Equality and Non-Discrimination in the United Nations Convention on the Rights of Persons with Disabilities (CRPD): Interpretation of these Norms in Accordance with Human Rights Research Methodology Andrea Broderick Marie Curie Research Fellow Ph.D. Candidate Department of International & European Law ___________________________________________________ Seminar, Maastricht Centre for Human Rights 24 th January 2013

Introduction  Title of research project: “Non-Discrimination: Full and Effective Participation and Inclusion in Society”  Summary of project: Interpretation of Article 5 of the CRPD and related articles.  Critical Analysis of the extent to which equality and non-discrimination norms are embedded in the substantive provisions of the CRPD

Introductory Remarks “Scholarship in the field of human rights is often lacking in attention to methodology” (Fons Coomans, Fred Grunfeld and Menno T. Kamminga (eds), Methods of Human Rights Research) _______________________________________________ “Wishful thinking and sloppy legal analysis tend to be too common in international human rights law” (John Crook, ‘The International Court of Justice and Human Rights’ )

Structure of the Presentation  Normative content of Article 5 of the CRPD  Introduction to my research project  Structure of my Ph.D.  Outline of research questions  Outline of the methodological tools used throughout my research project to answer the research questions  Illustration of the manner in which the normative provisions in Article 5 of the CRPD are being interpreted

Article 5 of the CRPD  Article 5(1) CRPD: States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.  Article 5(2) CRPD: States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.  Article 5(3) CRPD: In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.  Article 5(4) CRPD: Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.

Introduction to my Research Project  Article 5 of the CRPD goes beyond norms in international law to date  Inclusion of reasonable accommodation requirement within the non-discrimination norm: States must ensure that private entities provide reasonable accommodation unless it amounts to an “undue or disproportionate burden”  Balancing of interests of disabled person and private entities  Reasonable accommodation is embedded in substantive articles of the CRPD e.g. right to work/education

Structure of my Ph.D.  Chapter on treaty interpretation (Article 5 CRPD)  Chapter on Comparative and Theoretical Framework of the equality and non-discrimination norm in the CRPD  Chapter on reasonable accommodation requirement  Scope of the non-discrimination obligation as a whole – extent to which the reasonable accommodation requirement is embedded in the substantive articles of the CRPD – chapters on the substantive rights (accessibility, employment, education, etc.)  Case study on interaction of the CRPD and Council of Europe

Primary Research Question  How can the obligation to ensure non-discrimination in the CRPD be utilised as a tool to advance the equality of people with disabilities and increase their participation and inclusion in society?

Sub-Research Questions  What is meant by the equality and non-discrimination norms in the context of the CRPD?  To what extent can the non-discrimination provision in the CRPD advance the substantive equality of people with disabilities?  To what extent does the reasonable accommodation requirement in the CRPD require the balancing and sharing of burdens and what are the tensions inherent in and the implementation challenges associated with this duty?  To what extent is the reasonable accommodation requirement implicitly reflected in other substantive provisions of the CRPD?

Sub-Research Questions (Continued)  How can the concept of balancing and sharing of burdens in the reasonable accommodation requirement translate to the implementation of other provisions of the Convention, especially those rights which require progressive realisation (such as accessibility)?  What influence is the CRPD having, or what influence may it have, on the interpretation of the non- discrimination provisions of the European Convention on Human Rights?

Methodological Tools used in my Research Project  Primary sources: Text of the CRPD; Vienna Convention on the Law of Treaties (VCLT); Case-law of national and regional courts referring to CRPD  Subsidiary sources: General Comments and Concluding Observations of the core human rights treaty bodies (including Committee on the Rights of Persons with Disabilities). State Party reports.  Secondary source: Academic commentary

First Section of Research Project: Treaty Interpretation  Research question: What is meant by the equality and non-discrimination norm in the CRPD?  Methodology: Vienna Convention on the Law of Treaties (VCLT)  Article 31 VCLT: - Literal Interpretation - Systematic Interpretation - Teleological Interpretation  Article 32 VCLT: - Drafting History

Literal Interpretation Systematic (Contextual) Interpretation  Objective criteria of interpretation  Respect the primacy of the text  Ordinary meaning of the text  Determine ordinary meaning in its context not in the abstract  Look to terms of the treaty in their context  Read the treaty as a whole  Any subsequent agreement between the parties regarding the interpretation of the treaty  Any subsequent practice in the application of the treaty  Any relevant rules of international law

