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Content uploaded by Andrea Broderick
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Laws 2016, 5, 38; doi:10.3390/laws5040038 www.mdpi.com/journal/laws
Article
Harmonisation and Cross-Fertilisation of Socio-
Economic Rights in the Human Rights Treaty Bodies:
Disability and the Reasonableness Review Case
Study
Andrea Broderick
Department of International and European Law, Maastricht University, Maastricht 6211, the Netherlands;
andrea.broderick@maastrichtuniversity.nl; Tel.: +353-861-016-706
Academic Editor: Anna Arstein-Kerslake
Received: 19 May 2016; Accepted: 14 September 2016; Published: 25 September 2016
Abstract: In light of the recent adoption of the Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights (OP-ICESCR) and the Optional Protocol to the Convention on the
Rights of Persons with Disabilities (OP-CRPD), there is a necessity for harmonisation among the treaty
bodies, particularly in the area of socio-economic rights. The equality norm in the CRPD, including the
duty to reasonably accommodate, is an important facilitator of socio-economic rights. This article sets
forth the opportunities for cross-fertilisation of socio-economic rights, and disability rights in particular,
at the level of international human rights law and beyond, as well as the potential that exists for social
change at the domestic level. The CRPD Committee and the United Nations Committee on Economic,
Social and Cultural Rights (UNCESCR) will undertake the task of assessing measures adopted by States
related to alleged violations under the optional protocols and will determine compliance with treaty
obligations under the State reporting procedure. In that regard, a framework of “reasonableness review”
is proposed, which could provide the opportunity to merge individual rights’ violations with broader
issues of socio-economic inequalities and could also lead to coherent implementation of the normative
content of socio-economic rights at the domestic level.
Keywords: disability; equality; reasonable accommodation; progressive realisation; socio-economic
rights; reasonableness review
1. Introduction
There has been a marked shift towards harmonised and integrated human rights treaty body
working methods at the international level. The treaty body reform and strengthening process has
been ongoing for some time now, with arguably limited success. In light of the established, and
expanding, system of individual communications under the core international human rights treaties,
the “necessity of harmonization, consistency and coherence of jurisprudence” is deemed to be of
“paramount importance” [1]. Nowhere does this statement ring truer than in the realm of disability
rights. Rowena Daw notes that “disability was, until very recently, the forgotten dimension of human
rights and went unacknowledged as a subject for a right to equality” ([2], p. 8). This situation has
changed substantially with the entry into force of the United Nations Convention on the Rights of
Persons with Disabilities (CRPD) and the establishment of the right to adjudication and remedy for
claims under the Optional Protocol to the CRPD (OP-CRPD).
The CRPD is a progressive human rights treaty, which endorses a substantive and
transformative model of equality. Substantive equality is concerned “with the effects of laws, policies
and practices and with ensuring that they do not maintain, but rather alleviate, the inherent
disadvantage that particular groups experience” ([3], para. 7). Transformative equality seeks to target
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the underlying structural inequalities that hinder the full enjoyment of rights by disadvantaged
groups. Within the realm of its substantive equality norm, the CRPD includes the duty to reasonably
accommodate persons with disabilities [4]. Reasonable accommodation entails positive measures—
adaptations and modifications to the environment and to established practices—to address the
unique needs of persons with disabilities in order to ensure the equal right to education and health,
among others. The duty to reasonably accommodate persons with disabilities spans all human rights
in the CRPD, both civil and political, as well as economic, social and cultural rights.
The equality norm is an important facilitator of socio-economic rights in the context of
marginalised groups. Furthermore, socio-economic rights are “an integral means by which systemic
disadvantage and inequalities are addressed” ([5] p. 220). Bruce Porter argues that “substantive
equality requires a recognition that to realise an equal right to effective remedies for all, [economic,
social and cultural rights] adjudication may have to meet different needs and develop new
approaches” ([6], p. 41). This article contends that “reasonableness review” is one such approach,
which could help to advance the realisation of socio-economic rights for disabled persons.
Reasonableness review has evolved at both the national and the international level, with a view to
providing a mechanism for adjudicating on the appropriateness of State action or inaction in realising
progressively socio-economic rights. It seeks to ensure that the content of socio-economic norms is
adjudicated upon in relation to the marginalised group in question, rather than basing an analysis on
technical or abstract indicators and benchmarks.
This article sets forth the inter-connectedness of treaty body adjudication and the opportunities
for harmonisation and cross-fertilisation of disability rights, and socio-economic rights more
generally, at the level of international human rights law (and beyond, at the regional level). This
article also addresses the potential that exists for a transformative human rights framework and for
social change at the domestic level if the human rights treaty bodies work together towards the
realisation of socio-economic rights, particularly in the context of persons with disabilities. The focus
of this paper is on the CRPD and the International Covenant on Economic, Social and Cultural Rights
(ICESCR), as well as the procedural mechanisms established under the two new optional protocols
to those treaties. Those procedural mechanisms harbour the potential to advance disability
discrimination and reasonable accommodation claims, provided that such claims are dealt with
coherently by the respective treaty bodies. The CRPD Committee and the United Nations Committee
on Economic, Social and Cultural Rights (UNCESCR) will both undertake the important task of
assessing the measures taken by States related to alleged violations under the optional protocols and
will determine compliance with treaty obligations under the State reporting procedure.
The core concern of this paper is to set forth the various criteria inherent in the duty to provide
reasonable accommodation, contained in articles 2 and 5(3) of the CRPD, and to apply those criteria
more generally to a framework of reasonableness review of socio-economic rights. The duty to
accommodate, and the obligation to realise progressively socio-economic rights to the maximum of
available resources, pursue different objectives—the reasonableness standard concerns the
implementation of economic, social and cultural rights in general and the duty to provide reasonable
accommodation relates to the prohibition of discrimination against disabled people.
Notwithstanding this, both obligations reflect, on the one hand, the needs and interests of persons
with disabilities and, on the other hand, the needs and interests of duty-bearers, including resource
limitations and other non-financial considerations. It is envisaged that the criteria forming part of the
reasonable accommodation norm may provide some degree of insight into the balancing of interests
that is implicit in the implementation of other rights and obligations in the disability sphere that are
subject to progressive realisation. These criteria will be drawn on throughout this article to shape a
framework of reasonableness review, which could provide the relevant committees with the
opportunity “to merge considerations of individual rights’ violations with broader issues of socio-
economic inequalities” ([5], p. 233) and could also lead to coherent implementation of the normative
content of socio-economic rights at the domestic level. The primary example used throughout the
paper to illustrate this framework of reasonableness review is the right to education.
In order to address the foregoing issues, this article is divided into six sections. The second
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section of this paper provides a brief overview of the treaty body reform and strengthening process.
The third section outlines the relevance of the ICESCR and the CRPD, as well as the Optional Protocol
to the ICESCR (OP-ICESCR) and the OP-CRPD to advancing the realisation of socio-economic rights
in the context of disability. Section 4 details the constituent elements of the reasonable
accommodation norm in the CRPD. Those elements can potentially aid in the construction of a
harmonised standard of reasonableness review of measures taken to implement socio-economic
rights (particularly in the disability context, but also more generally). Section 4 of this article also
contains a brief overview of progressive realisation of disability rights via the proposed framework
of reasonableness review. Section 5 of this article elaborates on the potential for social change that
exists in the disability context, and on a wider scale, through harmonisation and cross-fertilisation of
treaty body standards by means of a framework of reasonableness review. Finally, Section 6 contains
concluding remarks.
