1.3.1 The United Nations Standard Rules on the Equalisation of Opportunities for Persons with Disabilities.
58 Thlimmenos v Greece App. No. 34369/97[2000] ECHR 161, (2001) 31
59 Airey v Ireland (9 October 1979) Series A no. 32.
60 UNCRPD, Article 19.
61 UNCRPD, Article 20.
62 UNCRPD, Article 21.
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The United Nations Standard Rules on the Equalisation of opportunities for Persons with Disabilities (The Rules) was the first disability specific instrument for the protection of the rights of persons with disabilities.63 Although not a legally binding instrument, ‘the Rules’
represent a strong moral and political commitment by governments to take action to attain equalisation of opportunities for persons with disabilities.64 However, it is possible to argue that if the rules are applied by a large number of states with the intention of respecting them as rules in international law, they can become part of customary international law, that is, general principles recognised by civilised nations.65
The Rules serve as an instrument for policy-making and as a basis for technical and economic cooperation.66 Importantly, the rules reveal a social model of disability, requiring amongst others that states promote and encourage the participation of persons with disabilities in the life of their communities through education and other public awareness programmes. The international monitoring of the implementation of the Rules is co-ordinated through the United Nations Commission for Social Development and a special Rapporteur. The importance of the monitoring structure lies partly on its ability to bring sustained pressure on governments to respect and implement the provisions of The Rules.67
1.3.2 The United Nations Convention on the Rights of Persons with Disabilities (CRPD).
Arguably, the most important international instrument dealing with persons with disabilities is the United Nations International Convention on the Rights of Persons with Disabilities (CRPD). The CRPD is the first binding UN disability-specific instrument. The convention together with its accompanying Optional Protocol was adopted by the General Assembly on 13 December 2006 and opened for signature on 30 March 2007. The convention entered into
63 Adopted by the United Nation’s General Assembly, 48th Session, Resolution 48/96, Annex, of 20 December 1993.
64 D. Michailakis, ‘The Standard Rules: A Weak Instrument and a Strong Commitment.’ In J Cooper(ed) Law, Rights and Disability(Jessica Kingsly Publishers, 2000). See also J. Cooper, ‘Improving the Rights of People with Disabilities through International Law’ in J. Cooper (ed) Law, Rights and Disability (Jessica Kingsly Publishers 2000) p.71.
65 J. Cooper Ibid.
66 K. Monaghan, Blackstone’s Guide to Disability Legislation (OUP 2005) p60.
67 D. Michailakis. Supra no. 64.
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force on 3 May 2008 and its Optional Protocol entered into force thirty days after that.68 The convention is made up of a number of Articles and a preamble consisting of 26 paragraphs.
The Articles espouse the convention’s aims and underlining principles. According to Article 1 of the convention, its purpose is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. 69
An underlining purpose of the Convention is to articulate pre-existing rights so as to give them particular relevance to the lives of persons with disabilities 70 thus the standard of rights articulated for persons with disabilities must be equivalent to that applying to non-disabled people. The implication here is that it will not be possible to interpret any of the provisions of the convention so as to legitimise a lower standard of protection for the rights of persons with disabilities. This point is re-enforced by Article 4(4) of the convention which provides that the convention should not in any way derogate from stronger obligations imposed on a particular state either by national or by international laws.71It is significant that the Convention goes beyond issues of equality and discrimination to address the social and economic circumstances of persons with disabilities. The preamble of the convention acknowledges ‘the profound social disadvantage’ currently experienced by persons with disabilities and the fact that most of them live in conditions of poverty.72
The provisions of the Convention are strongly underpinned by principles of equality, non discrimination and human rights which are intended to inform its interpretation.73 Paragraph 3(a) refers to such principles as the inherent dignity, autonomy and independence of the
68 Details of the Conventions are available at www.un.org/esa/sodev/enable/rapporteur. See also A. Lawson, Disability and Equality Law in Britain, The Role of Reasonable Adjustment. (Hart Publishing 2008)p30.
69 According to Sheikha Hissa Al-Thani, the UN Special Rapporteur on Disability, the Convention encapsulates the principles of dignity, justice, inalienability, universality, indivisibility and the indivisibility of human rights;
see www.un.org/esa/sodv/enable/rapportuer.
70 See final report of the UN Ad Hoc Committee on the Convention available at www.un.org/esa/sodv/enable/rapportuer. For difficulties of consolidating pre-existing rights on disability, see generally P. Wright, ‘When to Hold ‘Em and When to Fold‘Em: Lessons Learned from Enacting the Americans with Disabilities Act’ in M. Breslin and S. Yee (eds), Disability Rights Law and Policy:
International and National Perspectives (Ardsley NY, Transnational Publishers inc, 2002) pp 393-411.
71 A. Lawson, supra no.68.
72 Part one of the Single Equality Bill proposed the imposition of a duty on certain public authorities to have due regard to socio-economic considerations in deciding their strategic priorities. This provision has now been dropped from the Equality Act 2010.
73 Article 3 CRPD.
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individual, while paragraph 3(d) emphasises the need for respect for difference and human diversity. Other important principles and values espoused by the convention include accessibility,74 full and effective participation and inclusion in society, 75equality of opportunity76 and non-discrimination.77 The convention makes explicit reference to gender equality and of promoting the capacities of disabled children.78 Given the close proximity between disability and age, it is surprising that the convention does not make any explicit reference to age.79
Article 4 sets out the ‘general obligations’ of the states under the convention, listing the mainstreaming of disability perspective into all policies and programmes as one of the strategies which must be adopted in pursuance of the general obligation to ensure the full realisation of all human rights by persons with disabilities. This is of particular significance to the Public sector equality duty which is strongly rooted on the principle of mainstreaming.
Furthermore, the duty to make reasonable adjustment for persons with disabilities has been firmly grounded as a human rights value by the UNCRPD. Article 2 of the convention defines ‘reasonable accommodation’ as necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.
74 Article 3 (f).
75 Article 3 (c).
76 Article 3 (e).
77 Article 3 (b). Article 5(2) prohibits disability related discrimination which is defined in Article 2 as ‘any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation’.
78 Articles 3(g) and (h).
79 For a detailed appraisal of the relationship between disability and age in the context of anti-discrimination, see generally M. Sargeant, 'Disability and Age - Multiple Potential for Discrimination (2005) International Journal
of the Sociology of Law Vol 33 pp 17-33.
See also M.Sargeant, ‘Older Workers and the need for Reasonable Accommodation’ (2008) International Journal of the Law of Discrimination 9(3): pp163-180'. For an analysis of the demographic effect of age in the EU, see I Doron, ‘Demographic, Social Change and Equality’ in H Meenan (ed) Equality Law in an Enlarged European Union: Understanding the Article 13 Directives.
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The concept of reasonable accommodation is also referred to explicitly in the substantive Articles of the convention dealing with education,80 employment,81 liberty and security of person.82 What is significant here is the fact that the convention expressly requires states to impose positive obligations on both public authorities and private bodies to identify barriers in the way of the enjoyment by persons with disabilities of their human rights and to take appropriate steps to remove them. Article 2, like Schedule 2 of the Equality Act 2010 refers to persons with disabilities in the plural. The implication here is that, an expansive interpretation of the convention’s definition of ‘reasonable accommodation’ may give rise to anticipatory duties on states similar to that under the Equality Act 2010.83
2. Methodology and Data Collection