european yearbook of disability law 18-10-2010 13:33:43

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european yearbook of disability law
European Yearbook of Disability Law_03_Voorwerk & Part I.indd 1
18-10-2010 13:33:43
European Yearbook of Disability Law
Editors:
Prof. Gerard Quinn
National University of Ireland, Galway (IRL)
Prof. Lisa Waddington
European Disability Forum Chair in European Disability Law
Maastricht University (NLs)
Editorial Board:
Prof. Theresia Degener
Evangelischen Fachhochschule Rheinland-Westfalen-Lippe (GER)
Prof. Aart Hendriks,
Chair in Health Law, University of Leiden (NLs)
Prof. Bjørn Hvinden
Head of Research & Deputy Director NOVA, (NO)
Dovile Juodkaite
Director, Global Initiative on Psychiatry – Vilnius (LI)
Anna Lawson
Senior Lecturer in Law and Member of the Centre for Disability Studies, Leeds
University (UK)
Oliver Lewis
Executive Director, Mental Disability Advocacy Center, Budapest (HU)
John Parry
Director, Commission on Mental & Physical Disability Law, American Bar
Association (US)
Shivaun Quinlivan
Law Lecturer, National University of Ireland, Galway (IRL)
Advisory Board:
Prof. Peter Blanck
Chairman, The Burton Blatt Institute, Syracuse University (US)
Prof. Christopher McCrudden
Lincoln College, Oxford University (GB)
Prof. Michael Stein
William & Mary School of Law and Executive Director, Harvard Project on
Disability Harvard Law School (US)
Yannis Vardakastanis
President of the European Disability Forum (EU)
European Yearbook of Disability Law_03_Voorwerk & Part I.indd 2
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european yearbook of
disability law
Volume 2
Edited by
Lisa Waddington
Gerard Quinn
Antwerp – Oxford – Portland
European Yearbook of Disability Law_03_Voorwerk & Part I.indd 3
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European Yearbook of Disability Law. Volume 2
Lisa Waddington and Gerard Quinn (eds.)
© 2010 Intersentia
Antwerp – Oxford – Portland
www.intersentia.com
ISBN 978-94-000-0128-2
D/2010/7849/124
NUR 825
No part of this book may be reproduced in any form, by print, photoprint, microfilm or
any other means, without written permission from the publisher.
European Yearbook of Disability Law_03_Voorwerk & Part I.indd 4
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Acknowledgments
We are immensely grateful to the many people who have contributed, in various
ways, to this volume of the Yearbook. First, we would like to thank Andrea
Coomber (interights, International Centre for the Protection of Human Rights)
who took the lead in authoring the review on the work of the Council of Europe.
We are also very grateful to Colm O’Cinneide (University College London), who
contributed to this section of the review, and to Dalindyebo Shabalala (Maastricht
University), who contributed the section on the proposed Treaty on Copyright
Exceptions and Limitations for Persons with Visual Impairments at the World
Intellectual Property Organization, found in the review of the work of other
European Intergovernmental Organizations and Civil Society Groups. We would
also like to express other thanks to Anna Lawson (Leeds University) who assisted
with the editing of the section on the review of the work of the Council of Europe,
and Janina Arsenjeva (European Disability Forum), who provided us with useful
feedback on the review of work of the European Union. We are grateful to Laura
Visser (student assistant, Maastricht University) who ensured that all the papers
were compliant with the Yearbook’s style sheet and, in particular, Karen Walsh
(NUI Galway) who took the lead in drafting all remaining sections on the review
and provided invaluable assistance and support throughout the production of this
volume. Lastly, we express our thanks to the authors who contributed articles to
this volume, the anonymous peer reviewers who help us to ensure the quality of
the articles published, and members of our editorial and advisory boards.
Lisa Waddington and Gerard Quinn
Intersentia
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Table of Contents
Editorial Tracing an Eventful Year in European Disability Law and
Policy
Gerard Quinn and Lisa Waddington� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 1
Part I: Articles and Practitioners’ Notes� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 5
The UN Disability Convention and (Multiple) Discrimination: Should
EU Non-Discrimination Law Be Modelled Accordingly?
A art Hendriks� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 7
1.Introduction� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 7
2.What is (Multiple) Discrimination?� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 10
2.1.Discrimination� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 10
2.2.Forms of Discrimination� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 12
2.3.
Multiple Discrimination� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 14
3.Disability and Multiple Discrimination� � � � � � � � � � � � � � � � � � � � � � � � � � � � 17
4.Disability, other Protected Grounds and the CRPD Approach
Towards Combating Multiple Discrimination� � � � � � � � � � � � � � � � � � � � � � � 22
5.
Current Protection Offered by EU Law Against Multiple
Discrimination� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 23
6.Discussion and Conclusions� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 26
The Law and Politics of US Participation in the UN Convention on the
Rights of Persons with Disabilities
Michael Ashley Stein, Janet E. Lord, and Penelope J.S. Stein � � � � � � � � � 29
1.Introduction� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.Overview of American Disability Law� � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.1.Theoretical Underpinnings � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.Practical Limitations� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.
Consequences of United States Ratification� � � � � � � � � � � � � � � � � � � � � � � �
3.1.Introspective Review� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.2.Fostering Dialogue� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.3.International Relations� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.4.Transatlantic Dialogue � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.
Conclusion� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
29
30
31
32
35
35
38
40
44
45
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Table of Contents
The Conclusion of the UN Convention on the Rights of Persons with
Disabilities by the EC/EU: A Constitutional Perspective
Delia Ferri� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 47
1.Introduction� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.The Text of the UN CRPD: A Brief Overview� � � � � � � � � � � � � � � � � � � � � �
3.The Conclusion of the UN CRPD by the EC/EU � � � � � � � � � � � � � � � � � � �
4.The UN CRPD: Status and Effects Within the EU Legal System� � � � �
5.
Concluding Remarks� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
47
51
56
62
68
Introduction to the Symposium: Digital Freedom and Disability –
Lessons from Europe and the United States
Rune Halvorsen � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 73
Digital Freedom for Persons with Disabilities: Are Policies to Enhance
e-Accessibility and e-Inclusion Becoming More Similar in the Nordic
Countries and the US?
Rune Halvorsen � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 77
1.Introduction� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 77
2.
Comparing Institutional Differences in e-Accessibility and
e-Inclusion Policy� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 78
3.E-Accessibility Regulations and Achievements in the Nordic
Countries and the US � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 81
4.Social Redistribution and e-Inclusion in the Nordic Countries and
the US� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 88
5.Explaining the Differing Profiles of Nordic and US e-Accessibility
and e-Inclusion Policy� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 92
6.Will Supranational Organizations Further Convergence in
e-Accessibility and e-Inclusion Policy Between the Nordic
Countries and the US? � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 96
7.
Conclusions� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 101
Law and Policy Challenges for Achieving an Accessible eSociety:
Lessons from the United States
William N. Myhill� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 103
1.Introduction� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.The Patchwork of Federal Law� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.1.Pre-ICT Proliferation Era� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.Public Internet Era� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.Progress and Shortcomings of Federal Law � � � � � � � � � � � � � � � � � � � � � � �
4.Accessibility of the Internet and Higher Education ICTs� � � � � � � � � � �
4.1.Internet Accessibility� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.2.
Common Law and Litigation � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.Bringing About Uniformity of ICT Accessibility: Legislative and
Alternate Mechanisms � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.1.Select Legislative Solutions� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
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106
106
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117
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5.2.Alternative Mechanisms� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 125
6.
Conclusion� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 129
Challenging Disabling Barriers to Information and Communication
Technology in the Information Society: A United Kingdom Perspective
Anna Lawson� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 131
1.Introduction� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.Equality Law Mechanisms� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.1.Overview � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2Types of Claim � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.1.Disability-Related Discrimination� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.2.Reasonable Adjustment Duties� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.2.1.Scope� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.2.2.Employment� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.2.3.Goods and Services (Including Education, Transport and Public
Functions)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.2.4.Reasonable Adjustment and Access to Information� � � � � � � � � � � � � � � �
2.2.3.The Disability Equality Duty � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.3.Enforcement � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.
Market Regulation Mechanisms� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.Social Protection Mechanisms� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.
Conclusion� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
131
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Removing Accessibility Barriers to Telecommunications:
A Pre-Requisite for Social Inclusion of Persons with Disabilities
Contribution from the European Disability Forum
Rodolfo Cattani� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 149
Contribution from the Commissioner for Human Rights of the Council
of Europe
Thomas Hammarberg� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 153
1.Introduction� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.The Commissioner’s Approach and Working Methods � � � � � � � � � � � � �
3.Specific Issues of Concern to the Commissioner Regarding the
Human Rights of Persons with Disabilities� � � � � � � � � � � � � � � � � � � � � � � �
3.1.Implementation of the UN Convention on the Rights of Persons
with Disabilities� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.2.
Children with Disabilities � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.3.Ageing Persons with Disabilities� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.4.Persons with Mental Disabilities� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.4.1.Legal Capacity � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.Future Challenges - Conclusions� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.1.
