Reasonable accommodation in Irish equality law: an incomplete transformation

Legal Studies ◽  
2020 ◽  
pp. 1-20
Author(s):  
Lucy-Ann Buckley ◽  
Shivaun Quinlivan
Keyword(s):  
Best Practice ◽  
Reasonable Accommodation ◽  
Active Engagement ◽  
International Human Rights ◽  
Persons With Disabilities ◽  
Substantive Equality ◽  
Multiple Contexts ◽  
Transformative Potential ◽  
Structural Impact ◽  
International Human

Abstract The UN Convention on the Rights of Persons with Disabilities is the first international human rights convention to state expressly that discrimination includes the failure to provide reasonable accommodation. The duty has been described as transformative but has also been critiqued for its lack of structural impact. This paper evaluates the transformative potential of the reasonable accommodation duty encompassed by the Convention, and considers how its potential can be realised. It argues that the duty is transformative because of the substantive equality it provides for individuals, and because it requires both active engagement with persons with disabilities and proactive consideration of barriers to inclusion, in multiple contexts. However, it contends that full realisation of the duty's transformative potential depends on appropriate legislative formulation. This may be a problem in dualist states where application of the Convention is not automatic and pre-existing legislation may be perceived as satisfying the obligation. The paper supports this contention with an analysis of Irish law, arguing that the full transformative potential of the reasonable accommodation duty has not yet been achieved in Ireland, and identifying the reasons for this. The paper examines the practical consequences of inadequate implementation and highlights pitfalls and best practice.

Reasonable accommodation in Irish constitutional law: two steps forward and one step back – or simply out of step?

2021 ◽  
Vol 72 (1) ◽  
pp. 61-88
Author(s):  
Shivaun Quinlivan ◽  
Lucy-Ann Buckley
Keyword(s):  
Human Rights ◽  
Constitutional Law ◽  
Reasonable Accommodation ◽  
International Human Rights ◽  
Persons With Disabilities ◽  
Multiple Contexts ◽  
One Step ◽  
United Nations Convention ◽  
International Human ◽  
Legislative Measures

By ratifying the United Nations Convention on the Rights of Persons with Disabilities (CRPD), Ireland has committed to implementing the principle of reasonable accommodation in multiple contexts. To date, however, it has failed to expand existing legislative measures. This article analyses the potential of the Irish Constitution to encompass a reasonable accommodation duty and meet Ireland’s CRPD obligations. It examines the constitutional model of equality, as well as judicial conceptualisations of disability, and argues that the Constitution is capable of accommodating a more robust legislative standard for reasonable accommodation than often thought, which is compatible with the CRPD. It also contends that recent decisions offer potential for the development of a constitutional reasonable accommodation duty. However, these apparent gains are fragile and the current constitutional capacity to accommodate CRPD requirements is undermined by continuing judicial contestation. The Constitution should therefore be amended so that Ireland can meet its international human rights obligations.

Germany

2018 ◽  
Author(s):  
Valentin Aichele
Keyword(s):  
Human Rights ◽  
International Law ◽  
Direct Effect ◽  
Federal Courts ◽  
International Human Rights ◽  
Persons With Disabilities ◽  
Public International Law ◽  
Monitoring Mechanism ◽  
International Human ◽  
Human Rights Norms

This chapter analyses the use and interpretation of the Convention on the Rights of Persons with Disabilities (CRPD) in sixty-nine decisions of German federal courts between 2009 and mid-2016. German courts’ failure to be proactive in demonstrating ‘friendliness towards public international law’ when dealing with international human rights norms has been criticised. The National CRPD Monitoring Mechanism addressed problems in the application of the law. This chapter investigates the courts’ understanding of basic CRPD concepts, judicial techniques, interpretation methods and specific CRPD provisions. The importance of the concepts of self-executing provisions and direct effect is discussed. In quantitative terms, German courts have referred to the CRPD more often than any other UN international human rights instrument. Furthermore, in qualitative terms, federal courts have become more receptive towards the CRPD. However, it is clear that much of the potential for courts to use the CRPD in the realisation of the rights of persons with disabilities remains untapped.

Art.32 International Cooperation

2018 ◽  
Author(s):  
Lord Janet E ◽  
Stein Michael Ashley
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Cooperation ◽  
Environmental Law ◽  
Inclusive Development ◽  
Treaty Rights ◽  
International Human Rights ◽  
Persons With Disabilities ◽  
United Nations Convention ◽  
International Human

This chapter examines Article 32 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which deals with the issue of international cooperation. The provision on international cooperation in the CRPD sprang from framework conventions in the international criminal and environmental law spheres, where such provisions are ubiquitous, rather than from prior human rights treaty practice. Article 32 was thus a highly contentious text to negotiate due to the far more limited meaning ascribed to the term ‘international cooperation’ in other international human rights instruments. Article 32 sits holistically within the CRPD framework, and is thus informed by its principles and general obligations, and should be read in conjunction with the specific, substantive rights of the remainder of the treaty. Rights and duties in the CRPD hang together; discerning the meaning of disability inclusive development cannot be achieved by examining any one provision in isolation.

scholarly journals Supported Decision Making Model as a Tool and Form for Socialization of People with Psychosocial Disabilities: Legal and Social Education Challenges in Lithuania

Pedagogika ◽  
2014 ◽  
Vol 116 (4) ◽  
pp. 196-212
Author(s):  
Dovilė Juodkaitė
Keyword(s):  
Decision Making ◽  
Social Practice ◽  
International Human Rights ◽  
Legal Requirements ◽  
Persons With Disabilities ◽  
Legal Guardianship ◽  
International Human ◽  
Decision Making Models ◽  
Decision Making Model ◽  
Vulnerable Persons