2. Treaty Body Reform and Strengthening
It has been acknowledged for some time now that the UN human rights treaty body system
“would benefit from institutional and other forms of strengthening in order to render it more efficient
and effective” [7]. Treaty body reform has also been the subject of much academic commentary [8].
One of the most pressing challenges for the human rights committees is to ensure coordination of
their activities with other treaty bodies and with other mechanisms within the UN seeking to ensure
protection and promotion of human rights. Harmonisation of the current modus operandi has been
high on the agenda of the treaty bodies since the reform and strengthening process began. However,
success has been limited. It is not just the treaty body working methods that need to be improved.
Most importantly of all, any reform and strengthening process must result in enhanced protection of
human rights on the ground.
The state reporting procedure is a central feature of the human rights treaty body system. It
offers an opportunity for each State Party to: Review the types of measures it has taken to “harmonize
national law and policy with the provisions of the relevant international human rights treaties to
which it is a party”; monitor progress in human rights implementation; assess future needs and goals
for more effective implementation of the treaties; and “plan and develop appropriate policies to
achieve these goals” [9]. The individual communications system, on the other hand, should provide
a mechanism by which to ensure that human rights are given concrete meaning in the context of the
lived experiences of disabled claimants.
The extent to which the jurisprudence and recommendations of the international human rights
treaty bodies are taken into account at the national, and indeed at the regional level, has long been
the subject of debate. Domestic courts and regional adjudicatory mechanisms, such as the European
Court of Human Rights, refer intermittently to the views of the treaty bodies. National courts have
described the general comments of the UNCESCR as “of importance for the interpretation and
jurisprudential development [of the Covenant] though they are not directly binding” [10]. However,
not all domestic courts have enthusiastically endorsed this source of international human rights law
[11]. Perhaps this is, in part, due to the vagueness of the normative standards emerging from the
treaty bodies and their lack of harmonisation inter se.
In the disability context, it is imperative that the treaty bodies develop coherent jurisprudence
and guidance for States Parties in the assessment of State action in order to ensure a more effective
realisation of the object and purpose of the relevant treaties at the national level. This paper seeks to
address that issue by setting out defined criteria, drawn from a reasonableness review framework, to
be considered by the human rights committees in their deliberations on disability rights, and socio-
economic rights generally. Before setting out in section five of this paper the criteria deemed essential
for consideration by the treaty bodies, section three of this paper demonstrates the links between the
ICESCR, the CRPD and the advancement of socio-economic rights in the disability context by means
of a framework of reasonableness review and section four sets out defined criteria stemming from
the reasonable accommodation norm, to be applied and elaborated on in Section 5.
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3. The ICESCR, the CRPD and their Optional Protocols: Advancing the Realisation of Socio-
Economic Rights in the Context of Disability
There are clear overlaps between standards in different human rights treaties and, as a result,
harmonisation and cross-fertilisation of the views of the human rights treaty bodies is not only
desirable, but essential, in order to ensure coherence of international and regional human rights
standards and effective implementation at the domestic level. This section of the paper provides an
overview of the relevance of the ICESCR and the CRPD, as well as their individual communications
mechanisms, to advancing socio-economic rights realisation in the disability context.
3.1. The ICESCR and Its Optional Protocol
The rights contained in the ICESCR are of great relevance to all marginalised groups, not least
persons with disabilities. The prohibited grounds of discrimination [12] listed in Article 2(2) of the
ICESCR do not include disability expressly. However, the inclusion of “other status” in Article 2(2)
emphasises the fact that the list is not exhaustive. General Comment 5 (1994) of the UNCESCR
confirms that disability-based discrimination falls under the label of “other status” in the ICESCR
([13], para. 5). It details the manner in which the treaty should be interpreted in order to ensure the
equal enjoyment of the rights specified therein by persons with disabilities. Akin to the CRPD,
General Comment 5 endorses the social constructionist approach to disability, by acknowledging the
fact that the rights of disabled people are hindered in circumstances where discriminatory societal
barriers exist ([13], para. 22). It also acknowledges explicitly the link between equality norms on the
one hand, and participation and inclusion in society for persons with disabilities, on the other hand
([13], para. 15). Significantly, it includes within the definition of disability-based discrimination a
denial of reasonable accommodation ([13], para. 15).
The UNCESCR has explained the reason for the absence of an explicit disability-related
provision in the ICESCR, attributing this “to the lack of awareness of the importance of addressing
this issue explicitly, rather than only by implication, at the time of the drafting of the Covenant over
a quarter of a century ago” ([13], para. 6). The mere fact that the ICESCR was drafted without explicit
mention of the rights of persons with disabilities demonstrates the necessity for cross-fertilisation and
harmonisation among the treaty bodies in the review of State progress on the implementation and
realisation of socio-economic rights.
The travaux préparatoires of the OP-ICESCR demonstrate the fact that there was controversy
amongst the participating States on the issue of “justiciability” [14]. In spite of this controversy,
consensus was reached among delegates at the negotiation sessions regarding the insertion of a
standard of review of steps to be adopted under the ICESCR in accordance with Article 2(1) of the
treaty (pertaining to progressive realisation of rights to the maximum of available resources). Article
8(4) OP-ICESCR provides as follows:
When examining communications under the present Protocol, the Committee shall
consider the reasonableness of the steps taken by the State Party in accordance with part
II of the Covenant […].
The UNCESCR has acknowledged the fact that measures taken by States to fulfil socio-economic
rights must be “adequate” or “reasonable” [15] and has outlined certain factors as being pertinent
considerations in assessing whether steps adopted by States are reasonable. 1 Those factors have been
1 The factors listed by the UNCESCR as being relevant to a consideration of measures adopted by States are
as follows: (a) the extent to which the measures taken were deliberate, concrete and targeted towards the
fulfilment of economic, social and cultural rights; (b) whether the State party exercised its discretion in a
non-discriminatory and non-arbitrary manner; (c) whether the State party’s decision (not) to allocate
available resources is in accordance with international human rights standards; (d) where several policy
options are available, whether the State party adopts the option that least restricts Covenant rights; (e) the
time frame in which the steps were taken; (f) whether the steps had taken into account the precarious
situation of disadvantaged and marginalized individuals or groups and, whether they were non-
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deemed to demonstrate “a strong commitment to the principle of effective remedies” ([6], p. 46). As
Lillian Chenwei rightly points out, “the reasonableness standard in the Optional Protocol
acknowledges the institutional roles and limitations in giving effect to the right to effective remedies
for socio-economic rights violations” ([16], p. 756).
Since many ICESCR rights are relevant to persons with disabilities ([17], p. 80), the standard of
reasonableness to be developed by the UNCESCR must be harmonised with the standard of
reasonableness to be developed by the CRPD Committee, through its jurisprudence under the
individual communication procedure and in its general comments related to the assessment of
positive equality claims and socio-economic claims via the reasonable accommodation obligation.