Teleological Interpretation Historical Interpretation  Secure a meaning which is consistent with object and purpose of the treaty under interpretation  “Object and purpose” plays a major role in the interpretation of human rights treaties  Drafting history of the negotiations, preliminary drafts of CRPD, correspondence and public statements of the negotiators  Not to be regarded as an alternative, autonomous sources  Only to be used in order to clarify ambiguities

Interpretation of Human Rights Treaties VCLT will form the starting point of my interpretation of the CRPD. However additional rules will be taken into account:  Rule of Effective Interpretation  Rule of Evolutive/Dynamic Interpretation  Rule of Autonomous Interpretation

Effective Interpretation Evolutive/Dynamic Interpretation  Aim of human rights interpretation – To promote the effective application (effet utile) of the instrument under interpretation  Aim of project: Achieve an understanding of the content of the equality norm which makes the protection of human rights in CRPD effective  Changes in law and society  General context in which the treaty applies  Human rights are not static  An overly dynamic interpretation which goes beyond the international consensus underlying the treaty

Autonomous Interpretation Holistic Interpretation  Human rights have an autonomous meaning  This meaning is not equivalent to the meaning given to them in domestic law  Combine all of the above elements, rather than adopting a hierarchal approach to interpretation  Cumulative rather than consecutive application

Second Section of Research Project: Theoretical and Comparative Framework  Research question: To what extent does the non- discrimination obligation outlined in the CRPD meaningfully advance the right to equality for people with disabilities?  Related question: How do the concepts of equality and non-discrimination contained in the CRPD fit within the various theoretical conceptions of equality and non- discrimination which have been elaborated to date?

Methodology for Theoretical and Comparative Framework  Firstly, I will consult academic commentary analysing theoretical models of equality (formal equality versus substantive equality etc)  I will conduct traditional legal doctrinal analysis regarding the interpretation of international legal norms in line with those models.  I will look to the work of the relevant treaty bodies on the interpretation of equality norms in international instruments preceding the CRPD, including but not limited to, the ICCPR (Article 26) and, in particular, anti-discrimination treaties such as CEDAW and CERD.

Third Section of Research Project: Reasonable Accommodation Duty  Research question: To what extent does the reasonable accommodation requirement in the CRPD require the balancing and sharing of burdens and what are the tensions inherent in and the implementation challenges associated with this duty?  Related question: What is the link with progressive realisation of human rights treaties?  Methodology: Academic literature on reasonable accommodation in general and literature on progressive realisation of human rights treaties. Work of the UN Committee on the Rights of Persons with Disabilities (State Party Reports).

Fourth Section of Research Project: Interaction between Reasonable Accommodation and Substantive Provisions of CRPD  Research question: To what extent is the reasonable accommodation requirement implicitly reflected in the other substantive provisions of the CRPD?  Related research question: How can the concept of balancing and sharing of burdens in the reasonable accommodation requirement translate to the implementation of other provisions of the Convention, particularly those which require progressive realisation?  Methodology: Academic literature on reasonable accommodation requirement in CRPD. Relevant works of the UN Committee on the Rights of Persons with disabilities will be analysed.

Fifth Section of Research Project: Case-Study on Interaction between CRPD and Council of Europe  Research Question: What influence is the CRPD having or what influence may it have on the interpretation of the non-discrimination provisions of the European Convention on Human Rights?  Methodology: Traditional legal doctrinal analysis of case-law of the ECHR, which refers to the CRPD. Analysis of secondary sources/academic commentary on the interpretation of disability rights and equality/non- discrimination in the Council of Europe.

Example of Research Conducted to date Interpretation of Article 5(2) of the CRPD: Requirement to ensure “equal and effective legal protection against discrimination”:  Sources used to date: Drafting history of CRPD and general comments of the treaty bodies, interpretation of similar provision in Article 26 ICCPR  Positive duty of protection on states to take active measures to combat discrimination  Particular onus on states to ensure protection against discrimination in private sector

Example of Research Conducted to date  Drafting history of CRPD: Active measures required over and above enactment of non-discrimination provisions in legislation and  Comparison with interpretation of Article 26 ICCPR: Manfred Nowak states that the primary significance of “equal and effective protection against discrimination lies in obligation on states to provide protection against discrimination by private parties  General Comments on obligation of protection:  General Recommendation 28, CEDAW Committee  General Comment 20, CESCR

Example of Research Conducted to date  Drafting History CRPD: Addition of the word “legal” in the phrase “equal and effective protection against discrimination” – appears to signify that states will be required to adopt effective sanctions, remedies and monitoring mechanisms  Concluding observations of CESCR and CERD Committee: Anti-discrimination legislation must be effectively monitored

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