:  ; cf Defensoria del Pueblo Colombia, Submission to the Committee on the Rights of Persons with Disabilities: Draft General Comment on the Right of Persons with Disabilities to Equality and Non-​ discrimination (Article 5) (30 June 2017), available at: ; Royal Thai Government, Submission to the Committee on the Rights of Persons with Disabilities: Draft General Comment on the Right of Persons with Disabilities to Equality and Non-​discrimination (Article 5) (2017), available at: . 144 145 146   Draft General Comment (n 11) para 2.   ibid para 4.   ibid para 54.

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will be under scrutiny as harmful and to be eliminated. This sentiment was also expressed in submissions in response to the draft comment. For example, Fredman et  al argued that ‘measures that on the surface appear to enhance equality might in practice reinforce inequalities’.147 Such a framing indicates a significant clash between present domestic law and the legal change needed to come into compliance with the CRPD. How states parties, as opposed to the Committee, will interpret article 5 is a key issue, given that the CRPD’s ‘potential to improve the lives of people with disabilities . . . will depend ultimately on if and how the CRPD is incorporated into domestic law’.148 Third, the Committee noted that the CRPD mentions ‘dignity’ more than any other IHRL convention and that the understanding that all human beings are equal in worth and dignity is the foundation for the enjoyment of equal rights.149 Indeed, the treaty references dignity nine times.150 This focus on dignity builds on the 1975 General Assembly Declaration on the Rights of Disabled Persons, which stressed that ‘Disabled persons have the inherent right to respect for their human dignity’ and elaborated that this means ‘the same fundamental rights as their fellow-​citizens of the same age, which implies first and foremost the right to enjoy a decent life, as normal and full as possible’.151 In this earlier formulation, dignity was linked to the full enjoyment of fundamental rights, and the CRPD expands the legal import of dignity as the basis of equality. The convention’s emphasis on dignity could be crucial for achieving substantive equality and transformative equality.152 Dignity could be particularly important when addressing socio-​economic rights and redressing past disadvantages.153 Further, using Feldman’s four-​part typology of substantive equality,154 fighting indignity plays a key role in states parties’ obligations to address harmful stereotypes in culture and media.155 Thus, the CRPD’s unique emphasis on dignity creates a context for a more expansive, substantive, and transformative version of equality than previously seen in IHRL. Fourth, the Committee highlighted that: Equality and non-​discrimination are at the heart of the Convention and run like a golden thread through all its substantive articles via the phrase ‘on an equal basis with others’. It links all substantive rights of the Convention to the non-​discrimination principle.

This underscores the importance of article 5 to the entirety of the treaty. Defining what ‘on an equal basis with others’ means will be essential for giving effect to the many substantive provisions within the Convention. ‘On an equal basis with others’ is not a phrase 147   Oxford Human Rights Hub, Achieving Transformative Equality for Persons with Disabilities: Submission to the CRPD Committee for General Comment No 6 on Article 5 of the UN Convention on the Rights of Persons with Disabilities, (2017), available at: . 148   Arlene S Kanter, The Development of Disability Rights Under International Law: From Charity to Human Rights (Routledge 2015) 2. 149   Draft General Comment (n 11) para 7. 150   CRPD (n 2) Preamble paras (a), (h), and (y); Art 1 (Purpose); Art 3(a) (General Principles); Art 8(a) Awareness-​raising; Art 16(4) (Freedom from exploitation, violence, and abuse); Art 24(1)(a) (Education); and Art 25(d) (Health). 151   UNGA Res 3447 (XXX) (9 December 1975) para 3. 152   See eg Evadné Grant, ‘Dignity and Equality’ (2007) 7 HRL Rev 299, arguing that South Africa’s constitutional emphasis on dignity has formed an essential building block for realizing substantive and transformative equality in meaningful and practical ways. 153   See eg Joan Small and Evadné Grant, ‘Dignity, Discrimination, and Context: New Directions in South African and Canadian Human Rights Law’ (2005) 6 HR Rev 25. 154   Sandra Fredman, ‘Substantive Equality Revisited’ (2016) 14 Intl J Const L 712. 155   Fredman et al (n 148) 6.

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that appears in article 5.  Nevertheless, defining ‘equal before and under the law’ and ‘equal protection and equal benefit of the law’ will help to clarify the meaning of ‘on an equal basis with others.’ Similarly, bearing in mind the need to achieve the various substantive rights ‘on an equal basis with others’ should inform the interpretation of equality in article 5. Like dignity, ‘on an equal basis’ with others is more about substantive and transformative equality than it is about formal equality.156 It is in this context that the analysis of article 5’s four paragraphs should be understood. Finally, it is worth noting that the first three paragraphs of article 5 appear to be ‘autonomous norms’ because ‘they guarantee non-​discrimination not only in the context of other rights but in general’,157 whereas paragraph four might be interpreted as a ‘subordinate norm’, ‘prohibit[ing] discrimination only in the enjoyment of the rights and freedoms otherwise set forth in the respective instrument’.158 After all, specific measures are only necessary to ensure the full enjoyment of other rights within the CRPD, including equality as articulated in article 5. Such measures have little meaning without reference to both the broader and more specific goals of the CRPD. In contrast, the rights enshrined in paragraphs 1–​3 are stand-​alone rights. Questions regarding the obligatory nature of paragraph 4 can be answered with reference to article 5’s other provisions.

5.  Paragraph 1 Paragraph 1 can be broken into 5 key parts: 1 ) 2) 3) 4) 5)

all persons are equal before . . . the law all persons are equal . . . under the law and are entitled without discrimination to the equal protection and equal benefit of the law.

The language ‘all persons are equal before the law’ has appeared in other IHRL documents,159 the jurisprudence of which can help shed light on how this will be interpreted at the CRPD. Generally speaking, ‘equal before the law’ is interpreted as formal equality,160 which means sameness or consistency of treatment. The CRPD Committee commented that the phrase ‘is usually interpreted as meaning equal treatment by the judiciary or law enforcement officers’, thereby prohibiting law enforcement officers and administrators from discriminating against PWDs.161 This is consistent with interpretation at other human rights bodies. Thus, ‘before the law’ appears very literal in meaning. That is to say,

156   See Broderick (n 100) 92–​95, noting that the CEDAW committee has interpreted this phrase to mean de facto equality, and that this phrase will mean equality in fact and the achievement of the same conditions for PWDs as for those in the ‘mainstream’. 157   Daniel Moeckli, ‘Equality and Non-​Discrimination’ in Daniel Moeckli, Sangeeta Shah, and Sandesh Sivakumaran (eds) International Human Rights Law (2nd edn, OUP 2013) 162. 158   ibid 161. 159   UDHR Art 7; ICCPR Art 14(1) and Art 26; CERD Art 5(a), CEDAW Art 15. 160   eg Mexico made this assertion during the drafting sessions: ‘Daily Summary of Discussions Related to Article 7: Equality and Non-​discrimination’ (25 May 2004), available at: ; see also Nowak (n 5) 605. 161   Draft General Comment (n 11) para 15, referencing CESCR, ‘General Comment 16’ (18 July 2005) UN Doc E/​C12/​2005/​3 para  9.

