Art.3 General Principles
Edited By: Ilias Bantekas, Michael Ashley Stein, Dimitris Anastasiou
- Disability — International courts and tribunals, jurisdiction
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;
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;
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 References(p. 85) 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 References(p. 86) 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 (p. 87) 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:
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 (p. 88) 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 References(p. 89) 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.
References(p. 90) 3. Paragraph (a)
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’.62References(p. 91) 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 References(p. 92) 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.
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:
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
References(p. 94) 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
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
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 References(p. 95) ‘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 References(p. 96) 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.
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.
References(p. 97) 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,131References(p. 98) 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 References(p. 99) 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, References(p. 100) 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
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 References(p. 101) 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
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 References(p. 102) 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.
References(p. 103) 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 References(p. 104) 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.
References(p. 105) 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
2 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: <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx>.
4 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’.
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.
10 ‘Working Paper by Mexico’, UN Doc A/AC.265/WP1 (29 July–9 August 2002), available at: <http://www.un.org/esa/socdev/enable/rights/adhocmeetaac265w1e.htm>.
13 Art 2 of the EU proposal, available at: <http://www.un.org/esa/socdev/enable/rights/wgcontrib-EU.htm>.
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: <http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_wp1.htm>.
15 Art 1 of India’s proposal, available at: <http://www.un.org/esa/socdev/enable/rights/wgcontrib-india.htm>. accessed April 2017.
16 Para 22, available at: <http://www.un.org/esa/socdev/enable/rights/contrib-uganda.htm>.
17 Para 15, available at: <http://www.un.org/esa/socdev/enable/rights/contrib-nhri.htm>.
18 Art 1 of China’s proposal, available at: <http://www.un.org/esa/socdev/enable/rights/wgcontrib-china.htm>.
19 See below. Draft Art 1 referred to the concepts of non-discrimination, participation, and equality of opportunity, available at: <http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_wp1.htm>.
20 Art 2(1) of Japan’s Proposal, available at: <http://www.un.org/esa/socdev/enable/rights/wgcontrib-japan.htm>.
21 Art 22 of New Zealand’s Proposal, available at: <http://www.un.org/esa/socdev/enable/rights/wgcontrib-NewZealand.htm>.
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: <http://www.un.org/esa/socdev/enable/rights/wgcontrib-chair1.htm>.
23 Art 2(1) of Japan’s Proposal (n 20).
24 Art 2 of the EU proposal (n 13).
25 Art 2(1) of Japan’s Proposal (n 20).
27 EDF’s proposal, available at: <http://www.un.org/esa/socdev/enable/rights/contrib-edfvision.htm>.
28 Art 3, available at: <http://www.un.org/esa/socdev/enable/rights/contrib-incl-intl.htm>.
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: <http://www.un.org/esa/socdev/enable/rights/wgcontrib-chair1.htm#1>.
31 Comments made by the Landmine Survivors Network, available at: <http://www.un.org/esa/socdev/enable/rights/wgdca2.htm>.
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: <http://www.un.org/esa/socdev/enable/rights/ahc3reporte.htm>.
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: <http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_crp13.htm>, and ‘Daily summary of discussions related to Article 2 General Principles’, available at: <http://www.un.org/esa/socdev/enable/rights/ahc3sum2.htm>.
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: <http://www.un.org/esa/socdev/enable/rights/ahc4sumart02.htm>.
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 Daily summary (n 33).
41 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).
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: <http://www.un.org/esa/socdev/enable/rights/ahc7ann2rep.htm>.
49 See Chairman’s Text as Amended by the International Disability Caucus (1/17/2006) available at: <http://www.un.org/esa/socdev/enable/rights/ahc7contngos.htm>. This principle is further discussed below.
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.
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.[ … ]’.
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).
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  ECR I-7079, 70–77).
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.
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 Working Paper by Mexico, UN Doc A/AC265/WP1 (n 10).
73 Statement available at: <http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_crp9.htm>.
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: <http://www.un.org/esa/socdev/enable/rights/ahc3sum2.htm>.
77 See National Human Rights, Asia Pacific Forum, available at: <http://www.un.org/esa/socdev/enable/rights/ahcstata3tscomments.htm> at para 45.
78 See ‘Daily summary of discussions related to Article 2 General Principles’, available at: <http://www.un.org/esa/socdev/enable/rights/ahc4sumart02.htm>.
79 See compilations of comments, proposals, and amendments during the seventh session, available at: <http://www.un.org/esa/socdev/enable/rights/ahcstata3sevscomments.htm#canada>.
81 McCrudden (n 52) 723.
82 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.
85 Danish Human Rights Institute (n 73).
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.
94 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: <http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_crp9.htm> (n 73).
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.
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).
101 UN OHCHR, ‘CCPR General Comment No 18: Non-discrimination’ (UN 1989) para 1, available at: <http://www.refworld.org/docid/453883fa8.html>.
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).
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.
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: <http://www.un.org/esa/socdev/enable/rights/ahcstata3tscomments.htm>.
112 See Daily summary, fourth session, available at: <http://www.un.org/esa/socdev/enable/rights/ahc4sumart02.htm>—New Zealand, Serbia Montenegro, the South Africa Human Rights Commission, and EDF were strong proponent for including a principle of reasonable accommodation.
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 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.
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.
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.
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).
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.
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)).
138 See (n 73).
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: <http://www.un.org/esa/socdev/enable/rights/ahcstata3tscomments.htm>, accessed April 2017.
142 Daily summary, available at: <http://www.un.org/esa/socdev/enable/rights/ahcstata3tscomments.htm#ontariohrc>.
143 Daily summary, available at: <http://www.un.org/esa/socdev/enable/rights/ahcstata3fscomments.htm>.
144 Daily summary, available at: <http://www.un.org/esa/socdev/enable/rights/ahcstata3sevscomments.htm>.
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.
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 For further analysis on the human rights model see (n 140).
154 Available at: <http://www.un.org/esa/socdev/enable/rights/ahcstata3tscomments.htm>.
155 Available at: <http://www.un.org/esa/socdev/enable/rights/ahcstata3fscomments.htm>.
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 Mégret (n 92) 501.
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).
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).
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 Fredman, ‘Substantive Equality Revisited’ (n 164).
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.
169 Statement available at: <http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_crp9.htm> (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.
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.
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.
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’.
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: <http://www.refworld.org/docid/43f3067ae.html>.
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: <http://www.un.org/esa/socdev/enable/rights/ahcstata3tscomments.htm> and session 4, available at: <http://www.un.org/esa/socdev/enable/rights/ahcstata3fscomments.htm>.
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’.
197 Available at: <http://www.un.org/esa/socdev/enable/rights/ahcstata3sevscomments.htm#idc>.
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: <http://www.un.org/esa/socdev/enable/rights/ahc7contunagencies.htm>.
199 UNICEF (n 198).
202 CRC Ctee, ‘General Comment No 9’ (n 179) para 8.