Accessing Economic, Social and Cultural Rights: The Convention on the Rights of Persons with Disabilities
Michael Ashley Stein
William & Mary Law School; Harvard Law School
affiliation not provided to SSRN
January 21, 2010
EQUALITY AND ECONOMIC, SOCIAL AND CULTURAL RIGHTS, Malcolm Langford, Eibe Reidel, eds., with Janet E. Lord, 2009
William & Mary Law School Research Paper No. 09-34
People with disabilities account for twenty percent of the world’s poorest individuals, a phenomenon that persists within developing and developed countries alike. Disabled persons represent a substantial minority group as some ten percent of the world’s population, or some six hundred and fifty million people, has a disability. The impoverished conditions of people with disabilities persist, despite efforts by international disability rights advocates to ensure their equality. Indeed, the continuing economic inequity and social exclusion of disabled persons worldwide was the impetus for the drafting of the United Nations Convention on the Rights of Persons with Disabilities (CRPD, or the Convention).
Adopted in 2006 with rapid entry into force by mid-2008, the Convention lays out a comprehensive human rights framework. Its provisions capture disability non-discrimination and equality, and apply them across the full spectrum of civil, political, economic, social and cultural rights. Notably, unlike both the Covenant on Economic, Social and Cultural Rights (ICESC) and the European Social Charter, the CRPD and an Optional Protocol adopted at the same time, provides for individual and group complaints procedures, as well as an inquiry procedure. These mechanisms serve to erode the notion that rights requiring positive provisions are a matter of policy and not the basis for individual claims.
This chapter considers the contributions of the CRPD to the progressive development of international human rights law and more specifically, the normative content of non-discrimination and substantive equality as applied to economic, social and cultural (ESC) rights. It begins by charting the paradigmatic shift from a medical model of disability to a rights-oriented social model that makes possible a substantive (formal) equality approach to dismantling persistent disability discrimination and socio-economic deprivation. Thereafter, the chapter analyzes the normative content of non-discrimination and equality in the CRPD, and the explicit linkage of State obligations to eliminate disability discrimination with guarantees in respect of achieving ESC rights. In doing so, it uses the context of employment to demonstrate that both traditionally conceived types of rights are necessary for attaining full enjoyment of human rights; further, it shows that the full spectrum of righ! ts in practice are interrelated and dependent upon each other. The chapter concludes with a brief overview of the catalog of ESC rights as set forth in the CRPD, and explores the relationship between such rights and the application of non-discrimination and equality.
[Further to publisher request only an abstract is furnished.]
Keywords: disability, human rights, development, economic, social and cultural rights, nondiscrimination, equality
Date posted: January 23, 2010 ; Last revised: July 15, 2014
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