Introduction This section will address the national, European and international frameworks that govern the rights of persons with disabilities. Part I will examine the European Court of Human Rights (ECHR) and its protection of persons with disabilities. Part II will outline the protections guaranteed under the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Part III will provide a critical commentary on the evolution of Ireland's national legal and policy framework in response to the CRPD. I. The European Convention on Human Rights and The Protection of Persons with Disabilities The Council of Europe has never provided any specific instrument relating to the protection of the rights of persons with disabilities. Instead, it relies on a combination of policy initiatives, such as the Strategy on the Rights of Persons with Disabilities 2017–2023,88 and the existing rights framework conceptualized through the Convention. The sole explicit reference to persons with disabilities is found in a brief reference in Article 5 of the Convention. This article places a ban on the deprivation of a person's liberties, with one exception proving for the ‘lawful detention of persons of unsound mind’.89 The relatively sparse language in regards to persons with disabilities can be largely attributed to the ECHR’s historical context, at the time of its foundation in the 1950s deficient understandings of disability tended to prevail, and ‘disabled persons were not considered autonomous rights holders at all’ not being conducive to widespread legal recognition.90 However, the ECHR has been willing to extrapolate new principles through its case-law and draw on sources, such as the CRPD, to interpret the European Convention on Human Rights (“The Convention”) in a manner consistent with more robust protection for persons with disabilities. The primary protection for persons with disabilities can be found under Article 14 of the Convention. Article 14 prohibits “discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a
88
Council of Europe, (2017) ‘Strategy on the Rights of Persons with Disabilities 2017–2023’. Article 5, European Convention on Human Rights. 90 Silvia Favalli, ‘The United Nations Convention on the Rights of Persons with Disabilities in the Case Law of the European Court of Human Rights and in the Council of Europe Disability Strategy 2017–2023: ‘from Zero to Hero’ (2018) 18 (3) Human Rights Law Review 517. 89
Page | 40
