The UN Convention on the Rights of Persons With Disabilities

by Arnardottir, Oddny Mjoll; Quinn, Gerard

ISBN13: 9789004169715

ISBN10: 9004169717

Format: Hardcover

Pub. Date: 2009-05-31

Publisher(s): Martinus Nijhoff

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Summary

This collection of essays examines the International Convention on the Rights of Persons with disabilities from the global, European and Scandinavian perspectives and the challenge of transposing its provisions into national law. It marks the coming of age of disabilty as a core human rights concern.

Preface	p. xi
Acknowledgments	p. xiii
Introduction	p. xv
From Social Policy to the Human Rights Law of the 21st Century
Disability Studies, the Social Model and Legal Developments	p. 3
Introduction	p. 3
Disability Studies - Rethinking Disability	p. 4
What is Disability?	p. 8
Social Models of Disability	p. 9
The British Social Model of Disability	p. 9
The Nordic Relational Approach to Disability	p. 12
The North American Minority Group Approach	p. 14
Disability Studies and Legal Development	p. 15
Conclusion	p. 16
Future Prospects for the United Nations Convention on the Rights of Persons with Disabilities	p. 17
Toward a Disability Human Rights Convention	p. 18
An Overview of the Convention	p. 23
Future Prospects for the Convention	p. 31
The Convention as an Expressive Value Trigger	p. 31
The Convention as a National Action Trigger	p. 35
The Convention as a Social Integration Trigger	p. 38
Conclusion	p. 39
A Future of Multidimensional Disadvantage Equality?	p. 41
Introduction	p. 41
The Principle of Equality as the Leitmotif of the CRPD	p. 42
The Rights of Persons with Disabilities in light of the Development of the Principle of Equality in Human Rights Law	p. 47
Universal Sameness: 1950s-1970s	p. 47
Specific Difference: 1970s-1990s	p. 49
Multidimensional Disadvantage: Current Trends	p. 54
Conclusions	p. 64
From Invisibility to Indivisibility: The International Convention on the Rights of Persons with Disabilities	p. 67
Introduction	p. 67
An Integral Convention?	p. 68
All Rights have Costs	p. 70
The Justiciability of Indivisible Rights	p. 73
Conclusion	p. 76
The European Context
The UN Convention on the Rights of Persons with Disabilities and European Disability Law: A Catalyst for Cohesion?	p. 81
Introduction	p. 81
Policy Background	p. 82
Inclusion	p. 89
Reasonable Accommodation	p. 93
Material Scope	p. 105
Conclusion	p. 107
Breaking New Ground: The Implications of Ratification of the UN Convention on the Rights of Persons with Disabilities for the European Community	p. 111
The Interrelationship between EC and International Law	p. 113
The UN Convention and the Obligations it Imposes	p. 115
The Competences of the EC - Overlaps with the Convention	p. 117
The EC Competence to Negotiate and Sign the Convention	p. 119
EC Competences to Adopt Legislation Specifically referring to Persons with Disabilities - Existing Instruments	p. 122
Discrimination	p. 122
The Internal Market	p. 123
Transport	p. 125
Employment	p. 126
EC Funding	p. 127
Further Possible EC Competences Falling within the scope of the Convention	p. 128
Implications of the Convention for EC Law	p. 129
Non-Discrimination and Equality	p. 130
The Convention	p. 130
Existing Instruments	p. 133
New Instruments	p. 134
Other Fields - The Internal Market, Transport and Beyond	p. 136
The Convention	p. 136
Existing Instruments	p. 136
New Instruments	p. 137
Monitoring the implementation of the Convention and the Involvement of Civil Society	p. 138
Conclusion	p. 139
The Protection of the Rights of Persons with Disabilities in the Case Law of the European Court of Human Rights	p. 141
Introduction	p. 141
Legal Framework	p. 142
Status of Persons with Disabilities in the Case Law of the Court	p. 143
Definition of Disability	p. 143
Article 3 - Prohibition of Torture and Degrading or Inhuman Treatment or Punishment	p. 145
Conditions of Detention or Imprisonment	p. 145
Expulsion and Deportation of Aliens	p. 147