Bruce Porter notes that the standard of review to be developed by the UNCESCR under Article 8(4)
OP-ICESCR will “inform and be informed by the way in which the principle of reasonableness review
of substantive social rights claims evolves at other treaty monitoring bodies, in regional systems and
in domestic law” ([6], p. 42).
3.2. The CRPD and Its Optional Protocol
The CRPD has the potential to be a truly transformative human rights treaty, if its provisions are
coherently interpreted and applied. The OP-CRPD allows for individual complaints to be submitted
to the CRPD Committee by individuals and groups of individuals, or by a third party on behalf of
individuals and groups of individuals, alleging that their rights have been violated under the
Convention. In order to ensure that the transformative potential of the CRPD is capitalised upon, it
is vital to place a framework around the progressive implementation of CRPD norms, both in terms
of resource allocation and programmatic design of socio-economic rights. This would serve to ensure
an appropriate balancing of the needs of disabled persons and the tasks of duty-bearers.
As lex specialis, the CRPD can be used to contribute to a better understanding of the normative
content of socio-economic rights in the context of disabled persons. For instance, Article 24 of the
CRPD contains a detailed elaboration on the right of persons with disabilities to inclusive education,
whilst the ICESCR articulates the vague right of everyone to the enjoyment of accessible education at
all levels in Article 13 thereof. The CRPD can be used as a tool to compel States to include in their
reports to the UNCESCR the specific implementation measures adopted by States with respect to
ensuring the accessibility, and full enjoyment, of education for persons with disabilities. Moreover,
the CRPD Committee can use the Convention to offer guidance to other human rights treaty bodies
(both international and regional) in their work in the field of disability.
Of course, it is not only ICESCR rights that should be cross-referenced with the CRPD, nor is it
merely in the realm of socio-economic rights that cross-referencing and harmonisation of disability
rights should occur. The interpretation of the rights of children with disabilities should also be
harmonised under the Convention on the Rights of the Child (CRC) and the CRPD. Moreover, the
Human Rights Committee should keep a keen eye on pronouncements made by the CRPD
Committee regarding the inter-dependency of civil and political rights and socio-economic rights.
Many of the substantive articles in the CRPD can be termed “hybrid” rights on account of the fact
that they fuse elements of immediately realisable civil and political rights, as well as progressively
realisable socio-economic rights.
The CRPD Committee can potentially advance the actualisation of disability rights by means of
a coherent elaboration on the standard of reasonableness to be applied across the substantive rights
in the CRPD. By integration of the equality norm (via the reasonable accommodation duty) in its
assessment of measures adopted by States to realise socio-economic rights progressively, the
Committee can also put forth a good example, which can serve to enhance the realisation of socio-
economic rights more generally. Bruce Porter notes that the CRPD offers an exceptional model of
“convergent paradigms of rights and remedies” on account of the “convergence of the right to
equality and non-discrimination and the economic, social and cultural rights” ([6], p. 42) of persons
discriminatory, and whether they prioritized grave situations or situations of risk.
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with disabilities in the Convention. Furthermore, he draws attention to the fact that the standard
adopted by the CRPD Committee will be hugely important “in reviewing the right to positive
measures in light of available resources in the context of both equality rights and [economic, social
and cultural] rights” ([6], p. 42). In light of the foregoing, the next section of this paper outlines the
constituent elements of the standard of review to be adopted under the CRPD, before an elaboration
in Section 5 on those various elements.
4. The Duty to Reasonably Accommodate: Its Constituent Elements and the Link to Progressive
Realisation of Disability Rights
In light of the importance of the reasonable accommodation duty to the implementation of the
equality norm and, in turn, the importance of the equality norm to the eradication of socio-economic
disadvantage, this section provides an overview of the constituent elements of the reasonable
accommodation duty ([18], pp. 151–76). These elements could potentially aid the CRPD Committee
in outlining its standard of reasonableness review and could serve as a helpful standard of review
for the UNCESCR in its assessment of disability-related measures adopted by States Parties to the
Covenant. The types of criteria applied to disability rights could also potentially aid the other treaty
bodies in their assessment of equality and socio-economic claims by marginalised groups generally.
4.1. The Constituent Elements of the Reasonable Accommodation Duty
In a similar vein to progressive realisation of disability rights, the reasonable accommodation
duty entails “a balancing of needs and interests” ([5], p. 151) between the disabled person and the
duty-bearer. It therefore represents a microcosm of the overall measures to be adopted by States
Parties to the Convention. The interests of disabled people and duty-bearers are captured by the
requirement that all accommodation measures must be “necessary and appropriate” in order “to
ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all
human rights and fundamental freedoms” [4]. The interests of duty bearers (States and entities), on
the other hand, are spelt out in the requirement that accommodation measures must not impose a
“disproportionate or undue burden” [4] on the duty-bearer. The necessity criterion signifies the duty
to take all essential measures to ensure access to, and enjoyment of, CRPD rights for persons with
disabilities ([5], p. 160). The use of the word “appropriate” in the definition of reasonable
accommodation implies that accommodations must be effective in ensuring realisation of the rights
of disabled persons, including socio-economic rights ([5], p. 160). The criterion of effectiveness is
confirmed by a contextual reading of the Convention. This is borne out by General Obligation 4(1),
which links the word “appropriate” with the full realisation of rights [19].
In order to determine the effectiveness of measures adopted under the duty to accommodate,
one must also consider the object and purpose of the duty itself. The specific objective of the duty to
accommodate is to promote equality and to eliminate discrimination. Equality considerations will
therefore be paramount in determining the effectiveness of measures adopted with a view to
reasonably accommodating disabled persons. Linked to the criterion of effectiveness and the equality
norm is the core notion of the inherent dignity of persons with disabilities. The duty to accommodate
is “based on the values underlying the Convention as a whole—human dignity and respect for
difference” ([5], p. 175). Where States or entities fail to accommodate a person with a disability, or
where they provide an ineffective accommodation, this will inevitably result in marginalisation and
exclusion of the disabled person from the enjoyment of rights and will, therefore, harm the inherent
dignity of persons with disabilities.
The duty to reasonably accommodate “seeks to balance the rights of, and burdens and benefits
to, all persons affected by the proposed accommodation” ([5], p. 176). The primary consideration
under the CRPD will be “a detailed balancing of the costs and benefits of the proposed measure to
the entity providing it” ([5], p. 176). In addition, third-party benefits should be factored in as a
“tangential consideration” ([5], p. 176) in the assessment of the reasonableness of measures adopted
under the CRPD. In other words, where granting an accommodation to a particular individual results
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in benefits to others, this can potentially be used to offset cost arguments advanced by States or
entities.
4.2. Progressive Realisation and Reasonableness Review of Socio-Economic Rights in the Disability Context
The concept of progressive realisation has been described by the Office of the High
Commissioner for Human Rights (OHCHR) as “a practical device that acknowledge(s) the real world
challenges” and “helps to avoid overburdening [S]tates, employers and other duty-bearers” ([20], p.