Combating Discrimination� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.2.National Action Plans� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
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Part II: Annual R eview of European Law and Policy � � � � � � � � � � � � � � � � � 161
The European Union� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 163
1.Background to the European Union and Disability� � � � � � � � � � � � � � � � �
1.1.Strategic Direction� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
1.1.1. Current Strategy: The European Disability Action Plan 2003-2010� �
1.1.2.EU Disability Strategy 2010-2020� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
1.2.Legislative Measures� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
1.2.1.Entry into Force of the Lisbon Treaty� � � � � � � � � � � � � � � � � � � � � � � � � � � � �
1.2.2. Council Directive 2000/78/EC of 27 November 2000 Establishing
a General Framework for Equal Treatment in Employment and
Occupation� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
1.2.3.Proposal for a Council Directive on Implementing the Principle
of Equal Treatment Between Persons Irrespective of Religion or
Belief, Disability, Age or Sexual Orientation (2008)� � � � � � � � � � � � � � �
1.2.4.Proposal for a Regulation Concerning the Rights of Passengers
when Traveling by Sea and Inland Waterway; � � � � � � � � � � � � � � � � � � � � �
Proposal for a Regulation on the Rights of Passengers in Bus and
Coach Transport� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
1.2.5.EU Telecoms Reform Package� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
1.3.The EU and International Legal Developments� � � � � � � � � � � � � � � � � � � �
1.3.1.Signature and Conclusion by the EC/EC of the UN Convention on
the Rights of Persons with Disabilities� � � � � � � � � � � � � � � � � � � � � � � � � � � �
1.4.Recent Developments in Miscellaneous Fields � � � � � � � � � � � � � � � � � � � �
2.Activities of the European Commission� � � � � � � � � � � � � � � � � � � � � � � � � � �
2.1.Directorate General for Employment, Social Affairs and Equal
Opportunities� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.1.1.Unit for the Integration of People with Disabilities � � � � � � � � � � � � � � � �
2.1.2.Unit for Equality, Action against Discrimination: Legal Questions� �
2.1.3.Unit on Action against Discrimination, Civil Society � � � � � � � � � � � � � �
2.2.Directorate General for Health and Consumers� � � � � � � � � � � � � � � � � � � �
2.3.Directorate General for Mobility and Transport� � � � � � � � � � � � � � � � � � � �
2.4.Directorate General for Internal Market and Services� � � � � � � � � � � � � �
2.5.Directorate General for Competition � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.6.Directorate General for Enterprise and Industry� � � � � � � � � � � � � � � � � � �
2.7.The Information Society and Media Directorate General� � � � � � � � � � �
2.8.Eurostat� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.Activities of the Council of the European Union� � � � � � � � � � � � � � � � � � �
3.1.Activities Under the Open Method of Coordination� � � � � � � � � � � � � � � �
3.1.1.Open Method of Coordination - Social Protection and Social
Inclusion� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.1.2.Open Method of Coordination – European Employment Strategy� � �
3.2.EU Presidency and Ministerial Conferences on Disability� � � � � � � � � �
4.
Current Activities of the European Parliament� � � � � � � � � � � � � � � � � � � � �
4.1.Activities of the Disability Intergroup of the European Parliament� �
5.
Case Law of the Court of Justice of the European Union� � � � � � � � � � �
5.1.The Powers of the Court of Justice of the European Union � � � � � � � � �
5.2.Recently Decided Cases� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
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5.2.1. Gottwald v. Bezirkshauptmannschaft Bregenz� � � � � � � � � � � � � � � � � � � � �
5.2.2. Joined Cases Gerhard Schultz-Hoff v. Deutsche
Rentenversicherung Bund and Stringer and Others v. Her Majesty’s
Revenue and Customs� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.3.Francisco Vicente Pereda v. Madrid Movilidad SA� � � � � � � � � � � � � � � � �
5.2.4.Ketty Leyman v Institut national d’assurance maladie-invalidite
(INAMI)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.5.Evangelina Gomez-Limon Sanchez-Camacho v Instituto Nacional
de la Seguridad Social (INSS), Tesoreria General de la Seguridad
Social (TGSS) and Alcampo SA � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.6.Petra von Chamier-Glisczinski v Deutsche AngestelltenKrankenkasse � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.3.
Cases Pending� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.3.1.Lucy Stewart v Secretary of State for Work and Pensions � � � � � � � � � �
5.3.2.Ralph James Bartlett, Natalio Gonzalez Ramos, Jason Michael
Taylor v Secretary of State for Work and Pensions� � � � � � � � � � � � � � � � �
6.European Economic and Social Committee� � � � � � � � � � � � � � � � � � � � � � �
6.1.
2009 Opinions with a Disability Dimension� � � � � � � � � � � � � � � � � � � � � � �
7.Activities of the European Union Fundamental Rights Agency � � � � �
8.Studies and Reports� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
8.1.Study on the Situation of Women with Disabilities in Light of the
UN Convention on the Rights of Persons with Disabilities – A
Final Report for the DG Employment, Social Affairs and Equal
Opportunities of the European Commission� � � � � � � � � � � � � � � � � � � � � � �
8.2.Report of the Ad Hoc Expert Group on the Transition from
Institutional to Community-Based Care� � � � � � � � � � � � � � � � � � � � � � � � � � �
8.3.International Perspectives on Positive Action Measures – A
Comparative Analysis in the European Union, Canada, The United
States and South Africa� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
8.4.
Various Reports Published By The Academic Network of European
Disability Experts (ANED)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
8.4.1.European Comparative Data on the Situation of Disabled People:
An Annotated Review� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
8.4.2.The Labour Market Situation of Disabled People in European
Countries and Implementation of Employment Policies: A
Summary of Evidence from Country Reports and Research Studies�
8.4.3. Monitoring the Implementation of the UN Convention on the
Rights of Persons with Disabilities in Europe: Principles for the
Identification and Use of Indicators � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
8.4.4.The Implementation of EU Social Inclusion and Social Protection
Strategies in European Countries with Reference to Equality for
Disabled People � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
8.4.5.Annotated Review of European Legislation which Makes a
Reference to Disability� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
8.4.6.Indicators of Disability Equality in Europe (IDEE) – A Preliminary
List of Indicator Proposals for Discussion� � � � � � � � � � � � � � � � � � � � � � � � �
8.4.7.The Implementation of Policies Supporting Independent Living for
Disabled People in Europe: Synthesis Report� � � � � � � � � � � � � � � � � � � � � �
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8.5.European Research Agendas for Disability Equality (EuRADE) –
Policy Statement� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 240
9.European Day of People with Disabilities� � � � � � � � � � � � � � � � � � � � � � � � � 241
9.1.European Day of People with Disabilities 2009 (3-4 December
2009)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 241
The Council of Europe� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 243
1.Background to the Council of Europe and Disability� � � � � � � � � � � � � � �
1.1.The Role and Institutions of the Council of Europe� � � � � � � � � � � � � � � �
1.2.The Strategic Direction of the Council of Europe on Disability� � � � �
2.The European Court of Human Rights and Recent Case Law on
Disability � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.1.The Convention and the Court� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.Background, Proceedings and Jurisdiction of the Court � � � � � � � � � � � �
2.3.
Court Reform � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.4.Disability and the Court� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.Recent Disability Related Case Law� � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.1. General Disability Related Case Law� � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.1.1. Glor v. Switzerland � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.1.2. G.N. and others v. Italy� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.1.3.Savin and Savina v. Ukraine � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.1.4.Salontaji-Drobnjak v. Serbia� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.1.5. Codarcea v. Romania� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.2. Case Law Concerning Conditions of Detention for Persons with
Disabilities� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.2.1.Paladi v Moldova� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.2.2.Sławomir Musiał v. Poland� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.2.3.Kats and Others v. Ukraine � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.2.4.Kılavuz v. Turkey� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.3.Pending Applications of Interest � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.3.1. Câmpeanu v. Romania � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.3.2.Farcas v. Romania � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.European Social Charter� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.1.Background of the European Social Charter and Committee� � � � � � � �
3.2.Recent Conclusions of the European Committee of Social Rights
on State Party Reports on Disability� � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.3.Recent Decisions of the European Committee of Social Rights on
Collective Complaints and Disability� � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.3.1.European Roma Rights Centre (ERRC) v. Bulgaria (Revised Social
Charter, Decision of June 2008)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.European Committee for the Prevention of Torture and Inhumane
or Degrading Treatment or Punishment (CPT).� � � � � � � � � � � � � � � � � � � �
4.1.Background of the CPT� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.2.The CPT Standards and Disability � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.3.The 2009 CPT General Report� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.4.