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it refers to sameness of treatment when a PWD comes ‘before the law’ via her interaction with state officials administering justice. Equality before the law continues to be a very real issue for PWDs, compounded at times by intersecting discrimination. Violations of the right to equality before the law may be driven by stereotyping, demonstrating an overlap between article 5 and article 8. This interpretation is supported by Draft General Comment No 6, which states that ‘[f ]‌ormal equality helps to combat negative stereotyping and prejudices’.162 The Committee has pointed out that the lack of awareness training and policies to prevent harmful stereotyping of women with disabilities by public officials, including police officers, prosecutors, and judges, can often lead to individual instances of violations of rights.163 This section of article 5(1) also interacts with the need for RAs in article 5(3), as well as accessibility in article 9 and freedom from violence in article 16. Disabled victims of violence may find it difficult to physically access police or be understood by them,164 and overlapping stereotypes and discriminatory attitudes can cause prosecutors or judges to be dismissive of the legal claims of PWDs, such as female PWDs reporting violence.165 Persons with intellectual disabilities may face unique discrimination before the law, for example by being treated as less credible witnesses.166 In this sense, it is clear that intersectionality will remain a key issue for equality and non-​discrimination under the CRPD. Such discriminatory practices are particularly important given that the Optional Protocol to the CRPD, which allows individual communications to the Committee regarding claimed violations of the CRPD by states parties, requires the exhaustion of local remedies.167 This makes access to justice at the domestic level even more pressing, given that PWDs will need to thoroughly engage their local justice systems before they can request support from the Committee. Given this, the Committee will need to take a proactive stance regarding states parties’ monitoring and training of justice sector employees, and both awareness raising and direct involvement of PWDs will be helpful in this regard. Additionally, the continued prevalence of discrimination at all levels of justice systems globally implies that states should engage in a process of on-​going consultation with PWDs on the presumption that violations may be on-​going, at least until it can be established by the Committee that the legal system is fully equipped to provide access to justice to all PWDs. The phrase ‘equality under the law’ in article 5(1) does not appear in other IRHL conventions, and thus there is very little interpretative support for it in IHRL. The Committee has stated the following regarding this phrase: The travaux préparatoires reveal that this guarantee reflects the wording of section 15 (1) of the Canadian Charter of Rights and Freedoms. During the fifth negotiation sessions, the term was   See para 10.   CRPD Committee, ‘General Comment No 3’ (2016) UN Doc CRPD/​C/​GC/​3 para 17(e). 164   UNHRC, ‘Thematic Study on the Issue of Violence against Women and Girls and Disability: Report of the Office of the United Nations High Commissioner for Human Rights’ UN Doc A/​HRC/​20/​5 (2012) para 41. 165   ibid para 42. 166   See eg M Peled, G Iarocci, and DA Connolly, ‘Eyewitness Testimony and Perceived Credibility of Youth with Mild Intellectual Disability’ (2004) 48 J Intellectual Disability Res 699. 167   Art 2(d) of the Optional Protocol renders claims made without the exhaustion of local remedies inadmissible, with the possibility of exceptions ‘where the application of the remedies is unreasonably prolonged or unlikely to bring effective relief ’; Art 5 claims have been denied on this basis; see eg CRPD Committee, SC v Brazil Communication No 10/​2013: Decision adopted by the Committee (28 October 2014) UN Doc CRPD/​C/​12/​D/​10/​2013 para  6.5. 162 163

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interpreted as demanding ‘strict respect for non-​discrimination’. It appears, then, that ‘being equal under the law’ refers to the substance of the law as such. The law itself shall be equal in the sense that all groups of a given society are treated fairly under the law, that the legal standards are the same for all to whom they apply and that all persons in a given jurisdiction are included. Thus, the recognition that all persons with disabilities are equal under the law means that there should be no laws that allow for specific denial, restriction or limitation of the rights of persons with disabilities, and that disability should be mainstreamed in all legislation and policies.168

This interpretation thus refers to the content of the law rather than the practices of justice system officials. It creates several effects, including review of all laws and removal of any direct discrimination. This is consistent with how the phrase ‘equal protection under the law’ has been interpreted in US constitutional law, for example by prohibiting laws that allow racial segregation169 or deny equal access to institutions such as marriage.170 However, ‘equal before the law’ has also been interpreted as referring to the content of the law, with the Human Rights Committee (HRC) stating in a General Comment on ICCPR Article 26 that ‘when legislation is adopted by a state party, it must comply with the requirement of article 26 that its content should not be discriminatory’.171 If this is the case, it is not clear what ‘under the law’ would add. This redundancy could imply that, in contrast to the Committee’s above mentioned interpretation, ‘under the law’ is meant to refer to substantive rather than formal equality, and to include indirect as well as direct discrimination. The Committee’s comment regarding mainstreaming supports this, because mainstreaming requires drafters to actively assess the implications of any new laws or policies upon PWDs, and this goes beyond the mandate to remove direct discrimination from existing law. Mainstreaming is also equally impactful on both direct and indirect inequality, as it is concerned with the lived experience of PWDs.172 There is therefore an argument that the initial phrasing in article 5(1) prohibits both direct and indirect discrimination. ‘Direct discrimination occurs when a person, on account of one or more of the prohibited grounds, is treated less favourably than someone else in comparable circumstances.’173 In contrast, ‘[i]‌ndirect discrimination occurs when a practice, rule, or requirement that is outwardly “neutral”, that is not based on one of the prohibited grounds of distinction, has a disproportionate  impact on particular groups defined by reference to one of these grounds. Thus, although there is no difference in treatment, due to structural biases, treating unequals equally leads to unequal results.’174 Indirect discrimination has been recognized by multiple IHR treaty bodies,175 and jurisprudence on the topic would support a broad interpretation of ‘under the law’ in article 5(1).   Draft General Comment (n 11) para 16 (internal citations omitted).   Brown v Board of Education of Topeka, 347 US 483 (1954). 170   Obergefell v Hodges, 576 US _​_​_​(2015). 171   UNHRC, ‘General Comment No 18: Non-​discrimination’ (10 November 1989) UN Doc HRI/​GEN/​ 1/​Rev 9 (Vol I) 195 para 12. 172   See eg UN ‘Report of the Economic and Social Council for 1997’ (18 September 1997) UN Doc A/​52/​ 3, defining gender mainstreaming. 173 174   Moeckli (n 157) 164.   ibid 165. 175   See eg UNHRC, Singh Bhinder v Canada, Communication No 208/​1986: Views (9 November 1989) UN Doc CCPR/​C/​37/​D/​208/​1986; Althammer v Austria, Communication No 998/​ 2001:  Views (8 August 2003) UN Doc CCPR/​C/​78/​D/​998/​2001; CERD Ctee, ‘Concluding Observations’ (21 May 2002) UN Doc CERD/​C/​60/​CO/​6 (Solomon Islands); CERD Ctee, ‘Report of the Committee on the Elimination of Racial Discrimination’ UN Doc A/​56/​18 (21 May 2002) para 350 (Trinidad and Tobago); CERD Ctee, ‘Concluding Observations’ (10 December 2004) UN Doc CERD/​C/​65/​CO/​4 para 16 (Madagascar); CESCR, ‘Concluding 168 169

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In this sense, ‘under the law’ could mean ‘as affected by the law,’ an interpretation that recognizes lived experience. After all, many laws that in no way directly address disability will affect PWDs, and the actual experience of PWDs is a central theme of the CRPD. Further, this understanding of ‘equality under the law’ makes sense given that the phrase is immediately followed by ‘entitled without discrimination to the equal protection’ of the law. This is because equal protection has been interpreted not only as removing discriminatory laws, but also as requiring consultation between government and affected groups to achieve this aim.176 Given CRPD Article 4(3)’s instruction that states parties must consult with and involve PWDs in the development and implementation of legislation and policy, it would be reasonable to read the second, third, and fourth part of 5(1) as requiring both mainstreaming and a focus on direct and indirect, as well as de jure and de facto, equality. Finally, the phrase ‘equal benefit of the law’ further extends the substantive and positive equality obligations of article 5(1). Like ‘under the law,’ the phrase ‘equal benefit of the law’ is Canadian in origin. Both the Committee and Broderick have examined Canadian jurisprudence regarding the phrase to conclude that it requires states parties to take positive measures to ensure PWDs are enjoying the substantive gains that certain laws aim to provide, for example equal access to government services, which may requires RAs.177 In practice if not via this exact language, multiple human rights bodies have come to the conclusion that states have an ‘obligation to promote, guarantee, and secure equality by taking proactive steps to eliminate structural patterns of disadvantage and to further social inclusion’.178 In this sense, ‘equal benefit of the law’ is a prime example of article 5’s promotion of transformative equality, as it addresses both inclusion and the obligation on states to achieve this inclusion. It is also a further indication that the onus should be on states parties to demonstrate that their laws and legal officials are achieving the myriad meanings of equality enshrined in 5(1), given that any benefits drafters intended the law to construe should be demonstrated to accord equally to PWDs.

6.  Paragraph 2 Building on similar provisions in CERD and CEDAW, paragraph 2 renders disability a prohibited ground for discrimination. Article 5(2) must be read together with article 2, which defines ‘discrimination on the basis of disability’. Observations’ (1 December 2000)  UN Doc E/​C/​12/​1/​Add.54 para 22 (Belgium); CESCR, ‘Concluding Observations’ (30 May 1994) UN Doc E/​C.12/​1994/​4 para 12 (Romania); CEDAW Ctee, ‘Report of the Committee on the Elimination of Discrimination against Women’ (20 March 2003) UN Doc A/​58/​38 (Part II) para 358 (Japan); CEDAW Ctee, ‘Report of the Committee on the Elimination of Discrimination against Women’ (17 August 2000) UN Doc A/​55/​38 (Part II) para 91 (Moldova); CEDAW Committee, ‘Report of the Committee on the Elimination of Discrimination against Women’ UN Doc A/​53/​38/​Rev 1 (Part II) (21 May 2002) para 319 (Peru). 176   See eg CEDAW Committee, ‘Report of the Committee on the Elimination of Discrimination against Women’ UN Doc A/​57/​38 (Part II) (2 May 2002) para 191. 177   See Draft General Comment (n 11) para 18; Broderick (n 100) 87–​91. 178   Moeckli (n 157) 170, referencing CERD (n 47) arts 2(1)(e), 2(2) and 7; UNHRC, ‘General Comment 4’ (1981) UN Doc HRI/​GEN/​1/​Rev 9 (Vol I) 175, para 2; General Comment No 18 (n 171) paras 5 and 10; CEDAW (n 50) arts 3 and 5; CERD Ctee, ‘General Recommendation XXIX’ (1 November 2002) UN Doc HR/​GEN/​1/​Rev 9 (Vol II) 296, paras 5, 6, 8, 9, 17, 33–​35; Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Arts 2(1)(e), 2(2) and 3–​24.

