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The UN Convention on the Rights of Persons with Disabilities - A Commentary edited by Bantekas, Ilias; Stein, Michael Ashley; Anastasiou, Dimitris

Art.9 Accessibility

Anna Lawson

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

Edited By: Ilias Bantekas, Michael Ashley Stein, Dimitris Anastasiou

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 November 2019

Subject(s):
Access to justice — Disability — Jurisdiction

(p. 258) Article 9  Accessibility

  1. (1)  To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:

    1. (a)  Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces;

    2. (b)  Information, communications and other services, including electronic services and emergency services.

  2. (2)  States Parties shall also take appropriate measures to:

    1. (a)  Develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public;

    2. (b)  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;

    3. (c)  Provide training for stakeholders on accessibility issues facing persons with disabilities;

    4. (d)  Provide in buildings and other facilities open to the public signage in Braille and in easy to read and understand forms;

    5. (e)  Provide forms of live assistance and intermediaries, including guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public;

    6. (f)  Promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information;

    7. (g)  Promote access for persons with disabilities to new information and communication technologies and systems, including the Internet;

    8. (h)  Promote the design, development, production and distribution of accessible information and communications technologies and systems at an early stage, so that these technologies and systems become accessible at minimum cost.

1.  Introduction

Article 9 of the UN Convention on the Rights of Persons with Disabilities (CRPD) is a novel provision in international human rights law. It is the first provision in a human rights treaty to focus on articulating rights to accessibility. That said, article 9 draws on, and makes explicit, principles which were already at work in international human rights law.

The importance of accessibility to the CRPD’s mission (of ensuring that human rights are enjoyed by people with disabilities on an equal basis with others1) has been repeatedly acknowledged. Before the CRPD for instance, during the United Nations sixth session of the Ad Hoc Committee on the then embryonic treaty, Thailand and Israel asserted that the importance of the draft accessibility article was such as to ‘justif[y] the existence of this convention’;2 and South Africa, speaking for the African Group, stated that accessibility was the ‘main prerequisite for equal participation of persons with disabilities in mainstream society’.3 Some years later, after the adoption and entry into force of the CRPD, Ron McCallum, then chair of the UN Committee on the Rights of Persons with Disabilities (CRPD Committee), stated that:

We cannot think of anything more crucial for persons with disabilities than accessibility.4

Although people with disabilities have been particularly disadvantaged by the exclusionary impact of accessibility barriers to the physical, information, communication, and technological environments, those barriers also create difficulties for many people who do not have disabilities—steps, for example, create difficulties for anybody carrying heavy luggage or pushing a pram; and equipment which requires information to be typed presents (p. 260) difficulties for many who would prefer to input information through speech. It is therefore not just people with disabilities who stand to benefit from article 9. Implementation of the obligations it sets out will, in a very literal sense, reshape the physical and technological world we all inhabit and our methods of communication and interaction—a process which will itself require the embedding of relevant behaviour-change, innovation, training, and monitoring.5

Article 9 has played a significant role in the work of the CRPD Committee. It has been consistently addressed in the Committee’s concluding observations and is the subject of its second general comment. In addition, by the end of 2016, the Committee had found that article 9 had been breached in five cases—Nyusti and Takács v Hungary,6 decided in spring 2013; X v Argentina,7 decided in spring 2014; F v Austria,8 decided in autumn 2015; Beasley v Australia,9 decided in spring 2016; and finally Lockrey v Australia,10 also decided in spring 2016. The first of these cases concerned the accessibility of Automatic Teller Machines (ATMs) in banks; the second concerned the accessibility of various facilities within a prison environment; the third concerned the accessibility of public transport information systems; and the last two both concerned the accessibility of the justice system for deaf jurors. There is therefore a growing body of Committee work designed to provide guidance about how article 9 should be implemented.

This chapter provides a systematic analysis of article 9. It aims to deepen understanding of the thinking which shaped it—by providing a comprehensive analysis of its treatment at the hands of the Ad Hoc Committee which drafted the Convention; the guidance on it provided by the CRPD Committee to date; and questions which remain unresolved and which, it will be argued, require attention and clarification. Suggestions will be made as to how article 9 could most helpfully be interpreted and implemented so as to provide clarity and strengthen coherence with the wider international human rights system.

Article 9’s novelty as a human rights provision inevitably gives rise to searching questions about the nature and implications of the rights and associated obligations which it sets out. The CRPD Committee, particularly in its General Comment No 2, has begun to grapple seriously with these questions—a process which has already resulted in important clarifications. Particularly helpful has been guidance about the need for a strategic and dynamic approach to accessibility, with a focus on on-going training, monitoring, mainstreaming, and enforcement. The Committee’s guidance on trans-national collaboration in the development of accessibility standards is also noteworthy—as is the helpful distinction made between accessibility and reasonable accommodation. Notwithstanding these immensely important contributions, troubling uncertainties, and confusions remain.

The issue most urgently in need of clarification concerns the extent to which article 9 obligations are subject to progressive realisation. While General Comment No 2 acknowledges that article 9 requires accessibility to be achieved in a gradual manner for existing (p. 261) environments and services, there is no evidence in its jurisprudence that it is taking this into account when assessing whether or not article 9 has been breached. A more considered and more explicit discussion of progressive realisation would both help to provide clarity about the implementation of article 9 and also to position article 9 more securely on well-worked ground provided by other treaty bodies—particularly the Committee on Economic Social and Cultural Rights (CESCR).

Important questions also linger about how accessibility within article 9 relates to ‘accessibility’ in the sense used in other human rights contexts—for instance the right to the highest attainable standard of health. Clarity about this would not only facilitate understanding and implementation of article 9, but would also enrich processes of dialogue and cross-reference with other treaty bodies, increasing the likelihood of CRPD accessibility-related developments being adopted and applied in other contexts.

The chapter will be divided into three main sections in addition to the introduction. The first of these will focus on the Ad Hoc Committee debates that shaped and situated article 9. This will be organized thematically under four distinct headings so as to facilitate analysis of key recurring issues. The second and third sections will focus on the current text of article 9 (paragraphs 9(1) and 9(2) respectively), its implications and the way in which it has been understood and applied, particularly by the CRPD Committee. Cross-cutting themes will be highlighted throughout, as will any relevant domestic caselaw.

As well as academic and other literature, the chapter will draw upon a range of sources. At the UN level, these will include, in particular, the debates of the Ad Hoc Committee that drafted the terms of the CRPD, and relevant general comments, jurisprudence, and concluding observations (particularly of the CRPD Committee). Although lists of issues sometimes include thought-provoking material relating to article 9,11 no attempt will be made here to subject them to a comprehensive or systematic scrutiny. The domestic case law referred to in this chapter is that analysed in a recent study of the way in which the CRPD was used and interpreted in thirteen jurisdictions.12 According to this, article 9 was seldom cited by judges in most countries,13 although a significant exception was Russia, where it was reported that article 9 was cited in approximately a thousand cases14—no other CRPD article being cited more frequently in any of the jurisdictions analysed.

(p. 262) 2.  Background and Travaux Préparatoires

2.1  Early Incarnations of Article 9

What is now article 9 of the CRPD appeared under different numbers in earlier versions of the text. A brief outline of the numbering and text of former incarnations of the article is provided here to facilitate deeper reflection on particular aspects of article 9’s journey through the Ad Hoc Committee meetings. Elements of what finally became article 9 of the CRPD appear in draft article 6 of the working paper produced by Mexico for the first of the Ad Hoc Committee sessions held in 2002. This read as follows:

States Parties recognize the right of persons with disabilities to freedom of movement and to have an accessible environment to guarantee their autonomy, independence, and full participation in all activities.

States Parties shall legislate or take steps to ensure that:

  1. a)  Urban outfitting and public services and facilities for public use have the adaptations necessary to facilitate access, use, and circulation for persons with disabilities.

  2. b)  Vehicles and public transport services allow the access and mobility of persons with disabilities.

  3. c)  The existence of adaptations, signposting, and basic forms of communication for the freedom of movement and access to all public services and those available to the public.

  4. d)  The construction and adaptation of housing comply with regulations governing accessibility for persons with disabilities.

Articles 7 and 8 of this paper are also relevant to what has become article 9 of the CRPD although they appear to be more directly linked to what has ultimately become article 21. In the draft text prepared by the Working Group of the Ad Hoc Committee in January 2004,15 draft article 19 was given the title ‘accessibility’.

Between the sixth and seventh sessions of the Ad Hoc Committee, the chair compiled a revised version of the text, in which the article on accessibility appeared as article 9 and not as article 19.16

2.2  The Relationship Between Article 9 and Other CRPD Provisions

The focus—and indeed the title—of article 9 is accessibility. However, it is not the only CRPD provision to deal with this important issue. The concept is one which runs throughout the treaty—the terms ‘accessible’ and ‘accessibility’ appearing some twenty-five times in its text. This reflects the considerable importance attached to accessibility by the Ad Hoc Committee. This is perhaps unsurprising given the influential role played by social model approaches to disability in the Ad Hoc Committee’s drafting—as illustrated by the following words in the preamble to the CRPD:

disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society.17

(p. 263) Similarly, article 1 draws attention to the way in which ‘various barriers may hinder … full and effective participation in society’ by people who have ‘impairments’. As is to be expected, therefore, a recurrent theme in the Ad Hoc Committee’s discussions about what became article 9 was the extent to which accessibility-related matters should be duplicated in other articles and what, if anything, would better be moved into other provisions. Underpinning these debates were questions about what role this article was to play in the Convention as a whole. The Ad Hoc Committee’s discussions reveal a general consensus about the need to consolidate provisions relating to accessibility so as to avoid overlap and duplication, whilst at the same time ensuring that accessibility obligations permeated and were read into all parts of the CRPD. As Don McKay noted at the opening of the discussion of draft article 19 during the sixth session of the Ad Hoc Committee:

Various proposals have been made at earlier meetings about moving elements of Article 19 to other parts of the Convention, and bringing parts of other articles into Article 19. … There are different views amongst the delegations about whether to expand or contract Article 19.18

There was extensive discussion of the respective roles of the accessibility article (draft article 19 and subsequently draft article 9) and draft article 20 (on personal mobility).19 Indeed, according to the report of the Ad Hoc Committee’s sixth session:

There was considerable discussion in the Committee of the relationship and overlap between draft articles 19 and 20 . … The Committee noted that draft articles 19 and 20 are essentially two sides of the same coin. There was general support to merge the two draft articles.20

However, a more cautious approach is evident in the letter of the chair to all members of the Ad Hoc Committee prior to its seventh session, according to which:

Although there was initially support for merging (old) Articles 19 and 20, this weakened as the discussion went on and several delegations subsequently supported the retention of a separate Article 20 as it deals with individual mobility rather than accessibility. While there was clearly agreement that the duplication between the two Articles should be removed, there was concern that elements might be lost in a merger of the two. I have therefore retained a shorter Article 20, which contains those elements not already in Article 19 (now 9).21

Attention also focused on the relationship (and potential overlap) between the accessibility article and draft article 13 (which ultimately became article 21, on freedom of (p. 264) expression)22– concerning, for example, accessibility of the internet and information and the training of intermediaries and interpreters in accessible communication.23 In addition, the Ad Hoc Committee explored the relationship, as well as the need for some overlap between draft article 19 and draft articles 2 (on general principles)24 and 4 (on general obligations).25

Alongside these debates about mergers and overlaps were discussions of the place and role of the accessibility article in the CRPD. As early as the third session of the Ad Hoc Committee, the session which followed the publication of the Working Group’s draft text, there were calls (led by the EU) for the accessibility article to be moved from article 19 and placed earlier in the treaty26 in order to recognize the important cross-cutting role of accessibility and its close relationship with equality and non-discrimination. As Israel noted:

Accessibility is the other side of equality and should be made a part of general provisions, placed after non-discrimination …27

Whilst this view appeared to capture the flavour of the majority of the contributions, it was not universally endorsed, as illustrated by Australia’s proposal in the sixth session that the accessibility article was more in the nature of an ‘implementation measure’ and should therefore be positioned in the last of five main parts of the treaty, along with other monitoring and implementation provisions.28 While such an approach would have highlighted the cross-cutting relevance of accessibility to all CRPD rights, it may have weakened the status of accessibility as in itself a substantive right. The question of whether an implementation provision might also set out a substantive right was not examined. However, the risk that accessibility requirements might be treated as somehow ancillary or unenforceable appears to underpin concerns such as that expressed by the Mental Disability Rights Initiative that the draft accessibility article did not make it sufficiently clear that accessibility was a right to which people with disabilities were entitled.29

(p. 265) 2.3  The Scope and Emphasis of Article 9

Another strand of the Ad Hoc Committee debates on what became article 9 concerned its scope and emphasis. The importance of ensuring that the scope of the article was broad and inclusive was repeatedly stressed, together with a recognition that an attempt to list too many specific examples would potentially undermine efforts to achieve this—particularly in light of future technological developments.30 Summing up the discussion of draft article 19 at the sixth session of the Ad Hoc Committee, the chair noted that:

Many advocated shortening the Article, but submitted proposals to add language to cover particular situations. The Committee will have to balance the desire to focus on general provisions against the tendency to list examples which might be read as exclusive.31

Many of the comments on this draft article—particularly in early sessions of the Ad Hoc Committee, made by disability organizations and governments alike—drew attention to the fact that it should clearly engage with accessibility for people with intellectual or psychosocial impairments as well as people with physical or sensory ones.32 In similar vein, when summing up the discussion of this article at the sixth session, the chair noted that, ‘this Convention needs to deal equitably with all disabilities and all types of accessibility’.33 The report of the sixth session notes that:

A number of delegations pointed out that ‘accessibility’ was not just about access to buildings. Accessibility also related to, for example, accessible information. It was important to ensure that this draft article did not slant towards one type of accessibility.34

Much debate concerned the extent to which the article should affect the private sector. Many of the contributions focused on the need to include, within the scope of the article, services and facilities open to the public regardless of whether they were in public or private ownership—a point on which there was clear consensus.35 The Africa Group proposed going beyond this, so that states would be required to ensure, on a progressive basis,36 the accessibility of ‘private entities in general, which do not render public services or cater to the public’.37 While this broad wording did not survive into the final text, various contributions drew attention to the exclusionary impact on people with disabilities of inaccessible housing and workplaces—neither of which need be open to the (p. 266) public.38 Interestingly, both housing and workplaces are explicitly mentioned in the final text of article 9.

Additional discussion concerning the scope of article 9 focused on a range of issues. Attention was drawn, for instance, to the importance of highlighting the relevance of this provision to rural as well as urban areas.39 The importance of including public transport and the full range of transport modes was stressed by a number of delegations, including Korea,40 Chile,41 and Panama.42 Finally, many interventions drew attention to the importance of including the accessibility of emergency and evacuation procedures within the article.43

2.4  Nature of the Obligation

The final major theme which can be identified in the Ad Hoc Committee’s discussions which led to article 9 was the nature of the obligations created by the article. One strand of this discussion focused on draft article 19(2)(e) of the Working Group’s version of the text (eventually article 9(2)(b) of the CRPD) and, in particular, whether the CRPD should impose a stronger obligation on states in relation to the private sector, rather than ‘encourage’ it to comply with accessibility standards and guidance. Reluctance to move from the wording of ‘encouragement’ to that of ‘compulsion’ was expressed by Japan in the third session of the Ad Hoc Committee44—given that commitments made in international treaties were made by states and not the private sector. However, strong interventions in favour of language which would oblige states to require, and not just encourage, accessibility by private sector entities (particularly when providing services or facilities open to the public) were made by, for example, Kenya,45 Kuwait,46 Costa Rica,47 and the EU.48 In response, the chair suggested replacing ‘encourage’ with ‘ensure’ in the version of the text compiled prior to the seventh session of the Ad Hoc Committee49—wording which survived into the final text.

Another point which is worthy of note is the frequent assertions that many of the obligations imposed by the accessibility article would be subject to progressive realization. As the report of the sixth session states:

The Chair noted that the idea of progressive implementation had been brought up again. Accessibility is an economic, social, and cultural right, and so progressive realization would be (p. 267) appropriate; however, there are also elements of a civil and political right, freedom of expression; therefore Article 19 is something of a hybrid.50

Thus, there was ‘clear agreement that this article is subject to progressive implementation’. There was, however, some debate about whether this should be articulated within the article itself or left to a separate provision. In the third session of the Ad Hoc Committee, Kuwait suggested adding a new subparagraph to draft article 19(1) to the effect that states parties would ‘formulate and implement plans to progressively reduce and eliminate barriers to accessibility for persons with disabilities with respect to existing public buildings’; and China suggested inserting into draft article 19(1) the phrase ‘appropriate measures’ and ‘to the maximum extent of the available resources’.51 Thailand, by contrast, took the view that although progressive realisation was important in the context of accessibility, it would be best dealt with outside draft article 1952—a view on which the report of the fourth session of the Ad Hoc Committee recognized that there was agreement.53

Whilst there appeared to be no dissent from the view that accessibility was predominantly a right requiring progressive realisation, there were attempts (eg by the International Disability Caucus and Israel) to build into the article provisions which would categorize failure to comply as a form of discrimination. Serbia and Montenegro urged caution about categorizing non-compliance with the accessibility provision as disability discrimination (which is not subject to progressive realization), fearing that this could prove burdensome,54 and several other delegations drew attention to the fact that accessibility was subject to progressive realization.55 According to the records of the seventh session of the Ad Hoc Committee:

The Chair noted … the dichotomy between the application of progressive realization to accessibility and the notion that noncompliance constitutes discrimination. Anti-discrimination measures require immediate implementation. There appears to be consensus that accessibility is subject to progressive realization and it would therefore create a contradiction within the text to indicate that failure to provide accessibility equals discrimination.56

Chile suggested, by way of compromise, that the article could instead refer to ‘sanctions, oversight or control according to national law’.57 Summing up this discussion in the seventh session, the chair observed that:

There was both support and concern regarding the equating of noncompliance with discrimination, thus this subject would require further discussion.58

A related issue which attracted debate in the seventh session of the Ad Hoc Committee, was the proposal (by the EU) to include within draft article 9 a reference to reasonable accommodation as a means through which to achieve accessibility. This attracted some support (eg from New Zealand). However, it also attracted concern—particularly from Australia, according to which:

… reasonable accommodation is a fundamental mechanism by which discrimination is overcome. Article 5 on Equality and Non-discrimination includes reasonable accommodation and applies (p. 268) to all articles in this convention. It should not be used to qualify obligations that are considered too onerous: that devalues this critical concept as a concession or a compromise. Furthermore, including express mention of reasonable accommodation in some places undermines its implicit application to all circumstances.59

3.  Paragraph 9(1)

3.1  ‘To enable persons with disabilities to live independently and participate fully in all aspects of life’

Article 9 begins with this phrase—which articulates the reason why accessibility is such an important matter for disabled people. General Comment No 2 of the CRPD Committee, which concerns article 9, opens in similar vein, stating that:

Accessibility is a precondition for persons with disabilities to live independently and participate fully and equally in society. Without 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.60

The reference in article 9(1) to ‘enabl[ing] persons with disabilities to live independently and participate fully in all aspects of life’ has clear resonance with other provisions in the Convention and helps to draw attention to the cross-cutting nature of accessibility. Foremost amongst these other provisions is article 19, the title of which is ‘Living independently and being included in the community’. Also of particular relevance is the reference to accessibility in article 3,61 which recognizes accessibility as one of the general principles of the Convention, thus underpinning and embedding its cross-cutting role throughout the treaty.