Country Visits of the CPT and Disability � � � � � � � � � � � � � � � � � � � � � � � � �
4.4.1. CPT Visit to Azerbaijan (2008) � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.4.2. CPT Visit to the United Kingdom (2008) � � � � � � � � � � � � � � � � � � � � � � � � �
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4.4.3. CPT Visit to Greece (2008)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.4.4. CPT Visit to French Guyana (2008)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.4.5. CPT Visit to Slovakia (2009)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.4.6. CPT Visit to Sweden (2009)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.4.7. CPT Visit to Latvia (2009)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.4.8. CPT Visit to Abkhazia, Georgia (2009)� � � � � � � � � � � � � � � � � � � � � � � � � � �
4.4.9. CPT Visit to Moldova (2009) � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.The Council of Europe Human Rights Commissioner and
Disability � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.1.Background and Role� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.Recent Activity of the Commissioner on Disability� � � � � � � � � � � � � � � �
5.2.1. Viewpoints� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.1.1. Viewpoint on Intellectual Disability� � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.1.2. Viewpoint on Legal Capacity� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.1.3.Viewpoint on De-Institutionalization of Orphans and Children with
Disabilities� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.2. Country Visits� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.2.1.Report on Visit to the Netherlands� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.2.2.Report on Visit to Serbia � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.2.3.Report on Visit to Monaco� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.2.4.Report on Visit to Kosovo � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.2.5.Report on Visit to Turkey� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.2.6.Report on Visit to Bulgaria � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.3.Recommendations� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
6.The Parliamentary Assembly and the Committee of Ministers and
Disability � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
6.1.Resolution 1642 (2009) and Recommendation 1854 (2009) Access to Rights for People with Disabilities and Their Full and
Active Participation in Society, and Committee of Ministers
Response� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
6.2.Recommendation of the Committee of Ministers to Member
States on Ageing and Disability in the 21st Century: Sustainable
Frameworks to Enable Greater Quality of Life in an Inclusive
Society� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
6.3.Recommendation of the Committee of Ministers to Member States
on Monitoring the Protection of Human Rights and Dignity of
Persons with Mental Disorder� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
6.4.Recommendation of the Committee of Ministers to Member States
on Achieving Full Participation Through Universal Design� � � � � � � � �
6.5.Recommendation of the Committee of Ministers to Member States
to Encourage the Education and Social Inclusion of Children and
Young People with Autism Spectrum Disorders � � � � � � � � � � � � � � � � � � �
6.6.Recommendation of the Committee of Ministers to Member States
on Principles Concerning Continuing Powers of Attorney and
Advance Directives for Incapacity� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
6.7.Recommendation of the Committee of Ministers to Member States
on Deinstitutionalization and Community Living of Children with
Disabilities� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
6.8.
Council of Europe Conference on Women and Disabilities� � � � � � � � �
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Other European Intergovernmental Organizations and Civil Society
Groups� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 303
1.European Intergovernmental Organizations� � � � � � � � � � � � � � � � � � � � � � �
1.1.Organization for Economic Co-operation & Development (OECD)�
1.2.World Health Organization – Regional Office for Europe � � � � � � � � � �
1.3.The Proposed Treaty on Copyright Exceptions and Limitations for
Persons with Visual Impairments at the World Intellectual Property
Organization � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.European Civil Society Organizations� � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.1.The European Disability Forum� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.Inclusion Europe� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.3.European Network on Independent Living (ENIL)� � � � � � � � � � � � � � � � �
2.4.The European Coalition for Community Living (ECCL)� � � � � � � � � � �
2.5.
Mental Disability Advocacy Centre (MDAC)� � � � � � � � � � � � � � � � � � � � � �
3.Studies & Reports � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.1.The International Convention on The Rights of People with
Disabilities and Its Impact on the Spanish Legal System � � � � � � � � � � �
303
303
305
309
317
317
322
327
331
333
337
337
Part III: Literature R eview� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 339
Literature R eview� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 341
1.Disability Law and Policy Books� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 341
2.Disability Law and Policy Journal Articles� � � � � � � � � � � � � � � � � � � � � � � � 347
Part IV: Annex of K ey Documentation � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 365
Council Decision of 26 December 2009 Concerning the Conclusion, by the
European Community of the United Nations Convention on the Rights of
Persons With Disabilities� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 367
Council Conclusions on Accessible Information Society� � � � � � � � � � � � � � � � � � 379
Recommendation CM/Rec(2010)2 of the Committee of Ministers to member
states on deinstitutionalisation and community living of children with
disabilities� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
385
EDF Proposal for a European Pact on Disability � � � � � � � � � � � � � � � � � � � � � � � � 395
Wasted Time, Wasted Money, Wasted Lives…A Wasted Opportunity? Executive Summary
ECCL Focus Report on how the current use of Structural Funds
perpetuates the social exclusion of disabled people in Central and Eastern
Europe by failing to support the transition from institutional care to
community-based services� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 403
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The Law and Politics of US Participation
in the UN Convention on the R ights of
Persons with Disabilities
Michael Ashley Stein,1 Janet E. Lord,2 and Penelope J.S. Stein3 4
1.Introduction
On July 30, 2009 the United States signed5 the United Nations Convention on
the Rights of Persons with Disabilities (CRPD, or Convention),6 reversing the
Bush administration’s eight years of general disengagement with the CRPD.7
America’s self-professed global leadership in the area of disability law8 – a
Executive Director, Harvard Law School Project on Disability; Visiting Professor,
Harvard Law School; Cabell Professor, William & Mary Law School.
2
Research Associate, Harvard Law School Project on Disability; Partner, BlueLaw
International, LLP; Adjunct Professor of Law, University of Maryland School of
Law.
3
Research Associate, Harvard Law School Project on Disability; Research Fellow,
East Asian Legal Studies, Harvard Law School.
4
We thank Cara Boekeloo and Kelli Falgout for research assistance. Our work on this
article was funded in part by a grant from Foundation Open Society (Zug).
5
See Press Release, U.S. Dept. of Health and Human Services, Statement by Kathleen
G. Sebilius Secretary of Health and Human Services on US Signing of the United
Nations Convention on the Rights of Persons with Disabilities (30 July 2009),
available
at
<http://www.hhs.gov/news/press/2009pres/07/20090730a.html>
(accessed 11 May 2010); UN Applauds Decisions of United States to Join Landmark
Disability Pact, UN News Center (31 July 2009), available at <http://www.un.org/
apps/news/story.asp?NewsID=31646&Cr=disab&Cr1> (accessed 11 May 2010).
6
Convention on the Rights of Persons with Disabilities (CRPD), UNGA Res. 61/106
(13 December 2006) UN Doc A/61/611.
7
See J.E. Lord and M.A. Stein, ‘Ratify the UN Disability Treaty’, Foreign Policy
in Focus, 9 July 2009, available at <http://www.fpif.org/fpiftxt/6247> (accessed
11 May 2010).
8
See, e.g., 155 Cong Rec S 8121, 8123 (27 July 2009) (Statement of Senator Tom
Harkin on the Senate floor) (‘Well, we should take pride in the fact the United States
has always been a leader in ensuring the rights of individuals with disabilities.’);
26 Weekly Comp. Pres. Doc. 1162 (26 July 1990) (Remarks by President George
H.W. Bush upon signing the ADA) (Noting that the ADA ‘is the world’s first
comprehensive declaration of equality for people with disabilities,’ whose ‘passage
has made the United States the international leader on this human rights issue.’);
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Michael Ashley Stein, Janet E. Lord, and Penelope J.S. Stein
reputation that historically is largely deserved9 – raises the related questions of
how comparable the Convention’s terms are to domestic United States disability
law, and consequently, the implications of ratifying the treaty. After discussing
the concepts that foster but also limit disability-based legal rights in the United
States, we offer some thoughts on the substance and consequences of American
ratification.10
2.Overview of American Disability Law
Historically, and internationally, disability rights’ advocates have argued for
a social model of disability11 that attributes a central role to the constructed
environment and the attitudes that it reflects in creating what society labels
as ‘disability’.12 This schema is in direct opposition to the medical model of
disability that views persons with disabilities as inherently impeded from social
participation and equality.13 According to the social model, factors external to
any given person’s impairments determine how disabled she or he will be from
functioning in society.14 Disability laws and policies in the United States are
137 Cong Rec S 10728 (24 July 1991) (remarks by Senator Paul Simon) (‘the United
States had, by virtue of enacting the ADA, become the world leader in establishing
rights and opportunities for persons with disabilities. . . other countries are looking
to us for leadership.’)
9
See M.A. Stein and P.J.S. Stein, ‘Beyond Disability Civil Rights’, 58 Hastings Law
Journal 6 (2007), 1203.
10
For a detailed and technical analysis, see National Council on Disability, Finding
the Gaps: A Comparative Analysis of Disability Laws in the United States to the
United Nations Convention on the Rights of Persons with Disabilities (CRPD),
12 May 2008, available at <http://www.ncd.gov/newsroom/publications/2008/pdf/
ncd_crpd_analysis.pdf> (accessed 11 May 2010).
11
The framework derives from both British and American disability rights scholars.
Some originate the social model theory with M. Oliver, Social Work with Disabled
People, (Macmillan, 1983). See B.M. Altman, ‘Disability Definitions, Models,
Classifications, Schemes, and Applications’, in G.L. Albrecht et al. (eds.), Handbook
of Disability Studies, (Sage, 2001), 97 at 100 (citing Oliver as one of the disability
theorists who proposed the social model).
12
As explained by one of the American protagonists of the theory, the social model:
is based on three major postulates: (1) the primary problems faced by disabled
persons stem from social attitudes rather than from functional limitations; (2) all
facets of the man-made environment are shaped or molded by public policy; and
(3) in a democratic society, public policies represent prevailing public attitudes and
values.
H. Hahn, ‘Feminist Perspectives, Disability, Sexuality, and Law: New Issues and
Agendas’, 4 Southern California Review of Law and Women’s Studies 1 (1994), 97
at 105.
13
See generally K. Fries, ‘Introduction’, in K. Fries (ed.), Staring Back: The Disability
Experience From the Inside Out, (Plume, 1997), at 6-7 (noting that ‘this view of
disability … puts the blame squarely on the individual.’).
