The UN Convention on the Rights of Persons with Disabilities and the European Union

The Impact on Law and Governance

Carmine Conte

• Editore: Hart Publishing
• Anno: 2022
• ISBN:
  9781509945153
• Edizione: 1
• Argomento: Diritto
• Categoria: Diritto internazionale

This book analyses the impact of the UN Convention on the Rights of Persons with Disabilities (CRPD) on EU non-discrimination law and governance. The CRPD places the protection of persons with disabilities at the heart of international human rights law. The Convention is the first human rights treaty open for signatures by regional organisations, and the European Union favourably acceded to it in December 2010. Ten years after this historic event, this book explores whether the theory has been put into practice, and examines the effects of the CRPD on EU non-discrimination law and governance. This book brings together the practices of the European Court of Justice (CJEU) with regard to disability discrimination to show whether the CRPD is living up to its full potential to substantially improve the protection of the rights of persons with disabilities in the EU. It examines whether the judicial interpretation of the Directive 2000/78/EC, establishing a general framework for equal treatment in employment and occupation, does or does not comply with the new legal background delineated by the CRPD. In addition, it investigates whether the governance mechanisms underlying the EU Framework for promoting, protecting and monitoring the CRPD are effectively fostering the implementation of the CRPD and the role of civil society. The prohibition of discrimination on grounds of disability has undergone substantial changes and developments since it was first introduced under international and EU law. This book highlights the main changes to disability discrimination which have occurred in the EU legal order in the last ten years. The book will be of interest to academics, law students and legal practitioners working in the field of EU non-discrimination and equality law.

1

Introducing the CRPD: A New Approach to Equality and Non-Discrimination?

I.Introductory Remarks

The UN Convention on the Rights of Persons with Disabilities (CRPD) was formally adopted by the UN General Assembly in December 2006 and entered into force in May 2008.¹ It represents the first human rights convention introduced in the new millennium and the most recent enforceable instrument provided by the United Nations in the context of international human rights protection. The Convention is also the first human treaty to be open for signature by regional integration organisations, and the European Union (EU) became a party to the CPRD in November 2009. It is worth noting that the CRPD has now been signed by 163 countries worldwide and ratified by 181.² This means that it is one of the most widely ratified international treaties which can effectively and positively address the rights of persons with disabilities across the globe.³ In particular, the EU’s ratification of the Convention establishes a clear obligation in law for its provisions to be taken into account in interpreting EU primary and secondary legislation.

The Convention does not introduce new rights under international human rights law, but it seeks to ensure the correct interpretation and implementation of existing human rights obligations.⁴ The CRPD represents a remarkable improvement in the legal protection of the rights of persons with disabilities. It embraces a human rights approach according to which persons with disabilities are considered as rights-bearers who can enjoy all human rights and fundamental freedoms on an equal basis with others. This understanding of disability rejects the traditional social welfare or medical model that depicts certain categories of individuals as objects of pity and charity.⁵ In order to achieve the ambitious goals of the human rights approach, the CRPD enshrines a substantive model of equality that acknowledges diversity and aims to ensure that individuals in different situations are treated differently. By doing so, it moves away from the formal concept of equality in accordance with ‘things that are alike should be treated alike’.⁶ This approach fails to address the concrete differences of vulnerable groups of individuals and does not confer a right or a benefit on the basis of a personal or physical characteristic.

The cornerstone of the substantive model of equality adopted by the CRPD is the obligation to provide reasonable accommodation for persons with disabilities. This duty is crucial to enable persons with disabilities to have access to, participate in, or advance in employment. It requires an adjustment or a modification of the environment to accommodate the specific needs or characteristics of persons with disabilities and eliminate such disadvantages in comparison with others.

Against this background, it may be argued that the CRPD shows the legal potential to improve the protection of persons with disabilities by clarifying and broadening the personal and material scope of the existing instruments of international human rights law. This book aims to analyse the impact of the Convention on the EU legal order and governance.

II.Equality and Non-Discrimination: A New Approach for Disability Rights

The CRPD is the most complex human rights treaty ever drafted. It mainstreams equality, intersectional diversity and inclusion. In doing so, the CRPD reflects the remarkable evolution of international human rights law with regard to the concept of equality and the prohibition of discrimination. To put it differently, the Convention may be said to crystallise the legal shift from a formal approach of equality to a substantive and asymmetrical model of equality and non-discrimination. These fundamental principles underpin the entire Convention and bring together socio-economic rights with civil and political rights.⁷

Discrimination on the basis of disability is recognised as a serious violation of the inherent dignity and worth of the human person. The legal backdrop delineated by the CRPD places the protection of persons with disabilities at the heart of international human rights law and definitively acknowledges disability as a ground of discrimination. The main purpose of the Convention is to promote the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities. To this end, states are obliged to provide general measures in order to ensure and promote the full realisation of all human rights for persons with disabilities without discrimination of any kind on the basis of disability, including the necessary legislation to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities.⁸