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Article 2 explains that: ‘Discrimination on the basis of disability’ means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.

The phrase ‘on an equal basis with others’ will be important for securing substantive and transformative equality, as it should guarantee practical effects that positively impact the lived experience of PWDs. Equally important is the breadth of the above protection: it sweepingly covers all human rights and all fields, as well as all forms of discrimination. This is but one of the ways the CRPD is more expansive than previous IRHL: its refusal to demarcate grounds and its tendency to make protections as broad and open ended as possible. The above definition of ‘on the basis of discrimination’ thus allows for dozens or even hundreds of possible permutations. The Committee further elaborated discrimination as comprising five categories: 1) direct; 2) indirect; 3) denial of reasonable accommodation; 4) harassment; and 5) intersectional discrimination. Regarding intersectional discrimination, a particularly lauded and yet still developing aspect of the CRPD, the Committee has stated that ‘[a]‌ll group members are individuals with multiple layers of identities, statuses and life circumstances. Inclusive equality provides for a new concept, which takes into account individual, and structural as well as intersectional discrimination and power relations.’179 Regarding RAs, their inclusion here as a specific form of discrimination strengthens the likelihood that they will be fulfilled, but additional considerations such as margin of appreciation and progressive realization for developing countries may offset this benefit. Broader than paragraph 1 but similar in objective, paragraph 2 requires states to refrain from any discriminatory action, including but not limited to laws and policies. Further, it imposes a duty on states to prevent discrimination by non-​state actors.180 This is particularly important in the disability context, where discrimination by private actors tends to be narrowly conceptualized, for example as limited to education or employment.181 Satz describes this phenomenon as ‘fragmentation’ and argues that it ‘is perhaps the most significant barrier to addressing disability discrimination under the current civil rights approach’.182 Similarly, Bagenstos notes that ‘many individuals with disabilities face significant barriers to employment that operate well before they are ever in a position to be discriminated against by an employer’.183 These comments underscore the need to conceptualize disability as a constant part of life, rather than occurring in specific pockets. It also urges the perspective of PWDs rather than duty bearers, whose interaction with disability might be limited to episodic or narrow situations. Thus, state obligations to prevent third party discrimination must be viewed as broadly and pragmatically as possible, so as to capture the full ambit of the lived experience of disability discrimination, and correspondingly to remove as many of these barriers as possible. Beyond the ‘obligation to respect,’ which ‘requires states 180   Draft General Comment (n 11) para 10.   Moeckli (n 157) 170.   Eilionóir Flynn, From Rhetoric to Action: Implementing the UN Convention on the Rights of Persons with Disabilities (CUP 2011) 412. 182   A Satz, ‘Disability, Vulnerability and the Limits of Antidiscrimination’ (2008) 83 Washington L Rev 513, 533. 183   Samuel R Bagenstos, Law and the Contradictions of the Disability Rights Movement (Yale UP 2009) 128. 179 181

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to refrain from any discriminatory action and to ensure that all their laws and practices comply with the right to non-​discrimination’,184 Article 5(3) obligates states parties to take positive measures. For example, removing employment discrimination could require positive measures such as ‘assistant services, assistive technology, structural modifications to homes, and accessible transport’.185 Thus, while ‘Article 5 and 4 (1) (a) CRPD demand that States parties adopt anti-​discrimination legislation that is both, comprehensive and specific’,186 legislation alone won’t be enough; practical steps are required. Similarly, the phrase ‘equal and effective legal protection’ requires ‘effective legal remedies’187 and could be read together with article 12(3)’s direction that ‘States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity’ as requiring proactive positive measures including regarding non-​state actors. Article 5(2)’s interaction with article 12 in this regard opens up the debate between those that advocate that PWDs have full legal capacity at all times,188 and those that see benefits to limited guardianship systems.189 The key question is which perspective affords the most ‘equal and effective legal protection’. The Committee and States Parties have clashed strongly on this topic in the development of a General Comment on Article 5, with the Committee taking a harder line view on the inviolability of legal capacity under the convention,190 and States Parties arguing for limited exceptions currently recognized under domestic regimes.191 This part of article 5(2) must also be read together with article 13 regarding access to justice, and article 9 regarding accessibility, as equal and effective legal protection cannot be achieved without it. This might mean the provision of RAs, financial support, diverse communication methods, and more.192 Unlike RAs, positive measures taken to ensure access to justice will not be subject to a proportionality test.193 An area of controversy regarding article 5(2) is the interaction between abortion rights and discrimination against disabled foetuses. Some advocacy groups have taken the position that article 5(2) should result in a ban on the abortion of disabled foetuses,194 on the basis that such abortions are ‘a violation of respect for difference and acceptance of   Moeckli (n 157) 170.    185  Flynn (n 181) 413, citing Bagenstos (n 183) 128. 187   Draft General Comment (n 11) para 33.   ibid para 23. 188   Eilionóir Flynn and Anna Arstein-​Kerslake, ‘Legislating Personhood:  Realising the Right to Support in Exercising Legal Capacity’ (2014) 10 Intl J L Context; Michael Bach and Lana Kerzner, A New Paradigm for Protecting Autonomy and the Right to Legal Capacity (Law Commission of Ontario 2010); Quinn and Arstein-​Kerslake (n 3). 189   See eg Adrian Ward, ‘Adults with Incapacity: Freedom and Liberty, Rights and Status: Part 1’ [2011] Scots Law Times 21; Nina A Kohn and Jeremy A Blumenthal, ‘A Critical Assessment of Supported Decision-​ making for Persons Aging with Intellectual Disabilities’ (2013) 7 Disability & Health J S40. 190   Draft General Comment (n 11) paras 54–​57. 191   See eg Government of the United Kingdom and Northern Ireland (n 144)  para 26; Submission of the Netherlands, Submission to the Committee on the Rights of Persons with Disabilities:  Draft General Comment on the Right of Persons with Disabilities to Equality and Non-​discrimination (Article 5) (2017), available at:  paras 3–​4. 192 193   Draft General Comment (n 11) paras 58–​60.   ibid para 58. 194   See eg ADF International, Submission to the Committee on the Rights of Persons with Disabilities: Draft General Comment on the Right of Persons with Disabilities to Equality and Non-​discrimination (Article 5) (30 November 2017), available at: ; and Care, Submission to the Committee on the Rights of Persons with Disabilities: Draft General Comment on the Right of Persons with Disabilities to Equality and Non-​discrimination (Article 5) (2017), available at: . 184 186

