Of rights and obligations: the birth of accessibility

ABSTRACT

Accessibility refers to the inclusive practice of removing barriers to ensure equal access for persons with disabilities to, among others, built environments, goods and services, as well as facilities. The United Nations Convention on the Rights of Persons with Disabilities (CRPD or Convention) formulates ‘accessibility’ as a general principle and overarching obligation of the Convention, rather than as a human right per se. This has given rise to debate regarding the normative status of accessibility . Those involved in promoting the Convention have widely asserted that the primary aim of the CRPD was not to create new rights but to ensure that existing human rights were made equally effective for persons with disabilities. On the contrary, this article hypothesises that the enactment of accessibility obligations for States Parties, falling indirectly on the private sector, results in some form of sui generis ‘entitlement’ for persons with disabilities, which can arguably be viewed as amounting to a corresponding new human right – the right to accessibility. This begs foundational and complex questions about the formation and scope of human rights norms, and in particular whether the CRPD actually creates new rights. It also raises fundamental questions regarding the relationship between rights and obligations.

KEYWORDS:

• CRPD
• accessibility
• equality
• human rights
• state obligations

The content of a human right is the content of its associated duties, not of the interests that ground those duties.¹

Introduction

The United Nations Convention on the Rights of Persons with Disabilities (CRPD or Convention)² formulates ‘accessibility’ as a general principle and overarching obligation, referring to the inclusive practice of removing barriers to ensure equal access for persons with disabilities to, among other things, built environments, goods and services, and facilities. Unclarity regarding the normative status of accessibility has arisen from the fact that accessibility is not framed specifically as a human right in the CRPD. Those involved in promoting the Convention have widely asserted that the primary aim of the CRPD was not to create new rights but to ensure that existing human rights were made equally effective for persons with disabilities.

Apparently supporting this claim, the Committee on the Rights of Persons with Disabilities (CRPD Committee) subsumes the accessibility norm under the so-called pre-existing general ‘right to access’³ under international human rights law. However, this article argues that there is no sound legal basis for a separate human right to access and that, even if there were, the accessibility obligations in the CRPD go far beyond any potential ‘right to access’ that could be read into existing international human rights law, both in terms of their scope and content. Article 9 CRPD not only imposes widespread positive obligations on States Parties, but it also requires the private sector to take into account accessibility considerations. It has been acknowledged that Article 9 CRPD gives rise to various obligations which ‘will require resources and extensive systemic change’.⁴

In light of the foregoing, this paper questions whether the enactment of wide-ranging accessibility obligations for States Parties, falling indirectly on the private sector, results in a sui generis ‘entitlement’ for persons with disabilities, which amounts to a corresponding new human right – the right to accessibility. In order to address this question, this article uses legal doctrinal methodology to set out an analytical framework concerning the nature of human rights and the relationship between rights and duties. Before applying the foregoing analytical framework to Article 9 CRPD, the article analyses and interprets the Convention’s accessibility norm, using the tools in the Vienna Convention on the Law of Treaties (textual interpretation, contextual interpretation, teleological interpretation and historical interpretation).⁵ This paper ultimately argues that the justiciability of accessibility obligations is partly linked with pre-existing human rights, namely the equality and non-discrimination norms. On the basis of the above, important conclusions are drawn regarding not only the creation of new human rights in the CRPD, but also related to human rights theory more generally.

The nature of human rights

The concept of a ‘human right’ is one which has not achieved universal consensus in terms of its foundation and actual definition, according to Donnelly.⁶ In a general fashion, human rights are deemed to be those rights which an individual holds by virtue of being human. As a particular type of right, human rights are perceived to be those entitlements that individuals (or collectivities) have with regard to essential material or immaterial goods and that can be enforced against duty-bearers (states).

Human rights have been characterised as arising in three different waves or generations, namely first-generation, second-generation and third-generation human rights. First-generation human rights essentially concern individual rights to liberty and participation. They are fundamentally civil and political in nature and serve to protect the individual from interference by the state. By contrast, second-generation human rights emerged in the period following World War II. These rights are based on the principle of equality. Second-generation rights comprise economic, social and cultural rights, and they entail positive obligations and require resource allocation on the part of states. Third-generation human rights cannot be exercised by an individual alone; rather, they are concerned with those rights that belong to a group of individuals or a collectivity. These third-generation rights have not been universally accepted by academics.⁷ Nonetheless, there are various manifestations of such rights, in the form of the right to development and the right to cultural heritage, among others. Third-generation human rights fall into two categories: corporate and collective rights. The former are rights that are possessed by groups of individuals, whereby the right-holder is the group itself, not the individual members of the group. As Greco explains, this conception is enormously controversial ‘because it does not satisfy the basic requirement that the right-holder of a human right be a human being’.⁸ The second category of third-generation rights, collective rights, are those which are possessed by individuals themselves as members of a particular group.

