Equality and Non-Discrimination in the United
Nations Convention on the Rights of Persons with
Disabilities (CRPD): Interpretation of these Norms
in Accordance with Human Rights Research
Methodology
Andrea Broderick
Marie Curie Research Fellow
Ph.D. Candidate
Department of International & European Law
___________________________________________________
Seminar, Maastricht Centre for Human Rights
24th January 2013
Introduction

Title of research project: “Non-Discrimination: Full
and Effective Participation and Inclusion in Society”

Summary of project: Interpretation of Article 5 of the
CRPD and related articles.

Critical Analysis of the extent to which equality and
non-discrimination norms are embedded in the
substantive provisions of the CRPD
Introductory Remarks
“Scholarship in the field of human rights is often lacking
in attention to methodology”
(Fons Coomans, Fred Grunfeld and Menno T. Kamminga (eds), Methods of
Human Rights Research)
_______________________________________________
“Wishful thinking and sloppy legal analysis tend to be too
common in international human rights law”
(John Crook, ‘The International Court of Justice and Human Rights’ )
Structure of the Presentation
Normative
content of Article 5 of the CRPD
Introduction
to my research project
Structure of
my Ph.D.
Outline
of research questions
Outline
of the methodological tools used throughout my
research project to answer the research questions

Illustration of the manner in which the normative
provisions in Article 5 of the CRPD are being interpreted
Article 5 of the CRPD

Article 5(1) CRPD: States Parties recognize that all persons are
equal before and under the law and are entitled without any
discrimination to the equal protection and equal benefit of the law.

Article 5(2) CRPD: States Parties shall prohibit all discrimination
on the basis of disability and guarantee to persons with disabilities
equal and effective legal protection against discrimination on all
grounds.

Article 5(3) CRPD: In order to promote equality and eliminate
discrimination, States Parties shall take all appropriate steps to
ensure that reasonable accommodation is provided.

Article 5(4) CRPD: Specific measures which are necessary to
accelerate or achieve de facto equality of persons with disabilities
shall not be considered discrimination under the terms of the present
Convention.
Introduction to my Research Project

Article 5 of the CRPD goes beyond norms in
international law to date

Inclusion of reasonable accommodation requirement
within the non-discrimination norm: States must ensure
that private entities provide reasonable accommodation
unless it amounts to an “undue or disproportionate
burden”

Balancing of interests of disabled person and private
entities

Reasonable accommodation is embedded in substantive
articles of the CRPD e.g. right to work/education
Structure of my Ph.D.

Chapter on treaty interpretation (Article 5 CRPD)

Chapter on Comparative and Theoretical Framework of
the equality and non-discrimination norm in the CRPD

Chapter on reasonable accommodation requirement

Scope of the non-discrimination obligation as a whole –
extent to which the reasonable accommodation
requirement is embedded in the substantive articles of
the CRPD – chapters on the substantive rights
(accessibility, employment, education, etc.)

Case study on interaction of the CRPD and Council of
Europe
Primary Research Question

How can the obligation to ensure non-discrimination in
the CRPD be utilised as a tool to advance the equality of
people with disabilities and increase their participation
and inclusion in society?
Sub-Research Questions

What is meant by the equality and non-discrimination
norms in the context of the CRPD?

To what extent can the non-discrimination provision in
the CRPD advance the substantive equality of people
with disabilities?

To what extent does the reasonable accommodation
requirement in the CRPD require the balancing and
sharing of burdens and what are the tensions inherent in
and the implementation challenges associated with this
duty?

To what extent is the reasonable accommodation
requirement implicitly reflected in other substantive
provisions of the CRPD?
Sub-Research Questions (Continued)

How can the concept of balancing and sharing of
burdens in the reasonable accommodation requirement
translate to the implementation of other provisions of the
Convention, especially those rights which require
progressive realisation (such as accessibility)?

What influence is the CRPD having, or what influence
may it have, on the interpretation of the nondiscrimination provisions of the European Convention
on Human Rights?
Methodological Tools used in my Research
Project

Primary sources: Text of the CRPD; Vienna
Convention on the Law of Treaties (VCLT); Case-law of
national and regional courts referring to CRPD

Subsidiary sources: General Comments and
Concluding Observations of the core human rights treaty
bodies (including Committee on the Rights of Persons
with Disabilities). State Party reports.

Secondary source: Academic commentary
First Section of Research Project:
Treaty Interpretation

Research question: What is meant by the equality and
non-discrimination norm in the CRPD?