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persons with disabilities as part of human diversity’.195 Some organizations go so far as to condemn such abortions as ‘infanticide . . . as a violation to the life of the disabled newborns’.196 This directly contradicts settled IHRL. For example, the HRC does not recognize foetuses as protected under the right to life, but it does recognize that a woman’s right to access abortion is protected under this right.197 The HRC has also established that the failure to ensure access to abortion is a violation of the ICCPR, and could amount to cruel and inhuman treatment.198 Importantly, abortion bans can amount to a violation of equal treatment,199 an interpretation that has been expanded upon by the CEDAW committee.200 This puts readings of article 5(2) that call for abortion bans on an equality basis in direct conflict with pre-​existing IHRL. Additionally, arguments banning abortion are incompatible with the CRPD’s emphasis on autonomy. Quinn has noted that the CRPD embodies ‘a radical rebalancing of protection versus the autonomy of the individual’ and further that ‘[i]‌n the past persons with disabilities were stripped of the right to make decisions for themselves.’201 He further argues that ‘[t]he stakes are high. The right to make decisions for oneself—​to chart one’s own life path—​without interference from third parties or the state is considered the foundation stone and greatest achievement of liberal and political philosophy. It flows from one’s recognition as a person before the law.’202 Autonomy is similarly at the heart of a woman’s right to access abortion, and her right to chart the course of her life.203 Correspondingly, she does not have to justify her decisions to anyone, meaning that it is within her rights to abort a foetus on the basis of disability, or for any reason at all, or for no reason at all. Additionally, ‘Article 12 [of the CRPD] is closely analogous to Article 15 of CEDAW’,204 in that both call for full legal capacity and address a shared legacy of paternalism. Given these core legal principles, 195   Ordo Iuris, Submission to the Committee on the Rights of Persons with Disabilities:  Draft General Comment on the Right of Persons with Disabilities to Equality and Non-​discrimination (Article 5)  (28 November 2017)  3, available at:  . 196   See European Centre for Law and Justice, Submission to the Committee on the Rights of Persons with Disabilities: Draft General Comment on the Right of Persons with Disabilities to Equality and Non-​discrimination (Article 5) (30 November 2017) 3, available at: , and Minnesota Citizens Concerned for Life Submission to the Committee on the Rights of Persons with Disabilities: Draft General Comment on the Right of Persons with Disabilities to Equality and Non-​discrimination (Article 5) (November 2017) 2, available at: . 197   HRCte, ‘Draft General Comment No 36—​Article 6: Right to Life’ (2017) para 9, available at: . 198  HRCtee, KL v Peru, Communication No 1153/​2003: Decision (22 November 2005) UN Doc CPR/​C/​ 85/​D/​1153/​2003; HRCtee, LMR v Argentina, Communication No 1608/​2007: Views (28 April 2011) UN Doc CCPR/​C/​101/​D/​1608/​2007 para  9.2. 199  HRCtee, Mellet v Ireland, Communication No 2324/​2013: Views (9 June 2016) UN Doc CCPR/​C/​ 116/​D/​2324/​2013 paras 7.4–​7.11. 200   CEDAW Ctee, ‘General Recommendation No 24: Article 12 of the Convention (Women and Health)’ (1999) UN Doc A/​54/​38/​Rev 1 Ch 1; Carmel Shalev, ‘Rights to Sexual and Reproductive Health—​The ICPD and the Convention on the Elimination of All Forms of Discrimination Against Women’, paper presented at the International Conference on Reproductive Health, Mumbai, 15–​19 March 1998, available at:  . 201 202   Quinn and Arstein-​Kerslake (n 3) 41.  ibid. 203  See Facio Alda et  al, Women’s Autonomy, Equality and Reproductive Health in International Human Rights: Between Recognition, Backlash and Regressive Trends (OHCHR 2017), available at: . 204   Quinn and Arstein-​Kerslake (n 3) 42.

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essential to both equality and non-​discrimination, it is unthinkable that the CRPD’s equality provisions could be used to discriminate against access to abortion. Further, while some of the arguments for such a ban have merit, such as those that highlight continued prejudice against PWDs and the devaluation of the lives of PWDs, in practice, bans on selective abortions, such as sex selective abortion, don’t work.205 Instead, women resort to unsafe practices, endangering the life and health of the mother, which could result in disabilities as a consequence. The CRPD Committee has not addressed abortion directly in its Draft General Comment on Article 5. It should do so, reiterating the shared values of equality and autonomy between the right to abortion and disability rights, and the unique—and intersectional—needs of disabled women in this regard.

7.  Paragraph 3 While drafting history reveals that many states opposed linking equality and RAs because they feared it would open the door to redistribution and greater obligations to fulfil socio-​economic rights,206 article 5(3) nevertheless mandates that states parties ensure the provision of RAs, and the Committee promotes RAs as ‘an intrinsic part of the duty of non-​discrimination in the context of disability’.207 In many ways, article 5(3) is a rebalancing of the burdens of disability and a reconceptualization of disability itself. ‘[I]‌t tips states away from a “deficits-​oriented” perspective on disability and towards one that views fragility as a universal aspect of the human condition and remediable with sufficient supports.’208 As such, it rehumanizes PWDs in the eyes of the law, and via the greater inclusion achievable once RAs are in place. Article 5(3) must be read together with article 2, which defines RAs as: necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.

The provision of RAs is also closely linked to accessibility as articulated in article 9, but distinct insofar as RAs are tailored to individual needs and specific contexts, and accessibility refers to groups and must be provided before PWDs seek access.209 RAs can take many forms. Examples ‘include making existing facilities and information accessible to the individual person with a disability; modifying equipment; reorganizing activities; rescheduling work; adapting curricula and learning materials; adjusting medical procedures; implementing specific medication modalities; or enabling access to support personnel’.210 The Committee has stressed that ‘disproportionate or undue burden’ is one concept,211 205  See eg Bela Ganatra, ‘Maintaining Access to Safe Abortion and Reducing Sex Ratio Imbalances in Asia’ (2008) Reprod. Health Matters 16 (31 Supp) 90, 96; Madhu Kishwar, ‘Abortion of Female Fetuses: Is Legislation the Answer?’ (1993) 1 Reprod. Health Matters 113, 114; Johanna Westeson, ‘IntLawGrrls: Rights-​ Based Approach to Sex-​Selection’ (Center for Reproductive Rights, 23 January 2012), available at: . 206   Equal Rights Trust, ‘Promoting a Paradigm Shift’ (2008) 2 Equal Rts Rev 82. 207   Draft General Comment (n 11) para 24, referencing CESCR, ‘General Comment No 5: Persons with Disabilities’ (1994) UN Doc E/​1995/​22 para 15. 208 209   Quinn and Arstein-​Kerslake (n 3).   Draft General Comment (n 11) para 25. 210   ibid citing ‘Report of the Office of the United Nations High Commissioner for Human Rights, Equality and Non-​discrimination under Article 5 of the Convention on the Rights of Persons with Disabilities’ (9 December 2016) UN Doc A/​HRC/​34/​26 para 28. 211   Draft General Comment (n 11) para 26.

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and shown itself willing to find that states parties had not met this threshold for denying RAs.212 Additional interpretive notes stress that ‘reasonable’ should be understood as referring to effectiveness, rather than as an exception clause related to cost.213 Many of the rights enshrined in the CRPD will require RAs to achieve full implementation. For example, article 4(3)’s innovate right of PWDs to be actively involved in any public policy process that will impact them could be meaningless without RAs in place to ensure participation is possible. At the same time that the provision or lack thereof of RAs may impact all other convention rights, the Committee has clarified the distinctions not only between RAs and accessibility, but also between RAs and specific measures, RAs and support needed to live independently per article 19, and RAs and assistance that may be needed to exercise legal capacity or access to justice per article 12.214 These conceptual and practical distinctions could be very important, particularly relative to the ‘margin of appreciation’ afforded to states parties regarding how or if they provide RAs.215 Additionally, separating RAs from other positive measures removes the possible excuse of disproportionate or undue burden from positive measures distinguished from RAs. Thus, distinguishing RAs in this way serves to increase state responsibility. A key issue for RAs will be interpreting the breadth and scope of ‘margin of appreciation’, a concept that has been very important for the European Court of Human Rights (ECtHR), but that has been rejected by international human rights bodies such as the HRC.216 On some occasions, employing the margin at the European Court had favourable outcomes for the duty holder, while refusing to employ the margin at the HRC in almost identical cases resulted in a win for the rights holder.217 This implies that the broadest possible human rights protections auger against such a margin, and, considering how expansive the CRPD is and how closely article 5 is linked to article 26 of the ICCPR, that a margin of appreciation analysis would undermine RAs, equality, and the purpose of the treaty. Nevertheless, the majority opinion in Jungelin supports such an analysis, and subsequent cases have confirmed that the Committee will afford states a margin.218 What is wholly unclear, however, is how the CRPD is interpreting margin of appreciation and what the contours of this margin entail. There are more questions than answers regarding RAs and the margin of appreciation at the CRPD Committee. For example, how is the CRPD Committee applying the ‘margin of appreciation’ test, and how should it do so? The question arises of whether the notion of the ‘margin of appreciation’ is the same in respect of RAs under the CRPD and either the concept as applied by the HRC and/​or the ECtHR. There may be important 212   See CRPD Committee, HM v Sweden, Communication No 3/​2011: Views adopted by the Committee (21 May 2012) UN Doc CRPD/​C/​7/​D/​3/​2011. 213 214   Draft General Comment (n 11) para 26.  ibid. 215  ‘[W]‌hen assessing the reasonableness and proportionality of accommodation measures, State parties enjoy a certain margin of appreciation’: CRPD Committee, Jungelin v Sweden, Communication No 5/​ 2011: Views adopted by the Committee (14 November 2014) UN Doc CRPD/​C/​12/​D/​5/​2011 para 10.5. 216   HRCtee, ‘General Comment No 34 Article 19: Freedoms of opinion and expression’ (12 September 2011) UN Doc CCPR/​C/​GC/​34 para 16. 217   Dominic McGoldrick, ‘A Defence of the Margin of Appreciation and an Argument for its Application by the Human Rights Committee’ (2016) 65 ICLQ 21, 46–​47. 218  See CRPD Committee, Beasely v Australia Communication No 11/​ 2013:  Views adopted by the Committee (25 May 2016)  UN Doc CRPD/​C/​15/​D/​11/​2013 para 8.4 and CRPD Committee, Lockrey v Australia Communication No 13/​2013: Views adopted by the Committee (30 May 2016) UN Doc CRPD/​ C/​15/​D/​13/​2013 para  8.4.