5). Much like the (individualised) balancing of burdens and interests inherent in the reasonable
accommodation norm, the progressive realisation norm entails a similar balancing act on a larger
scale.
The reasonableness review model first evolved in South African jurisprudence as a means by
which to evaluate the right to positive measures under the South African Constitution and the actions
taken by States thereunder to realise socio-economic rights. There are some criticisms of
reasonableness review, particularly related to the fact that it is not an appropriate standard by which
to develop the substantive content of socio-economic rights. Fons Coomans, for instance, notes that
reasonableness is an “inherently vague” and “elastic” ([21], p. 187) notion. Any use of a
reasonableness review standard by the human rights treaty bodies must, therefore, be carefully
balanced with the minimum core content of human rights.
Reasonableness review came to the fore at the international level when the UNCESCR created a
‘reasonableness standard’ under Article 8(4) OP-ICESCR. That standard essentially mandates that
States use limited resources in a reasonable, non-arbitrary, non-discriminatory manner and,
furthermore, that States should be held accountable for the manner in which they use their resources
in the implementation of socio-economic rights [22].
Invoking reasonableness review to assess alleged violations of disability rights compels an
assessment that is tailored to the specific national context at issue and the socio-economic
disadvantage faced by persons with disabilities in that context ([5], p. 210). Under the OP-CRPD and
the OP-ICESCR, the respective committees will have to ensure that rights are being realised
effectively in the circumstances of the individual’s lived experience, relative to the particular
disadvantage experienced by the petitioner. As Bruce Porter and Sandra Liebenberg observe,
reasonableness review in the context of the OP-ICESCR provides “for a dialectic between an
individual rights claim and the consideration of other needs and interests, to ensure consistency with
broader values and purposes of the Covenant in the context of limited resources” ([23], pp. 6–7).
In the next section of this paper, the various components of the proposed reasonableness review
framework for disability rights will be elaborated upon, taking (at various junctures) the right to
education as an example. It is hoped that this could provide the basis for a transformative human
rights framework, provided that the treaty bodies work together towards harmonisation and cross-
fertilisation of socio-economic rights in the context of disability. Such a transformative framework
could also have a wider impact on the interpretation and implementation of socio-economic rights
for other marginalised groups.
5. The Potential for Social Change: Harmonisation and Cross-Fertilisation of Disability Rights at
the International Level and Beyond
Reform of the treaty body system should not just result in enhanced efficiency at the
international level but should also “strengthen the capacity of rights-holders to enjoy their human
rights and support States to carry out their obligations to implement fully these rights” ([7], para. 7).
Any standard of review adopted by the treaty bodies should serve to ensure that failures by States to
meet their obligations, for instance, under Article 2(1) of the ICESCR and under Article 4(2) CRPD,
result in effective remedies for individual victims of violations.
Since the human rights treaty bodies only began to harmonise the procedural aspects of their
working methods in recent times, some authors claim that “widespread formal efforts at substantive
coherence are likely far off but not unfathomable” ([24], p. 158). There is already some evidence of
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harmoinsation of standards across the board. For example, General Comment 5 of the UNCESCR was
drawn on by many national representatives at the CRPD negotiation sessions in order to forge a link
in the CRPD between the duty to reasonably accommodate and the equality and non-discrimination
norms [25].
Back in 2002, Gerard Quinn and Theresia Degener conducted several case studies on the use of
the ICESCR in the context of disability, specifically analysing State Party reports in that regard. Those
case studies revealed that the two key messages of General Comment 5 (equality and
participation/inclusion of persons with disabilities in society) had “not percolated through to the
point where they influence all (or even most) policies and measures relating to disability in the areas
covered by the ICESCR” ([26], p. 112). To date, the overall implementation regime of international
human rights law is greatly lacking ([27], p. 358). Invoking a reasonableness standard of review across
the core human rights treaty bodies could provide a means by which to harmonise socio-economic
rights claims and equality claims, particularly in the context of disability, and this could trickle down
to the national level. The core treaty bodies might look to the CRPD Committee’s elaboration of its
standard of review via the reasonable accommodation obligation. In turn, the CRPD Committee
might draw some guidance from the manner in which interpretation of Article 8 OP-ICESCR unfolds,
through statements of the UNCESCR on what constitute “reasonable” measures, as well as decisions
of the Committee in which it deals with socio-economic rights claims.
In the following sub-sections of this paper, a framework of reasonableness review will be
proposed, taking into account the various criteria highlighted above as being primary objectives of
any measures taken to reasonably accommodate persons with disabilities.2
5.1. The Effectiveness of Measures Adopted by States
As highlighted above, the criterion of effectiveness is one of the constituent elements of a
standard of review based upon the reasonable accommodation duty in the CRPD. If we take the right
to education in both the CRPD and the ICESCR as an example, we can observe that both provisions
refer to the criterion of effectiveness. Article 24 of the CRPD provides that States Parties should ensure
that “persons with disabilities receive the support required, within the general education system, to
facilitate their effective education”. Similarly, Article 13(1) of the ICESCR provides that States Parties
to the Covenant agree that “education shall enable all persons to participate effectively in a free
society”. In its concluding observations on States Parties’ reports, the CRPD Committee has already
recommended that the Australian authorities should conduct research into the effectiveness of
current inclusive education policies, including the extent to which the relevant disability standards
in education are being implemented in each State and territory ([28], para. 46b). The Committee has
also urged States to “set targets to increase participation and completion rates by students with
disabilities in all levels of education and training” ([28], para. 46c). However, the Committee has not
commented further on the criterion of effectiveness in the context of education.
In its non-binding (but authoritative) statement outlining criteria pertinent to whether measures
taken by States to fulfil socio-economic rights are “adequate” or “reasonable,” the UNCESCR asserts
that a relevant consideration is whether the State adopts the option that least restricts Covenant
rights, in circumstances where several options are available ([15], para. 8d). However, the UNCESCR
has not commented to any great extent on this criterion of effectiveness and therefore States are
lacking guidance on this vital aspect of fulfilment across each of the substantive socio-economic rights
in both the CRPD and the ICESCR.
In order to buttress the substantive and transformative framework of equality in the Convention,
and in order to go beyond merely normative discussions, it would be most helpful if the CRPD
Committee would elaborate further on the types of positive measures that might be effective in
ensuring fulfilment of the socio-economic rights contained in the Convention. The UNCESCR, and
the other treaty bodies, should keep a keen eye on the CRPD Committee’s standard of review in that
2 Sections 5.1. to 5.5. of this article draw on, and elaborate on considerably, where relevant to this article, the
ideas and the categorisations contained in ([5], pp. 213–31).
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regard. There are many tools that can be used by the human rights treaty bodies to monitor the
progressive realisation of socio-economic rights [29]. The committees might bear in mind quantitative
tools, such as specific indicators, related to each of the substantive rights in the respective treaties and
tailor their assessments of measures taken by States to meet those indicators to the domestic context
at issue. With regard to the right to education, specific structural, process and outcome indicators,
such as those elaborated upon by Inclusion International [30] or by the Right to Education project
[31], could be drawn on as a tool to help States measure their progress in realising the right to
education. States themselves could tailor the indicators to their national context and collect data for
application of the indicators [32]. Such tools could also be used as a basis for the committees to reflect
more deeply on the types of measures that might be effective in realising the normative content of
inclusive education under Article 24 of the CRPD.