Methodology: Vienna Convention on the Law of Treaties
(VCLT)

Article 31 VCLT:
- Literal Interpretation
- Systematic Interpretation
- Teleological Interpretation

Article 32 VCLT:
- Drafting History
Systematic (Contextual)
Interpretation
Literal Interpretation




Objective
criteria
interpretation
of
Respect the primacy of the
text
Ordinary meaning of the
text
Determine
ordinary
meaning in its context not
in the abstract

Look to terms of the treaty in
their context

Read the treaty as a whole

Any subsequent agreement
between the parties regarding
the interpretation of the treaty

Any subsequent practice in the
application of the treaty

Any
relevant
international law
rules
of
Teleological
Interpretation

Secure a meaning which is
consistent with object and
purpose of the treaty under
interpretation

“Object and purpose” plays
a major role in the
interpretation of human
rights treaties
Historical Interpretation

Drafting history of the
negotiations,
preliminary
drafts
of
CRPD,
correspondence and public
statements
of
the
negotiators

Not to be regarded as an
alternative,
autonomous
sources

Only to be used in order to
clarify ambiguities
Interpretation of Human Rights Treaties
VCLT will form the starting point of my
interpretation of the CRPD. However additional
rules will be taken into account:

Rule of Effective Interpretation

Rule of Evolutive/Dynamic Interpretation

Rule of Autonomous Interpretation
Evolutive/Dynamic
Interpretation
Effective Interpretation


Aim of human rights
interpretation
–
To
promote
the
effective
application (effet utile) of
the
instrument
under
interpretation
Aim of project: Achieve an
understanding
of
the
content of the equality
norm which makes the
protection of human rights
in CRPD effective

Changes in law and society

General context in which
the treaty applies

Human rights are not static

An
overly
dynamic
interpretation which goes
beyond the international
consensus underlying the
treaty
Autonomous
Interpretation
Holistic Interpretation

Human rights have
autonomous meaning

This meaning is not
equivalent to the meaning
given to them in domestic
law
an

Combine all of the above
elements,
rather
than
adopting
a
hierarchal
approach to interpretation

Cumulative rather than
consecutive application
Second Section of Research Project:
Theoretical and Comparative Framework

Research question: To what extent does the nondiscrimination obligation outlined in the CRPD
meaningfully advance the right to equality for people
with disabilities?

Related question: How do the concepts of equality and
non-discrimination contained in the CRPD fit within the
various theoretical conceptions of equality and nondiscrimination which have been elaborated to date?
Methodology for Theoretical and Comparative
Framework

Firstly, I will consult academic commentary analysing
theoretical models of equality (formal equality versus
substantive equality etc)

I will conduct traditional legal doctrinal analysis
regarding the interpretation of international legal norms
in line with those models.

I will look to the work of the relevant treaty bodies on
the interpretation of equality norms in international
instruments preceding the CRPD, including but not
limited to, the ICCPR (Article 26) and, in particular,
anti-discrimination treaties such as CEDAW and CERD.
Third Section of Research Project:
Reasonable Accommodation Duty

Research question: To what extent does the reasonable
accommodation requirement in the CRPD require the
balancing and sharing of burdens and what are the
tensions inherent in and the implementation challenges
associated with this duty?

Related question: What is the link with progressive
realisation of human rights treaties?

Methodology: Academic literature on
accommodation in general and literature on
realisation of human rights treaties. Work
Committee on the Rights of Persons with
(State Party Reports).
reasonable
progressive
of the UN
Disabilities
Fourth Section of Research Project:
Interaction between Reasonable Accommodation
and Substantive Provisions of CRPD

Research question: To what extent is the reasonable
accommodation requirement implicitly reflected in the
other substantive provisions of the CRPD?

Related research question: How can the concept of
balancing and sharing of burdens in the reasonable
accommodation
requirement
translate
to
the
implementation of other provisions of the Convention,
particularly those which require progressive realisation?

Methodology: Academic literature on reasonable
accommodation requirement in CRPD. Relevant works
of the UN Committee on the Rights of Persons with
Fifth Section of Research Project:
Case-Study on Interaction between CRPD and
Council of Europe

Research Question: What influence is the CRPD
having or what influence may it have on the
interpretation of the non-discrimination provisions of the
European Convention on Human Rights?

Methodology: Traditional legal doctrinal analysis of
case-law of the ECHR, which refers to the CRPD.
Analysis of secondary sources/academic commentary on
the interpretation of disability rights and equality/nondiscrimination in the Council of Europe.
Example of Research Conducted to date
Interpretation of Article 5(2) of the CRPD:
Requirement to ensure “equal and effective legal
protection against discrimination”:

Sources used to date: Drafting history of CRPD and
general comments of the treaty bodies, interpretation of
similar provision in Article 26 ICCPR

Positive duty of protection on states to take active
measures to combat discrimination

Particular onus on states to ensure protection against
discrimination in private sector
Example of Research Conducted to date

Drafting history of CRPD: Active measures required
over and above enactment of non-discrimination
provisions in legislation and

Comparison with interpretation of Article 26
ICCPR: Manfred Nowak states that the primary
significance of “equal and effective protection against
discrimination lies in obligation on states to provide
protection against discrimination by private parties

General Comments on obligation of protection:

General Recommendation 28, CEDAW Committee
General Comment 20, CESCR

Example of Research Conducted to date

Drafting History CRPD: Addition of the word “legal”
in the phrase “equal and effective protection against
discrimination” – appears to signify that states will be
required to adopt effective sanctions, remedies and
monitoring mechanisms

Concluding observations of CESCR and CERD
Committee: Anti-discrimination legislation must be
effectively monitored
CONCLUSION
THANK YOU FOR YOUR ATTENTION
Contact: andrea.broderick@maastrichtuniversity.nl