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conceptual distinctions, given that RAs are from the outset an individually-​oriented measure, whereas within the ECtHR and HRC systems, complaints tend to be raised about how laws or policies of general application have effect in individual cases. Draft General Comment No 6 does not address the margin of appreciation, and the three cases through which the CRPD has confirmed the application of the margin say almost nothing about it. It seems clear that certain aspects of the ECtHR’s approach to margin of appreciation clash with the CRPD, such as the tendency to allow states to circumscribe minority rights or the fact that ‘consensus’ as a justification for the margin219 would likely be laden with discriminatory stereotypes in the disability context. Thus, the concept of a margin of appreciation regarding RAs likely erodes rights protections under the CRPD. Similarly, there is a question of whether developing nations should be afforded a margin of sorts, allowing a more progressive realisation of RAs. For example, Mauritius and Suriname have both entered reservations along these lines, Mauritius regarding accessibility under Article 9220 and Suriname citing financial burdens as a reason to bypass multiple rights within the treaty. Because the burden of RAs on duty bearers can be assessed as financial cost,221 developing nations may successfully argue that they are incapable of providing crucial RAs. Complicating this, while some advocacy groups argue for the former,222 it is unclear whether or not paragraph 3 should be considered to have immediate effect or conversely whether it can be progressively realized. In many ways, providing RAs in developing countries could be a challenging affair, with the extremes of heavy financial burdens on states and the nullification of the right due to financial limitations both harmful outcomes. The CRC Committee’s commentary on the need for all states to apportion their budgets to give maximum effect to disability rights, and their direction that developed nations should share information, seems particularly relevant here. While they have not yet addressed the issue explicitly, the CRPD Committee could similarly call for a North-​South technology exchange to facilitate RAs, and could establish sub-​committees, working groups, or a fund to achieve this. Further, multiple actors have been attempting to solve this problem, resulting in guidance and case studies from developing countries and the aid context.223 And, some studies suggest that developing country status is not always a substantial barrier to implementing measures toward equality.224 In the end, principles of distributive justice and equal participation should outweigh the randomness of   McGoldrick (n 217).  Republic of Mauritius, ‘Implementation of the UN Convention on the Rights of Persons with Disabilities:  Initial report submitted by States parties under Article 35 of the Covenant’ (Disability Empowerment Unit, Government of Mauritius 2012) 7. 221   Draft General Comment (n 11) paras 26–​27. 222   See eg International Disability Alliance, Submission to the Committee on the Rights of Persons with Disabilities: Draft General Comment on the Right of Persons with Disabilities to Equality and Non-​discrimination (Article 5) (2017), available at: . 223  See eg Johan Borg, Anna Lindström, and Stig Larsson, ‘Assistive Technology in Developing Countries: National and International Responsibilities to Implement the Convention on the Rights of Persons with Disabilities’ (2009) 3 Lancet 274; Julie Abimanyi-​Ochom and Hasheem Mannan, ‘Uganda’s Disability Journey: Progress and Challenges’ (2014) 3(1) African J Disability; Nur Amirah Abd Samad, Universal Design Approach for an Accessible Built Environment Through Legislation for Effective Implementation in Malaysia, Research Proposal for Faculty of Built Environment, Universiti Teknologi Malaysia, May 2017, available at: . 224   Brent C Elder, Michelle L Damiani, and Benson O Oswago, ‘From Attitudes to Practice:  Utilising Inclusive Teaching Strategies in Kenyan Primary Schools’ (2016) 20 J Inclusive Education 413. 219 220

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birth location, particularly given that poverty could cause or exacerbate disability, making solutions for developing countries an even more urgent necessity. True equality of results under the CRPD requires global application and cooperation. Additional issues include the need to clarify RAs in the context of the private sector;225 the benefits of reconceptualizing RAs as duties to be proactively considered rather than leaving the impetus to PWDs ex post;226 the need to clarify the relationship between RA costs borne by the individual and by the duty bearer so as not to unduly burden PWDs;227 that RAs might include subsidies;228 the notion that ‘unjustifiable hardship’ in the provision of RAs is a concept that embodies negative stereotypes about PWDs;229 the need to clarify that the burden of proof regarding an undue burden when providing RAs rests entirely with the duty bearer;230 that rights holders and disability experts not duty bearers should hold the power in deciding if RAs are needed and what type of RAs will be effective;231 and many, many more. It is clear that RAs are a contentious area, in multiple regards. Thus, the content of the General Comment on Article 5 and future decisions of the Committee must be watched closely to ensure that the questions and controversies related to RAs do not hinder the full equality and full inclusion of PWDs.

8.  Paragraph 4 Because formal equality means ‘the state should not give preference to any one group and that people should be treated exclusively on their individual merits and regardless of group membership’,232 article 5(4) creates an exceptional basis for such preferences in order to achieve substantive equality. Thus, the Committee has stated that measures that ‘entail adopting or maintaining certain advantages in favour of an underrepresented, or marginalized group  . . .  [such as] outreach and support programs, allocation and/​or 225   Global Alliance of National Human Rights Institutions, Submission to the Committee on the Rights of Persons with Disabilities: Draft General Comment on the Right of Persons with Disabilities to Equality and Non-​discrimination (Article 5) (December 2017), available at: . 226  ibid. 227   International Federation of Hard of Hearing People, Submission to the Committee on the Rights of Persons with Disabilities: Draft General Comment on the Right of Persons with Disabilities to Equality and Non-​discrimination (Article 5)  (2017), available at:  . 228  See Klagsverband zur Durchsetzung der Rechte von Diskriminierungsopfern, Submission to the Committee on the Rights of Persons with Disabilities: Draft General Comment on the Right of Persons with Disabilities to Equality and Non-​discrimination (Article 5) (2017), available at: . 229   Queensland Advocacy Incorporated, Submission to the CRPD Committee: Draft General Comment on the Right of Persons with Disabilities to Equality and Non-​discrimination (Article 5) (14 November 2017), available at:  . 230  Children and Young People with Disability Australia, Submission to the CRPD Committee:  Draft General Comment on the Right of Persons with Disabilities to Equality and Non-​discrimination (Article 5)  (November 2017), available at:  . 231   Disability Discrimination Legal Service and Villamanta Disability Rights Legal Service Inc, Submission to the CRPD Committee:  Draft General Comment on the Right of Persons with Disabilities to Equality and Non-​discrimination (Article 5) (30 November 2017), available at: . 232   Moeckli (n 157) 159.

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reallocation of resources, targeted recruitment, hiring and promotion, [and] quota systems’233 are acceptable under the CRPD if they serve to ‘accelerate or achieve de facto equality’.234 Given that CERD and CEDAW include similar provisions, the jurisprudence of these treaty bodies can serve as an interpretive aid to article 5(4). Additionally, it will be interesting to see how specific measures under art 5(4) interact with special measures under CEDAW and CERD, particularly given the CRPD’s emphasis on intersectionality. The Committee may wish to harmonise its interpretation of specific measures with those of other bodies to accord with intersectionality. Both the CERD and CEDAW committees have applied the so-​called justification test developed by the HRC in the Belgian Linguistics Case, which states that different treatment must 1) pursue a legitimate aim, and 2) be proportionate.235 The HRC went on to confirm in General Comment No 18 on non-​discrimination that ‘not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant’.236 Further HRC jurisprudence on the topic expanded on the meaning of legitimate aims and proportionality.237 The CERD Committee relied on the justification test in both General Recommendation No 30 defining discrimination,238 and affirmed in General Recommendation No 14 that ‘differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate’.239 It also stated in General Recommendation No 32 that ‘the term “non-​ discrimination” does not signify the necessity of uniform treatment  . . .  if there is an objective and reasonable justification for differential treatment’.240 There is no reason to think that the CRPD Committee will depart from this test in its interpretation of article 5(4), although the Committee has not addressed justifications in this language, referring instead to inclusivity and structural discrimination.241 CEDAW’s General Recommendation No 25 on the topic notes that special measures should ‘accelerate the equal participation of women in the political, economic, social, cultural, civil or any other field’,242 opening up a broad scope of application. While the CRPD Committee notes that specific measures would redress past discrimination,243 it would do well to clarify as the CEDAW Committee has that proving past discrimination is not a prerequisite for specific measures.244 Similarly, while the draft comment notes