Although the classic focus of campaigns for independent living has been the support and inclusive accessible structures and systems that enable people with disabilities to live in the community on an equal basis with others, the CRPD Committee has used the term ‘independent living’ in a broader sense—applying it also in contexts of detention. Thus, in X v Argentina,62 prior to finding that article 9(1) had been breached, the Committee stated that:

… States Parties must take all relevant measures … so that persons with disabilities who are deprived of their liberty may live independently and participate fully in all aspects of daily life in their place of detention; such measures include ensuring their access, on an equal basis with others, to the various areas and services, such as bathrooms, yards, libraries, study areas, workshops and medical, psychological, social and legal services.63

Similarly, in both Beasley v Australia,64 and Lockrey v Australia,65 the CRPD Committee acknowledged that, in countries with jury systems, ‘the performance of jury duty is an (p. 269) important aspect of civic life within the meaning of article 9(1), as it constitutes a manifestation of active citizenship’.66

Importantly, achieving accessibility for ‘persons with disabilities’ requires achieving it for all such persons. The CRPD Committee has, in various concluding observations, expressed concern that this is not happening—accessibility initiatives being focused on ensuring physical accessibility without adequately tackling information and communication and without taking into account the need to ensure accessibility for people with sensory, intellectual, or psychosocial impairments.67 The importance of taking into account ‘the diversity of persons with disabilities’ and ensuring that accessibility is ‘provided to persons of any gender and of all ages and types of disability’, including those who ‘need human or animal assistance’, is stressed in General Comment No 2.68 This requires attention to be given to the accessibility of facilities and services used only or primarily by intersectional groups. For example, for women with disabilities, General Comment No 3 of the CRPD Committee notes that:

The lack of consideration of gender and/or disability aspects in policies relating to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas, prevents women with disabilities from living independently and participating fully in all areas of life on an equal basis with others. This is specially relevant in their access to safe houses, support services and procedures in order to provide effective and meaningful protection from violence, abuse and exploitation or when providing health care, particularly reproductive health care.69

The importance of ensuring accessibility of facilities and services relevant to children with disabilities has been stressed by the CRPD Committee70 and also the Committee on the Rights of the Child.71

3.2  ‘Appropriate Measures to Ensure’

Examples of specific types of measures that states must take in order to carry out their obligations under article 9 are set out in article 9(2) and considered in detail below. At this stage, however, it is important to reflect on measures that, although not made explicit in article 9, are (according to the CRPD Committee72) essential for its effective implementation. These relate to the establishment of strategies, planning and (p. 270) monitoring frameworks concerning accessibility, largely derived from requirements set out more explicitly elsewhere in the Convention—particularly article 4 on general obligations, article 5 on equality and non-discrimination, article 31 on data and statistics and article 33 on implementation and monitoring frameworks. According to General Comment No 2:

States Parties should adopt action plans and strategies to identify existing barriers to accessibility, set time frames with specific deadlines and provide both the human and material resources necessary to remove the barriers. Once adopted, such action plans and strategies should be strictly implemented.73

As part of these accessibility plans and strategies states parties should ‘clearly prescribe the duties of the different authorities (including regional and local authorities) and entities (including private entities) that should be carried out in order to ensure accessibility’ and ‘prescribe effective monitoring mechanisms to ensure accessibility and monitor sanctions against anyone who fails to implement accessibility standards’.74

The General Comment also contains guidance on the monitoring mechanisms which should underpin accessibility strategies and action plans.75 It went on to say that:

It is crucial that the bodies established further to article 33 are duly consulted when measures for the proper implementation of article 9 are considered. Those bodies should be provided with meaningful opportunities to, inter alia, take part in the drafting of national accessibility standards, comment on existing and draft legislation, submit proposals for draft legislation and policy regulation, and participate fully in awareness-raising and educational campaigns.76

The General Comment refers to the relevance of the general obligation to accessibility (set out in article 4(1)(b) of the CRPD) to take ‘all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities’.77 A clear first priority for action, according to the General Comment, is to review the extent to which accessibility requirements are currently embedded in legislation (eg relating to discrimination, procurement, employment, and education) and, where necessary, take steps to address gaps.78

The General Comment goes on to note that this process of embedding accessibility into legislation involves a two-pronged approach. It requires accessibility to be mainstreamed into laws dealing with issues such as ‘construction and planning’, ‘public aerial, railway, road and water transport’, and ‘information and communication’.79 It also requires accessibility to be made the subject of ‘laws on equal opportunities, equality and participation in the context of the prohibition of disability-based discrimination’80 so that ‘[d]enial of access’ is ‘clearly defined as a prohibited act of discrimination’.81 However, as acknowledged by Don McKay during the Ad Hoc Committee discussions,82 categorizing every form of accessibility barrier as unlawful discrimination would be inconsistent with recognition of the need to plan for and achieve accessibility of existing buildings, structures, or products in a way that is gradual or progressive. The General Comment goes on (p. 271) to provide further clarification of the situations in which lack of accessibility should be defined as discrimination, as follows:

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:

  1. (a)  Where the service or facility was established after relevant accessibility standards were introduced;

  2. (b)  Where access could have been granted to the facility or service (when it came into existence) through reasonable accommodation.83

In terms of timeframes, the General Comment insists that:

A clear distinction should be drawn between the obligation to ensure access to all newly designed, built or produced objects, infrastructure, goods, products and services and the obligation to remove barriers and ensure access to the existing physical environment and existing transportation, information and communication, and services open to the general public.84

Thus, in relation to making existing structures, services and environments accessible, the expectation is that progress will be made ‘gradually in a systematic and, more importantly, continuously monitored manner, with the aim of achieving full accessibility’.85 The Committee notes that this entails establishing ‘definite time frames’ and allocating ‘adequate resources for the removal of existing barriers’86 as part of a strategy through which definite progress can be achieved. This requires an ‘analysis of the situation to identify the obstacles and barriers that need to be removed’ which should be ‘carried out in an efficient manner and within a short- to mid-term framework’.87 The General Comment also specifies that the CRPD does ‘not allow’ states ‘to use austerity measures as an excuse to avoid ensuring gradual accessibility for persons with disabilities’.88

Whilst this process of gradual implementation sounds very much like ‘progressive realization’, that term is used nowhere in this General Comment. This is regrettable as it distances the implementation of article 9 from the valuable guidance on progressive realization issued by other UN human rights bodies—in particular the CESCR.89 It is also surprising given the clear consensus in the Ad Hoc Committee discussions about the relevance of progressive realization to accessibility.

The Committee’s jurisprudence has done little to enhance clarity on the relationship between article 9 and progressive realization. Indeed, the Committee’s views in Nyusti and Takács v Hungary90 appear to exacerbate, rather than reduce, confusion and uncertainty. The case concerned inaccessible automatic teller machines (ATMs) which had been used by a privately owned bank (the OTP) before Hungary’s ratification of the (p. 272) CRPD. Given that the challenge focused on making existing infrastructure accessible (as opposed to ensuring the accessibility of new products or systems), General Comment No 2 indicates that progress toward achieving accessibility may be gradual rather than immediate. This would suggest that, in order to establish a breach, there would need to be an element of process failure—in the form, for instance, of failure to adopt an effective plan, or to resource or monitor an accessibility strategy sufficiently.91 However, the Committee appears to have based its finding of breach of article 9 simply on the fact that the ATMs were not accessible at the relevant date—thus applying an outcome rather than a process-oriented approach.92 Thus, in the Committee’s words:

While giving due regard to the measures taken by the State party to enhance the accessibility of the ATMs operated by OTP and other financial institutions for persons with visual and other types of impairments, the Committee observes that none of these measures have ensured the accessibility to the banking card services provided by the ATMs operated by OTP for the authors or other persons in a similar situation. The Committee finds accordingly that the State party has failed to comply with its obligations under Article 9, paragraph 2 (b), of the Convention.93

Again, no clarity was provided by Beasley v Australia94 and Lockrey v Australia.95 In both of these cases, the CRPD Committee found that article 9 had been breached—in Beasley because of a failure to provide sign language interpretation to enable a deaf person to participate in jury service and in Lockrey because of a failure to provide a stenographer to enable a deaf person to participate in jury service. In both cases, observations are made to the following effect:

The Committee also recalls that, according to its general comment No 2, … the access should be ensured on an equal basis in an effective manner, in accordance with the prohibition of discrimination; and the denial of access should be considered to constitute a discriminatory act.96

Unhelpfully, this suggests that all failures to ensure accessibility constitute unlawful discrimination—an approach which would leave no room for progressive realization.

Finally, in this context, it should be noted that the implementation of article 9 is an issue which has proved challenging for states parties. As the CRPD Committee notes in General Comment No 2:

One common challenge has been the lack of an adequate monitoring mechanism to ensure the practical implementation of accessibility standards and relevant legislation. In some States Parties, monitoring was the responsibility of local authorities that lacked the technical knowledge and the human and material resources to ensure effective implementation. Another common challenge has been … insufficient involvement of persons with disabilities and their representative organizations in the process of ensuring access to the physical environment, transport, information and communication.97

(p. 273) 3.3  ‘Access, on an Equal Basis with Others’

Interestingly, article 9(1) is framed, not in terms of ensuring accessibility, but in terms of ensuring ‘access … to’ the built environment, transport, information, communications, and ICT ‘on an equal basis’ with others—although the examples of measures which should be taken to implement the article all focus on accessibility. Clearly, access to places, services, and environments is frequently denied because of lack of accessibility. Disability-oriented campaigns for enhanced accessibility have therefore often been framed as campaigns for enhanced access to services, facilities, and places open to the rest of the population. The CRPD Committee explains that:

Historically, the persons with disabilities movement has argued that access to the physical environment and public transport for persons with disabilities is a precondition for freedom of movement, as guaranteed under article 13 of the Universal Declaration of Human Rights and article 12 of the International Covenant on Civil and Political Rights. Similarly, access to information and communication is seen as a precondition for freedom of opinion and expression, as guaranteed under article 19 of the Universal Declaration of Human Rights and article 19, paragraph 2, of the International Covenant on Civil and Political Rights.98

The right to have ‘access to’ public facilities, services, and spaces appeared in pre-existing human rights treaties. Indeed, these provisions are highlighted in General Comment No 2 by the CRPD Committee because of the important role they play in laying the foundations for article 9. The provisions in question are article 25(c) of the International Covenant on Civil and Political Rights (ICCPR) and article 5(f) of the International Covenant for the Elimination of all forms of Racial Discrimination (ICERD). According to the former, every ‘citizen shall have the right and the opportunity’ to have ‘access, on general terms of equality, to public service in his country’ and, according to the latter:

… States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: …

(f) 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.

