2. Treaty Body Reform and Strengthening
3. The ICESCR, the CRPD and their Optional Protocols: Advancing the Realisation of Socio-Economic Rights in the Context of Disability
3.1. The ICESCR and Its Optional Protocol
When examining communications under the present Protocol, the Committee shall consider the reasonableness of the steps taken by the State Party in accordance with part II of the Covenant […].
3.2. The CRPD and Its Optional Protocol
4. The Duty to Reasonably Accommodate: Its Constituent Elements and the Link to Progressive Realisation of Disability Rights
4.1. The Constituent Elements of the Reasonable Accommodation Duty
4.2. Progressive Realisation and Reasonableness Review of Socio-Economic Rights in the Disability Context
5. The Potential for Social Change: Harmonisation and Cross-Fertilisation of Disability Rights at the International Level and Beyond
5.1. The Effectiveness of Measures Adopted by States
5.2. Equality Considerations
5.3. Dignity Considerations
5.4. Participatory Processes/Accountability
5.5. Disproportionate Burden and Third-Party Benefits
Conflicts of Interest
|CRC||Convention on the Rights of the Child|
|CRPD||Convention on the Rights of Persons with Disabilities|
|ICESCR||International Covenant on Economic Social and Cultural Rights|
|OHCHR||Office of the High Commissioner on Human Rights|
|OP-CRPD||Optional Protocol to the Convention on the Rights of Persons with Disabilities|
|OP-ICESCR||Optional Protocol to the International Covenant on Economic Social and Cultural Rights|
|UNCESCR||United Nations Committee on Economic, Social and Cultural Rights|
References and Notes
- Ibrahim Salama. “Opening Address by Mr. Ibrahim Salama, Director, Human Rights Treaties Division, to the Committee on Enforced Disappearances, 5th session.” November 2014. Available online: http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=14048&LangID=E (accessed on 12 July 2016).
- Rowena Daw. The Impact of the Human Rights Act on Disabled People. London: Disability Rights Commission, 2000. [Google Scholar]
- UNCESCR, General Comment 16 (2005) on the equal right of men and women to the enjoyment of all economic, social and cultural rights (Article 3 of the ICESCR), adopted at the thirty-fourth session of the Committee, Geneva, 25 April-13 May 2005, UN Doc. E/C.12/2005/4.
- See Article 2 and Article 5(3) of the CRPD.
- Andrea Broderick. The Long and Winding Road to Equality and Inclusion for Persons with Disabilities: The United Nations Convention on the Rights of Persons with Disabilities. Antwerp: Intersentia, 2015. [Google Scholar]
- Bruce Porter. “The Reasonableness of Article 8(4)—Adjudicating Claims from the Margins.” Nordisk Tidsskrift for Menneskerettigheter 27 (2009): 39–53. [Google Scholar]
- OHCHR. “The Dublin Statement on the Process of Strengthening of the United Nations Human Rights Treaty Body System, para. 4.” Available online: http://www2.ohchr.org/english/bodies/HRTD/docs/DublinStatement.pdf (accessed on 18 July 2016).
- See for instance, Michael O’Flaherty, and Claire O’Brien. “Reform of UN Human Rights Treaty Monitoring Bodies: A Critique of the Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body.” Human Rights Law Review 7 (2007): 141–72. [Google Scholar]
- Office of the High Commissioner for Human Rights. “Guidelines on an expanded core document and treaty-specific targeted reports and harmonized guidelines on reporting under the international human rights treaties, HRI/MC/2004/3, Annex, para. 9 (drawing on UNCESCR, General Comment No 1).” Available online: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=HRI%2FMC%2F2004%2F3&Lang=en (accessed on 12 July 2016).
- A and B v Regierungsrat des Kantons Zürich, Judgment of 22 September 2000, para. 2(g), Swiss Federal Supreme Court (Bundesgerichtf).
- See, for instance, the Judgment of 15 October 1999, Osaka High Court, 1718 HANREI JIHO 30 (stating that “[general] comments of the Human Rights Committee do not legally bind the interpretation of the ICCPR and the ICESCR by Japanese courts”).