Article 5 - Right to Liberty and Security	p. 149
Article 8 - Right to Respect for Private and Family Life	p. 151
Other Rights	p. 155
Article 6 - Right to a Fair Trial	p. 155
Article 10 - Freedom of Expression	p. 156
Article 14 and Protocol 12 - Non-discrimination	p. 156
Article 1 of Protocol 1 - Protection of Property	p. 157
Article 2 of Protocol 1 - Right to Education	p. 158
Summary and Conclusions	p. 159
Extracting Protection for the Rights of Persons with Disabilities from Human Rights Frameworks: Established Limits and New Possibilities	p. 163
Introduction: What Makes the UN Convention on the Rights of Persons With Disabilities Special?	p. 163
The Limits of the 'Mainstream' Civil and Political Rights Frameworks	p. 168
The Marginalisation of Disability within National and International Human Rights Frameworks	p. 171
The Relationship between Canadian Substantive Equality Approaches and Disability Rights	p. 176
The Marginalisation of Disability Within the ECHR Jurisprudence	p. 178
The Potential for Extracting Greater Rights Protection for Persons with Disabilities from the ECHR	p. 185
Giving Substance to the UN Convention on the Rights of Persons with Disabilities - Applying 'Minimum Core' and 'Progressive RealisationÆ Analysis in the Context of Disability	p. 189
Protecting the Rights of Persons with Disabilities in Practice - The Experience of the European Committee on Social Rights	p. 190
The Emergence of a Coherent Disability Rights Jurisprudence	p. 197
Conclusion	p. 198
Bringing the Treaty Home
General Themes Relevant to the Implementation of the UN Disability Convention into Domestic Law: Who is Responsible for the Implementation and how should it be Performed?	p. 201
Initial Measures	p. 202
The First Substantive Issues	p. 203
Specific Obligations of the Convention	p. 205
Mapping the Country	p. 206
The Substantive Implementation	p. 208
Progressive Realisation	p. 210
Reasonable Accommodation	p. 210
A Global Index for the Convention	p. 211
National Implementation and Monitoring	p. 212
Conclusion	p. 213
Resisting the 'Temptation of Elegance': Can the Convention on the Rights of Persons with Disabilities Socialise States to Right Behaviour?	p. 215
Introduction	p. 215
Identifying 'Democratic Failure' and the Curative Potential of the Convention	p. 221
Why Monitor - A Catalyst for 'Persuasion' and 'Socialisation'	p. 224
The Need to Police Reservations that Deflect the Process of Change	p. 229
Innovative Monitoring Proposals on the Table	p. 245
The Implementation and Monitoring Process under the Convention - Some Innovations	p. 250
Conclusions - Prospects for 'Persuasion' and 'Socialisation'	p. 255
The Implementation of the UN Convention and the Development of Economical and Social Rights as Human Rights	p. 257
Introduction	p. 257
The CRPD's Approach to the Classification of Human Rights	p. 259
The Preparatory Phase of the CRPD	p. 262
The Effect of the Classification on the Implementation	p. 267
The Enjoyment of Human Rights of Persons with Disabilities without Discrimination in the Judgments of the Supreme Court of Iceland	p. 271
Conclusion	p. 277
The UN Convention in Nordic Domestic Law - Lessons Learned from other Treaties	p. 279
Introduction	p. 279
Lessons from Other Conventions and from Theory	p. 283
The Application of U.N. Human Rights Conventions in Domestic Courts	p. 283
Principles Stated by the Courts and Theory	p. 290
Statements of Governments Concerning Unincorporated Treaties	p. 292
Factors from Theory that may Influence how much Attention the Courts pay to International Obligations	p. 295
Factors regarding the CRPD, that may Influence how the Convention will fare in Domestic Courts	p. 297
Conclusions	p. 300
Notes on Contributors	p. 303
Index	p. 309
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The UN Convention on the Rights of Persons With Disabilities

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The UN Convention on the Rights of Persons With Disabilities

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