The CRPD Committee, in General Comment No 2, notes that this ICCPR provision:

could serve as a basis to incorporate the right of access into the core human rights treaties’ and that this ICERD provision establishes ‘a precedent … in the international human rights legal framework for viewing the right to access as a right per se’.99

It concludes that these provisions ‘clearly establish the right of access as part of international human rights law’ and advises that accessibility ‘should be viewed as a disability-specific reaffirmation of the social aspect of the right of access’.100

The meaning of ‘accessibility’ within article 9 will be discussed below. For present purposes, however, it is worthy of note that it appears to bear a meaning narrower than that of the phrase ‘access to’. In other words, while a right to have ‘access to’ places, services and facilities open to the public would require them to be ‘accessible’, it would also require that access was not denied for reasons other than lack of accessibility—for example, by virtue of directly discriminatory rules expressly prohibiting entry to people on the (p. 274) basis of personal characteristics. This point is touched on in General Comment No 2, according to which:

Admittedly, for members of different racial or ethnic groups, the barriers to free access to places and services open to the public were the result of prejudicial attitudes and a readiness to use force in preventing access to spaces that were physically accessible.101

Nevertheless, the Committee does not go on to consider whether article 9 has any role to play in requiring ‘access to’ facilities, services, and environments beyond accessibility. This question may perhaps depend on how the term ‘accessibility’ is understood and interpreted. It is nevertheless an interesting question which is worth pondering.

3.4  ‘Physical Environment’

Prior to the CRPD, the accessibility of the ‘physical environment’ had been highlighted as an area for priority action under Rule 5 of the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities.102 Article 9(1)(a) provides some examples of the types of contexts within which the obligations under article 9 must be carried out. These include a number of examples which consist, at least in part, of physical environments—ie ‘buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces’. In X v Argentina, the CRPD Committee was prepared to find a breach of article 9(1)(a) and (b) because the state party had not produced sufficient evidence to rebut the argument that X, a prisoner and a wheelchair user, had been prevented by barriers in the physical environment from using, in a manner that was ‘independent (insofar as possible)’, the ‘bathroom and shower, recreation yard and nursing service’.103 The Committee observes in this connection that the state party had not asserted that there were any obstacles that prevented it from taking the necessary measures to facilitate the author’s mobility or denied his allegations.

At the domestic level, two Spanish cases have relied on article 9 CRPD to require that property owners make their premises accessible. These cases indicate that article 9 is being interpreted to create immediately applicable obligations on private individuals akin to obligations not to discriminate. In the first of these cases, the Supreme Court relied on article 9 to set aside the refusal by owners of an apartment building to allow a hoist (enabling a disabled person to use a communal swimming pool) to be installed.104 In the second, the Barcelona Provincial High Court required owners of an apartment building to install an elevator to make the property accessible to disabled residents.105

Russian courts have also referred to article 9 in the context of the built environment. In Sergiyenko v the Belgorod Regional Department of the Federal Bailiff Service,106 it was held that article 9 did not render it unlawful for a bailiff’s office to be located on the fifth floor of a building without an elevator because it had not been proved that the claimant could not access the services provided by the office even though he was not physically able to reach the fifth floor. Universal design was described as ‘legally binding’ at the time of (p. 275) construction—the process of design and construction being one which should achieve a ‘living environment with unobstructed access [for] persons with disabilities … to buildings and facilities … without the need for further restructuring and adaptation’.107 This obligation was not breached in the case in question, presumably because the building had already been constructed.

In another Russian case—Shitikov v Absent Ltd108—reference was again made to article 9 and it was stressed that private entities offering facilities and services open to the public must take into account all aspects of accessibility for disabled people. The claimant (a wheelchair user) argued that a café should install a ramp to enable him to have access to its services. However, the court dismissed the claim, ruling that it would be sufficient for the café to install a button to allow the plaintiff to call for assistance. Thus, like the Spanish cases considered above, this case seems to suggest that article 9 was understood to impose obligations of immediate effect—including on private actors—but that this obligation is subject to limits of reasonableness. The result is an understanding of article 9 as including (but perhaps not being limited to) duties which appear very similar to, if not the same as, reasonable accommodation duties.

The term ‘physical environment’ appears both to encompass and extend beyond the ‘built environment’. General Comment No 2 contains the following reflection on accessibility barriers in the built environment:

… persons with disabilities face technical and environmental—in most cases, human-built environmental—barriers such as steps at the entrances of buildings, the absence of lifts in multi-floor buildings and a lack of information in accessible formats. The built environment always relates to social and cultural development as well as customs; therefore the built environment is under the full control of society. Such artificial barriers are often the result of a lack of information and technical know-how rather than a conscious will to prevent persons with disabilities from accessing places or services intended for use by the general public.109

Beyond the built environment, article 9 also addresses ‘access … to the natural and heritage parts of the physical environment that the public can enter and enjoy’.110 A number of concluding observations of the CRPD Committee contain explicit recommendations about ensuring the accessibility of green spaces.111 Interestingly, these are all relatively recent (none occur before 2016) and all include reference to the link between article 9 of the CRPD and the Sustainable Development Goals (in particular goal 11).

3.5  ‘Information and Communications, Including Information and Communications Technologies and Systems’

These words appear in article 9(1) and emphasize that these issues lie centrally within the scope of article 9. They have featured in virtually all of the CRPD Committee’s (p. 276) comments on article 9 in concluding observations—with the accessibility of websites and media services, together with recognition of sign language and Braille, occupying particularly prominent positions. Information, communication, and ICT are the subject of a number of paragraphs of article 9(2), discussed below. Further, there is a strong connection, and indeed a significant overlap, between the article 9 obligations relating to information, communications and ICTs and those imposed by article 21 and also article 4(1)(g) and (h) of the CRPD. The existence of this degree of overlap reflects the particular significance of this issue—for inclusion in the society of today and also the societies of tomorrow.112 Its significance also explains its appearance as one of the five core thematic strands of the new Council of Europe Disability Strategy (2017–2023).113

The term ‘communications’ is defined in article 2 CRPD. The other terms are not defined in the CRPD itself. However, General Comment No 2 provides some guidance as to the meaning of ‘information and communications technologies’. According to this:

… it is generally acknowledged that ICT is an umbrella term that includes any information and communication device or application and its content … such as radio, television, satellite, mobile phones, fixed lines, computers, network hardware and software.114

The accessibility of ICT was the focus of both Nyusti and Takács v Hungary115 in 2013 and F v Austria116 in 2015—in both of which the CRPD Committee found that article 9 had been breached. In the Nyusti case, Hungary was found to have taken inadequate steps to ensure that automatic teller machines (ATMs) in banks were accessible to people with visual impairments; and, in F v Austria, Austria was found to be in breach of article 9(1) (as well as article 9(2)) for failing to ensure that live audio information had been installed in parts of the tram network in Linz—with the result that blind passengers did not have access to information and transportation on an equal basis with other passengers.

The accessibility of information and communications more broadly was the subject of Beasley v Australia117 and Lockrey v Australia.118 As mentioned above, both cases involved challenges brought against refusals to provide support to deaf people to participate in jury service. The support requested in each case was different—reflecting the fact that what makes communication accessible for some people with the same impairment may not do so for others. Accessibility therefore requires a range of communication methods and supports to be made available.

At the domestic level, the impact of article 9 in relation to information has been interpreted expansively by Russian courts. In Tsurenko v the Ministry of Education of the Omsk Region,119 article 9 was described as ‘impl[ying] equal access to social benefits, including through access to information’. It then appears to have provided the basis for a ruling that the CRPD had been breached by a failure to provide information to a person with intellectual disabilities, who was living in a social care home, about their entitlement to apply for state supported housing. Article 9 seems to have been interpreted both to require that (p. 277) information was made available (a requirement which does not emerge from a textual reading of article 9) and that the information provided was accessible.

Finally, in the context of accessible information and communication, it is important to acknowledge the barriers often created by copyright laws (preventing the transcription or sharing of books in accessible formats) and the close relationship on this point between articles 9 and 30 of the CRPD, particularly para 3 of article 30.

The World Intellectual Property Organization’s adoption of the Marrakesh Treaty to Facilitate Access to Published Works by People who are Blind, Visually Impaired, or Otherwise Print Disabled120 in 2013 considerably strengthens the potential for governments to work together to tackle such copyright barriers to accessible information.

3.6  ‘Other Facilities and Services Open or Provided to the Public’

The inclusion of the word ‘other’ in this phrase might suggest that the terms which appear earlier in the list (ie ‘physical environment’, ‘transportation’, ‘information and communications, including information and communications technologies’) are all types of facility or service open to the public. However, on closer examination, it appears that this is not in fact the case because of the reference in article 9(1)(a) to ‘housing’ and ‘workplaces’ which are not, in any conventional sense, ‘open to the public’. Further, and unlike the draft of the CRPD compiled by the chair before the Ad Hoc Committee’s seventh session, there is nothing in the article to indicate that only public housing or public sector workplaces are covered—and the Ad Hoc Committee discussions of these issues clearly suggest that article 9’s role should extend to prompting efforts to progressively enhance the accessibility of privately owned housing stock and private as well as public sector workplaces.