Having set out a general overview of the nature of human rights, it is apt to turn to a discussion on the relationship between rights and duties.

The relationship between rights and duties

Most jurisprudential discussions concerning the relationship between rights and duties refer to the work of Wesley Hohfeld, who asserted that rights confer both a legal advantage (‘claim rights’) and carry with them correlative duties. According to Hohfeld, since the exercise of a right necessarily entails requiring a state or a non-state actor to act (or refrain from acting), it follows that said right must also impose a duty, in some form.⁹ In the human rights context, the correlative duty that attaches to a human right is placed on the state, while non-state actors may also be required (indirectly) to act or refrain from acting in certain circumstances.

Contemporary legal theorists claim that all rights (and human rights, in particular) can give rise to a ‘cluster’ of duties or obligations. These might serve to prevent the state, or private actors, from interfering with individual freedom, or they might require positive measures to be taken in order for the particular right to be fulfilled.¹⁰ Human rights therefore entail both negative obligations of non-interference and impose positive obligations on states to ensure resource allocation.

According to justificatory, or moral, theories of human rights, since human rights are viewed as the moral rationale for the imposition of rights-based duties, rights have (or, at least, should have) a logical priority over duties.¹¹ In other words, they generally come first in the natural or logical order. However, the question arises as to whether duties can ever precede rights – that is, whether rights can stem from legal duties; or, alternatively, whether rights must always come before legal duties? This question takes on increased significance in the context of progressive human rights treaties, such as the CRPD, where States Parties are subject to a host of wide-reaching obligations that are not specifically formulated in ‘rights language’ per se. Mégret seeks to disentangle the web of rights and obligations in human rights treaties, and specifically in the CRPD, in his assertion that:

If a state party is bound by a treaty to ‘take measure y’ to ‘ensure right A’ of person D with ‘measure y’ being identified clearly as the only measure susceptible of guaranteeing ‘right A,’ then any failure to adopt ‘measure y’ will be a violation of ‘right A’ of D.¹²

According to Mégret, there are two ways of looking at this scenario:

One could argue that the adoption of ‘measure y’ merely spells out the content of ‘right A,’ but one could also reasonably argue that ‘measure y’ also creates a right for D to have ‘measure y’ adopted. To some extent ‘measure y’ is merely a means to an end (‘right A’). In another sense, it is also a sort of ‘secondary right’ (in its own right, as it were), say, right ‘a’ (‘right A’ being the primary right).¹³

This viewpoint is particularly interesting in the context of the CRPD’s accessibility obligations. While Article 9 CRPD contains more than one measure that seeks to guarantee accessibility (so, more than merely ‘measure y’, as referred to by Mégret above), it will be argued below that the accessibility obligations in the Convention are intrinsically linked to other norms, namely the rights to equality/non-discrimination and reasonable accommodation, and that this interrelationship points to a potential justiciability for the obligations contained in Article 9 CRPD, to which attention is now turned.

Accessibility obligations in the United Nations Convention on the Rights of Persons with Disabilities

The accessibility norm in the CRPD mirrors various provisions enshrined in soft law instruments¹⁴ at the international level;¹⁵ however, the CRPD was the first binding human rights treaty to enshrine the accessibility norm and to apply it to the myriad of other provisions contained in the Convention – civil and political rights, and a wide range of socio-economic rights.