5.2. Equality Considerations
The adoption of the CRPD was deemed necessary in order to ensure that de facto equality is
attained—in other words, that the systemic inequalities and substantive disadvantage experienced
by persons with disabilities is remedied. The equality norm runs like a “red thread” through the
substantive provisions of the CRPD, and the reasonable accommodation duty breathes new life into
the practical application of both civil and political and socio-economic rights for persons with
disabilities.
Sandra Liebenberg and Beth Goldblatt contend that “the most severe forms of disadvantage are
usually experienced as a result of an intersection between group-based forms of discrimination and
socio-economic marginalisation” ([33], p. 339). There are many recognised benefits to including
equality as a relevant criterion in the assessment of measures taken by States in the contex t of rea lising
socio-economic rights generally, and disability rights more specifically ([33], pp. 351–52). If the
equality norm were to feature prominently in socio-economic rights adjudication, and also in the
consideration of measures adopted by States under the reporting system, States “would be required
to provide heightened justifications for any alleged rights’ violations” ([5], p. 223). This is particularly
so “in circumstances where denying access to the right(s) in question would cause further
entrenchment of inequalities or marginalisation for persons with disabilities” ([5], p. 223). Integration
of an equality perspective would also serve to ensure a deeper understanding of the “multi-
dimensional disadvantage” experienced by disabled persons in the enjoyment and exercise of socio-
economic rights ([5], p. 223).
The link between the actualisation of socio-economic rights and the principles of non-
discrimination and equality has been remarked upon by the UNCESCR in its general comments [34].
Furthermore, in its 2007 statement outlining the guiding criteria for interpreting the reasonableness
standard incorporated in Article 8(4) OP-ICESCR, the Committee asserts that exercise by a State of
discretion in a non-discriminatory and non-arbitrary manner ([15], para. 8) will be relevant in any
consideration of whether States fulfil the “reasonableness” criterion under Article 8(4) OP-ICESCR.
Lack of access to education, culminating in unequal opportunities, has been recognised as a
“dominant problem in the disability field” [35] for both children and adults with disabilities. The
CRPD Committee has emphasised the fact that States Parties to the Convention must intensify their
efforts to ensure that disabled children can benefit to the same extent as non-disabled children from
any system of compulsory education established by domestic authorities ([36], para. 38). The
Committee should now begin to adjudge any violations of the right to education (and indeed, all
other socio-economic rights) with regard to the “position of the claimant group in society, the nature
of the resource or service claimed and the impact of the denial of access to the service or resource in
question on the claimant group” ([37], pp. 89–90) as mandated by frameworks of reasonableness
review. In circumstances where the denial of the right results in entrenched inequalities, as is the case
with denial of the right to inclusive education, the committees must apply a heightened standard of
review. Among other things, the treaty bodies should enquire whether, in the ir enjoyment of the right
to education, disabled people have been granted equality before and under the law, equal benefit and
equal protection of the law. The treaty bodies will also have to enquire into the affirmative action
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measures adopted by States to guarantee equal access for persons with disabilities to inclusive
education. In circumstances where the UNCESCR is adjudicating complaints of discrimination in
relation to access to education, it should take into account the specific approach developed by the
CRPD Committee with regard to reasonable accommodation.
In light of the overlapping issues that arise in the context of the work of the UNCESCR, on the
one hand, and the CRPD Committee, on the other hand, it is essential that the emerging standards of
equality, as elaborated upon by the CRPD Committee, should be factored into any consideration by
the UNCESCR of the standard of reasonableness it applies to disability rights. More generally, the
elaboration by the CRPD Committee of a substantive and transformative framework of equality
(through its jurisprudence and general comments) can potentially guide the other human rights
treaty bodies in adjudication related to the socio-economic rights of all marginalised groups. At the
level of international and regional human rights law, the understanding of the equality norm has
evolved greatly in recent times, from embodying the formal model of equality to endorsing a more
substantive, and even transformative, conception of equality ([38], pp. 47–64). Thus, there is scope for
the treaty bodies to learn lessons from the values underlying the CRPD and the CRPD Committee’s
approach to interpretation of the equality norm contained in the Convention.
5.3. Dignity Considerations
In any consideration of the core principle of equality, one must factor into account the inherent
dignity of disabled individuals as a pertinent concern. The Preamble of the CPRD recognises that
“discrimination against any person on the basis of disability is a violation of the inherent dignity and
worth of the human person” [39]. The object and purpose of the CRPD includes the promotion of
respect for the inherent dignity of disabled persons. Dignity also features as a central concern in
General Principle 3(d), which mandates “respect for difference and acceptance of persons with
disabilities as part of human diversity and humanity” [40]. The CRPD aims at overturning the
stereotyped image of persons with disabilities as lacking capabilities and aims to develop such
capabilities and human potential through the provision, by States and public and private entities, of
sufficient resources and other forms of assistance. The reasonable accommodation duty, which spans
the socio-economic provisions of the CRPD, is also based on the core norm of human dignity.
At the international level, dignity issues can be brought to life by claimants from marginalised
groups, including disabled claimants, under the individual communication mechanism. Dignity
considerations must therefore be central to any assessment of reasonableness by the respective
human rights committees in their adjudication and pronouncements on socio-economic rights. The
UNCESCR has already acknowledged, in its General Comment 5, that all services for persons with
disabilities “should be provided in such a way that the persons concerned are able to maintain full
respect for their rights and dignity” ([13], para. 34). However, the notion of “dignity” remains a vague
normative concept and some guidance is required at the level of the treaty bodies in order to
harmonise this fundamental principle for disabled persons (and, by extension, other marginalised
groups) in the application of socio-economic rights ([41], p. 20).
In spite of the many criticisms of its use as a normative standard for human rights protection
([42], p. 5), it has been argued elsewhere ([5], pp. 224–28) that there are two strands to the concept of
human dignity in human rights law generally, and, particularly, dignity as a guiding normative value
under the CRPD. The first strand of human dignity reflects the urgency of needs of marginalised
groups and requires that priority consideration be given to those needs by States. This interpretation
is mirrored in the various pronouncements of the UNCESCR, among others, related to the necessity
to cater for the needs of those in most dire circumstances ([15], para. 4). The second strand of human
dignity at the international level correlates with the equality norm and requires consideration of the
equal worth of all human beings. States must ensure to implement the rights of persons with
disabilities in a manner which respects the differential characteristics and ensures that disabled
persons are not forced to endure degrading circumstances in the exercise of their human rights.
Take, for instance, the right to education in both the CRPD and the ICESCR. Article 24 of the
CRPD provides that States Parties shall ensure an inclusive education system at all levels and life-
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long learning directed to “the full development of human potential and sense of dignity […] and the
strengthening of respect for […] human diversity” [43]. In a similar vein, Article 13(1) of the ICESCR
provides that “education shall be directed to the full development of the human personality and the
sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms”
[44]. Without further guidance at the level of the treaty bodies, it is difficult to expand on the notion
of human dignity in the context of individual rights.