234   Draft Comment (n 11) para 29.  ibid.   Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Belgian Linguistics Case) (No 2) (1968) 1 EHRR 252, 284 para 13. 236   General Comment No 18 (n 171) para 13. 237  HRCtee, Gillot v France, Communication No 932/​2000: Views (15 July 2002) UN Doc A/​57/​40 270 para 13.2. 238   HRCtee, ‘General Recommendation No 30: Women in Conflict Prevention, Conflict and Post-​conflict Situations’ (1 November 2013) UN Doc CEDAW/​C/​GC/​30 para 4. 239   CERC Ctee ‘General Recommendation No 14: Definition of Discrimination’ (22 March 1993). 240   CERD Ctee, ‘General Recommendation No 32:  The meaning and scope of special measures in the International Convention on the Elimination of All Forms Racial Discrimination’ UN Doc CERD/​C/​GC/​32 (24 September 2009) para 8. 241   Draft General Comment (n 11) paras 29–​31. 242   CEDAW Ctee, ‘Report of Committee on the Elimination of Discrimination against Women’ UN Doc A/​59/​38 (2004) Annex II (CEDAW General Recommendation No 25) para 18. 243   Draft General Comment (n 11) para 29. 244   CEDAW General Recommendation No 25 (n 242) para 18. 233 235

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that such measures ‘are usually temporary in nature’,245 it could improve its treatment of the subject by elaborating that ‘[t]‌he duration of a temporary special measure should be determined by its functional result in response to a concrete problem and not by a predetermined passage of time’. 246 This would ensure compliance with the justification test and help the specific measures taken to achieve their equality goals. It is important to note that while the Committee uses the language of ‘preference’ when discussing specific measures, this position is both inaccurate and discriminatory, because it obscures existing privilege of dominant groups and assumes equality of opportunity.247 This impacts the question of whether or not specific measures are obligatory. The Committee has stated that, unlike RAs, specific measures are ‘generally not mandatory’, although it has acknowledged that particular situations may require specific measures.248 However, as the language of article 5(4) states, these measures may be ‘necessary’, and thus it is arguable that—​dependent on context—​failing to enact them could amount to discrimination.249 The necessity to enact specific measures could be exacerbated by the intractability of bias.250 The CRPD’s willingness to do something concrete about inequality rather than simply acknowledge it is something that sets it apart.251 Additionally, this interpretation would be in keeping with the CRPD’s dismantling of divisions between generations of rights,252 given that affirmative action cuts across all generations253 and applies to the private sector, as well.254 Thus, it is not surprising that some advocacy groups are urging the Committee to link positive obligations for achieving substantive equality and specific measures using language that makes the latter mandatory.255 Further, empirical data on what has achieved gender parity in the world’s most gender equal countries—​Iceland, Norway, Finland, Sweden, Panama, Slovenia, Ireland, New Zealand, and more—​demonstrates that specific measures such as quotas in both the public and private sphere may in fact be necessary to achieve equality and fight discrimination. The countries that have employed quotas boast the highest levels of gender parity. Global data demonstrates the efficacy of quotas in changing demographics in political representation and corporate boardrooms. Some case studies show further positive affects, such as increased confidence in police and higher crime reporting as a result, and more positive public investment by female as compared to male leaders.256 Other case studies indicate that quotas could undermine team cohesion and even increase negative stereotyping of people hired in relation to a quota system, although merit based criteria and an emphasis on fairness can counter this.257 Overall, quota systems—​present in at least half of all countries in some form—​have served to ‘boost the participation of well-​qualified but previously underrepresented individuals’.258 Thus, the empirical outcomes and comparative data suggest that such specific measures are required, rather than optional.   Draft General Comment (n 11) para 29.   CEDAW General Recommendation No 25 (n 242) para 20. 247   See eg Carol Bacchi, ‘Policy and Discourse:  Challenging the Construction of Affirmative Action as Preferential Treatment’ (2004) 11 J Euro Pub Pol 128. 248 249   Draft Comment (n 11) paras 30, 37.   cf Australian Government (n 143) paras 1–​3. 250   Iris Bohnet, What Works: Gender Equality by Design (Harvard UP 2016) 44–​60. 251 252   Quinn and Arstein-​Kerslake (n 3) 39.   Heyer (n 26), 205. 253   Ginsburg, Ruth Bader; Merritt, Deborah Jones ‘Affirmative Action:  An International Human Rights Dialogue’ Fifty-​First Cardozo Memorial Lecture, Cardozo Law Review 21 Cardozo L Rev (1999–​2000) 254. 254   Submission of Andrea Broderick and Lisa Waddington, para 7. 255   Submission of Equal Rights Trust, paras 20–​24. 256   Anjani Datla, Women as Leaders: Lessons from Political Quotas in India (Harvard Kennedy School 2013). 257 258   Bohnet (n 250) 235–​38.   ibid 238. 245 246

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Participation and inclusion are key aims of the CRPD and of transformative equality, and therefore quotas could be an effective ‘specific measure’ to achieve this. However, population demographics by sex or race have been easier to measure than disability. While the WHO estimates that 15 per cent of the global population is disabled,259 country specific data varies substantially, influenced by categorization of disability and methods of data collection.260 Thus, data issues may render quota systems more challenging for achieving equality for PWDs as compared to quota systems addressing more easily measured characteristics. On the other hand, promotion of quota strategies by the CRPD Committee and positive case studies from states parties who have successfully used quotas to achieve a higher rate of inclusion and participation of PWDs in both the public and private sphere could foster the workability of such schemes despite data complexities.

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  ibid  21–​31.

Article 6 Women with Disabilities . States Parties recognize that women and 1 girls with disabilities are subject to multiple discrimination, and in this regard shall take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms.

. States Parties shall take all appropriate 2 measures to ensure the full development, advancement and empowerment of women, for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms set out in the present Convention.

1. Introduction 2. Background 3. Travaux Préparatoires 4. Paragraph 1: Multiple Discrimination 5. Paragraph 2: Development, Advancement and Empowerment 5.1 ‘exercise and enjoyment of the human rights and fundamental freedoms set out in the present Convention’ 5.2 Interpretative Guidance

5.2.1 Article 16—​Violence 5.2.2 Article 25—​Health 5.2.3 Article 28—​Standard of Living 5.2.4 Article 34—​Committee on the Rights of Persons with Disabilities 5.2.5 Omissions

171 172 177 184 186 188 189 189 191 193 194 195

1. Introduction The Convention on the Rights of Persons with Disabilities (‘CRPD’ or ‘Convention’)1 is a milestone achievement for women and girls with disabilities, with its inclusion of a gender-​sensitive approach and article 6, which speaks directly to gender-​disability discrimination. Prior to the CRPD, most international human rights instruments failed to address both disability and gender in their provisions. Many instruments were attuned to either gender to the exclusion of disability, 2 or

*   The authors are grateful to Michelle Legault for her skilful research assistance and Jami Lenis for attention to footnotes. 1   Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, opened for signature on 30 March 2007, entered into force 3 May 2008) 2515 UNTS 3 (CRPD). 2   See eg the Convention on the Elimination of All Forms of Discrimination against Women, (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW). For an overview of various human rights principles and instruments that speak to women’s rights with respect to health, marriage, and parenting, see Roxanne Mykitiuk, Ena Chadha, ‘Sites of Exclusion: Disabled Women’s Sexual and

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disability to the exclusion of gender.3 The recognition of the unique experiences of gender and disability-​based discrimination animates the spirit behind several of the CPRD’s provisions and, specifically, the content of article 6:  Women with Disabilities.4 The CRPD is the first instrument of its kind to focus on the multiple and compounding forms of discrimination experienced by women with disabilities and to mandate gender-​sensitive measures in the guarantee of the human rights and fundamental freedoms set out in it.5 This chapter begins by canvassing the historical background and travaux préparatoires on article 6. It then reviews the text of article 6 and discusses the interaction between article 6 and other substantive articles of the CRPD. We will consider how article 6 and related articles have been interpreted by the UN Committee on the Rights of Persons with Disabilities (‘the CRPD Committee’) in its Concluding Observations to date and in General Comment No 3 on article 6. As is often the case with gender and disability achievements, the progress effectuated by article 6 was realized after decades of work and the success, while meaningful on paper, remains to be accomplished in reality.