14
See, e.g., S. Wendell, The Rejected Body: Feminist Philosophical Reflections on
Disability, (Routledge, 1996), at 39 (‘the entire physical and social organization of
30
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grounded in the social model,15 and are expressed in terms of civil rights, within
a non-discrimination framework.16
2.1.Theoretical Underpinnings
The social model is the dominant theme that has been advanced by the American
disability rights movement to guide the formulation of disability law, policy and
programming.17 Because disability rights proponents in the United States view
discriminatory attitudes toward citizens with disabilities as the central obstacle
to mainstream integration,18 they have expressed the social model of disability
through a civil rights prism whose tenets parallel earlier advocacy on behalf of
racial minorities and women.19 Similarly, they have pursued an anti-discrimination
approach modelled after previous civil rights statutes, most notably Title VII of
the Civil Rights Act of 1964.20 The most significant result of their advocacy efforts
was the 1990 promulgation of the Americans with Disabilities Act (ADA),21 which
signaled the social model’s legislative victory in the United States.22
life’ has been created with the able-bodied in mind.); A. Silvers, ‘Formal Justice’,
in Anita Silvers et al. (eds.), Disability, Difference, Discrimination: Perspectives
on Justice in Bioethics and Public Policy, (Rowman and Littlefield, 1998), 13 at
75 (arguing that being biologically anomalous is only viewed as abnormal due to
unjust social arrangements, most notably the existence of a hostile environment that
is ‘artificial and remediable’ as opposed to ‘natural and immutable’.).
15
See A.M. Samaha, ‘What Good is the Social Model of Disability?’, 74 University
of Chicago Law Review 4 (2007), 1251 at 1251 (noting the social model’s ‘causation
story has been a message of the disability rights movement since the 1970s’).
16
See S.R. Bagenstos, Law and the Contradictions of the Disability Rights Movement,
(Yale University Press, 2009), at 18-20 (asserting ‘the social model had a clear policy
payoff for disability rights activists, one that pointed . . . toward civil rights’).
17
See M.A. Stein, ‘Disability Human Rights’, 95 California Law Review (2007), 75
at 90.
18
See, e.g., S.R. Bagenstos, ‘“Rational Discrimination”, Accommodation, and the
Politics of (Disability) Civil Rights’, 89 Virginia Law Review (2003), 825 (equating,
on moral grounds, intentional disability exclusion with other forms of disparate
treatment).
19
See generally J.V. Switzer, Disabled Rights: American Disability Policy and the
Fight for Equality, (Georgetown University Press, 2003).
20
See generally R.L. Burgdorf, Jr., ‘“Substantially Limited” Protection from
Disability Discrimination: The Special Treatment Model and Misconstructions of
the Definition of Disability’, 42 Villanova Law Review (1997), 409.
21
42 U.S.C. §12101 (2000).
22
R.K. Scotch, ‘Making Change: the ADA as an Instrument of Social Reform’, in
L. Pickering Francis and A. Silvers (eds.), Americans with Disabilities: Exploring
Implications of the Law for Individuals and Institutions, (Routledge, 2000), 275.
Nevertheless, for strong criticism of the social model as normatively empty, see
Samaha, 74 University of Chicago Law Review 4 (2007), 1251 at 1251 (averring that
the social model ‘has no policy implications’).
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At the time of the adoption of the ADA, Congress was presented with a catalogue
of evidence on the historical exclusion of people with disabilities from American
society.23 As a result of that testimony Congress was persuaded that the overall
status of Americans with disabilities was dismal, and concluded that the group
historically was ‘relegated to a position of political powerlessness in our society’
and ‘continually encounter[ing] various forms of discrimination’.24 Congress,
moreover, stipulated that this exclusion arose from ‘unfair and unnecessary
discrimination and prejudice’.25 Hence, the ADA was premised on the social
model’s belief that peoples’ functional limitations are caused by a socially
constructed environment, such that the repercussions of having a disability are
mutable.26 To remedy that artificial exclusion, Congress enacted the ADA as a
civil rights statute, mandating that persons with disabilities be treated equally to
the general population.27
2.2.Practical Limitations
The American disability rights agenda has exerted a powerful influence in
revising legal regimes affecting persons with disabilities.28 Nonetheless, these
measures – as expressed in United States law and policy – are limited. American
social model advocacy is grounded in rigid formal justice notions that narrowly
compel the treatment of similarly situated people as alike.29 One result of this
exclusive focus is the promulgation of civil and political rights through antidiscrimination statutes that do not encompass economic, social and cultural
rights.30 Accordingly, the ADA provides civil rights protection without equality
Congress summarized its conclusions as to this evidence in the ADA’s Findings
section. 42 U.S.C. § 12101 (2000).
24
42 U.S.C. § 12101 (a)(5) (2000); id. § 12101(a)(7).
25
42 U.S.C. § 12101(a)(3) (emphasis added).
26
See generally H. Hahn, ‘Towards a Politics of Disability: Definitions, Disciplines,
and Policies’, 22 Social Science Journal 4 (1985), 87.
27
See M.A. Stein, ‘Same Struggle, Different Difference: ADA Accommodations as
Anti-discrimination’, 153 University of Pennsylvania Law Review 2 (2004), 579
at 639.
28
See, e.g., K.C. Heyer, ‘The ADA on the Road: Disability Rights in Germany’, 27
Law and Social Inquiry 4 (2002), 723; E. Besner, ‘Employment Legislation for
Disabled Individuals: What can France Learn from the Americans with Disabilities
Act?’, 16 Comparative Labor Law and Policy Law Journal (1995), 399. See also
S.R. Bagenstos, ‘Comparative Disability Employment Law From an American
Perspective’, 24 Comparative Labor Law and Policy Journal 4 (2003), 649 at 655-56
(noting ‘nations throughout the industrialized world are increasingly invoking the
ADA as a model’).
29
For perhaps the earliest exposition of this theory, see Aristotle, Nicomachean Ethics
118 § 1131a-b (Martin Ostwald trans., Prentice Hall, 1962) (professing that ‘[t]hings
that are alike should be treated alike’).
30
One scholar has suggested that while this may be the overt case due the way in which
the American constitution is written, United States policy attempts to reach these
otherwise neglected economic, social and cultural rights through legislative means.
See, e.g., F.I. Michelman, ‘The Constitution, Social Rights, and Liberal Political
23
32
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measures.31 Put another way, civil rights are directed at ensuring equal treatment
but not at equal opportunity, or, more comprehensively, robust substantive
equality.32 As a result, the ADA as well as other American statutory protections
cannot bring about disabled citizens’ full social inclusion.33
The full inclusion of a socially marginalized group requires invoking both
negative and positive rights – which, of course are interrelated and interdependent.34
Clearly – anti-discrimination prohibitions can prospectively prevent prejudicial
harm in all spheres –political life, health, adequate standard of living, education,
and employment, among others, while substantive equality measures are needed,
in all spheres, to remedy inequities that exist due to past practices. Moreover,
failing to counteract the unequal position of people with disabilities perpetuates
their social stigma and the attitudes that maintain subordination. This is
particularly so for the most socially marginalized among people with disabilities
– those facing double discrimination (e.g., women and ethnic minorities with
disabilities), and persons with intellectual and psychosocial disabilities.35
To illustrate the incomplete nature of United States disability policy,
consider the effect of the absence of equality measures from the ADA. Title I,
which contains strong anti-discrimination provisions, was intended as the most
expedient method of bringing about social and economic equality for people
Justification’, 1 International Journal of Constitutional Law 1 (2003), 13 at 13-14
(highlighting the debate on whether social rights should be constitutionalized or
remain to be seen as ‘direct, regulatory legislation’).
31
A clever exception is S.R. Bagenstos, ‘The Future of Disability Law’, 114 Yale Law
Journal 1 (2004), 1, which suggested that second generation type provisions be
construed as part of the ADA’s reasonable accommodation mandate.
32
G. Quinn et al., Human Rights and Disability: The current use and future potential
of United Nations human rights instruments in the context of disability, (United
Nations, 2002), at 20, (distinguishing the formal interpretation of equality which
‘presupposes that burdens or benefits should not be invidiously distributed in
society’ from ‘the concept of equality of opportunity which requires the State to
play an active role in ensuring genuinely equal opportunities for all’), available at
<http://www.nhri.net/pdf/disability.pdf> (accessed 11 May 2010).
33
See Stein and Stein, 58 Hastings Law Journal 6 (2007), 1203 at 1212 (noting that since
‘the means by which disabled Americans can obtain and keep gainful employment
have not been provided … the ADA cannot adequately ensure the inclusion of people
with disabilities’).
34
It should be noted in this regard that the traditional conceptual divide between rights
that require inaction (negative rights) and in theory can be relied on immediately
with little outlay or necessity for proactive measures and rights that require active
measures for implementation (positive rights) is increasingly regarded as outmoded
and fundamentally unhelpful in understanding the holistic and interdependent
nature of all rights, whether civil, political, economic, social or cultural. A. Lawson,
Disability and Equality Law in Britain: The Role of Reasonable Adjustment, (Hart
Publishers, 2008), at 32.
35
Economist Richard Burkhauser reached a similar conclusion from a non-legal
perspective. See R.V. Burkhauser, ‘Post-ADA: Are People with Disabilities
Expected to Work?’, 549 The ANNALS of the American Academy of Political and
Social Science (1997), 71.