The accessibility norm appears numerous times throughout the CRPD. It appears in paragraph (e) of the Preamble of the Convention.¹⁶ It also features as a general principle in Article 3, and it is included in the general obligations of the Convention.¹⁷ Accessibility has also been enshrined as a stand-alone provision in Article 9 CRPD, which is of transversal application in the Convention. In addition, accessibility obligations are mentioned in several of the substantive rights of the Convention,¹⁸ among others, the rights to freedom of expression and opinion, and access to information,¹⁹ work and employment²⁰ as well as participation in political and public life.²¹

Article 9(1) CRPD imposes very specific duties on States Parties, linked primarily to the removal of barriers related ‘to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public […]’. Article 9(2)(a) sets out a number of other obligations relating, inter alia, to the development, promulgation and monitoring of the implementation of minimum standards and guidelines for accessibility. In addition, States Parties to the Convention are required, pursuant to Article 9(2)(b), to ensure that private entities that provide public facilities and services ‘take into account all aspects of accessibility for persons with disabilities’.

These wide-ranging obligations raise important questions regarding the nature and normative status of the accessibility norm in the CRPD.

The nature and normative status of the accessibility norm in the United Nations Convention on the Rights of Persons with Disabilities

The precise nature and normative status of accessibility in Article 9, deemed one of the most ‘debated’²² provisions in the CRPD, remain far from settled over ten years after the entry into force of the CRPD at the international level, despite some of the important clarifications made by the CRPD Committee in its general comments.

Unlike the majority of other provisions contained in the CRPD, there is no mention of an actual ‘right’ to accessibility in the text of Article 9 itself or in the Convention as a whole. During the negotiation sessions leading to the adoption of the CRPD, concerns were voiced regarding the fact that accessibility was framed as a general principle and a state obligation, and not as a right to accessible environments and services on an equal basis with others.²³ On foot of pleas by the International Disability Caucus (IDC) to ensure very wide coverage for the accessibility norm and to frame accessibility as a right per se, state delegations prophetically declared that the ‘Convention should be a vanguard for new legal rights’ and that the draft Article 19 (now Article 9 on accessibility) should recognise accessible technologies ‘as a right’ for persons with disabilities.²⁴ At the request of the Australian delegation, the accessibility norm was moved from Part II of the Convention (containing the substantive norms) to Part I (containing the general obligations of the Convention and norms of cross-cutting application). Disability Rights International (DRI) expressed its concern that the norms in part I of the Convention would need to be paired with a substantive norm from Part II in order to ensure direct enforcement at the international level. In response to this, the Ad-Hoc Committee tasked with drafting the Convention agreed to remove all references to structural ‘parts’ from the treaty. Melish opines that the Committee ‘thereby sought to obviate any interpretive inference that [accessibility] was to be understood exclusively as [a duty]’.²⁵ Melish argues that this was ‘an important technical modification that would be highly consequential for the treaty’s post-adoption interpretation under general principles of international law’.²⁶

Several actors in the field of disability claim that accessibility is a human right. Panelists at the 2014 hearing of the European Economic and Social Committee (EESC) on accessibility, including the European Disability Forum (EDF), argued that all forms of accessibility must be seen as a fundamental right, since accessibility is the gateway to other rights for people with disabilities.²⁷ The EESC subsequently adopted an Opinion on ‘Accessibility as a Human Right for Persons with Disabilities’. In that Opinion, the EESC acknowledged that Article 9 CRPD constitutes a human right in itself, and, as such, it is pivotal to ensuring the full enjoyment of civil and political rights, as well as economic, social and cultural rights for persons with disabilities.²⁸

Some academic scholars, such as Lawson, appear to classify accessibility as a ‘human right’,²⁹ but others simply refer to accessibility as being a ‘structural principle for living an independent life’.³⁰ The CRPD Committee does not refer explicitly to accessibility as a (new) human right in its General Comment on accessibility; rather, the Committee refers to accessibility as one of the ‘key underlying principles’ of the Convention – ‘a vital precondition for the effective and equal enjoyment of civil, political, economic, social and cultural rights by persons with disabilities’.³¹ As highlighted above, the Committee does, however, subsume the accessibility norm under what it considers to be a pre-existing human right – the ‘right to access’, which would appear to indicate that the Committee views the accessibility norm as giving rise to certain entitlements. One is lead to wonder whether the accessibility norm does indeed fall within the so-called pre-existing right of access, a point that will be discussed immediately below.

Pursuant to Article 9(1) CRPD, States Parties are required to take appropriate measures to ensure that persons with disabilities have access to environments, facilities, information and services on an equal basis with others.³² In that vein, the CRPD Committee has put forward the view that accessibility is simply ‘a disability-specific reaffirmation of the social aspect of the right of access’,³³ perpetuating the idea that the Convention does not guarantee ‘new rights’³⁴ but simply ‘channel[s] and make[s] applicable existing human rights obligations to the specific lived experiences of persons with disabilities’, as stated by Lord and Stein.³⁵ In light of the purported linkage between the ‘right to access’ and the accessibility norm, it is important to, firstly, determine whether there is, in fact, a sound legal basis for the right to access in international human rights law, and secondly, to highlight the distinction between accessibility and the so-called ‘right to access’.