- The prohibited grounds of discrimination in Article 2(2) ICESCR are: “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
- See UNCESCR, General Comment 5 on Persons with Disabilities, adopted on 09/12/94 at the Eleventh Session of the Committee, U.N. Doc E/1995/22.
- Commission on Human Rights. “Report of the Open-Ended Working Group to Consider Options Regarding Elaboration of an Optional Protocol to the ICESCR in its First Session, UN Doc. E/CN.4/2004/44 (2004).” Available online: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G04/120/29/PDF/G0412029.pdf?OpenElement (accessed on 14 July 2016).
- United Nations Committee on Economic Social and Cultural Rights (UNCESCR). “An evaluation of the obligation to take steps to the ‘Maximum of Available Resources’ Under an Optional Protocol to the Covenant (2007), U.N. Doc. E/C.12/2007/1, adopted at the thirty-eighth session of the Committee on 10 May 2007.” Available online: http://www2.ohchr.org/english/bodies/cescr/docs/statements/Obligationtotakesteps-2007.pdf (accessed 16 April 2016).
- Lillian Chenwei. “Unpacking ‘Progressive Realisation’, its Relation to Resources, Minimum Core and Reasonableness, and some Methodological Considerations for Assessing Compliance.” De Jure 46 (2013): 742–69. [Google Scholar]
- See the categorisations set out in Gerard Quinn, and Theresia Degener. Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability. New York: Geneva: United Nations, 2002. [Google Scholar]
- This section has largely been taken from Andrea Broderick. The Long and Winding Road to Equality and Inclusion for Persons with Disabilities: The United Nations Convention on the Rights of Persons with Disabilities. Antwerp: Intersentia, 2015. [Google Scholar] 
- General Obligation 4(1) of the CRPD reads as follows: “States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake: a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention.” [emphasis added].
- Office of the High Commissioner of Human Rights. “Signing of the Convention on the Rights of Persons with Disabilities and its Optional Protocol. Opening Address—High Level Dialogue: From Vision to Action: The Road to Implementation of the Convention.” 30 March 2007. Available online: http://www.un.org/esa/socdev/enable/documents/Stat_Conv/High%20Commissioner%20PM%20speakingnoteshrsigningpanelFINAL.doc (accessed on 18 March 2016).
- Fons Coomans. “Reviewing Implementation of Social and Economic Rights: An Assessment of the ‘Reasonableness’ Test as Developed by the South African Constitutional Court.” Heidelberg Journal of International Law 65 (2005): 167–96. [Google Scholar]
- See the statement by Ms. Louise Arbour. “High Commissioner for Human Rights to the third session of the Open-Ended WG OP ICESCR (Third session, 2006).” Available online: http://www.ohchr.org/EN/Issues/ESCR/OEWG/Pages/OpenEndedWGIndex.aspx (accessed on 15 July 2016).
- Bruce Porter, and Sandra Liebenberg. “Consideration of Merits under the OP-ICESCR: Reasonableness Review under 8(4) and the Maximum of Available Resources Standard. Notes for Discussion at the Workshop on Strategic Litigation under the OP-ICESCR.” Available online: https://docs.escr-net.org/usr_doc/Porter_and_Liebenberg,_Reasonableness.pdf (accessed on 16 July 2016).
- Helen Keller, and Leena Grover. “General Comments of the Human Rights Committee and their Legitimacy.” In UN Human Rights Treaty Bodies: Law and Legitimacy. Edited by Helen Keller and Geir Ulfstein. Cambridge: Cambridge University Press, 2012. [Google Scholar]
- Ad-Hoc Committee on the CRPD. “Seventh Session of the Ad-Hoc Committee, volume 8(12).” 31 January 2006. Available online: www.un.org/ esa/socdev/enable/rights/ahc7sum31jan.htm (accessed on 16 October 2014).
- Gerard Quinn, and Theresia Degener. Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability. New York: Geneva: United Nations, 2002. [Google Scholar]
- Peter Burnell, and Vicky Randall. “The international human rights regime is a fairly effective promotional regime but a relatively ineffective implementation regime.” In Politics in the Developing World, 2nd ed. Oxford: Oxford University Press, 2008. [Google Scholar]
- UN Committee on the Rights of Persons with Disabilities, Concluding Observations to Australia, UN Doc. CRPD/C/AUS/CO/1 (2013).