The principle of non-discrimination is embodied within the general values underlying the entire Convention:

a.respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;

b.non-discrimination;

c.full and effective participation and inclusion in society;

d.respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;

e.equality of opportunity;

f.accessibility;

g.equality between men and women;

h.respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.⁹

Equality norms and the prohibition of discrimination represent essential legal tools to achieve an effective and solid framework for the protection of persons with disabilities. Normative acts and policies often trigger discrimination against particular groups of individuals. For this reason, the principle of equality includes procedural and substantive rules to prevent and address human rights violations. The principle of equality constitutes the fundamental lens through which human rights issues will be investigated in the present book. Equality is a structural principle that provides a systematic analytical framework to assess and examine the protection of human rights.¹⁰

III.The Complex and Intriguing Evolution of the Right to Equality in International Law

International law encompasses an ever-changing and complex concept of equality, which is deeply rooted in the norms for the protection of human rights. However, equality does not find a comprehensive and clear definition in international law. As such, it has been subject to intense doctrinal debate. Theoretically speaking, the international legal order is indeed characterised by the debated coexistence of two different approaches: formal and substantive equality. According to Aristotle’s notion of formal equality, ‘things that are alike should be treated alike’.¹¹ By contrast, the substantive equalities model points out that treating individuals alike despite disadvantage or discrimination does not tackle inequality.¹² These two separate approaches entail a distinction between negative and positives duties to promote equality. On the one hand, civil and political rights merely trigger duties of restraint which prevent the state from interfering with individual freedom. On the other, socio-economic equality requires specific and positive duties on the state in order to eliminate discrimination and disadvantage.¹³

This theoretical framework shows that the concept of equality is profoundly interwoven with the prohibition of discrimination. The principle of equality demands that equal situations are treated equally and unequal situations differently. Failure to comply with this obligation will amount to discrimination unless the difference of treatment cannot be justified objectively and reasonably by a legitimate aim.¹⁴ This implies that not every distinction or difference of treatment amounts to discrimination. For instance, the European Court of Human Rights (ECtHR), in the case of Abdulaziz, Cabales and Balkandali v the United Kingdom, concluded that

a difference of treatment is discriminatory if it ‘has no objective and reasonable justification’, that is, if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’.¹⁵

It is thus commonly recognised that equality and non-discrimination are positive and negative statements of the same principle.¹⁶

A.The Controversial ‘Sameness’ Model

The formal model of equality is also referred to as the ‘sameness’ or symmetrical approach.¹⁷ It is based on the idea that equals have to be treated equally and unequal unequally. In doing so, it ignores the personal characteristics of an individual. The fundamental principle that sustains the entire paradigm of formal equality is the concept of equality before the law in accordance with all are equal before the law and are entitled without any discrimination to equal protection of the law.¹⁸ The approach of de jure equality avoids conferring a right or a benefit on the basis of a personal or physical characteristic. It only forbids direct discrimination which occurs when a person is treated less favourably than another in a comparable situation on specific grounds, such as race, sex or disability.¹⁹ In this regard, the treatment must be different in relation to a comparable circumstance or it must be similar in comparison to a different situation. However, not all the different treatments are deemed discriminatory, but only those measures which lack a legitimate purpose in light of the democratic principles that regulate the social and legal order.²⁰

The idea of formal equality comprises a concept of procedural justice which does not assure the realisation of any specific result. This approach does not address the concrete differences of certain vulnerable groups of individuals and fails to ensure the effective achievement of equality. The application of a principle of equality, merely intended as consistent treatment, does not imply an assessment of the legitimacy of the law, allowing the possibility to apply equally an unfair legal act. For instance, according to Catherine Barnard, the requirement for equal treatment could also be fulfilled by depriving both the persons compared of a particular benefit as well as by conferring the benefit on them both.²¹ In a famous decision of the Court of Justice of the European Union (CJEU), Smith v Avdel Systems Ltd, it was ruled that equalisation in pension age can be secured by either upwards or downwards equalisation (for instance increasing the women’s age to that of men).²² This judgment strictly applied the concept of equality and laid down the compa...

Indice dei contenuti

• Cover
• Title Page
• Foreword
• Acknowledgements
• Contents
• Abbreviations
• Table of Cases
• Table of Legislation and Statutory Materials
• 1. Introducing the CRPD: A New Approach to Equality and Non-Discrimination?
• 2. The New Role for Civil Society under the CRPD
• 3. Ten Years after EU Accession to the CRPD: From Theory to Reality
• 4. The EU Legal Framework: Associative and Intersectional Discrimination
• 5. EU Governance and the Framework for Monitoring the CRPD
• 6. Conclusion: Time to Unleash the CRPD’s Full Potential
• Bibliography
• Index