With regard to the legal basis for a purported right to access, Greco outlines the difficulties inherent in terming ‘access’ a right in itself, since this relies, firstly, ‘on the premise that within the human rights discourse we can find both formulas – ‘the right to x’ and ‘the right to access to x’’ and, secondly, ‘on the assumption that they are two different rights’.³⁶ As Greco rightly points out, ‘claiming that the right to access is a human right per se means that access is the object of the right’, and ‘this line of thought raises many challenges’, since it essentially results in doubling certain human rights.³⁷ It would mean, for instance, that one has the right to education as well as the right to access education. Instead, as Greco argues, granting access to a right can be seen as part of the duty of the state in fulfilling a particular right.³⁸ This assertion is borne out by the numerous provisions of the CRPD, such as Article 24 (on education) and Article 30 (on participation in cultural life, recreation, leisure and sport), which mention the term ‘access’ specifically in the context of the overarching rights at issue. Viewed in this light, the legal basis for a separate right to access in international human rights law is questionable, and the CRPD Committee’s claim that accessibility forms part of a right that is arguably not a separate right at all provides the first indication that accessibility may amount to a new human right in itself.

The second indication for the foregoing proposition derives from the fact that the obligations stemming from the provisions drawn on by the CRPD Committee to establish the so-called right to access are considerably narrower than the accessibility obligations contained in the CRPD itself. A ‘right to access’ is referred to in a few international human rights treaties. For instance, Article 25(c) of the International Covenant on Civil and Political Rights (ICCPR)³⁹ enshrines the right of every citizen to have access, on general terms of equality, to public service in his or her country. The CRPD Committee claims that the foregoing article ‘could serve as a basis to incorporate the right of access into the core human rights treaties’.⁴⁰ If one looks closer at the foregoing article, however, one can deduce that the various ‘rights’ contained in Article 25 ICCPR are simply elements of the overall right to political participation, namely, the entitlement (a) to take part in the conduct of public affairs, directly or through freely chosen representatives, (b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors, and (c) to have access, on general terms of equality, to public service in his country.

The CRPD Committee further asserts that, on the basis of Article 5(f) of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD),⁴¹ which guarantees everyone equality before the law in the enjoyment of the right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafes, theatres and parks, ‘a precedent has been established in the international human rights legal framework for viewing the right to access as a right per se’.⁴² Even if one were to take the text of Article 5(f) CERD at face value as establishing an actual ‘right to access’, taking that article in its broader context highlights that the obligation at stake is to ensure equality before the law in the enjoyment of the (so-called) right to access any place or service intended for use by the general public. According to Nowak, ‘equality before the law’ does ‘not give rise to a claim of whatever nature to substantive equality but instead solely to a formal claim that existing laws be applied in the same manner to all those subject to them’ – so-called ‘formal equality’.⁴³ Unlike formal equality, substantive equality focuses on ‘the effects of laws, policies and practices, and with ensuring that they do not maintain, but rather alleviate, the inherent disadvantage that particular groups experience’.⁴⁴

The foregoing provisions of law are not as far-reaching as the model of inclusive equality endorsed by the CRPD’s accessibility obligations.⁴⁵ According to the CRPD Committee, inclusive equality goes even further than substantive equality by elaborating on and extending the content of equality,⁴⁶ and it includes:

1. a fair redistributive dimension: to address socioeconomic disadvantages,

2. a recognition dimension: to combat stigma, stereotyping, prejudice and violence and to recognise the dignity of human beings and their intersectionality,

3. a participative dimension: to reaffirm the social nature of people as members of social groups and the full recognition of humanity through inclusion in society, and

4. an accommodating dimension: to make space for difference as a matter of human dignity.⁴⁷

This progressive understanding of equality in the CRPD aligns with the ‘social-contextual understanding of disability’⁴⁸ that underpins the Convention and its accessibility obligations. This version of the social model⁴⁹ views disability as an interaction between persons with impairments and widespread barriers in society⁵⁰ (physical barriers, as well as legal and attitudinal barriers, among others). Together with the human rights model of disability⁵¹ that underpins the CRPD, this has resulted in an acknowledgment of the fact that a barrier-free society is essential to ensuring full and effective participation and inclusion of persons with disabilities, something which will require a significant reallocation of resources.