While virtually all references to article 9 in the CRPD Committee’s concluding observations refer to the need to enhance the accessibility of buildings, the vast majority do not explicitly mention housing or workplaces. In relation to housing, however, explicit recommendations to enhance the accessibility of housing stock are made in the concluding observations on Lithuania121 and New Zealand—the latter focusing specifically on ‘new future private houses’.122 The New Zealand concluding observations are also one of the two examples of the Committee including, in its observations on article 9, explicit mention of the accessibility of workplaces—in the form of a recommendation that New Zealand discontinue its exemption from accessibility requirements for ‘factories and industrial premises where fewer than ten people are employed’.123

Turning now to the terms ‘facilities’ and ‘services’, as mentioned above, article 9(1)(a) specifies that the article is applicable to:

Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces.

(p. 278) In addition, article 9(1)(b) provides that it applies to:

Information, communications and other services, including electronic services and emergency services.

General Comment No 2 supplements these lists by indicating that ‘other indoor and outdoor facilities’ include:

law enforcement agencies, tribunals, prisons, social institutions, areas for social interaction and recreation, cultural, religious, political and sports activities, and shopping establishments. Other services … include postal, banking, telecommunication and information services.124

The phrase ‘open or provided to the public’ makes it clear that the reach of article 9 is determined by reference to whether a facility or service is open to the public, rather than by reference to whether it is publicly or privately owned. As General Comment No 2 puts it:

As long as goods, products and services are open or provided to the public, they must be accessible to all, regardless of whether they are owned and/or provided by a public authority or a private enterprise. Persons with disabilities should have equal access to all goods, products and services that are open or provided to the public in a manner that ensures their effective and equal access and respects their dignity.125

The reference by the CRPD Committee to ‘goods, products and services’ here, instead of ‘facilities and services’, is rather puzzling. Neither the term ‘goods’ nor ‘products’ is used anywhere in article 9. Clearly, where facilities or services (or indeed transportation, information, communications and ICTs) involve goods or products, article 9 will require those goods or products to be accessible. Thus, it would require the accessibility of equipment (such as mammogram machines and gynaecological examination beds) used as part of a health service.126 It is at least arguable, however, that, outside these situations, article 9(1) does not require states to ensure the accessibility of goods and products. The wording of General Comment No 2 seems, therefore, to go beyond the boundaries of article 9(1)—broad though those boundaries may be. The most likely explanation for this is that they are borrowed from article 4(1)(f), according to which states parties are obliged:

To undertake or promote research and development of universally designed goods, services, equipment and facilities, 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.

If this is indeed the inspiration for the wider wording used in General Comment No 2, then it requires explanation given the very different nature of the obligations set out in article 4(1)(f)—which relate to carrying out research and promoting universal design—from those set out in article 9(1)—which concern ensuring equal access. No such explanation has yet been provided by the CRPD Committee.

(p. 279) 3.7  ‘Identification and Elimination of Obstacles and Barriers’

This is the only example of a type of measure which states must take in order to implement their article 9 obligations as specified in article 9(1)—other examples appearing instead in article 9(2). It is unsurprising that this type of measure is singled out for inclusion in article 9(1) given its fundamental significance to any strategic commitment to ensuring accessibility. Furthermore, whilst the need to involve and consult people with disabilities (through their representative organizations) applies to all aspects of article 9 (as required by article 4(3)), it is self-evident that any successful attempt to identify the accessibility barriers faced by people with disabilities must necessarily be based on the experiences and insights of those people themselves.

According to General Comment No 2, an ‘analysis of the situation to identify the obstacles and barriers that need to be removed can be carried out in an efficient manner and within a short- to mid-term framework’.127 At first glance, this might be thought to suggest that a one-off exercise is envisaged. However, the on-going identification and elimination of accessibility barriers is key to the monitoring of progress toward accessibility and the General Comment attaches considerable importance to the establishment of effective and well-resourced monitoring systems. Thus, in the words of General Comment No 4 of the CRPD Committee:

Accessibility is a dynamic concept and its application requires periodic regulatory and technical adjustments.128

3.8  ‘Accessibility’

The term ‘accessibility’ is not defined in the CRPD. Interestingly, in the draft elements of a text produced in December 2003 by the chair of the Ad Hoc Committee for discussion in the Working Group,129 the following definition appeared:

‘Accessibility’ means the measure or condition of things and services that can readily be reached or used by people including those with disabilities, which could be achieved, through inclusive and universal design or adaptation and by legal and programmatic means, in order to promote their access to the physical environment, public transportation and information and communication, including information, communication and assistive technologies, and to societal structures and decision- and policy-making processes.

In the text compiled by the Working Group in January 2004,130 however, whilst ‘accessibility’ appears as a heading in the definition article, no definition is included and an accompanying note reads:

The need for a definition of ‘accessibility’ and the content of any definition will depend on the outcome of the discussion in the Ad Hoc Committee on draft Article 19 on accessibility.131

(p. 280) Some support was expressed for including a definition of accessibility—either in the definitions article or the accessibility article—by members of the Ad Hoc Committee.132 The National Human Rights Institutions group urged that a definition would be helpful and suggested one along the following lines:

The term ‘access’ is not an act or state, but a freedom to enter, to approach, to communicate with, to pass to or from, or make use of physical, environmental and societal structures, goods and services, systems and processes regardless of type and degree of disability, gender or age.133

Australia was one of the countries which argued against the inclusion of a definition but suggested that, if one were included, it should be ‘outcome based and be able to evolve as interpretation of technology develops’.134 In the text compiled by the chair and published as an annex to the report of the seventh session of the Ad Hoc Committee, accessibility was not defined in draft article 2 and, in the accompanying commentary on the text, the chair notes that:

We have not discussed a definition for ‘Accessibility’, and I suggest that we do not need one. We have a separate article on this.135

Whilst the absence of a definition of accessibility avoids the risk of imposing an ossifying rigidity on the concept, it generates a risk of confusion or lack of clarity.136 One particular source of potential confusion is the fact that the term ‘accessible’ is one that is used in other human rights contexts, in a sense that appears to be broader than the way in which it is generally used in the CRPD. Thus, in General Comment 14 of the CESCR, accessibility is explained in the following way:

Accessibility has in general four overlapping dimensions : Non-discrimination: health facilities, goods and services must be accessible to all, especially the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds.

Physical accessibility: health facilities, goods and services must be within safe physical reach for all sections of the population, especially vulnerable or marginalized groups, such as ethnic minorities and indigenous populations, women, children, adolescents, older persons, persons with disabilities and persons with HIV/AIDS. Accessibility also implies that medical services and underlying determinants of health, such as safe and potable water and adequate sanitation facilities, are within safe physical reach, including in rural areas. Accessibility further includes adequate access to buildings for persons with disabilities.

Economic accessibility (affordability): health facilities, goods and services must be affordable for all. Payment for health-care services, as well as services related to the underlying determinants of health, has to be based on the principle of equity, ensuring that these services, whether privately or publicly provided, are affordable for all, including socially disadvantaged groups. Equity demands that poorer households should not be disproportionately burdened with health expenses as compared to richer households.(p. 281)

Information accessibility: accessibility includes the right to seek, receive and impart information and ideas concerning health issues. However, accessibility of information should not impair the right to have personal health data treated with confidentiality.137

It seems clear that article 9 represents a more detailed disability-relevant articulation of some of these aspects of accessibility—particularly physical and information accessibility. What is less clear is how other elements of ‘accessibility’, as explained in the CESCR’s General Comment No 14 (eg ‘economic accessibility’) relate to the right to accessibility articulated in article 9 of the CRPD. This is not explained in General Comment No 2, although it is noted that the ‘significance of accessibility can be derived’ from this paragraph of General Comment No 14.138 In its General Comment No 4, however, the CRPD Committee appears to use the concept of accessibility to cover economic accessibility—stating that:

Accessibility requires that education at all levels be affordable for students with disabilities.139

General Comment No 2 provides helpful guidance on the nature of the obligations under article 9 accessibility obligation in the context of distinguishing it from reasonable accommodation. According to this:

Accessibility is related to groups, whereas reasonable accommodation is related to individuals. This means that the duty to provide accessibility is an ex ante duty. States Parties therefore have the duty to provide accessibility before receiving an individual request to enter or use a place or service. … obligation to implement accessibility is unconditional, i.e. the entity obliged to provide accessibility may not excuse the omission to do so by referring to the burden of providing access for persons with disabilities. The duty of reasonable accommodation, contrarily, exists only if implementation constitutes no undue burden on the entity.140

4.  Paragraph 9(2)

4.1  Paragraph 9(2)(a)—‘Minimum Standards and Guidelines’

As mentioned above, article 9(2) sets out a list of examples of measures which states parties must take when implementing article 9. The first of these concerns minimum accessibility standards applicable, for example, to ‘service-providers, builders and other relevant stakeholders’.141 In line with article 4(3), these must be drawn up in consultation with organizations of persons with disabilities, which, according to the CRPD Committee, must be appropriately ‘supported’ so as to enable them to play a full part in the development, implementation, and monitoring of accessibility standards.142

As well as stressing the importance of involving disabled people’s organizations in the development of accessibility standards, the General Comment urges states to draw them up in such a way as to enhance transnational synergies. It thus suggests that standards should be ‘in accordance with the standards of other states parties in order to ensure interoperability’.143 To this end, it encourages states parties to develop such standards ‘in (p. 282) collaboration with other states parties and international organizations’;144 to make use of ‘reference tools such as the ITU-T recommendation Telecommunications Accessibility Checklist for standardization activities (2006) and the Telecommunications accessibility guidelines for older persons and persons with disabilities (ITU-T recommendation F.790)’;145 and to ‘join ITU study groups in the radio-communication, standardization and development sectors of the Union, which actively work at mainstreaming accessibility in the development of international telecommunications and ICT standards and at raising industry’s and governments’ awareness of the need to increase access to ICT for persons with disabilities’.146