2. Background Gender and disability have a relatively short history in the human rights arena. The appreciation that people with disabilities have full agency and are entitled to participate in society emerged more globally in the 1970s. In 1971, the United Nations adopted the Declaration on the Rights of Mentally Retarded Persons and, in 1975, the United Nations adopted the Declaration on the Rights of Disabled Persons.6 However, neither Declaration expressly distinguished between men and women, nor contemplated gender issues. At the outset of this decade, the historical view of disability as a matter of charity and the prevailing medicalized perspective of disability eclipsed any human rights conceptualization of how gender and disablement interfaced. In July 1975, the first World Conference of the International Women’s Year was held in Mexico City. The culminating Report (‘Mexico Report’) reflected several ideas and ideals regarding equality and dignity of women with disabilities that echoed hollowly for thirty years until the inclusion of article 6 in the CPRD. Resolution 13 of the Mexico Report encouraged governments to promote the integration into society of women ‘handicapped’7 and further recommended that special studies be conducted on the situation Reproductive Rights’ in Lee Ann Basser, Melinda Jones, Marcia Rioux (eds), Critical Perspectives on Human Rights and Disability Law (Martinus Nijhoff 2010). 3   Declaration on the Rights of Disabled Persons, UNGA Res 3447(XXX) (9 December 1975). For an overview of various of human rights principles and instruments that speak to disability rights, see Gerard Quinn, Theresia Degener, ‘The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability’ (2002) UN Doc HR/​PUB/​02/​1 (22 October 22 2002). 4 5   Art 6 CRPD.   See eg ibid Art 25. 6   The Declaration on the Rights of Disabled Persons ‘confirmed that persons with disabilities have a right to medical treatment, a right to economic and social security and are further entitled to measures designed to enable them to become as self-​reliant as possible. The Declaration on the Rights of Disabled Persons further propounded that the needs of persons with disabilities are to be considered at all stages of social and economic planning and that persons with disabilities are to be consulted in all matters related to disability policy.’ See Ena Chadha, Tess Sheldon, ‘Promoting Equality: Economic and Social Rights For Persons With Disabilities Under Section 15’ (2004) 16 NJCL 25. 7   Report of the World Conference of the International Women’s Year, Mexico City UN Doc E/​CONF 66/​ 34 (2 July 1975) 35–​36. In this chapter, we use the phrase ‘disabled women’ and ‘women with disabilities’

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of handicapped women about ‘the most appropriate means of protecting them from the risks associated with their condition and on the most effective measures for achieving their reintegration into socially active life’.8 Finally, Resolution 13 urged ‘governments to provide social and rehabilitation services for physically, mentally or economically handicapped women of all ages’.9 Resolution 20 addressed the need of states to provide ‘greater attention to the education, training, work opportunities and integration of handicapped women’ and ‘to undertake public information programmes, by means of all mass communication media, regarding the capacities and limitations of handicapped persons in terms compatible with human dignity’.10 The Mexico Report expressly stated that ‘the needs of handicapped women should receive special attention’.11 In 1979, the United Nations adopted the Convention on the Elimination of all Forms of Discrimination against Women (‘CEDAW’).12 The preamble of the CRPD states that the CRPD is created recalling ‘the Convention on the Elimination of All Forms of Discrimination against Women’.13 While CEDAW enumerated human rights protection for women, including making note of equality in education for girls and sought the eradication of racial discrimination, it remained silent with respect to disability. CEDAW failed to acknowledge the cumulative disadvantage of disability and gender-​based discrimination. This is a striking omission given the gender-​disability specific resolutions and recommendations expressly communicated in the Mexico Report. The 1980s and 1990s witnessed increasing awareness of the human rights implications of gender and disability disadvantagement. Starting in 1980, the Second World Conference of the United Nations Decade for Women, held in Copenhagen, impressed upon ‘improving the situation of disabled women of all ages’.14 The Copenhagen Report noted that ‘disabled women encounter particular difficulties in developing their individual abilities and skills to the maximum, in becoming self-​reliant . . . and participating fully in social life’.15 The Report encouraged states to ‘give special attention to disabled women in order to promote their full participation and integration in all fields of normal life’ and requested explicit consideration of the ‘special needs of disabled women of all ages for medical, social and vocational rehabilitation’.16 The United Nations proclaimed 1981 as the International Year of Disabled Persons and later declared 1983–​92 as the United Nations Decade of Disabled Persons.17 In 1982, the United Nations General Assembly passed a resolution entitled the World Programme of Action Concerning Disabled Persons (‘Programme’), promoting global, long-​term planning in the areas of disability policy prevention, rehabilitation, and equalization of opportunities.18 The Programme recognized that the consequences of disablement are especially serious for women.19 It highlighted that women with disabilities are

interchangeably. We recognize the importance of people first language and do not intend our use of ‘disabled’ to detract from a people-​first philosophy, nor to minimize the diversity of social and cultural perspectives of women with disabilities. For the purposes of this chapter, unless otherwise indicated, our use of the word ‘women’ also includes girls. 11   Mexico Report (n 7).    9 ibid.   10  ibid 96.   ibid para 218. 13   CEDAW (n 2).   CRPD preamble (d). 14   ‘Report of the World Conference of the United Nations Decade for Women: Equality, Development and Peace, Copenhagen, UN Do A/​CONF 94/​35 (19 September 1980) 61. 15 16  ibid.   ibid 62. 17   UNGA Res 37/​52 (3 December 1982), on World Programme of Action concerning Disabled Persons. 18 19  ibid.   ibid para 45. 8

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subjected to discriminatory conditions obstructing their access to health care, education, employment, and their integration into community life. Although not binding on states, the Programme is noteworthy for spotlighting socio-​economic and cultural conditions as exacerbating gender-​based disablement.20 The 1975 and 1980 Women’s Conference Reports and the 1982 Programme stand as some of the earliest examples of official United Nations’ recognition of the differentiation of disabled women’s experiences as distinct from the general communities of women and disability. In June 1983, the United Nations adopted the Vocational Rehabilitation and Employment (Disabled Persons) Convention, a landmark instrument setting out the fundamental labour rights of persons with disabilities.21 Article 4 pronounces the right of ‘disabled men and women’ to have equal opportunity and equal treatment with respect to work. The 1985 Third World Conference on Women held in Nairobi again called attention ‘to “especially vulnerable and underprivileged groups of women, such as . . . physically and mentally disabled women” ’.22 The Nairobi Report enumerated several categories of women who, because of ‘their special characteristics’, experience ‘specific difficulties due to their socio-​economic and health condition’.23 Recognizing that a combination of factors render these women more vulnerable, the Report observed that the dignity and human rights of women with disabilities remain constrained. The Report also identified that the ‘rights of intellectually disabled women to obtain health information and advice and to consent to or refuse medical treatment should be respected’ as well as those of intellectually disabled minors.24 In 1989, the United Nations adopted the Convention on the Rights of the Child (‘CRC’), which references both equality of the sexes and freedom from discrimination because of disability. Article 2 of the CRC states that the rights contained in the CRC are to be upheld irrespective of the child’s sex or disability and that children should not be discriminated against because of their parents’ identities, including the parents’ gender and/​or disability.25 While article 23 of the CRC sets out extensive protections for children with physical or mental disabilities, there is no specific reference to female gender or the unequal treatment experienced by girls with disabilities.26 Read together, CEDAW and the CRC demonstrate how formally ratified human rights conventions that pre-​date the CRPD failed to fully recognize the unique situation of disabled women and girls with disabilities. Although CEDAW does not reference disability, in 1991, the Committee on the Elimination of Discrimination against Women (‘Women’s Committee’) issued General Recommendation 18, which included a disquieting observation about the on-​going failure

20   Beth Ripet contends that, albeit soft law, the Programme provides a more comprehensive conceptualization of disability as a political, medical, and social phenomenon and affords greater import for emergent disabilities than the CRPD—​see Beth Ripet, ‘Emergent Disability and the Limits of Equality: A Critical Reading of the UN Convention on the Rights of Persons with Disabilities’ (2011) 14 Yale Hum Rts & Dev LJ 155. 21   ILO Convention 159: The Convention concerning the Vocational Rehabilitation and Employment of Disabled Persons (69th Conference Session Geneva 1 June 1983)  (entered into force 20 June 1985). This Convention was the only legally binding instrument to address women with disabilities prior to the CRPD. 22   Report of the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace UN Doc A/​CONF 116/​28/​Rev 1 (26 July 1985) para 41. 23 24   ibid para 27.   ibid para 296. 25   Convention on the Rights of the Child (adopted 20 November 1989, opened for signature 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 art 2; and Mykitiuk and Chadha (n 2). 26   Subsequently, the CRC Committee issued General Comment No 9, on the rights of children with disabilities UN Doc CRC/​C/​GC/​9 (27 February 27 2007) para 17.