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with disabilities.36 Nevertheless, it took nearly a decade to adopt initiatives that
allowed disabled persons receiving public assistance to maintain health care
coverage while transitioning to employment, and then, only at proscribed minimal
income levels.37 During this period, and despite Senator Dole’s efforts,38 a leading
proponent of such measures, no job training programmes were promulgated on
behalf of disabled persons, although they were developed for other historically
disadvantaged groups as part of overall dramatic welfare reforms.39 Indeed,
to date no systemic federal job programme exists on behalf of workers with
disabilities to enable their access to the workplace.40
Thus, American workers with disabilities are not entitled to sundry
accommodations that could achieve equal employment opportunities or to a
variety of positive measures, such as vocational training and health care, that
could ameliorate historic discrimination.41 While the ADA forbids employment
discrimination, the means by which disabled Americans can obtain and keep
gainful employment have not been provided. As a result, the ADA cannot
adequately ensure the inclusion of people with disabilities. This is evidenced
empirically by the fact that post-ADA disabled Americans continue to experience
disproportionately high rates of unemployment and poverty.42
See S.R. Bagenstos, ‘The Americans with Disabilities Act as Welfare Reform’, 44
William and Mary Law Review 1 (2003), 921 (disability rights advocates sold the
ADA to Congress in large measure as a means of increasing employment and thus
decreasing public benefit dependence).
37
R. Pear, ‘Clinton Proposes Aid for Disabled Returning to Work’, N.Y. Times, 30
November 1998) (highlighting then-President Clinton’s proposal ‘expanding
Medicaid and Medicare to allow tens of thousands of people with various medical
disabilities to retain health benefits when they return to work’).
38
B. Dole, ‘Are We Keeping America’s Promises to People with Disabilities? Commentary on Blanck’, 79 Iowa Law Review 4 (1994), 927.
39
Cf. N.D. Zatz, ‘From Welfare to What?’, 57 Hastings Law Journal (2006), 1131
(questioning the salience of welfare to work initiatives in the absence of a clear
understanding of what comprises ‘work’).
40
Information on the voucher systems operating under the Ticket to Work and Work
Incentives Improvement Act and the Workforce Investment Act, available at
<http://disability.law.uiowa.edu/index.htm> (accessed 11 May 2010).
41
See infra Part 3.A. See generally J.D.R. Craig and S.M. Lynk (eds.), Globalization
and the Future of Labor Law, (Cambridge University Press, 2006).
42
For example, the Cornell University Rehabilitation and Research Training Center
on Disability Demographics and Statistics, 2005 Disability Status Reports, indicates
that the 2005 employment rate among working age people with disabilities was 38%,
and the poverty rate among the same group was 25%, available at <http://www.ilr.
cornell.edu/ped/disabilitystatistics/StatusReports/2005-pdf/2005-StatusReports_
US.pdf?CFID=13754524&CFTOKEN=34477900> (accessed 11 May 2010). See
also D.C. Stapleton and R.V. Burkhauser (eds ), The Decline in Employment of
People with Disabilities: A Policy Puzzle, (WE Upjohn Institute for Employment
Research, 2003) (collected econometric studies and policy essays).
36
34
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3.Consequences of United States Ratification
By considering CRPD ratification, the United States has begun an introspective
review of currently prevailing laws, policies, and practices. One result – even
absent ratification – ought to be better comprehension of the various disjunctures
between federal policies and aspirations. Moreover, even absent ratification, the
act of signing the CRPD and commencing the ratification process has triggered
dialogue across the federal government that can serve as an impetus for better
compliance and policy invigoration.43 Externally, ratification would signal a return
by America to being an active participant in international affairs generally. It also
would restore the United States to its leadership role in the field of disability law.
3.1.Introspective Review
The CRPD holistically combines civil and political rights with economic, social,
and cultural rights in an effort to manifest the Vienna Declaration’s notion that
human rights are truly ‘indivisible and interrelated and interconnected’.44 In terms
of substance, the Convention’s aims are consistent with that of United States
disability law and policy. Indeed, the core principles articulated in the CRPD are
firmly embedded in American disability law – respect for human dignity, nondiscrimination and autonomy, reasonable accommodation, and participation.45
Where gaps arise between the two sets of legal mandates, they do so because
United States domestic civil rights laws (including those relating to disability)
and international human rights laws operate from distinct, although not mutually
exclusive perspectives. Thus, as an overall matter United States law can be
viewed as either being of a level with the CRPD’s mandates, or capable of
reaching those levels through more rigorous implementation and/or additional
legislative action.46 To return to the example of employment,47 an obvious gap
exists in coverage between American federal disability law and policy and the
CRPD as it relates to the promotion of employment opportunities. Yet there is no
reason to believe that by providing measures that support the ADA’s strong antidiscrimination prohibitions, the United States could not approximate the CRPD’s
more comprehensive scheme. These measures might include some combination
For example, the administration of George W. Bush, after initially stepping back
from the negotiation process of the CRPD, ‘reinitiated active engagement in the
substantive drafting’ of the treaty under pressure from both domestic constituencies
and members of the United States House of Representatives. See T.J. Melish, ‘From
Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies’, 34
Yale Journal of International Law 2 (2009), 389 at 398.
44
World Conference on Human Rights, 14-25 June 1993, Vienna Declaration and
Programme of Action, UN Doc A/CONF.157/23 (12 July 1993), para. 5.
45
Many of these themes were first articulated by disability rights advocate and
political scientist, Jacobus tenBroek. See M.A. Stein and J.E. Lord, ‘Jacobus
tenBroek, Participatory Justice, and the UN Convention on the Rights of Persons
with Disabilities’, 13 Texas Journal on Civil Liberties and Civil Rights 2 (2008), 167.
46
See National Council on Disability, Finding the Gaps.
47
See supra Part 2.2.
43
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of vocational training, tax subsidies for extra reasonable accommodations,
affirmative action, job set-asides, or contract procurement.48
Beyond the employment realm of Article 25, there are several areas in which it
may be said that United States disability law and policy falls short of the CRPD’s
mandates.49 In large part this is because the Convention is aspirational in nature
and directed at achieving the full flourishing and potential of all persons with
disabilities and in doing so requires measures that exceed the current laws and
policies, as implemented, of any individual State.50 However, the dissonance in
American law and policy that deems civil and political rights statutorily appropriate,
but economic, cultural and social rights as beyond the ordinary normative realm of
legislation,51 also yields gaps in coverage when the Convention requires equality
measures or proactive action. This is the case, for example, in the circumstances
of Articles 5 (Equality and non-discrimination);52 6 (Women with disabilities);53
8 (Awareness-raising);54 20 (Personal mobility);55 28 (Adequate standard of living
and social protection);56 and 30 (Participation in cultural life, recreation, leisure,
See Stein and Stein, 58 Hastings Law Journal 6 (2007), 1203, at 1225-40.
See National Council on Disability, Finding the Gaps.
50
‘A disability human rights paradigm maintains that developing one’s talents is at
the core of being human, and one must view talent as its own end’ and as ‘a moral
imperative that all societies owe to each of their citizens’. M.A. Stein, 95 California
Law Review (2007), 75, at 106.
51
C.R. Sunstein, ‘Why Does the American Constitution Lack Social and Economic
Guarantees?’, 56 Syracuse Law Review (2005), 1 at 5, (‘while ordinary rights create
“negative” checks on government’ economic and social rights ‘impose “positive”
obligations on government’).
52
See, e.g., CRPD, UN Doc A/61/611, at art. 5(3) (‘In order to promote equality and
eliminate discrimination, State Parties shall take all appropriate steps to ensure that
reasonable accommodation is provided.’). By contrast, the ADA places reasonable
accommodation costs on employers; and, although some federal tax incentives are
available, these are not well-publicized.
53
See, e.g., id. at art. 6(2) (‘State Parties shall take all appropriate steps to ensure the
full development, advancement, and empowerment of women, for the purpose of
guaranteeing them the exercise and enjoyment of the human rights and fundamental
freedoms set out in the present Convention.’). Conversely, United States civil rights
protections guard against discrimination but, like the ADA, do not provide positive
equality measures.
54
‘State Parties undertake to adopt immediate, effective and appropriate measures:
to combat stereotypes, prejudices and harmful practices relating to persons with
disabilities.’ Id. at art. 8.1(b). No required positive undertaking exists in parallel in
federal American law and policy.
55
‘State Parties shall take effective measures to ensure personal mobility with the
greatest possible independence for persons with disabilities’, id. at art. 20, ‘in the
manner and at the time of their choice’. Id. at art 20(a). Some United States benefits
programmes provide mobility aids, but not at this level, nor in such deference to
consumers.
56
‘State Parties recognize the right of persons with disabilities to an adequate standard
of living for themselves and their families , . . and shall take appropriate steps to
safeguard and promote the realization of this right without discrimination on the
48
49
36
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and sport).57 For other Articles, current under-enforcement of United States
laws creates a gap between legal requirements (that are otherwise adequate) and
reality.58 Instances include Articles 9 (Accessibility);59 11 (Situations of risk and
humanitarian emergencies);60 13 (Access to justice);61 and 29 (Participation in
political and public life).62 And for still other Articles, because their province
lies in state rather than in federal law,63 there is reason to suspect that those
areas are not adequately protected. Articles 12 (Equal recognition before
the law);64 23 (Respect for home and the family);65 and 25 (Health) 66 fall into
basis of disability.’ Id. at art. 28(1). This economic right falls outside of American
disability law and policy, and instead, bare subsistence is addressed through benefits
programmes that are deemed legislative entitlements and not civil or human rights.