Through its far-reaching Article 9 obligations and through the foregoing models of disability and equality, the CRPD advocates the adoption of a variety of positive measures, which cannot be subsumed under the so-called pre-existing right of access. In addition, the scope and substantive content of the access norm, on the one hand, and the accessibility norm, on the other hand, are very different. Ensuring access to a good or service signifies a guarantee that all individuals can exercise or enjoy that good or service without discrimination and on an equal basis with others.⁵² Accessibility, on the other hand, is a disability-specific concept, and the CRPD’s accessibility norm goes far beyond the outer limits of the access norm in terms of its substantive content. Article 9 CRPD imposes wide-ranging (and new) positive obligations on States Parties, the extent of which have not been seen in previous international human rights treaties, and the Convention indirectly requires action at the level of the private sector. The CRPD Committee itself acknowledges the fact that the Convention is the first human rights treaty of the twenty-first century to address access to information and communications technology.⁵³ The very fact that the CRPD’s accessibility norm covers this new domain provides further evidence that the so-called ‘right to access’ cannot be deemed a sufficient legal basis of the accessibility norm.

In light of the foregoing, it can be argued that the Convention has not merely reformulated and extended existing human rights but has created novel and extensive positive obligations. Having established this much, it is vital to investigate whether the CRPD’s numerous accessibility obligations can be deemed to give rise to a counterpart right to accessibility for citizens in ratifying States Parties to the Convention, and if so, how far that right extends. This question is answered in the next section below, by exploring whether the CRPD’s accessibility norm satisfies the criteria for classification as a human right (outlined above), and by analysing (in the subsequent section) whether the accessibility obligations in the CRPD can be deemed to constitute the natural counterpart of a right to accessibility.

Accessibility as a human right?

According to the criteria outlined above, human rights can be perceived to be entitlements of individuals (or collectivities) to essential material or immaterial goods, and entitlements that can be enforced against duty-bearers (states). Accessibility is not a good per se; nonetheless, the accessibility norm seeks to ensure that persons with disabilities have access to environments, facilities, information, goods and services on an equal basis with others. It can be argued that this, in itself, ensures that the accessibility norm satisfies the criterion of being an entitlement to a good. By analogy, the well-established human rights to equality and non-discrimination do not, in themselves, constitute entitlements to goods; nonetheless, by their very objectives, these human rights seek to guarantee access to essential goods, among other things.

Accessibility clearly does not satisfy the definition of a first-generation human right nor does it satisfy that of a second-generation human right, as described above. Turning to the third generation of rights, it is important to analyse whether the CRPD’s accessibility norm can be seen as falling within the category of corporate or collective human rights. Both types of third-generation rights relate to groups in some way. As outlined above, corporate human rights are rights that are possessed by groups of individuals, whereby the right-holder is the group itself, not the individual members of the group. If accessibility were deemed to constitute a human right under the corporate vision of human rights, then this would imply that there is no individual right to accessibility as such and, furthermore, that particular sub-groups of people with disabilities (i.e. those with visual impairments) do not possess the right to accessibility qua people with that particular type of impairment. Against this background, it is worth noting that the CRPD Committee views accessibility as a group concept (as outlined above), and thus seems to imply that there is, indeed, no individual right to accessibility per se. However, the text of Article 9 CRPD clearly grants all individuals with disabilities the right to have access on an equal basis with others to facilities, goods, and services, among others. This means that individuals with visual impairments (as a sub-group of people with disabilities) are entitled to accessibility. On this basis, the understanding of accessibility as a corporate right does not appear to be tenable.