The aim of this article is to introduce the new concept of supported decision making model. Supported decision making model (SDM) as a tool for proper implementation of the rights of persons with disabilities is foreseen in the newest international human rights treaty – Convention on the rights of people with disabilities (CRPD). As a new concept SDM raises number of challenges both of legal, social and educational aspects how to introduce and implement this model in practice in order to safeguard rights and ensure social integration and socialization of the most vulnerable persons with psychosocial disabilities in the society. Specific objectives of the study carried out were: to review new legal requirements of art. 12 of CRPD for ensuring equality before the law for all persons with disabilities, to critically analyze Lithuanian legal guardianship system for its compliance / noncompliance to those international requirements; to review and analyze supported decision making models existing in other countries; based on the comparative analysis of the supported decision making models, to make recommendations for Lithuanian legislation, legal and social practice on possible supported decision making model.

Setting the Scene

2018 ◽  
Author(s):  
Anna Lawson ◽  
Lisa Waddington
Keyword(s):  
Human Rights ◽  
Comparative Analysis ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Persons With Disabilities ◽  
Domestic Courts ◽  
International Human

This chapter introduces the book and provides important context for all the subsequent chapters. In particular, it explains the aim of the research presented in the book and situates it within the emerging literature on comparative international (human rights) law, as well as the literature on the Convention on the Rights of Persons with Disabilities (CRPD). It also sets out the methodology used and explains how the book is structured, with jurisdiction-specific chapters, and chapters providing comparative analysis across jurisdictions illuminating the differences and similarities in the interpretation and use of the CRPD by domestic courts and judges.

scholarly journals Disability, Deprivation of Liberty and Human Rights Norms: Reconciling European and International Approaches

2017 ◽  
Vol 2016 (22) ◽  
pp. 76
Author(s):  
Eilionóir Flynn
Keyword(s):  
Human Rights ◽  
Right To Health ◽  
European Convention ◽  
Font Size ◽  
Right To Life ◽  
International Human Rights ◽  
Persons With Disabilities ◽  
International Human ◽  
Human Rights Norms ◽  
Article 5

<p><span style="font-family: 'Helvetica',sans-serif; font-size: 12pt; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin; mso-ansi-language: EN-GB; mso-fareast-language: EN-US; mso-bidi-language: AR-SA;">Persons with disabilities are subject to unique forms of deprivation of liberty, often justified by reference to the need to protect their right to life, right to health, and to protect the human rights of others. This paper examines disability-specific forms of deprivation of liberty, particularly those authorised in mental health and capacity law, in light of their compliance with European and international human rights frameworks. It explores the apparent tension between Article 5 of the European Convention on Human Rights, which permits deprivation of liberty of ‘persons of unsound mind’ in certain circumstances, and Article 14 of the UN Convention on the Rights of Persons with Disabilities, which states that ‘the existence of a disability shall in no case justify a deprivation of liberty.’ The challenges in attempting to comply with both provisions are illustrated through reference to developments in England and Wales. This paper also seeks to offer a way forward for States Parties to both Conventions, in order to protect the rights of persons with disabilities.</span></p>

The case for treating violence against women as a form of sex discrimination in India

2020 ◽  
pp. 135822912097886
Author(s):  
Ayushi Agarwal
Keyword(s):  
Human Rights ◽  
Violence Against Women ◽  
Sex Discrimination ◽  
Current Understanding ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Substantive Equality ◽  
International Human

Violence against women (VAW) is rampant in India, and rising every year. However, Indian laws are geared towards punishing individual instances of such violence, instead of attempting to eradicate the problem itself. This is owed in part to the incomplete understanding of the causes and effects of such violence. Here, I advance a feminist understanding of VAW, wherein it is seen as a result of gendered prejudices designed to keep women in subordination. I show that international human rights law now endorses this feminist understanding, and trace the evolving understanding of equality in Indian courts to argue that given its current understanding as substantive equality, VAW can and should be seen as a form of sex discrimination due the cycle of disadvantage it creates for women. I critically analyse several decisions by Indian courts that show a move towards acceptance of VAW as a form of sex discrimination, and point to the limitations of these decisions. Finally, I propose various ways in which envisaging VAW as a form of sex discrimination would lead to a better framework of laws for not only countering such violence, but also eradicating it.

scholarly journals THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES: ITS CONTRIBUTION TO THE DEVELOPMENT OF INTERNATIONAL HUMAN RIGHTS LAW

REVISTA ESMAT ◽  
2019 ◽  
Vol 11 (17) ◽  
pp. 209
Author(s):  
Mona Paré
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Persons With Disabilities ◽  
United Nations Convention ◽  
International Human ◽  
The One ◽  
The Impact

This article examines the impact that the United Nations Convention on the Rights of Persons with Disabilities (CRPD) has had on international human rights law. While it seems that the convention may have a narrow focus, as it focuses on a specific group of people, this paper argues that it has had an impact on international human rights law more generally. This impact started with the negotiation of the convention between 2002 and 2006, and is continuing with its implementation since its entry into force in 2008. The impact is of both procedural and substantive nature. On the one hand, the procedure that led to the development and adoption of the CRPD was innovative, as are the mechanisms that have been put into place to monitor its implementation. On the other hand, the convention introduces and develops concepts in a novel way in international law, such as new ways of considering the concept of equality, and to understand development, for example. The article concludes that the international community should capitalize on the new approaches, and that their application and interpretation should be closely monitored.

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