57
‘State Parties shall take appropriate measures to enable personal with disabilities to
have the opportunity to develop and utilize their creative, artistic and intellectual
potential, not only for their own benefit, but also for the enrichment of society.’ Id. at
art. 30(2). Such provision exceeds measures provided by the United States.
58
See generally M.E. Waterstone, ‘A New Vision of Public Enforcement’, 92 Minnesota
Law Review 2 (2007), 434 at 451 (stating that ‘government enforcers do not have
enough resources to make a difference, [and] that the political nature of civil rights
means that public enforcement cannot be trusted’).
59
‘State Parties shall take appropriate measures to ensure persons with disabilities
access, on an equal basis with others, to the physical environment, to transportation,
to information and communications, . . . and to other facilities and services open or
provided to the public, both in urban and in rural areas.’ CRPD, UN Doc A/61/611,
at art. 9(1).
60
‘State Parties shall take . . . all necessary measures to ensure the protection and
safety of persons with disabilities in situations of risk, including situations of armed
conflict, humanitarian emergencies and the occurrence of natural disasters.’ Id. at
art 11.
61
‘State Parties shall ensure effective access to justice for persons with disabilities on
an equal basis with others. . . .’ Id. at art. 13.
62
‘State Parties shall guarantee to persons with disabilities political rights and the
opportunity to enjoy them on an equal basis with others, and shall undertake: [t]o
ensure that persons with disabilities can effectively and fully participate in political
and public life on an equal basis with others. . .’ Id. at art. 29(a).
63
For a challenge to this dichotomy, see M.A. Stein, ‘The Domestic Relations Exception
to Federal Jurisdiction: Rethinking an Unsettled Federal Courts Doctrine’, 36 Boston
College Law Review (1995), 669 at 671 (noting there ‘is a complex and unresolved
debate over the proper role of federal courts in adjudicating a substantive area of law
traditionally considered within the exclusive purview of state courts’).
64
‘State Parties shall take appropriate measures to provide access by persons with
disabilities to the support they may require in exercising their legal capacity.’ CRPD,
UN Doc A/61/611, at art. 12(3).
65
‘State Parties shall take effective and appropriate measures to eliminate
discrimination against persons with disabilities in all matters relating to marriage,
family, parenthood and relationships, on an equal basis with others, …’ Id. at
art. 23(1).
66
‘State Parties shall: provide persons with disabilities with the same range, quality
and standard of free or affordable health care and programmes as provided to other
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this last group.67 Finally, and more pertinent to international discourse than to
domestic programming, CRPD ratification would require American development
aid to abide by Article 32’s inclusive development mandate. Currently, USAID
encourages but does not require such programming.
It is important to emphasize, however, that each of these gaps is capable of
being narrowed or eradicated through either more rigorous implementation of
existing United States laws and policies, and/or through Congressional legislative
action.
3.2.Fostering Dialogue
There are other internal implications of participation in human rights treaties
for the United States, even short of actual ratification. The signing of the CRPD
and preparations for its submission to the United States Senate has triggered an
intra-and inter-agency process of dialogue review and scrutiny, whereby treaty
provisions are assessed and carefully considered as against existing laws, policies
and practices.68 Such dialogue can prompt policy and programmatic shifts in
disability laws and policies in anticipation of possible ratification, and in turn can
serve to promote and advance specific issues related to disability-based human
rights. There are indications that such triggered responses are already occurring.
In addition, and at a broader level, the rare signing by the United States of the
Convention has energized disability human rights dialogue at the national level.
Concurrent with the CRPD’s signing by the United States, President Obama’s
senior advisor, Valerie Jarrett, announced the creation of a new position, disability
human rights advisor, within the Department of State’s Bureau of Democracy,
Human Rights and Labor, thereby signaling a renewed commitment to ensuring
that the human rights foreign policy of the United States is disability inclusive.69
Two months later, the United States National Council on Disability, an independent
federal agency advising the President on disability issues, launched a study to
review and assess the extent to which the foreign assistance policy of the United
persons, including in the area of sexual and reproductive health and populationbased public health programmes; . . .’ Id. at art. 25(a).
67
With regard to Article 12, it seems clear that the progressive nature of a supported
decision-making framework requires law and policy reform in most if not all
countries around the world. This is a crucial issue, but one that goes beyond the
boundaries of this analysis.
68
See R. Sannerholm, ‘Legal, Judicial, and Administrative Reforms in Post-Conflict
Societies: Beyond the Rule of Law Template’, 12 Journal of Conflict and Security
Law 1 (2007), 65 at 79 (noting that ‘human rights treaties are often used as a model
for a review and overall assessment of the legal framework’ of a country and that
they prompt ‘interaction and integration of international standards on human rights
into the national legal system during a short period of time’).
69
See Press Release, United States Mission to the United Nations, Remarks by
Ambassador Susan Rice and White House Senior Advisor Valerie Jarrett at the
U.S. Signing of the UN Convention on the Rights of Persons with Disabilities,
United Nations Headquarters, USUN 156(09) (30 July 2009), available at
<http://www.archive.usun.state.gov/press_releases/20090730_156.html> (accessed
18 May 2010).
38
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States is disability inclusive and the possible implications of CRPD ratification,70
especially in the light of Article 32’s requirements relating to international
cooperation.71 The President’s appointment of a senior advisor on disability
issues within the Federal Emergency Management Agency (FEMA), which is
part of the Department of Homeland Security, is likewise fostering CRPD-related
dialogue inasmuch as FEMA is considering the implications of Article 11 for its
international humanitarian and disaster response programming.72
The signing of the CRPD by the United States likewise has connected the
specific issue of disability human rights to a broader national human rights
dialogue. Mainstream human rights conferences are now routinely including
disability human rights issues as part of their agenda,73 and American think tanks
are beginning to signal their engagement with disability rights issues within the
framework of the CRPD.74 Finally, both mainstream civil rights75 and human
rights organizations76 are taking note of the CRPD signing and endeavouring
National Council on Disability, Foreign Policy and Disability: Legislative Strategies
and Civil Rights Protections to Ensure Inclusion of People with Disabilities
(September 2003), available at <http://www.ncd.gov/newsroom/publications/2003/
foreign03.htm> (accessed 18 May 2010).
71
CRPD, UN Doc A/61/611, at art 32(a) (‘Ensuring that international cooperation,
including international development programmes, is inclusive of and accessible to
persons with disabilities.’).
72
The President appointed Marcie Roth as Senior Advisor for Disability Issues
at FEMA, and she assumed her duties on 1 July 2009. Disability Preparedness,
Monthly Updates—July/August 2009 (2009), available at <http://www.disability
preparedness.gov/bulletins/jul_aug_09.htm> (accessed 18 May 2010).
73
See, e.g., Human Rights Law Institute and University of Connecticut School of Law,
Human Rights in the USA: A Conference at the University of Connecticut, 22-24
Oct., 2009, available at <http://web2.uconn.edu/hri/documents/HR%20USA%20
Schedule%209.30.09.pdf> (accessed 18 May 2010).
74
See, e.g., N. Langer (Henry L Stimson Center), The US and the UN Disability Treaty
(30 July 2009), available at <http://www.stimson.org/pub.cfm?ID=841> (accessed
18 May 2010).
75
See, e.g., C. Powell (American Constitution Society), Human Rights at Home:
A Domestic Policy Blueprint for the New Administration (October 2008), available
at <http://www.acslaw.org/files/C%20Powell%20Blueprint.pdf> (accessed 18 May
2010). (calling for United States ratification of the CRPD).
76
For example, Human Rights Watch recently announced the hiring of a disability
rights researcher for its reporting work. See Press Release, Human Rights
Watch, Full-Time Position Available: Researcher/Advocate on Disability Rights
(15 June 2009), available at <http://www.ndrn.org/jobs/HHR_Disability-RightsResearcher2009-06-10.pdf> (accessed 18 May 2010). For more on the traditional
exclusion of disability rights issues from mainstream human rights practice, see
generally J.E. Lord, ‘Disability Rights and the human rights Mainsteam: Reluctant
Gatecrashers?’, in C. Bob (ed.), The International Struggle for New Human Rights
(University of Pennsylvania Press, 2009), 83.
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to be more disability inclusive by addressing the historical gap and exclusion of
disability issues from their work.77
3.3.International Relations
Following authorization by the General Assembly to consider a specialized
disability human rights treaty in December 2001,78 States representatives debated
the necessity of such an instrument.79 During the first two Ad Hoc Sessions,
held in July 2002 and June 2003, the United States argued that disability was a
matter of domestic rather than international concern.80 Further, that the ADA’s
preeminence militated against signing or ratifying an international agreement
relating to disability rights.81
Consistent with this position the Bush administration sent a skeletal delegation
to initial negotiating sessions and did not permit those members in attendance
to formally intervene until late in the process. More engaged participation in
fact came not at the behest of the American disability rights community, but
instead at the prompting of the US right to life movement which strongly opposed
references to sexual reproductive rights and freedoms.82 American disengagement
was glaring in view of its extensive experience in the disability rights field,
much of which was intrepid at home and highly influential abroad.83 The Bush
administration’s aversion to cooperation was also particularly striking due to
To note a prominent example of such exclusion, Mental Disability Rights
International was formed in large part because Human Rights Watch and Amnesty
International did not consider the conditions under which persons with disabilities
were institutionalized as part of their mandate to report on situations of torture and
inhuman treatment. See <http://www.mdri.org> (accessed 18 May 2010).