As well as requiring that minimum accessibility standards be developed, paragraph 9(2)(a) requires that steps be taken to ‘promulgate’ them and ‘monitor [their] implementation’.147 In its General Comment No 2, the CRPD Committee attaches great significance to mainstreaming accessibility standards by embedding them in a range of different types of regulatory systems and to making them compulsory.148 In its words, provision should be made for the ‘mandatory application of accessibility standards and for sanctions, including fines, for those who fail to apply them’.149

The importance of effective and enforceable minimum accessibility standards has also been stressed by the CRPD Committee in its jurisprudence. Thus, in both Nyusti and Takács v Hungary and F v Austria, general recommendations were made to the state party to the effect that minimum standards should guarantee the accessibility of banking and public transport, respectively; that they should be given effect through a legislative framework which laid down ‘concrete, enforceable and time-bound benchmarks for monitoring and assessing’ progress; and applied to all newly procured items to be used in delivering relevant services.150

4.2  Paragraph 9(2)(b)

The words used in this heading are the full text of article 9(2)(b). The phrase ‘open or provided to the public’ has already been considered above and needs no further analysis here. The key focus of this section will therefore be the nature of the obligation to ‘ensure’ that relevant private entities take accessibility into account.151

(p. 283) In its General Comment No 2, the CRPD Committee makes it clear that states are expected to develop mandatory minimum accessibility standards applicable to private entities providing facilities or services that are open to the public.152 It is also clear from the General Comment that private sector bodies should be subject to laws classifying various types of failure to provide accessibility as unlawful discrimination as well as other laws (eg on procurement or construction) which embed or mainstream accessibility requirements.153

This article 9(2)(b) obligation was the subject of Nyusti and Takács v Hungary154—in which the Committee found that Hungary was in breach of article 9 because of its failure to take sufficient steps to ensure that a private entity (the OTP Bank) was providing its ATM services in a way that was accessible to blind customers. It noted that the state party had endorsed the approach taken by the Hungarian Supreme Court—whereby the blind bank customers bringing the case were effectively barred from bringing a complaint about inaccessible bank machines because of their willingness to enter into a contractual relationship with the bank despite the fact that those machines were inaccessible at that time. Such an approach, according to the Committee, amounts to taking a position that ‘the obligation to provide for accessibility of information, communications and other services for persons with visual impairments on an equal basis with others does not apply to private entities, such as OTP, and does not affect contractual relationships’.155 Unsurprisingly, it was therefore held to be in breach of article 9(2)(b).

4.3  Paragraph 9(2)(c)—‘Training for Stakeholders’

According to the CRPD Committee, ‘a lack of accessibility is often the result of insufficient awareness and technical know-how’156 and a ‘common challenge’ in the effective implementation of article 9 is ‘the lack of training provided to the relevant stakeholders’.157 Training should be provided to those involved in the process of design, production,158 and also accessibility-monitoring.159 In General Comment No 2, the CRPD Committee provides guidance as to who should be considered ‘stakeholders’ for purposes of article 9(2)(c). According to it, the term includes ‘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’.160

4.4  Paragraph 9(2)(d)

This requirement applies to ‘buildings and other facilities open to the public’ regardless of whether they are in public or private ownership and management. Although the obligation is phrased as one to ‘provide’ signage, it seems likely that this should be interpreted in the same way as the obligation set out in article 9(2)(c) to ‘ensure’ accessibility as far as the private sector is concerned.

Other than this, article 9(2)(d) appears to raise no major complexities. The only references to it in General Comment No 2 are as follows:

(p. 284)

Movement and orientation in buildings and other places open to the public can be a challenge for some persons with disabilities if there is no adequate signage . … Article 9, paragraph 2 (d) … therefore 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, … orientation and movement in and through buildings may become impossible for many persons with disabilities, especially those experiencing cognitive fatigue.161

4.5  Paragraph 9(2)(e)

The scope of this obligation is identical to that of article 9(2)(d) discussed above. Thus, like that paragraph, it covers buildings and facilities open to the public and the obligation is framed as one to ‘provide’.

Given the similarities between paragraphs 9(2)(d) and 9(2)(e), it is not surprising that both are addressed together in General Comment No 2.162 The General Comment thus stresses that article 9(2)(e) has an important role to play in facilitating ‘movement and orientation’. In addition, the provision of ‘live assistance and intermediaries’ has an important role to play in facilitating access to information and communication made available to the public in buildings or facilities for reasons other than facilitating movement. This function of article 9(2)(e) is recognized and explained by the General Comment together with article 9(2)(f) and (g)—which perform the same role in this respect. In its words:

without access to information and communication, enjoyment of freedom of thought and expression and many other basic rights and freedoms for persons with disabilities may be seriously undermined and restricted.163

4.6  Paragraph 9(2)(f)

The reason given in General Comment No 2 for this requirement is the same as that just outlined in the context of article 9(2)(e). Unlike article 9(2)(e), however, this provision does not focus on specific ways or mechanisms for ensuring access to information. The wording is open-ended and allows room for the promotion of types of accessible information not yet invented. The importance and need for state initiatives to promote particular types of accessible information are matters on which disabled people’s organizations would seem to be particularly well placed to provide advice.

In F v Austria,164 the CRPD Committee found that Austria was in breach of paragraph 9(1) and also 9(2)(f) and (h).165 The reason for this was the ‘non-installation of the audio system by the state party when extending the tram network’,166 with the result that blind passengers did not have access to information provided as part of the public transportation service on an equal basis with others. Beyond this, however, the views of the Committee contain little additional reflection on or explanation of article 9(2)(f).

(p. 285) 4.7  Paragraph 9(2)(g)

As explained above, the CRPD Committee has urged states to ensure that all forms of ‘newly designed, built or produced objects, infrastructure, goods, products and services’ be accessible from the outset.167 This would include new forms of information and communication technology within the meaning of article 9(2)(g). Given the pace of innovation in the ICT field and the increasing importance of the Internet in the lives of all of us, this provision has particular significance.168

Although not discussed in General Comment No 2, because the obligation in article 9(2)(f) and (g) is framed as one to ‘promote access to’ rather than as one to ‘ensure the accessibility of’, it could potentially be construed as requiring states to do more than ensure that information and new ICTs comply with accessibility standards. They could, for instance, be construed as requiring thought to be given to promoting the availability of such ICTs to people with disabilities by, for example, ensuring they have access to training on the use of such ICTs (using accessibility programmes or features or even relevant assistive software) or making such ICTS affordable to them through subsidies.169 Such obligations fall within the ambit of article 4(1)(f)–(i)—paragraphs which have strong connections and overlaps with article 9(2)(f)–(h).

4.8  Paragraph 9(2)(h)

A number of interesting observations about this provision appear in General Comment No 2. These suggest that the CRPD Committee is interpreting the phrase ‘accessible information and communications technologies and systems’ in this context to include, in particular, forms of ICT which can be used to enhance the accessibility of services and facilities. Thus, according to the Committee:

New technologies can be used to promote the full and equal participation of persons with disabilities in society, but only if they are designed and produced in a way that ensures their accessibility. New investments, research and production should contribute to eliminating inequality, not creating new barriers. Article 9, paragraph 2(h), therefore calls on States Parties to promote the design, development, production and distribution of accessible information and communications technologies and systems at an early stage, so that these technologies and systems become accessible at minimum cost. The use of hearing enhancement systems, including ambient assistive systems to assist hearing aid and induction loop users, and passenger lifts pre-equipped to allow use by persons with disabilities during emergency building evacuations constitute just some of the examples of technological advancements in the service of accessibility.170

Article 9(2)(h) was the third element of article 9 which the CRPD Committee found to have been breached in F v Austria.171 In arriving at this conclusion, the Committee drew (p. 286) on its General Comment No 2—recalling, in particular, that ‘the importance of information and communications technology lies in its ability to open up a wide range of services’ and to ‘transform existing services’.172 Interestingly, while article 9(2)(h) covers the promotion of the ‘Design, Development, Production and Distribution’ of Accessible ICT, the issue at stake in F v Austria appears to have been the distribution and use of the technology—given that relevant technology was already installed and in use in older parts of the tram network.

Footnotes:

1  This is in essence the purpose of the CRPD as articulated in Art 1. The term people ‘with disabilities’ is used in this chapter for reasons of consistency with the language of the CRPD and other chapters in this book.

2  Rehabilitation International, ‘UN Convention on the Human Rights of People with Disabilities: Ad Hoc Committee—Daily Summaries’ (6th session), available at: <http://www.un.org/esa/socdev/enable/rights/ahc6summary.htm> entry for 9 August 2005, on the structure of the convention.

3  ibid.

4  CRPD Committee, Ron McCallum ‘Opening remarks at the Day of General Discussion on Accessibility’ (7 October 2010).

5  For ICT-related examples see Jonathan Lazar and Michael Ashley Stein (eds), Global Inclusion: Disability, Human Rights and Information Technology (University of Pennsylvania Press 2017).

6  CRPD Committee Nyusti and Takács v Hungary UN Doc CRPD/C/9/D/1/2010 (21 June 2013).

7  X v Argentina UN Doc CRPD/C/11/D/8/2012 (18 June 2014).

8  F v Austria UN Doc CRPD/C/14/D/21/2014 (21 September 2015).

9  CRPD Committee Beasley v Australia UN Doc CRPD/C/15/11/2013 (25 April 2016).

10  CRPD Committee Lockrey v Australia UN Doc CRPD/C/15/D/13/2013 (30 May 2016).

11  See eg CRPD Committee, List of Issues for Austria UN Doc CRPD/C/AUT/Q/1 (8 May 2013) questions 11–14. Particularly noteworthy are question 11, which inquires about plans to increase the accessibility of private buildings, and question 14, which inquires about the proportion of broadcast radio and television programmes accessible to blind and deaf people.

12  Lisa Waddington and Anna Lawson, ‘The United Nations Convention on the Rights of Persons with Disabilities in Practice: A Comparative Analysis of the Role of Courts’ (OUP 2018). The jurisdictions included were Argentina, Australia, Council of Europe (European Court of Human Rights and European Committee on Social Rights), European Union, Germany, India, Ireland, Italy, Kenya, Mexico, Russia, Spain, and the United Kingdom.