Under the collective interpretation of third-generation rights, individuals can possess or exercise rights as members of a particular group (due to the fact that they share a certain characteristic that qualifies them for membership of that group). On the surface, the accessibility norm appears to satisfy the definition of a third-generation human right of the collective variety, since individuals can indeed raise accessibility claims on behalf of a wider cohort of individuals who face barriers to accessibility. This is evidenced by the fact that several individual communications have successfully been taken before the CRPD Committee by individuals who claimed that their right to accessibility as individuals with disabilities was hindered. Greco claims that interpreting accessibility as a group right under this interpretation would mean that people with disabilities ‘have the right to accessibility because of their disability, not because of their humanity’⁵⁴ and that this gives way to a ‘ghetto effect’.⁵⁵ On that basis, he appears to dismiss the claim that accessibility could fall under the collective interpretation of human rights.⁵⁶ Nonetheless, it is argued that, based upon the understanding of accessibility as a ‘disability-specific’ concept in the CRPD Committee’s General Comment No. 2, it is entirely plausible that the accessibility norm could fall within the collective category of third-generation human rights. In addition, the Convention’s understanding of disability as an interactive process between individuals with impairments and barriers in the environment further supports the interpretation of accessibility as a collective human right.

Positive obligations to ensure accessibility: rights as the natural counterpart of duties?

Having established that the accessibility norm can be seen as falling within the category of (third-generation) collective human rights, the next step is to determine whether rights can be deemed to stem from duties – in other words, whether duties can precede rights? One would assume that rights always come first (or, at least, should come first) in the natural legal order, and that a human right cannot simply be ‘proclaimed’ subsequent to the drafting of a treaty in which a certain norm is not specifically framed in ‘rights’ language. On the other hand, one can argue that, if rights and duties are correlative and inseparable,⁵⁷ then surely there can be no duties imposed on States Parties to a treaty without a counterpart right, even if the extent of that counterpart right is, in itself, debatable. This raises the question as to whether the measures specified in Article 9 CRPD spell out the content of the right to accessibility and whether the non-adoption of the measures specified in Article 9 gives rise to a right for individuals in States Parties to the CRPD to have the measures specified in the Convention adopted?

The web of rights and obligations in the CRPD is complex. Where Article 9 CRPD is concerned, and as already pointed out above, there is clearly not only one specific measure specified in the Convention (akin to ‘measure y’ that Mégret alludes to). As Lord asserts, Article 9 lays down several ‘specific measures – positive duties, obligations – to achieve access, measures of varying degrees of normative persuasion, with weaker language used in relation to some measures, stronger language in others’.⁵⁸ While these duties are not framed in terms of a right per se, this does not rule out that some of the obligations contained in Article 9 could give rise to an entitlement to accessibility in particular cases. Indeed, the CRPD Committee did not seem to restrain itself from proclaiming (seemingly) broad rights and remedies attaching to Article 9 in the context of an individual communication brought against Hungary regarding the lack of accessibility for persons with visual impairments to banking services – Szilvia Nyusti and Péter Takács v. Hungary.⁵⁹ In that individual communication, the Committee stated that it had given ‘due regard’ to the various measures adopted by the State Party; notwithstanding this, the Committee observed that none of those measures had ensured the accessibility of the automated teller machines operated by the private bank for the authors or other persons in a similar situation.⁶⁰ The Committee accordingly found a violation of Article 9(2)(b) CRPD – the obligation to ensure that private entities open to the public take into account all aspects of accessibility for people with disabilities. The Committee gave a wide reading to the CRPD’s Article 9 obligations in its decision on that individual communication. By ordering the Hungarian authorities to ‘remedy’ the lack of accessibility for the authors and by linking that to a breach of Article 9, the Committee clearly envisages a (large) element of ‘right and remedy’ attaching directly to that article. The Committee’s reasoning in the case appears to presume that accessibility is individually justiciable⁶¹ in cases where the existing facilities of private entities are not accessible to individuals with disabilities on an equal basis with others, even where the State Party has taken seemingly valid steps to remedy the inaccessibility. As Ventegodt Liisberg asserts, ‘this interpretation by the Committee is untenable and the Committee itself does not seem to have fully taken into account the consequence of its own radical statements’.⁶²

In the next section of this paper, it is argued that, while Article 9 itself may be deemed to give rise to some element of a ‘rights claim’ in limited circumstances, the justiciability of accessibility obligations is intrinsically linked with other established human rights, namely the rights to equality and non-discrimination.

Equality and accessibility

Article 9 CRPD can be said to overlap with the right to equality/non-discrimination; however, the precise extent of that overlap has not been definitively established, and it is important to draw the outer limits of the overlap carefully, so as not to inflate the justiciability of Article 9 beyond what it should be.