The CRPD is based upon a human rights-based and capabilities-based approach [45] to
disability, which recognises the dignity and worth of each individual ([46], p. 775) and, therefore, the
CRPD Committee should always take human dignity into account when determining the
reasonableness of measures adopted by States. The CRPD does not provide any guidance as to
priority setting - in other words, which measures should be taken when a given State cannot ensure
all capabilities immediately in the same timeframe. However, as Caroline Harnacke rightly points
out, “the focus of justice is not on the question of what resources the State has to spend on every
person but on the question of what outcome is attained” ([46], p. 777).
The domestic case law of the Canadian Supreme Court expands on the notion of human dignity
in the context of persons with disabilities. In Law v Canada (Minister of Employment and Immigration),
the Court observes that “human dignity is harmed by unfair treatment premised upon personal traits
or circumstances which do not relate to individual needs, capacities, or merits” and, furthermore,
that “it is enhanced by laws which are sensitive to the needs, capacities, and merits of different
individuals, taking into account the context underlying their differences” [47]. In connection with the
right to inclusive education, the treaty bodies should maintain a focus on the effects of laws and
policies on the needs and capabilities of disabled people. Charles Ngwena claims that the “repeated
emphasis in the CRPD, including in Article 24, on the State's duty to accommodate human diversity
by, inter alia, providing individualised support, is the Convention's greatest transformative modality”
([48], p. 478). He asserts that by placing responsibility on society, rather than on disabled learners and
their carers (in terms of the economic cost of accommodation measures), Article 24 seeks to “repair,
more holistically, the historical marginalisation and exclusion of disabled learners from not just the
education system, but also other socio-economic systems that have been constructed on the
assumption of able-bodiedness” ([48], p. 478). He further asserts that “under the CRPD, human
dignity cannot depend on functional capacities. Achieving, as a prerequisite, a certain prescribed
baseline of functional capacity cannot be what entitles a disabled person to have an equal claim on
resources, but the fact of being human” ([48], pp. 478–79). The CRPD Committee should endeavour
to frame its own capabilities-based approach and, by that token, evaluate the various measures
adopted by States under the right to inclusive education in order to ensure that Article 24 of the
Convention is coherently implemented.
In its draft General Comment 9, the CRPD Committee referred to the inherent dignity of persons
with disabilities as “a crucial element to be considered, including in the context of reasonable
accommodation” ([49], para. 24). In the provision of reasonable accommodations and in the overall
enjoyment of the right to education, full account must be taken of the physical and psychological
integrity and empowerment, as well as the equal self-worth of disabled people. Persons with
disabilities should not be expected to exercise the right to inclusive education in conditions which are
degrading or humiliating.
Interestingly, the concept of dignity has been linked by the CRPD Committee to the notion of
costs. When elaborating on measures to be adopted to guarantee the general accessibility of the
environment, the Committee stated that “in adapting existing buildings, reasonableness of costs must
be balanced against respect for the inherent dignity of persons with disabilities” ([49], para. 24).
However, the Committee did not go on to refer to dignity in such terms in the final version of General
Comment 9. The CRPD Committee should take the opportunity to expand on this normative value
relative to the rights contained in the Convention in order to ensure coherence in their application.
This could serve to aid the other treaty bodies in the application of the concept of “human dignity”
in relation to socio-economic rights realisation.
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5.4. Participatory Processes/Accountability
In the application of Article 8(4) OP-ICESCR, and in any analysis by the CRPD Committee of the
reasonableness of measures adopted by States under the State reporting procedure and the individual
communications mechanism, the fundamental notion of participatory processes should be factored
into account. General Obligation 4(3) of the CRPD recognises the pivotal importance of participation
of persons with disabilities and their representative organisations in every aspect of implementation
of the Convention. In order to achieve full and effective participation in society, the UNCESCR has
noted that “the specific measures necessary to realise the rights of persons with disabilities must be
developed in cooperation with representatives of persons with disabilities” ([13], para. 14).
Furthermore, the UNCESCR has asserted that the reporting process should also “encourage and
facilitate, at the national level, popular participation, public scrutiny of government policies and
constructive engagement with civil society […]” ([9], para. 10).
Bruce Porter contends that in order to realise socio-economic rights more effectively, the
UNCESCR “may have to create procedures that are new to treaty bodies, in order, for example, to
hear the evidence of rights claimants, access independent experts, or hear from NGO interveners”
([6], p. 53). Porter and Sandra Liebenberg contend that the OP-ICESCR “provides a new opportunity
for claimants to assist the Committee in elaborating on the content of rights, properly informed by
the voice and understanding of those affected.” The onus would then shift “to the respondent to
explain the basis for its policies or decisions” ([23], p. 7). In the context of the CRPD, non-State actors
play an important role, in particular in the implementation of the individualised reasonable
accommodation duty. On account of this, it will be vitally important that the respective treaty bodies
develop new processes to ensure that adequate weight is given to the voice of disabled applicants
and their representative organisations, as well as to non-State actors (who often have a great impact
on ensuring respect for human rights) [50], in the application of human rights norms in particular
national contexts and in the implementation of appropriate remedies. In arguing for aligned models
of interaction between treaty bodies, national human rights institutions and civil society, Suzanne
Egan notes that “there is much room to harmonise [the treaty body] working practices so as to create
a less confusing landscape for these key contributors to the process” ([51], p. 228).
A consultative process of exchange of views between all stakeholders would make it easier for
the treaty bodies to determine whether steps taken by States are reasonable in conception and
implementation and, moreover, whether they are in compliance with the obligations contained in the
respective human rights treaties. Involving persons with disabilities in socio-economic rights
realisation, through, for example, drafting human rights action plans, results in increased potential
for actual needs to be met and also serves to ensure that remedies are moulded to address the
particular needs and contextual background against which claims have been advanced. In the context
of the right to education, such plans can serve to ensure that barriers to inclusive education are
eradicated and that goals towards achievement of fully inclusive systems are met, taking into account
the recommendations of the human rights treaty bodies. However, these plans must not merely be a
token gesture on the part of States and must be followed through on.
In addition, outcome accountability is essential. The focus of Article 24 of the CRPD is on both
equality of opportunities and outcomes. In order to ensure that these objectives are being met,
accountability provisions must be enacted in national laws and policies to enhance the effectiveness
of services for pupils with special educational needs, as well as to enhance the outcomes for all
learners. Outcomes for students with special educational needs must be consistently monitored in
order to ensure that learners with disabilities are making progress commensurate with their ability
and that State resources are being used to optimal effect. With regard to implementation and
monitoring tools, Gauthier de Beco points to the fact that the CRPD Committee could also “encourage
international collaboration to provide an overall review of relevant experiences to date and to
undertake an examination of the way in which these experiences could help to improve such tools
within their particular context” ([52], pp. 58–59). Disabled people should naturally be involved in all
of these processes. In order to measure progress towards the full realisation of the right to inclusive
education for disabled people, de Beco maintains that “when national human rights action plans and
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human rights indicators are available, the Committee could request [State Parties] to provide
information on them and evaluate the [State Party’s] capacity to implement Article 24 of the CRPD”
([52], pp. 58–59). The Committee could then “indicate to [State Parties] which targets [within their
national human rights plans] need to be achieved by the national human rights action plans and
evaluated by the human rights indicators for the next reporting cycle” ([53], p. 276).
