The Convention on the Rights of Persons with Disabilities 2006: Its Value in Litigation Before the European Court of Human Rights
The central exploration in this thesis is of the relationship between the rights in the Convention on the Rights of Persons with Disabilities 2006 (CRPD) and the rights in the European Convention on Human Rights 1950 (ECHR). They are distinct treaties, promulgated by different bodies, with different bodies in charge of their implementation and interpretation, respectively the Committee on the Rights of Persons with Disabilities (CRPD Committee) and the European Court of Human Rights (ECtHR). However, they have a common ancestry and most parties to the ECHR are also parties to the CRPD. As the rights in the ECHR are replicated in the CRPD, a link may seem sensible: but if the content of the right differs, what then? This is a classic interpretation problem: what the law means invariably turns on text, the purpose of the text, and the context in which the text exists. The existence of the CRPD and its acceptance by most parties to the ECHR is an obviously important context. A legal doctrinal research methodology of collating and analysing documents – primarily Concluding Observations, General Comments and other documents issued by the CRPD Committee, and the case law of the ECtHR – is used to explore how the CRPD can influence the interpretation of the ECHR. After an introduction that sets the scene, chapter 2 explores ECtHR jurisprudence explaining its acceptance as to why the CRPD is relevant to its interpretation of the ECHR. Chapters 3 to 5 explore three areas of interplay: (i) education and non-discrimination, where the ECHR has been interpreted consistently with the CRPD; (ii) protection from human trafficking, where limited use has been made of CRPD standards, but it is suggested that there is no tension and the CRPD could be used by litigators; and (iii) protection from psychiatric compulsion, where at present there is an apparent tension as the ECHR is interpreted to allow such compulsion in some circumstances but the CRPD Committee holds that the CRPD precludes it; the chapter explores the interaction between different rights in the CRPD to explain fully its conclusion, to allow the apparent tension to be explored with a fuller understanding of the framing of the CRPD. These three chapters reflect a sliding scale (assimilation, no tension but no assimilation, tension and no assimilation). They also have a commonality, reflecting a secondary feature of this thesis, namely the use of strategic litigation to develop interpretations of human rights. In the education chapter, strategic litigation played a role; arguments are developed in the other two chapters that could be used in strategic litigation, which is legitimated by the material set out in chapter 2. It is a secondary feature because the arguments could also be used by any litigator before the ECtHR, including one who does not act consciously to develop rights. The final chapter, chapter 6, outlines a research agenda for further matters that could be explored using the same methodology as has been adopted in the rest of the thesis.
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