78
United Nations Ad Hoc Committee on a Comprehensive and Integral International
Convention on Protection and Promotion of the Rights and Dignity of Persons with
Disabilities, UNGA Res 168, UN GAOR, 56th Sess., Supp. No. 168, UN Doc. A/
RES/56/168 (2001).
79
The CRPD’s drafting history is posted on the United Nations Enable website, available
at <http://www.un.org/esa/socdev/enable/rights/convtexte.htm> (accessed 18 May
2010).
80
See Second Session of the Ad Hoc Committee on a Comprehensive and Integral
International Convention on Protection and Promotion of the Rights of Persons with
Disabilities (New York, 16 to 27 June 2003) (Statement by Ralph F. Boyd, Assistant
Attorney General for Civil Rights) (‘the most constructive way to proceed is for each
Member State, through action and leadership at home, to pursue within its borders
the mission of ensuring that real change and real improvement is brought to their
citizens with disabilities.’).
81
Id.
82
See Seventh Session of the Ad Hoc Committee on a Comprehensive and Integral
International Convention on Protection and Promotion of the Rights and Dignity of
Persons with Disabilities, 16 January - 3 February 2006, List of Participants, p. 12,
UN Doc A/AC.265/2006/INF/1 (20 January 2006) (United States representatives).
83
See Stein and Stein, 58 Hastings Law Journal 6 (2007), 1203 at 1203-04 (noting that
‘the ADA has played a leading role in developing disability law outside the United
States, with more than forty countries adopting formulations of the statute’).
77
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references within the CRPD to American disability law (notably, the concept
of reasonable accommodation) and its inherent values (such as the emphasis
on independence and autonomy).84 Ultimately, reluctance by the United States
to share technical information deprived States’ representatives from years of
experience in a number of areas ranging from architectural barriers85 to inclusive
education86 that might have proven useful, particularly to those delegations from
countries with no existing disability rights framework.
In contrast, by signing the Convention,87 voicing support for its ratification,88
and providing technical assistance within the context of the Conference of States
See CRPD, UN Doc A/61/611, at art. 2 & 3(a) (noting that ‘“[r]easonable
accommodation” means 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,’ and that one of the
guiding principles of the CRPD was ‘[r]espect for inherent dignity [and] individual
autonomy including the freedom to make one’s own choices, and independence of
persons’).
85
E.g., Americans with Disabilities Act, at §12101(a)(5) (noting that ‘individuals
with disabilities continually encounter various forms of discrimination, including
… the discriminatory effects of architectural, transportation, and communication
barriers, … failure to make modifications to existing facilities and practices …’);
Rehabilitation Act, 29 U.S.C. §701, §§701-702 (1998) (establishing a Rehabilitation
Services Administration in order to ‘empower individuals with disabilities to
maximize employment, economic self-sufficiency, independence, and inclusion and
integration into society’) Id. at §701(b)(1); Architectural Barriers Act, 42 U.S.C.
§§4151-4156 (1968) (defining the standards for design, construction, and alteration
of buildings in order ‘to accommodate the physically handicapped’).
86
E.g., Individuals with Disabilities Education Improvement Act of 2004, Pub. L.
No. 108-446, 118 Stat 2647 (2004) (reauthorizing the Individuals with Disabilities
Education Act); Individuals with Disabilities Education Act, 20 U.S.C. §1400, §1415
(2006) (providing grants for state agencies to establish and maintain procedures ‘to
ensure that children with disabilities and their parents are guaranteed procedural
safeguards with respect to the provision of a free appropriate public education’);
Education for all Handicapped Children Act, Pub. L. No. 94-142, 89 Stat. 773 (1975)
(codified at 20 U.S.C. §1400, et seq., as amended) (requiring public schools accepting
federal funds to provide equal access to education for children with physical and
mental disabilities).
87
Human Rights Watch, US: Treaty Signing Signals Policy Shift, available at
<http://www.hrw.org/en/news/2009/07/24/us-treaty-signing-signals-policy-shift>
(accessed 18 May 2010).
88
In his proclamation, President Obama emphasized the continued significance of the
Americans with Disabilities Act and announced he would sign the Convention. ‘I am
proud to announce that the United States will sign the United Nations Convention
on the Rights of Persons with Disabilities, adopted by the United Nations General
Assembly in New York on December 13, 2006. The Convention … represents a
paradigm shift in protecting the human rights of 650 million people with disabilities
worldwide. We proudly join the international community in further advancing the
rights of people with disabilities.’ Proclamation No. 8398 (24 July 2009), available
84
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Parties,89 the Obama administration has demonstrated the commitment of the
United States to rejoining the global community generally,90 and to continuing
American leadership in the area of disability law and policy.91
It bears noting that, although the Bush administration was particularly
unreceptive to human rights treaties,92 cultural resistance to these instruments
(and indeed international law in general) originates more than half a century
earlier.93 Despite this the United States contributed significantly to the
development of the international human rights movement, which included the
participation of Eleanor Roosevelt and other Americans.94 However Senator
John W. Bricker of Ohio brought an abrupt end to this pioneering role in the
at <http://www.whitehouse.gov/the-press-office/remarks-president-rights-personswith-disabilities-proclamation-signing> (accessed 30 May 2010).
89
UN Enable, Second Session of the Conference of States Parties List of Side-Events,
available at <http://www.un.org/disabilities/documents/COP/CSP2-SideEvents
1Aug09-Website.doc> (accessed 18 May 2010). (advertising a side-event in which
the United States delegation welcomed NGO’s views related to the ratification of the
Convention).
90
See generally G. Ogilvy, ‘Belhas v. Ya’alon: The Case for a Jus Cogens Exception to
the Foreign Sovereign Immunities Act’, 8 Journal of International Business and Law
1 (2009), 169 at 193-94 (arguing that the positions of Bush and Obama concerning
the ICC, to which Bush ‘has been openly hostile’ reflect the differences in their
policies toward human rights abuses).
91
See <http://www.whitehouse.gov/issues/disabilities> (accessed 18 May 2010)
(expressing President Obama’s commitment to aiding citizens with disabilities,
including strengthening access to and improving the quality of health care,
promoting access to community living services, protecting civil rights, expanding
educational opportunities, and increasing access to employment).
92
S.L. Cummings and L.G. Trubek, ‘Globalizing Public Interest Law’, 13 UCLA
Journal of International Law and Foreign Affairs 1 (2008), 1 at 27 (noting ‘a central
challenge to the U.S. human rights strategy in the Bush era: how to use the human
rights system to exert pressure on a political administration bent on resisting the
force of international law.’); J.D. Greenberg, ‘Does Power Trump Law?’, 55 Stanford
Law Review 5 (2003), 1789 at 1814-15 (‘The administration of President George W.
Bush stands out as a uniquely aggressive and extreme proponent of a normative
realist paradigm in international affairs.’).
93
See R. Foot, ‘Exceptionalism Again: The Bush Administration, the “Global War
on Terror” and Human Rights’, 26 Law and History Review 3 (2008), 707 at 720
(‘Unilateralism, of course, has deep roots in the United States and is hardly a feature
solely associated with the Bush administration. In the human rights field, this aspect
of exceptionalism has long been particularly marked.’); E.M. Bruch, ‘Whose Law is
It Anyway? The Cultural Legitimacy of International Human Rights in the United
States’, 73 Tennessee Law Review 4 (2006), 669 at 672 and n 13 (‘although the United
States has often taken the lead globally in advancing international human rights, it
has been notoriously reluctant to ratify international human rights agreements or to
incorporate those agreements into domestic law’).
94
See generally M.A. Glendon, A World Made New: Eleanor Roosevelt and the
Universal Declaration of Human Rights, (Random House Trade, 2001).
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early 1950s.95 Couching his rhetoric in terms of national legal sovereignty (while
truly seeking to maintain domestic racial apartheid), Senator Bricker proposed
an amendment to the United States Constitution that would have made all
treaties non-self-executing.96 Significantly, such a measure would have precluded
individuals from invoking human rights treaty provisions in domestic courts
absent implementing legislation.97 President Eisenhower defeated the Bricker
Amendment, but success came at a cost, with that administration promising not
to accede to any international human rights treaties.98
The legacy of Senator Bricker, who saw international human rights as a major
threat to the preservation of domestic discrimination – and especially the de
jure racial discrimination he supported99 – lives on in enduring United States’
resistance to participating in human rights treaties.100 Notably, the United States
has the poorest ratification record of human rights treaties among all industrialized
nations, having ratified only three of twenty-six international human rights
See D.Tananbaum, The Bricker Amendment Controversy: A Test of Eisenhower’s
Political Leadership, (Cornell University Press, 1988).
96
L. Henkin, ‘U.S. Ratification of Human Rights Conventions: The Ghost of Senator
Bricker, 89 American Journal of International Law 2 (1995), 341 at 348 (‘In its
principal version, the Bricker Amendment included the following provision:
“A treaty shall become effective in the United States only through legislation which
would be valid in the absence of treaty”.’).
97
For a discussion of the processes of national-level adoption, see J.E. Lord and
M.A. Stein, ‘The Domestic Incorporation of Human Rights Law and the United
Nations Convention on the Rights of Persons with Disabilities’, 83 Washington Law
Review 3 (2008), 449.