5.5. Disproportionate Burden and Third-Party Benefits
The notion of disproportionate burden contained in the reasonable accommodation norm
requires an individualised balancing act between the needs and interests of disabled persons, on the
one hand, and duty-bearers, on the other hand. A balancing of needs and interests also takes place in
the context of the obligation to realise disability rights progressively to the maximum of available
resources, albeit on a different scale. There is little research available on the latter obligation and this
has inevitably hindered the realisation and enforcement of rights at the national level. As de Beco
points out, the progressive realisation of socio-economic rights remains problematic on account of
both timing and prioritisation issues, in particular which criteria will be applied “in determining
whether a State’s priorities are acceptable” or the “best option” in the context of the maximum of
available resources ([53], p. 276).
Without principled guidelines in human rights implementation, Jos Philips maintains that
“priority setting risks becoming an ad-hoc exercise, which may harm the cause of disabled persons
as well as the cause of human rights” ([54], pp. 150–51). While budget analysis is a “powerful tool for
understanding government’s priorities” ([55], p. 36), many questions remain unanswered with
regard to “how effectively or efficiently the money is being spent, or whether the resources allocated
are reaching their intended purpose” ([55], p. 36). Concerning the duty to use the maximum of
available resources, Sandra Fredman has stated that three elements of government appropriations
are capable of concrete assessment, namely (a) the sufficiency of government spending/investment;
(b) the equity of expenditure patterns; and (c) the efficiency of expenditure ([56], p. 82). The human
rights treaty bodies can look to these various aspects of resource allocation by States Parties to the
Convention in determining the reasonableness of State action. The committees must look to the
resource prioritisation and resource optimisation efforts of States and should pay close attention to
arguments brought forward by non-governmental organisations, in particular, regarding State
capacity and failure to meet benchmarks set for the full realisation of disability rights. National
authorities should develop performance-based budgets, which seek to allocate resources for the
achievement of certain objectives and, thereby, allow assessment of the cost-effectiveness of measures
taken relative to achieving the desired result for all those in need.
In addition to consideration of the financial and other costs imposed by particular measures on
States or private entities, another potentially relevant consideration is the issue of the benefits of the
requested measures accruing to persons other than the disabled individual in question. In the wider
context of progressive realisation, the treaty bodies might consider whether measures adopted for
the benefit of one particular target group could result in benefits to a wider cohort of individuals and
this may be a factor mitigating against cost arguments advanced by States. Christopher Brown notes
that courts (and, by extension, the treaty bodies) could “correct the asymmetric treatment of costs by
recognizing the existence of positive externalities of accommodation and taking these into account
when evaluating whether a proposed accommodation is reasonable” ([57], p. 329). In that regard,
Brown elaborates on the positive externalities inherent to third-party benefit analysis of reasonable
accommodations on three levels in the context of employment, namely benefits to all disabled
employees, benefits to the firm itself and the net social benefits model ([57], p. 329). A similar analysis
could apply in the context of the progressive realisation of inclusive education. It has been argued
elsewhere ([5], p. 231) that “ensuring accessibility of the educational curriculum arguably benefits
other students in terms of learning outcomes (both disabled students and non-disabled students)”
([5], p. 231). Therefore, “measures taken to ensure accessibility of the curriculum could contribute to
the implementation of the right to education for all” ([5], p. 231). In addition, ensuring that disabled
people receive an appropriate education, and can therefore transition to full employment, has clear
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net social and economic benefits [58].
While each treaty body will be directly concerned with the rights of those bringing the particular
claim at issue, the treaty bodies may factor into account the issue of third-party benefits in the overall
consideration of whether a measure constitutes a disproportionate burden for a State or entity. This
may prove to be another area in which the human rights treaty bodies can learn from each other in
order to harmonise implementation of socio-economic rights and to ensure a more effective
implementation at the domestic level.
6. Conclusions
This article has demonstrated the necessity for cross-fertilisation and harmonisation of socio-
economic rights in the context of the international human rights treaty bodies and beyond. A
particular focus was maintained on cross-fertilisation of disability rights under the CRPD and the
ICESCR. It was argued throughout this article that the intersection of equality and socio-economic
rights in the CRPD may provide a key to unlocking the structural inequalities which disabled people,
and by extension other marginalised groups, have encountered for too long now. In turn, this has the
potential to result in a transformative application of socio-economic rights at the international,
national and regional levels.
As Janet Lord and Rebecca Brown point out, the OP-CRPD taken in conjunction with the OP-
ICESCR “provide new entry points for claimants with disabilities and their representative
organizations with the opportunity to enrich human rights advocacy through the application of
reasonable accommodation across all spheres of life” ([59], p. 273). The interpretation of the CRPD by
the CRPD Committee can inform socio-economic rights interpretation by all of the treaty bodies.
Furthermore, the CRPD Committee might learn from the UNCESCR in its elaboration of the standard
of reasonableness to be applied under the OP-ICESCR. This has the potential to advance socio-
economic claims, and to harmonise disability rights (and indeed the rights of other marginalised
groups), at the level of the human rights treaty bodies.
Bruce Porter argues that “the guiding principle of reasonableness review should be the right to
adjudication and effective remedies” for socio-economic rights claimants, with “a particular focus on
the claims advanced by marginalised and disadvantaged groups” [60]. The CRPD, as a
transformative human rights treaty, taken together with the OP-CRPD and the OP-ICESCR, holds
great potential for social change in the realm of socio-economic rights. The CRPD Committee and the
UNCESCR, in particular, should set out coherent criteria based, inter alia, on the types of criteria
outlined in this article and should tailor them to diverse national contexts. It should, furthermore,
require from each State an account of how these criteria are being applied and implemented at the
domestic level relative to socio-economic rights. This would allow the CRPD Committee to judge the
diverging priority choices of States according to their overall reasonableness. Then, and only then,
can persons with disabilities (and other marginalised groups) begin to enjoy their human rights on
an equal basis with others.
Conflicts of Interest: The author declares no conflict of interest.
Abbreviations:
The following abbreviations are used in this manuscript:
CRC Convention on the Rights of the Child
CRPD Convention on the Rights of Persons with Disabilities
ICESCR International Covenant on Economic Social and Cultural Rights
OHCHR Office of the High Commissioner on Human Rights
OP-CRPD Optional Protocol to the Convention on the Rights of Persons with Disabilities
OP-ICESCR Optional Protocol to the International Covenant on Economic Social and Cultural Rights
UNCESCR United Nations Committee on Economic, Social and Cultural Rights
References and Notes
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27. Peter Burnell, and Vicky Randall. “The international human rights regime is a fairly effective promotional
regime but a relatively ineffective implementation regime.” In Politics in the Developing World, 2nd ed.
Oxford: Oxford University Press, 2008.
28. UN Committee on the Rights of Persons with Disabilities, Concluding Observations to Australia, UN Doc.
CRPD/C/AUS/CO/1 (2013).