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of states to address the interests of women with disabilities.27 General Recommendation 18 advocated that states parties’ periodic reports should particularize what measures have been taken to ensure that women with disabilities ‘have equal access to education and employment, health services and social security and to ensure that they can participate in all areas of social and cultural life’.28 However, without formal obligations specified in the treaty, states parties are not required to undertake a gender-​disability analysis of their laws and policies. In 1993, the United Nations created the Standard Rules on the Equalization of Opportunities for Persons with Disabilities (‘Rules’).29 At that time, the Rules stood as the most comprehensive statement of principles for advancing the rights of persons with disabilities in relation to eight important target areas.30 The purpose of the Standard Rules is stated as seeking to ensure that disabled children, women, and men are equal members of society and that ‘special attention’ be directed towards them. Although non-​binding, several propositions in the Standard Rules addressed commitments that had never previously been formally acknowledged on the international stage and can now be seen reflected in the content of the CRPD. For example, Rule 9 draws attention to ‘negative attitudes towards marriage, sexuality and parenthood of persons with disabilities, especially of girls and women with disabilities, which still prevail in society’.31 Rule 6 expressly identifies the need to ensure equal education services for girls and women with disabilities. Rule 9 encourages the media to serve ‘an important role’ in ‘removing negative attitudes’ about women with disabilities with respect to marriage, sexuality, and parenthood.32 In 1994, as part of its mandate to interpret and advance the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’), the Committee on Economic, Social and Cultural Rights undertook an extensive examination of the social and economic rights of persons with disabilities in General Comment No 5.33 Paragraph 19 of General Comment No 5 pointedly asserted that ‘persons with disabilities are sometimes treated as genderless human beings, and as a result, the double discrimination suffered by women with disabilities is often neglected’.34 The ICESCR Committee strenuously urged states parties to address the situation of women with disabilities ‘with high priority’ in future policy planning.35 Speaking to the issues of reproduction and parenting, General Comment No 5 highlighted that women with disabilities should be protected and supported in relation to ‘motherhood and pregnancy’ and that their sexual ‘needs and desires’ be recognized and respected.36 While not differentiating on the basis of gender, General Comment No 5 also mentioned that ‘children with disabilities are especially vulnerable to exploitation, abuse and neglect’.37 27  General recommendations made by the CEDAW Committee, General Recommendation No 18 UN Doc A/​ 46/​ 38 (30 May 1991), available at:  . Recommendations are suggestions that, in the Committee’s view, elaborate on the obligations assumed by states parties as convention signatories. 28  ibid. 29  UNGA Res 48/​ 96 (48th Session) (20 December 1993), Standard Rules on the Equalization of Opportunities for Persons with Disabilities Annex 17. 30   The eight target areas identified in the Standard Rules are: accessibility, education, employment, income maintenance and social security, family life and personal integrity, culture, recreation and sports, and religion. 31 32   Rules (n 29) 18.  ibid. 33   CESCR Ctee, General Comment No 5, on persons with disabilities UN Doc E/​1995/​22 (9 December 1994) para 19. 34  ibid; for a historical overview of General Comment No 5, see Chadha and Sheldon (n 6); see also Mykitiuk and Chadha (n 2). 35 36 37   ibid, General Comment No 5 para 30.  ibid.   ibid para 31.

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The 1995 Beijing Declaration and Platform for Action adopted at the Fourth World Conference on Women (‘Beijing Declaration’) recognized women and girls with disabilities, along with other personal characteristics, including age and race, as requiring human rights protection.38 The Beijing Declaration called on governments to ‘intensify efforts’ to ensure equal human rights and fundamental freedoms for all women and girls ‘who face multiple barriers’ to their empowerment because of disability.39 The Beijing Declaration focused on the advancement of women with disabilities in areas including education, health, human rights, and economic development and further recognized that ‘the girl child with disabilities faces additional barriers’.40 It also highlighted the particular vulnerability of disabled women and girls and their need for protection in circumstances of violence, war, and armed conflict.41 In December 1997, as a follow-​up to the Fourth World Conference on Women and the Beijing Declaration, the United Nations General Assembly adopted resolution 52/​100, calling upon states to promote ‘an active and visible policy of mainstreaming a gender perspective at all levels’.42 The concept of ‘gender mainstreaming’ was defined as ‘the process of assessing the implications for women and men of any planned action [ . . . ] so that women and men benefit equally and inequality is not perpetuated.43 The resolution reinforced the United Nations’ commitment to the principles of gender mainstreaming ‘as a strategy for achieving gender equality’.44 While the resolution noted that gender mainstreaming should be an ‘integral’ element of government policies and the strengthening of human rights protections for women, it was silent on the topic of disability and gender. In 1999, the CEDAW Committee issued General Recommendation No 24, addressing concerns regarding women and health. The Recommendation articulated several points in relation to women with disabilities and once again stressed that states should accord ‘special attention . . . to the health needs and rights of women belonging to vulnerable and disadvantaged groups, such as . . . women with physical or mental disabilities’.45 Paragraph 25 stated that states should ensure that health services are respectful of the dignity and human rights of women with disabilities, especially because there is limited understanding ‘of the broad range of risks to mental health to which women are disproportionately susceptible as a result of gender discrimination, violence, poverty, armed conflict, dislocation and other forms of social deprivation.’46 After monitoring the impact of the Standard Rules during his tenure as Special Rapporteur on Disability, Bengt Lindqvist rendered a final report wherein he characterized women as among the ‘most vulnerable’ of groups of people with disabilities.47 38   Report of the Fourth World Conference on Women (Beijing 4–​15 September 1995) UN Doc A/​CONF 177/​20/​Rev 1 (17 October 1995). 39 40 41   ibid para 32.   ibid para 270.  ibid. 42   UNGA Res 52/​100 (12 December 1997). 43 44   CESCR, ‘Agreed Conclusions’ UN Doc E/​1997/​2 (18 July 1997) para (a).  ibid. 45   CEDAW Ctee, ‘General Recommendation No 24: Article 12 of the Convention (Women and Health)’ UN Doc A/​54/​38/​Rev 1 (28 July 1999) ch I para 5. 46  ibid para 25. It is noteworthy that a quantitative study by Skarstad and Stein determined that, notwithstanding CEDAW General Recommendations 18 and 24, only 15 per cent of CEDAW Committee’s Concluding Observations referenced disability prior to the CRPD, see Kjersti Skarstad, Michael Ashley Stein, ‘Mainstreaming Disability in the United Nations Treaty Bodies’, (2018) 17 J Hum Rts 1–​24. 47   UNCSD ‘Report of the Special Rapporteur of the Commission for Social Development on monitoring the implementation of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities on his third mandate, 2000–​2002’ UN Doc E/​CN5/​2002/​4 Annex (9 January 2002): Reaching the most vulnerable; proposed supplement to the Standard Rules on the Equalization of Opportunities for Persons with

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Lindqvist observed ‘[w]‌omen with disabilities are often exposed to double, or even triple, discrimination’48 and recommended that governments and organizations prioritize the protection of girls and women with disabilities. The foregoing chronology of United Nations documents from the 1970s to 2000 reveals that there was growing acknowledgment of women and girls with disabilities as a distinct group with special interests, needs, and vulnerabilities requiring separate attention from issues related solely to disability or gender. Also, evident in the various Recommendations, Rules, and Comments is a heightened awareness of the imbrication of gender and disability in creating complicated discriminatory experiences for women and girls with disabilities. Notwithstanding the various pronouncements, none of the legally binding United Nations instruments were attentive to gender-​disability-​based discrimination confronted by women and girls with disabilities until the promulgation of the CRPD.49

3.  Travaux Préparatoires In December 2001, upon the initiation of Mexico, the United Nations General Assembly adopted Resolution 56/​168 establishing an Ad Hoc Committee to study proposals for the creation of a new international, disability-​specific convention.50 The Ad Hoc Committee’s mandate was to consider ‘a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities, based on the holistic approach in the work done in the fields of social development, human rights and non-​discrimination’.51 Comprised of twenty-​seven governmental regional representatives, twelve NGO representatives, and one representative from National Human Rights Institutions,52 this Ad Hoc Committee was one of the first such United Nations’ bodies to formally grant consultative status to NGOs and incorporate contributions from NGOs in developing a new convention.53 The Ad Hoc Committee convened its first round of meetings in July and August 2002. In this opening session, the Ad Hoc Committee received a background paper,

Disabilities, (9 January 2002) paras 56–​60; see also Anna Lawson, ‘The United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?’ (2007) 34 Syracuse J Int’l L and Com 563, 582. 48  Division for Social Policy and Development Disability, ‘Special Rapporteur 1994–​ 2002:  Bengt Lindqvist’, available at:  . 49   Quinn and Degener (n 3). One exception is the Convention concerning Vocational Rehabilitation and Employment (Disabled Persons) adopted in 1983, wherein Art 4 states ‘Equality of opportunity and treatment for disabled men and women workers shall be respected’. 50   Ad Hoc Committee, UNGA Res 56/​168 (19 December 2001). . 51   ibid para 1. The Resolution noted that despite the myriad of UN documents and the works of various governments and agencies seeking to advance the equality of people with disabilities, ‘efforts have not been sufficient to promote full and effective participation by and opportunities for persons with disabilities in economic, social, cultural and political life’. 52   See Enable Timeline, (August 2003), available at: . 53  The Report of the Special Rapporteur recommended that disability NGOs be consulted:  Ad Hoc Committee (n 50)  para 74. Resolution 56/​168 provided for the accred