13  ibid ch 15, s 2.9.

14  Dmitri Bartinev and Ekaterina Evdokimova, ‘Russia’ in Waddington and Lawson (n 12).

15  ‘Draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities’—attached as Annex 1 to ‘Report of the Working Group to the Ad Hoc Committee’ UN Doc A/AC265/2004/WG/1 (16 January 2004).

16  Letter from the chair to all members of the Committee UN Doc A/AC265/2006/1 (14 October 2005) Annex I Draft Art 9.

17  This is the language used in what became the preambular para (e) of the CRPD. For examples of connections being made between a social model approach and accessibility rights, see eg the accounts of Panels 2 and 3 in the ‘Report of the second session of the Ad Hoc Committee’ UN Doc A/58/118 & Corr 1 (3 July 2003) Annex II. Also relevant are two documents made available to the Ad Hoc Committee at its second session—ie ‘Bangkok Recommendations on the Elaboration of a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities’ UN Doc A/AC265/2003/CRP/10 (2–4 June 2003) paras 31 and 33; and ‘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’ UN Doc A/AC265/2003/CRP/12 (27–29 May 2003) para 7.

18  Rehabilitation International (n 2), (6th session) entry for 5 August 2005.

19  See eg Landmine Survivors Network, ‘UN Convention on the Rights of People with Disabilities: Ad Hoc Committee Daily Summary’ (3rd session), available at: <http://www.un.org/esa/socdev/enable/rights/ahc3summary.htm> entry for 1 June 2004, on Draft Article 20; and Rehabilitation International, ‘UN Convention on the Human Rights of People with Disabilities: Ad Hoc Committee—Daily Summaries’ (7th session), available at: <http://www.un.org/esa/socdev/enable/rights/ahc7summary.htm> entry for 20 January 2006.

20  ‘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’ UN Doc A/60/266 (17 August 2005) Annex II, para 65; see also paras 74 and 75.

21  Letter of the chair to all members of the Committee (n 16) para 75.

22  See eg Landmine Survivors Network (n 19) (3rd session) entry for 27 May 2004, on Draft Article 13; Disabled Peoples’ International, Handicap International and the International Service for Human Rights, ‘UN Convention on the Human Rights of People with Disabilities: Ad Hoc Committee—Daily Summary’ (4th session), available at: <http://www.un.org/esa/socdev/enable/rights/ahc4summary.htm> entries for 26 and 27 August 2004; Rehabilitation International, ‘UN Convention on the Human Rights of Persons with Disabilities: Ad Hoc Committee—Daily Summaries (5th session), available at: <http://www.un.org/esa/socdev/enable/rights/ahc5summary.htm> entry for 1 February 2005; and Rehabilitation International (n 2) (6th session) entry for 5 August 2005 on Draft Article 19.

23  This point was recognized in the letter from the chair to all members of the Committee (n 16) para 49—where changes made to the draft text in light of these discussions are explained.

24  See eg Disabled Peoples’ International et al (n 22) (4th Session) entry for 23 August 2004 on Draft Article 2, particularly the comments of Thailand. See also Report of the Ad Hoc Committee on its Sixth session (n 20) Annex II, para 66.

25  See eg Landmine Survivors Network (n 19) (3rd session) entry for 1 June 2004 on Draft Article 19; and Rehabilitation International (n 19) (7th session) entry for 31 January 2006 on Draft Article 4; see also ‘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 Distr (14 September 2004) para 9.

26  See eg Landmine Survivors Network (n 19) (3rd session) entry for 1 June 2004 on Draft Article 19 and Rehabilitation International (n 2) (6th session) entry for 5 August 2005.

27  Rehabilitation International (n 2) (6th session) entry for 9 August 2005 on the structure of the convention.

28  ibid.

29  Rehabilitation International (n 19) (7th session) entry for 17 January 2006 on Draft Article 9.

30  See eg Landmine Survivors Network (n 19) (3rd session) entry for 1 June 2004 (in particular, contributions by Landmine Survivors Network, the EU, Canada, PWD Australia/NACLC/Australian Federation of Disability); and also Rehabilitation International (n 2) above (6th session) entry for 5 August 2005 (in particular, by Mexico and Norway).

31  Rehabilitation International (n 2) (6th session) entry for 9 August 2005 on Draft Article 19.

32  See eg Disabled Peoples’ International et al (n 22) (4th session) entry for 1 June 2004 on Draft Article 19.

33  Rehabilitation International (n 2) (6th session) entry for 5 August 2005 on Draft Article 19.

34  Report of the Ad Hoc Committee on its 6th session (n 20) Annex II para 66. See also, for a similar point made by Canada, Rehabilitation International (n 2) (6th session) entry for 6th August 2005 on Draft Article 19; and by the World Blind Union, Rehabilitation International (n 19) (7th session) entry for 17 January 2006 on Draft Article 9.

35  See eg Disabled Peoples’ International et al (n 22) (4th session) entry for 1 June 2004 on Draft Article 19; Rehabilitation International (n 2) (6th session) entry for 5 August 2005 on Draft Article 19; and Rehabilitation International (n 19) (7th session) entry for 17 January 2006 on Draft Article 9; see also Report of the Ad Hoc Committee on its 6th session (n 20) Annex II para 69.

36  A point to which the chair drew attention when requesting that delegates consider this issue—Rehabilitation International (n 2) (6th session) entry for 5 August 2005.

37  Rehabilitation International (n 2) (6th session) entry for 5 August 2005.

38  See, in particular, Rehabilitation International (n 19) (7th session) entry for 17 January 2006 on Draft Article 9. Note also that, in his summing up of this discussion, the chair stated that further consideration of private housing and private workplaces would be required—but that further discussion of these issues does not appear in the summaries of the Committee’s 8th session provided by Disabled Peoples’ International (‘Disability Convention Daily Updates’ (8th session), which suggests that agreement was reached on these issues through informal discussion).

39  See eg the contributions of Mexico and the International Disability Caucus in Rehabilitation International (n 19) (7th session) entry for 17 January 2006 on Draft Article 9.

40  Disabled Peoples’ International et al (n 22) (4th session) entry for 1 June 2004 on Draft Article 19.

41  Rehabilitation International (n 2) (6th session) entry for 5 August 2005 on Draft Article 19.

42  Rehabilitation International (n 19) (7th session) entry for 17 January 2006 on Draft Article 9.

43  See, in particular, Rehabilitation International (n 2) 6th session) entry for 5 August 2005 on Draft Article 19; and Rehabilitation International (n 19) (7th session) entry for 17 January 2006 on Draft Article 9.

44  Landmine Survivors Network (n 19) (3rd session) entry for 1 June 2004 on Draft Article 19.

45  ibid.

46  ibid.

47  Rehabilitation International (n 2) (6th session) entry for 5 August 2005 on Draft Article 19.

48  ibid.

49  Letter from the chair to all members of the Committee (n 16)—in particular para 48.

50  Rehabilitation International (n 2) (6th session) entry for 5 August 2005 on Draft Article 19.

51  Landmine Survivors Network (n 19) (3rd session) entry for 1 June 2004 on Draft Article 1.

52  ibid.

53  Report of the Ad Hoc Committee on its 4th session (n 25), Annex II, para 7. See also Report of the Ad Hoc Committee on its 6th Session (n 20) Annex II, para 5.

54  Rehabilitation International (n 19) (7th session) entry for 7 January 2006 on Draft Article 9.

55  ibid eg New Zealand and Liechtenstein.

56  ibid.

57  ibid.

58  ibid.

59  ibid.

60  CRPD Committee, General Comment No 2 ‘Article 9: Accessibility’ UN Doc CRPD/C/GC/2 (11 April 2014) (hereafter General Comment No 2) para 1.

61  Art 3(f).

62  CRPD Committee (n 7).

63  ibid para 8.5.

64  CRPD Committee (n 9).

65  CRPD Committee (n 10).

66  These words appear in para 8.6 in both cases.

67  See eg CRPD Committee, ‘Concluding Observations on the Initial Report of Belgium’ UN Doc CRPD/C/BEL/CO/1 (28 October 2014) para 21; Costa Rica UN Doc CRPD/C/CRI/CO/1 (12 May 2014) para 19; Croatia UN Doc CRPD/C/HRV/CO/1 (17 April 2015) para 15; Ethiopia UN Doc CRPD/C/ETH/CO/1 (31 August 2016) para 19; Mongolia UN Doc CRPD/C/MNG/CO/1 (17 April 2015) para 17; Paraguay UN Doc CRPD/C/PRY/CO/1 (15 May 2013) para 23; and United Arab Emirates UN Doc CRPD/C/ARE/CO/1 (22 August 2016) para 19.

68  General Comment No 2 (n 60) para 29.

69  CRPD Committee, General Comment No 3 ‘Article 6: Women and Girls with Disabilities’ UN Doc CRPD/C/GC/3 (2 September 2016) para 48.

70  See eg CRPD Committee, General Comment No 4 ‘Article 24: Right to Inclusive Education’ UN Doc CRPD/C/GC/4 (2 September 2016) para 21.

71  CRC Committee, ‘General Comment No 9 on the Rights of Children with Disabilities’ UN Doc CRC/C/GC/9 (27 February 2007) para 39; and ‘General Comment No 17 on the Right of the Child to Rest, Leisure, Play, Recreational Activities, Cultural Life and the Arts’ UN Doc CRC/C/GC/17 (7 April 2013).

72  As demonstrated by guidance set out in General Comment No 2 (discussed below) and also by repeated recommendations to this effect made in the Committee’s concluding observations in relation to Art 9.

73  General Comment No 2 (n 60), para 33.

74  ibid para 24.

75  ibid para 33.

76  ibid para 48.

77  ibid para 23.

78  ibid para 28.

