Tackling disability-based discrimination in international and European law
| Published date | 01 March 2013 |
| Date | 01 March 2013 |
| Author | Gregor Maučec |
| DOI | 10.1177/1358229113482072 |
| Subject Matter | Articles |
Article
Tackling disability-
based discrimination
in international and
European law
Gregor Mauc
ˇec
Abstract
Discrimination against people with disabilities remains one of the greatest human rights
issues of our time. This article represents a critical overview of international, and in
particular European, human rights and of the non-discrimination frameworks relevant
and applicable to the unequal treatment of persons with disabilities in order to ascertain
whether these norms provide for adequate legal, policy and institutional bases for dealing
with discrimination on the grounds of disability. Having considered the contents and
scope of relevant international human rights and non-discrimination provisions, the
author turns to the questions of how these provisions might be exercised, who the rights
holders and duty bearers would be and what the challenges of balancing different rights
and needs are. The article also includes the definition of the concept of disability in the
context of non-discrimination law and examines the dimensions of disability discrimina-
tion as defined in international and EU law. The author concludes that international, and
especially modern EU, non-discrimination law establishes a wide and inclusive legal
framework for dealing with disability discrimination. However, the actual scope of the
realisation of international and European legal standards on disability discrimination in
each state will depend on the consistency and effectiveness of their national implemen-
tation and on the manner of putting them into practice.
Keywords
Persons with disabilities, disability discrimination, international law, EU law, EU Member
States’ legislations
ISCOMET Institute, Maribor, Slovenia
Corresponding author:
Gregor Mauc
ˇec, ISCOMET Institute, Maribor 1, Slovenia.
Email: gregor.mauchec@gmail.com
International Journalof
Discrimination and theLaw
13(1) 34–49
ªThe Author(s) 2013
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1358229113482072
jdi.sagepub.com
Introduction
In spite of a multitude of international, supranational and national legal and policy instru-
ments and actionspursuing better participation and enhancedinclusion of personswith dis-
abilities in mainstream society, the exclusion, discrimination and marginalisation of
disabledpeople remain someof the greatest global humanrights issues of our time, stillgain-
ingimportance owing to factorssuch as war and destruction,unhealthyliving conditionsand
the global increase in chronic health conditions, ageing populations and the higher risk of
disability in older people, as well as the general absence of knowledge about disability, its
causes, prevention and treatment.Discrimination againstany person on the grounds of dis-
abilityis ‘a violation of the inherentdignity and worth of thehuman person’, as it is statedin
the Preamble to theUN Convention on the Rights of Persons with Disabilities.
According to the World Report on Disability 2011, produced and published jointly by
the World Health Organization and the World Bank Group, disabled persons in all
countries experience inequalities and are denied equal access to health care, work and
employment, education, political participation, transport, public buildings and even
information (World Health Organization, 2011: XI). In addition, in the General Com-
ment No. 5 (1994) Persons with Disabilities adopted by the Committee on Economic,
Social and Cultural Rights it is stated that the consequences of discrimination on the
grounds of disability have also been particularly severe in the fields of housing, cultural
life and access to public places and services.
1
The overarching aim of this article is to critically analyse international, and in partic-
ular EU, human rights and non-discrimination frameworks and to find out whether these
norms provide for the adequate legal, policy and institutional bases for dealing with the
problems that persons with disabilities face when it comes to their equal treatment and
equal opportunities. Having considered the contents and scope of relevant international
human rights and non-discrimination provisions, I will turn to the questions of how these
provisions might be exercised, who the rights holders and duty bearers would be and
what the challenges of balancing different rights and needs are. However, the article will
not examine existing mechanisms or institutions and procedural issues (e.g. burden of
proof, remedies and sanctions) – at international, EU and national levels – for giving
effect to and enforcing the rights in question.
International law
Today, provisions for the equality or non-discrimination of persons with disabilities
constitute a significant body of international human rights law as they can be found in
all key human rights treaties adopted at universal and regional levels. However, one
should distinguish between general human rights documents and specialised instruments
on the discrimination against certain groups of people (including those with disabilities).
a) General human rights documents
The Universal Declaration of Human Rights 1948 (UDHR),
2
which sets out basic human
rights standards accepted by all Member States of the United Nations (UN), and thus
Mauc
ˇec 35
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