98
L. Henkin, 89 American Journal of International Law 2 (1995), 341 at 348-49.
99
Id. at 348-49 (explaining that the proposed amendment ‘represented a move by anticivil-rights and “states’ rights” forces to seek to prevent … bringing an end to racial
discrimination and segregation by international treaty’).
100
Conservative legal academics have defended this practice by arguing that it is
necessitated by the presumed sovereignty of domestic legal norms. See, e.g.,
J.O. McGinnis and I. Somin, ‘Should International Law Be Our Law?’, 59 Stanford
Law Review 5 (2007), 1175 at 1239-40 (claiming that often ‘human rights protection
is not an international public good’; therefore, ‘it cannot justify the overriding of
U.S. law by international law.’); R.P. Alford, ‘Misusing International Sources to
Interpret the Constitution’, 98 American Journal of International Law 1 (2004), 57
at 58-59 (arguing that using international sources to interpret the U.S. Constitution
is ‘inadvisable’ because it ‘could have the unintended consequence of undermining
rather than promoting numerous constitutional guarantees’). Other legal academics
have disagreed. See, e.g., T.J. Melish, ‘From Paradox to Subsidiarity: The United
States and Human Rights Treaty Bodies’, 34 Yale Journal of International Law 2
(2009), 389 at 444 (arguing against ‘caricaturing human rights law in absolutist
terms as contrary to and in direct conflict with U.S. constitutionalism, democracy,
and sovereignty’); T.A. Aleinikoff, ‘Thinking Outside the Sovereignty Box:
Transnational Law and the U.S. Constitution’, 82 Texas Law Review 7 (2004), 1989
at 1994 (arguing that ‘[a]s the products of consensual acts, the impacts of these
conventions ought to be seen as the results of an exercise of sovereignty, not as
evidence of a lapse of sovereignty’.).
95
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treaties.101 However, unlike other potential human rights treaty ratifications that
might garner United States’ consideration – the Convention on the Rights of the
Child,102 and the Convention on the Elimination of all Forms of Discrimination
Against Women103 – disability law is an area in which the United States claims a
precedence that it can reaffirm.
3.4.Transatlantic Dialogue
One significant opportunity for the Obama administration to increase American
transnational disability-based dialogue – both to share information, as well as to
learn from other States’ experiences – is to build on the existing New Transatlantic
Agenda established in 1995 between the European Union and the United States.104
The Transatlantic Declaration on EC-US Relations was adopted in 1990,105 and
amended and expanded by a New Transatlantic Agenda in 1995106 to include,
among other mandates, the promotion of democracy and development agendas
and engendering creative solutions to global issues.107 This linkage is particularly
significant given the potential for development assistance to help foster ratification
and implementation of the CRPD. Realization of the New Transatlantic Agenda
is tasked to a Senior Level Group that meets four to six times annually to assess
and report on progress and identify new priorities.
Notably, disability was added as a thematic area in the Senior Level Group’s
1998 Report to the US-EU Summit. Subsequently, two transatlantic conferences
identified equal and accessible access to information and communication
technology (ICT) as a critical issue;108 and another pair of transatlantic conferences
A. Pereira, ‘Live and Let Live: Healthcare is a Fundamental Human Right’, 3
Connecticut Public Interest Law Journal 2 (2004), 481 at 488-89 (‘[T]he United
States has ratified only three of the twenty-six available human rights treaties, the
lowest number for any industrialized nation.’).
102
UNGA Res 44/25, UN GAOR, 44th Sess., Supp. No. 49, at 161, UN Doc A/44/49
(1989).
103
UNGA Res 34/180, UN GAOR, 34th Sess., Supp. No. 46, at 193, UN Doc A/34/46
(1981).
104
We acknowledge Professor Gerard Quinn and Ms. Aisling de Paor for providing us
with essential information on this section. We draw heavily from their policy paper.
105
Available at <http://ec.europa.eu/external_relations/us/docs/trans_declaration_90_
en.pdf> (accessed 18 May 2010).
106
Available at: <http://ec.europa.eu/external_relations/us/docs/new_transatlantic_
agenda_en.pdf>.
107
See also Transatlantic Economic Partnership 1998, available at <http://trade.
ec.europa.eu/doclib/docs/2006/march/tradoc_127675.pdf> (accessed 18 May 2010);
EU-US Initiative to Enhance Transatlantic Economic Integration and Growth, 2005,
available at <http://trade.ec.europa.eu/doclib/docs/2006/march/tradoc_127675.
pdf> (accessed 18 May 2010).
108
Harnessing the Information Society to Raise Employment Levels for People with
Disabilities (EU-US Conference, Madrid, 26 October, 1998); Access of People with
Disabilities to Employment (EU-US Seminar, Brussels, 17 November, 2003).
101
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focused on employment opportunities as essential priorities.109 These issues are
important, both on their own merit, and in terms of the CRPD’s agenda. However,
as Professor Quinn and Ms. De Paor note, the slate of topics under discussion can
also be expanded to education, health care, housing, and transportation, all of
which also are core Convention issues.
The New Transatlantic Agenda thus provides an opportunity to foster mutually
beneficial and informed US-EU dialogue around the CRPD. It represents one
among many opportunities for fostering shared understandings around disability
human rights110 and in that sense reflects the expressive law potential of the
CRPD.111 It also offers promise for advancing implementation through information
exchange on good practices and replicable models in key issue areas. Such
opportunities for dialogue are essential to help evoke meaningful implementation
that is compatible with the principles that underpin the CRPD and to continue the
generative process initiated during the CRPD drafting.
4.Conclusion
Ratifying the CRPD presents for the United States an opportunity to bring
together domestic and international disability rights frameworks, particularly
given that much of what the Convention offers was informed by the American
disability law experience.112 It offers the chance for the United States to engage
in an introspective review of its prevailing laws, policies, and practices and to
consider any resulting shortcomings that require either stronger compliance
measures and/or adjustments in law and policy.113 In addition, the signing of the
Information Exchange on Exploring Employment and Retention Strategies for
People with Disabilities (EU-US Conference, Washington DC, 7 February, 2006);
Employment of Persons with Disabilities (EU-US Seminar, Brussels, 5 November,
2009).
110
See generally M.A. Stein, 95 California Law Review (2007), 75.
111
We have written elsewhere about the expressive potential of the CRPD law making
process, one that continues post-ratification through the vehicles created by the
treaty, such as the Conference of States Parties, and through other dialogue at the
national, regional and international levels. See M.A. Stein and J.E. Lord, ‘The
United Nations Convention on the Rights of Persons with Disabilities as a Vehicle for
Social Transformation’, in Comisión Nacional de los Derechos Humanos de México,
Network of the Americas & Office of the United Nations High Commissioner for
Human Rights (eds,) National Monitoring Mechanisms of the Convention on the
Rights of Persons with Disabilities (2008), 109. For more on expressive law, see
M.A. Stein, ‘Under the Empirical Radar: An Initial Expressive Law Analysis of
the ADA’, 90 Virginia Law Review 4 (2004), 1151; A. Geisinger, ‘A Belief Change
Theory of Expressive Law’, 88 Iowa Law Review 1 (2002), 35.
112
When President Barack Obama signed the Convention on the Rights of Persons with
Disabilities, he noted that it was ‘continu[ing] to build on the ADA’. See Proclamation
No. 8398, 74 Fed. Reg. 37923 (30 July 2009).
113
This was acknowledged by President Obama when he signed the CRPD. ‘[W]e
recognize that our country has made great progress …. [d]espite these achievements,
much work remains to be done. People with disabilities far too often lack the choice
to live in communities of their choosing; their unemployment rate is much higher
109
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CRPD by the United States should prompt a useful – and one hopes – meaningful
dialogue both across the federal government and civil society that can serve as an
impetus for progressive change. Finally, CRPD ratification provides a clear signal
to the international community that the United States is engaged as a progressive
actor in human rights foreign policy, particularly in view of its historical
leadership in the field of disability law.114 In the best case scenario, ratification by
the United States would represent more cooperation internationally. It would no
doubt serve as the impetus for sharing successive strategies and replicable models
for disability-inclusive development programming given the shared interest
of both the United States and many other donors to make their development
programming more inclusive. It would also help to foster meaningful dialogue
on disability and human rights issues in both formal and informal international
mechanisms, including for example, cross-cultural dialogue on disability issues as
most recently supported by the United States Institute of Peace. More specifically,
it could generate a progressive development of transatlantic US-EU dialogue,
particularly in view of the New Transatlantic Agenda. While neither US or EU
ratification is yet a reality, and American ratification requires what may seem an
insurmountable hurdle of 67 senatorial votes, it would most surely bring the US
back into the global disability rights fold and helpfully unite US-EU interests in
encouraging progressive disability rights agendas worldwide.
than those without disabilities; they are much likelier to live in poverty; health care
is out of reach for too many; and too many children with disabilities are denied a
world-class education.’ See Id.
114
The American Civil Liberties Union and other progressive groups applauded
President Obama’s signing of the CRPD as a ‘reengagement of the United States
in international human rights efforts’. See Press Release, American Civil Liberties
Union, Obama to Sign International Treaty on the Rights of Persons with Disabilities:
ACLU Welcomes Announcement on the ADA’s 19th Anniversary, (24 July 2009),
available at <http://www.commondreams.org/newswire/2009/07/24-4> (accessed
18 May 2010).
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