79  ibid para 29.

80  ibid.

81  ibid.

82  Rehabilitation International (n 19) (7th session) entry for 7 January 2006, on Draft Article 9.

83  General Comment No 2 (n 60) para 31. For interesting analysis of the extent to which disability discrimination law addresses accessibility barriers in a range of jurisdictions, see Maria Ventegodt Liisberg, ‘Accessibility of Services and Discrimination: Concentricity, Consequence and the Concept of Anticipatory Reasonable Adjustment’ (2015) 15 International Journal of Discrimination and the Law 123.

84  General Comment No 2 (n 60) para 24.

85  ibid para 14.

86  ibid para 24.

87  ibid para 27.

88  ibid para 25.

89  CESCR, General Comment No 3, ‘The Nature of States Parties Obligations’ UN Doc E/1991/23 (14 December 1990).

90  CRPD Committee (n 6). For critical commentary on this case, see Oliver Lewis, ‘Case Comment: Nyusti and Takács v Hungary: Decision of the UN Committee on the Rights of Persons with Disabilities’ (2013) European Human Rights Law Review 419; and Anna Lawson, ‘Accessibility Obligations in the United Nations Convention on the Rights of Persons with Disabilities: Nyusti and Takács v Hungary’ (2014) 30 South African Journal on Human Rights 380.

91  See generally, Edward Anderson and Marta Foresti, ‘Assessing Compliance: The Challenges for Economic and Social Rights’ (2009) 1 Journal of Human Rights Practice 469; and Brian Griffey, ‘The “Reasonableness” Test: Assessing Violations of State Obligations under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ (2011) 11 Human Rights Law Review 275.

92  For further discussion of this point, see Lawson, ‘Accessibility Obligations’ (n 90) 380.

93  CRPD Committee, Nyusti and Takács v Hungary (n 6) para 9.6; see, for further discussion of this point, Lawson, ‘Accessibility Obligations’ (n 90).

94  CRPD Committee (n 9).

95  CRPD Committee (n 10).

96  Beasley v Australia (n 9) para 8.6; virtually identical words also appear in Lockrey v Australia (n 10) para 8.6.

97  General Comment No 2 (n 60) para 10; see also, for analysis of accessibility strategies in European countries, Anna Lawson, Maximising the Impact and Effectiveness of Accessibility Measures for Goods and Services: Learning from National Experience (Academic Network of European Disability Experts 2012).

98  General Comment No 2 (n 60) para 1.

99  ibid para 3.

100  ibid para 4.

101  ibid para 3.

102  UNGA Res 48/96 (4 March 1994) annex.

103  X v Argentina (n 7) para 8.5.

104  Civil Chamber of the Supreme Court, Judgment 619/2013 (10 October 2013) second point of law.

105  Barcelona Provincial High Court, Judgment 202/2015 (12 May 2015).

106  Judgment of the Oktyabrskiy District Court of Belgorod (17 April 2014) case no 2-1664/2014.

107  ibid.

108  Judgment of the Promyshlennyi District Court of Smolensk (18 December 2013) case no 2-3339/2013.

109  General Comment No 2 (n 60) para 3.

110  ibid para 16; see, for an example of a recent UK analysis of the impact on disabled people of the built environment (and recommendations for reform), House of Commons’ Women and Equalities Committee, ‘Building for Equality: Disability and the Built Environment’, Ninth report of session 2016–2017’ (Stationery Office 2017).

111  See eg CRPD Committee, ‘Concluding Observations on the Initial Report of Italy’ UN Doc CRPD/C/ITA/CO/1 (31 August 2016) para 22; Portugal UN Doc CRPD/C/PRT/CO/1 (18 August 2016) para 22; and Thailand UN Doc CRPD/C/THA/CO/1 (12 May 2016) para 22.

112  See further Lazar and Stein (n 5), and Peter Blanck, eQuality: The Struggle for Web Equality by People with Cognitive Disabilities (CUP 2014).

113  Council of Europe Disability Strategy 2017–2023—Human Rights: A Reality for All, available at: <http://www.coe.int/en/web/disability/strategy-2017-2023>; see also Anna Lawson, ‘Accessibility of Information, Technologies and Communication for Persons with Disabilities—Contribution to the Council of Europe Strategy on the Rights of Persons with Disabilities’ (March 2017).

114  General Comment No 2 (n 60) para 5.

115  Nyusti and Takács (n 6).

116  F v Austria (n 8).

117  Beasley v Australia (n 9).

118  Lockrey v Australia (n 10).

119  Decision of Appeal of the Omskiy Oblast Court (18 December 2013) case no 33-8213/2013.

120  VIP/DC/8 (31 July 2013); for further discussion, see Laurence R Helfer, Molly K Land, Ruth L Okediji, and Jerome H Reichman, The World Blind Union Guide to the Marrakesh Treaty: Facilitating Access to Books for Print-Disabled Individuals (OUP 2017).

121  CRPD Committee, ‘Concluding Observations on the Initial Report of Lithuania’ UN Doc CRPD/C/LTU/CO/1 (11 May 2016) para 22.

122  CRPD Committee, ‘Concluding Observations on the Initial Report of New Zealand’ UN Doc CRPD/C/NSL/CO/1 (31 October 2014) para 20.

123  ibid; explicit mention is also made of workplaces (in connection with Art 9) in the Committee’s ‘Concluding Observations on the Initial Report of the Republic of Korea’ UN Doc CRPD/C/KOR/CO/1 (29 October 2014) para 18.

124  General Comment No 2 (n 60) para 13.

125  ibid.

126  See also General Comment No 3 of the CRPD Committee (n 65) para 42.

127  General Comment No 2 (n 60) para 27.

128  General Comment No 4 (n 70) para 21.

129  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) prepared for discussion by the Ad Hoc Committee Working Group on Article 2(1). This definition appears to draw heavily on a similar one included in the Bangkok Recommendations (n 17) para 14.

130  Report of the Working Group to the Ad Hoc Committee (n 15), Annex I, Draft Article 3.

131  ibid at fn 10.

132  See eg Disabled Peoples’ International et al (n 22) (4th session) entry for 23 August 2004 on Draft Article 3—Cuba, Chile, the International Disability Caucus, and NHRIs.

133  Rehabilitation International (n 2) (6th session) entry for 5 August 2005 on Draft Article 19.

134  Disabled Peoples’ International et al (n 22) (4th session) entry for 23 August 2004 on Draft Article 3.

135  Letter of the chair to all members of the Committee (n 16) para 16.

136  See, for a somewhat different perspective, Francesco Seatzu, ‘Article 9 [Accessibility]’ 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) 225, 226–27.

137  CESCR, ‘General Comment No 14: The Right to the Highest Attainable Standard of Health (Art 12)’ UN Doc E/C12/2000/4 (11 August 2000) para 12(b).

138  General Comment No 2 (n 60) para 6.

139  General Comment No 4 (n 70) para 23.

140  General Comment No 2 (n 60) para 25.

141  ibid.

142  ibid para 47; see also paras 25 and 28.

143  ibid para 18; see also, for interesting insights into the EU-US dialogue on accessibility standards, Inmaculada Placencia, Martina Sindelar, Ileana Martinez, David Capozzi, and Terry Weaver, ‘EU-US ICT Standardisation Dialogue on eAccessibility: Background and Achievements’ (2013) 3 European Yearbook of Disability Law 101.

144  General Comment No 2 (n 60) para 30; see also UN Department of Economic and Social Affairs, ‘Accessibility and Development’ (2013).

145  ibid.

146  General Comment No 2 (n 60) para 30.

147  See further, for reflections on the impact of US law on the accessibility of ICT, and its use of accessibility standards, William Myhill, ‘Law and Policy Challenges for Achieving an Accessible eSociety: Lessons from the United States’ (2010) 2 European Yearbook of Disability Law 103; and, for reflections on accessibility and media regulation in a range of jurisdictions, Eliza Varney, Disability and Information Technology: A Comparative Study in Media Regulation (CUP 2013).

148  See eg General Comment No 2 (n 60) paras 24 and 28.

149  General Comment No 2 (n 60) para 28.

150  See in particular Nyusti and Takács (n 6) para 10(2)(a); and F v Austria (n 8) para 9(b)(i).

151  For recognition by the CESCR of the importance of treaty obligations on states to regulate and monitor the conduct of non-state actors (such as employers and service providers) see eg its general comments No 16, on the equal rights of men and women UN Doc E/C12/2005/4 (11 August 2005) para 20;No 18, on the right to work E/C12/GC/18 (6 February 2006) para 52; and No 20, on non-discrimination UN Doc E/C 12/GC/20 (22 July 2009) para 11.

152  General Comment No 2 (n 60) para 18.

153  See eg General Comment No 2 (n 60) para 13.

154  Nyusti and Takács v Hungary (n 6).

155  ibid para 9.3.

156  ibid para 19.

157  ibid para 10.

158  ibid para 19.

159  ibid para 33.

160  ibid para 19.

161  ibid para 20.

162  General Comment No 2 (n 60) para 20.

163  ibid para 21.

164  F v Austria (n 8).

165  ibid para 8.7.

166  ibid.

167  General Comment No 2 (n 60) para 24.

168  For an interesting discussion of accessibility and the inclusive potential of the web, see Blanck (n 112).

169  For a discussion of different policy approaches to ‘accessibility’ and ‘availability’ in this sense, see Rune Halvorsen, ‘Digital Freedom for Persons with Disabilities: Are Policies to Enhance E-accessibility and E-inclusion Becoming more Similar in Nordic Countries and the US?’ (2010) 2 European Yearbook of Disability Law 77; and Anna Lawson, ‘Challenging Disabling Barriers to Information and Communication Technology in the Information Society: A United Kingdom Perspective’ (2010) 2 European Yearbook of Disability Law 131.

170  General Comment No 2 (n 60) para 22.

171  F v Austria (n 8).

172  ibid para 8.5 quoting from General Comment No 2 (n 60) para 5.