29. See generally, Eitan Felner. “New Frontier in Economic and Social Rights Advocacy? Turning Quantitative
Data into a Tool for Human Rights Accountability.” International Journal on Human Rights 5 (2008): 109–30.
30. Inclusion International. “The Implications of the Convention on the Rights of Persons with Disabilities
(CRPD) for Education for All.” Available online: http://inclusion-international.org/wp-
content/uploads/2013/08/ImplicationsCRPD-dr2-X.pdf (accessed on 30 April 2016).
31. The Right to Education Project has developed over 200 indicators on the right to education according to
the 4-A framework (availability, accessibility, acceptability, and adaptability), intended to be used as a tool
to evaluate States’ progress towards the full realisation of the right to education, to identify violations of
the right to education, and to enable civil society to hold governments to account for their obligations
regarding education. Available online: http://www.right-to-education.org/sites/right-to-
education.org/files/resourceattachments/RTE_List_Right_to_Education_Indicators_May_2013.pdf
(accessed on 17 July 2016).
32. See article 31(2) of the CRPD.
33. Sandra Liebenberg, and Beth Goldblatt. “The Interrelationship between Equality and Socio-Economic
Rights under South Africa’s Transformative Constitution.” South African Journal on Human Rights 23 (2007):
335–61.
34. The UNCESCR has stated that non-discrimination and equality ‘are essential to the exercise and enjoyment
of economic, social and cultural rights.’ UNCESCR, General Comment 20: Non-Discrimination in
Economic, Social and Cultural Rights (Article 2, para. 2) (2009).
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35. Susan J. Peters. “Inclusive Education: An EFA Strategy for All Children.” Report on Inclusive Education,
World Bank, Washington, DC, USA, November 2004.
36. Committee on the Rights of Persons with Disabilities, Concluding Observations to Argentina, U.N. Doc.
CRPD/C/ARG/CO/1 (2012).
37. Sandra Liebenberg. “Adjudicating Social Rights under a Transformative Constitution.” In Social Rights
Jurisprudence: Emerging Trends in International and Comparative Law. Edited by Malcom Langford.
Cambridge: Cambridge University Press, 2008.
38. See generally on this point, Oddný Mjöll Arnardóttir. “A Future of Multidimensional Disadvantage
Equality.” In The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian
Perspectives. Edited by Oddný Mjöll Arnardóttir and Gerard Quinn. Leiden: Martinus Nijhoff, 2009.
39. CRPD, Preamble, para. (h).
40. CRPD, General Principle 3(d). See also General Principle 3(a) of the Convention, which mandates respect
for the inherent dignity, individual autonomy (including the freedom to make one's own choices) and
independence of persons with disabilities.
41. Sandra Fredman rightly notes that “the right to equality cannot simply be collapsed into the right to
dignity”. Sandra Fredman. “Substantive Equality Revisited.” Legal Research Paper Series, Paper No.
70/2014, October 2014. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2510287 (accessed on 17 July
2016).
42. For a summary of such criticisms, see Sandra Liebenberg. “The Value of Human Dignity in Interpreting
Socio-Economic Rights.” South African Journal on Human Rights 21(2005): 1–31.
43. CRPD, Article 24(i).
44. CRPD, Article 13(1).
45. The capabilities approach was developed by Amartya Sen and refined by Martha Nussbaum. See Martha
C. Nussbaum. “Capabilities and Human Rights.” Fordham Law Review 66 (1997): 273–300.
46. Caroline Harnacke. “Disability and Capability: Exploring the Usefulness of Martha Nussbaum’s
Capabilities Approach for the UN Disability Rights Convention.” Journal of Law, Medicine & Ethics 41 (2013):
768–80.
47. Law v Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497, para. 53.
48. Charles G. Ngwena. “Human Right to Inclusive Education: Exploring a Double Discourse of Inclusive
Education Using South Africa as a Case Study.” Netherlands Quarterly of Human Rights 31 (2013): 473–504.
49. CRPD Committee. “Draft General Comment on Article 9—Accessibility.” Available online:
http://www.ohchr.org/EN/HRBodies/CRPD/Pages/DGCArticles12And9.aspx (accessed on 18 June 2016).
50. See Karl Hanson. “Strengthening legitimacy, effectiveness and efficiency of the UN Human Rights Treaty
Body System.” 20 October 2011. Available online:
http://www2.ohchr.org/english/bodies/HRTD/docs/submissions201112/Academics/KarlHanson.pdf
(accessed on 17 July 2016).
51. Suzanne Egan. “Strengthening the United Nations Human Rights Treaty Body System.” Human Rights Law
Review 13 (2013): 209–43.
52. Gauthier de Beco. “Transition to Inclusive Education Systems according to the Convention on the Rights
of Persons with Disabilities.” Nordic Journal of Human Rights 34 (2016): 40–59.
53. Gauthier de Beco. “Interplay between Human Rights and Development the Other Way Round: The
Emerging Use of Quantitative Tools for Measuring the Progressive Realisation of Economic, Social and
Cultural Rights.” Human Rights and International Legal Discourse 4 (2010): 265–87.
54. Jos Philips. “Human Rights, the CRPD, and Priority-Setting.” In Disability and Human Rights: Legal, Ethical
and Conceptual Implications of the Convention on the Rights of Persons with Disabilities. Edited by Joel Anderson
and Jos Philips. Utrecht: Netherlands Institute of Human Rights, 2012, pp. 150–51.
55. Helena Hofbauer, Ann Blyberg, and Warren Krafchik. “Dignity Counts: A Guide to Using Budget Analysis
to Advance Human Rights, (Fundar, IBP, IHRIP).” 2004. Available online: www.
internationalbudget.org/files/Dignity_Counts_english1.pdf (accessed on 16 July 2016).
56. Sandra Fredman. Human Rights Transformed: Positive Rights and Positive Duties. Oxford: Oxford University
Press, 2008, p. 82.
57. Christopher B. Brown. “Incorporating Third-Party Benefits into the Cost-Benefit Calculus of Reasonable
Accommodation.” Virginia Journal of Social Policy and the Law 18 (2010–2011): 319–44.
58. See generally Sebastian Buckup. “The Price of Exclusion: The Economic Consequences of Excluding People
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with Disabilities from the World of Work.” Employment Working Paper No. 43, International Labour
Office, Geneva, Switzerland, 2009.
59. Janet Lord, and Rebecca Brown. “The Role of Reasonable Accommodation in Securing Substantive Equality
for Persons with Disabilities: The UN Convention on the Rights of Persons with Disabilities.” In Critical
Perspectives on Human Rights and Disability Policy. Edited by Marcia H. Rioux, Lee Ann Basser and Melinda
Jones. The Hague: Martinus Nijhoff, 2011.
60. Bruce Porter. “Reasonableness in the Optional Protocol to the ICESCR.” Available online:
http://www.socialrights.ca/documents/Reasonableness%20in%20the%20OP-ICESCR.pdf (accessed on 18
July 2016).
© 2016 by the author. Submitted for possible open access publication under the
terms and conditions of the Creative Commons Attribution (CC-BY) license
(http://creativecommons.org/licenses/by/4.0/).