- See generally, Eitan Felner. “New Frontier in Economic and Social Rights Advocacy? Turning Quantitative Data into a Tool for Human Rights Accountability.” International Journal on Human Rights 5 (2008): 109–30. [Google Scholar]
- Inclusion International. “The Implications of the Convention on the Rights of Persons with Disabilities (CRPD) for Education for All.” Available online: http://inclusion-international.org/wp-content/uploads/2013/08/ImplicationsCRPD-dr2-X.pdf (accessed on 30 April 2016).
- The Right to Education Project has developed over 200 indicators on the right to education according to the 4-A framework (availability, accessibility, acceptability, and adaptability), intended to be used as a tool to evaluate States’ progress towards the full realisation of the right to education, to identify violations of the right to education, and to enable civil society to hold governments to account for their obligations regarding education. Available online: http://www.right-to-education.org/sites/right-to-education.org/files/resourceattachments/RTE_List_Right_to_Education_Indicators_May_2013.pdf (accessed on 17 July 2016).
- See article 31(2) of the CRPD.
- Sandra Liebenberg, and Beth Goldblatt. “The Interrelationship between Equality and Socio-Economic Rights under South Africa’s Transformative Constitution.” South African Journal on Human Rights 23 (2007): 335–61. [Google Scholar]
- The UNCESCR has stated that non-discrimination and equality ‘are essential to the exercise and enjoyment of economic, social and cultural rights.’ UNCESCR, General Comment 20: Non-Discrimination in Economic, Social and Cultural Rights (Article 2, para. 2) (2009).
- Susan J. Peters. “Inclusive Education: An EFA Strategy for All Children.” Report on Inclusive Education. Washington, DC, USA: World Bank, November 2004. [Google Scholar]
- Committee on the Rights of Persons with Disabilities, Concluding Observations to Argentina, U.N. Doc. CRPD/C/ARG/CO/1 (2012).
- Sandra Liebenberg. “Adjudicating Social Rights under a Transformative Constitution.” In Social Rights Jurisprudence: Emerging Trends in International and Comparative Law. Edited by Malcom Langford. Cambridge: Cambridge University Press, 2008. [Google Scholar]
- See generally on this point, Oddný Mjöll Arnardóttir. “A Future of Multidimensional Disadvantage Equality.” In The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives. Edited by Oddný Mjöll Arnardóttir and Gerard Quinn. Leiden: Martinus Nijhoff, 2009. [Google Scholar]
- CRPD, Preamble, para. (h).
- CRPD, General Principle 3(d). See also General Principle 3(a) of the Convention, which mandates respect for the inherent dignity, individual autonomy (including the freedom to make one’s own choices) and independence of persons with disabilities.
- Sandra Fredman rightly notes that “the right to equality cannot simply be collapsed into the right to dignity”. Sandra Fredman. “Substantive Equality Revisited.” Legal Research Paper Series, Paper No. 70/2014. October 2014. Available online: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2510287 (accessed on 17 July 2016).
- For a summary of such criticisms, see Sandra Liebenberg. “The Value of Human Dignity in Interpreting Socio-Economic Rights.” South African Journal on Human Rights 21 (2005): 1–31. [Google Scholar]
- CRPD, Article 24(i).
- CRPD, Article 13(1).
- The capabilities approach was developed by Amartya Sen and refined by Martha Nussbaum. See Martha C. Nussbaum. “Capabilities and Human Rights.” Fordham Law Review 66 (1997): 273–300. [Google Scholar] [CrossRef]
- Caroline Harnacke. “Disability and Capability: Exploring the Usefulness of Martha Nussbaum’s Capabilities Approach for the UN Disability Rights Convention.” Journal of Law, Medicine & Ethics 41 (2013): 768–80. [Google Scholar] [CrossRef] [PubMed]
- Law v Canada (Minister of Employment and Immigration)  1 S.C.R. 497, para. 53.
