Interpreting the Convention on the Rights of Persons with Disabilities in Domestic Courts

Abstract

This chapter reflects on the ways in which courts in the thirteen jurisdictions included in this study have interpreted the provisions of the Convention on the Rights of Persons with Disabilities (CRPD). Firstly, it explores the interpretations which CRPD provisions (from the Preamble to Article 30) have been given by different courts in cases analysed in this study. Secondly, it considers various issues concerning the interpretations of the CRPD adopted in the thirteen jurisdictions. This discussion begins by reflecting on the extent to which interpretations of the various provisions appear to converge before moving on to consider the nature of the interpretation techniques being used. It also considers the extent to which judges appear to be drawing on UN guidance and transnational judicial dialogue to inform their understandings of CRPD provisions.

Disability and human rights

“…The status of the CRPD in the domestic courts of dualist states is persuasive where domestic law is ambiguous or unsettledit is not binding in law. Yet a recent comparative study of 13 jurisdictions found that the domestic courts of both monist and dualist states are increasingly considering and interpreting the CRPD in order to fill gaps in domestic law, and to update it, even if not always quite in line with the intentions of its drafters (Lawson and Waddington 2018).…”

“…The CRPD's broad description of the target population is already reshaping states parties' approach to disability (Kakoullis and Ikehara in Bantekas et al 2018;Lawson and Waddington 2018). For example, in 2013 the Court of Justice of the European Union adopted the CRPD's approach to disability, reversing an earlier medical model definition relied upon by the EU (HK Danmark v. Dansk almennyttigt Boligselskab, 2013).…”