- Charles G. Ngwena. “Human Right to Inclusive Education: Exploring a Double Discourse of Inclusive Education Using South Africa as a Case Study.” Netherlands Quarterly of Human Rights 31 (2013): 473–504. [Google Scholar]
- CRPD Committee. “Draft General Comment on Article 9—Accessibility.” Available online: http://www.ohchr.org/EN/HRBodies/CRPD/Pages/DGCArticles12And9.aspx (accessed on 18 June 2016).
- See Karl Hanson. “Strengthening legitimacy, effectiveness and efficiency of the UN Human Rights Treaty Body System.” 20 October 2011. Available online: http://www2.ohchr.org/english/bodies/HRTD/docs/submissions201112/Academics/KarlHanson.pdf (accessed on 17 July 2016).
- Suzanne Egan. “Strengthening the United Nations Human Rights Treaty Body System.” Human Rights Law Review 13 (2013): 209–43. [Google Scholar] [CrossRef]
- Gauthier de Beco. “Transition to Inclusive Education Systems according to the Convention on the Rights of Persons with Disabilities.” Nordic Journal of Human Rights 34 (2016): 40–59. [Google Scholar] [CrossRef]
- Gauthier de Beco. “Interplay between Human Rights and Development the Other Way Round: The Emerging Use of Quantitative Tools for Measuring the Progressive Realisation of Economic, Social and Cultural Rights.” Human Rights and International Legal Discourse 4 (2010): 265–87. [Google Scholar]
- Jos Philips. “Human Rights, the CRPD, and Priority-Setting.” In Disability and Human Rights: Legal, Ethical and Conceptual Implications of the Convention on the Rights of Persons with Disabilities. Edited by Joel Anderson and Jos Philips. Utrecht: Netherlands Institute of Human Rights, 2012, pp. 150–51. [Google Scholar]
- Helena Hofbauer, Ann Blyberg, and Warren Krafchik. “Dignity Counts: A Guide to Using Budget Analysis to Advance Human Rights, (Fundar, IBP, IHRIP).” 2004. Available online: www. internationalbudget.org/files/Dignity_Counts_english1.pdf (accessed on 16 July 2016).
- Sandra Fredman. Human Rights Transformed: Positive Rights and Positive Duties. Oxford: Oxford University Press, 2008, p. 82. [Google Scholar]
- Christopher B. Brown. “Incorporating Third-Party Benefits into the Cost-Benefit Calculus of Reasonable Accommodation.” Virginia Journal of Social Policy and the Law 18 (2010–2011): 319–44. [Google Scholar]
- See generally Sebastian Buckup. “The Price of Exclusion: The Economic Consequences of Excluding People with Disabilities from the World of Work.” Employment Working Paper No. 43. Geneva: International Labour Office, 2009. [Google Scholar]
- Janet Lord, and Rebecca Brown. “The Role of Reasonable Accommodation in Securing Substantive Equality for Persons with Disabilities: The UN Convention on the Rights of Persons with Disabilities.” In Critical Perspectives on Human Rights and Disability Policy. Edited by Marcia H. Rioux, Lee Ann Basser and Melinda Jones. The Hague: Martinus Nijhoff, 2011. [Google Scholar]
- Bruce Porter. “Reasonableness in the Optional Protocol to the ICESCR.” Available online: http://www.socialrights.ca/documents/Reasonableness%20in%20the%20OP-ICESCR.pdf (accessed on 18 July 2016).
- 1The factors listed by the UNCESCR as being relevant to a consideration of measures adopted by States are as follows: (a) the extent to which the measures taken were deliberate, concrete and targeted towards the fulfilment of economic, social and cultural rights; (b) whether the State party exercised its discretion in a non-discriminatory and non-arbitrary manner; (c) whether the State party’s decision (not) to allocate available resources is in accordance with international human rights standards; (d) where several policy options are available, whether the State party adopts the option that least restricts Covenant rights; (e) the time frame in which the steps were taken; (f) whether the steps had taken into account the precarious situation of disadvantaged and marginalized individuals or groups and, whether they were non-discriminatory, and whether they prioritized grave situations or situations of risk.
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