As a socio-economic obligation, Article 9 CRPD can be deemed an obligation of progressive realisation, and although the CRPD Committee has not used the term ‘progressive realisation’ explicitly in the context of Article 9 in its General Comment No. 2, Quinn argues that ‘there is some elusive line beyond which the non-discrimination principle will not generate the more robust obligations contained in Article 9’.⁶³ Put another way, he asserts that the ‘failure to have an [..] accessible environment is clearly a form of discrimination’:

Using the non-discrimination tool it is possible to craft some limited positive obligations on States to undo this discrimination. But failure to achieve all the positive obligations outlined in Article 9 is probably not in itself a form of discrimination [… .].⁶⁴

To answer the question as to where the aforementioned ‘elusive line’ lies, it is necessary to take a closer look at the interaction between ‘new’ and ‘existing’ norms.

Article 9 CRPD has been described by Ferri as a ‘pragmatic translation of the principle of equality’.⁶⁵ During the discussions that took place at the seventh session of the Ad-Hoc Committee tasked with drafting the CRPD, it was acknowledged that accessibility is a ‘hybrid right’ in that it is ‘interlinked with equality standards’.⁶⁶ The IDC also put forward the view that limitations to accessibility amount to unequal treatment and suggested linking accessibility directly to reasonable accommodation, an immediately realisable norm.⁶⁷ This would have been problematic, however, since the accessibility norm is subject to progressive realisation. Several delegations from developing countries expressed concern that including any reference to discrimination in the CRPD’s progressive realisation clause (as had been proposed initially) would tie far-reaching obligations, such as accessibility, to the non-discrimination norm. As a possible way to resolve the issue, the Chair of the session, Don Mac Kay, suggested defining a ‘denial of reasonable accommodation’ as a form of discrimination.⁶⁸ Where, then, can one draw the line of distinction between the reasonable accommodation duty and the accessibility obligation?

Article 5(3) CRPD provides that, in order to promote equality and eliminate discrimination, States Parties are required to take all appropriate steps to ensure that reasonable accommodation is provided. Reasonable accommodation’ is defined in Article 2 CRPD as comprising of:

Necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.

An unjustified denial of reasonable accommodation (i.e. where it cannot be shown by the duty-bearer that the modification or adjustment requested by an individual amounts to a disproportionate or undue burden) constitutes a form of discrimination, according to Article 2 of the Convention. By contrast with the individualised and immediate character of the reasonable accommodation duty, the obligation to ensure accessibility contained in Article 9 CRPD is ‘generalised and anticipatory (not triggered by an individual request)’.⁶⁹ Moreover, accessibility duties usually require ‘compliance with set standards, e.g. installing ramps or providing certain information in Braille or large print’.⁷⁰ Compliance with accessibility standards is intended to overhaul the environment in general and to ensure the transformation of social structures in a progressive manner.

The CRPD Committee has summarised the main distinction between reasonable accommodation and accessibility as follows: ‘Accessibility is related to groups, whereas reasonable accommodation is related to individuals’.⁷¹ The Committee has elaborated on the group dimension of accessibility, stating that it is ‘an ex ante duty’. States Parties therefore ‘have the duty to provide accessibility before receiving an individual request to enter or use a place or service’.⁷² By way of contrast, the CRPD Committee has termed the duty to provide reasonable accommodation ‘an ex nunc duty’, which means that ‘it is enforceable from the moment an individual with an impairment needs it in a given situation, for example, workplace or school, in order to enjoy her or his rights on an equal basis in a particular context’.⁷³

The implementation of accessibility standards does not serve to ensure access to rights for all persons with disabilities. The individual needs and specific requirements of each person with a disability inevitably vary. Therefore, a measure amounting to a reasonable accommodation may still be required in an individual case (even where accessibility standards already exist). As the CRPD Committee points out, ‘reasonable accommodation can be used as a means of ensuring accessibility for an individual with a disability in a particular situation’. Thus, ‘individuals who have rare impairments that were not taken into account when the accessibility standards were developed or do not use the modes, methods or means offered to achieve accessibility’,⁷⁴ such as those individuals who do not read Braille print, might ask for a reasonable accommodation that falls outside the scope of particular accessibility standards. Since the obligation to ensure the end goal of (equally) accessible environments is a duty that is implemented gradually, the duty to accommodate fills an essential gap in ensuring participation and inclusion of persons with disabilities in mainstream society during the period in which full accessibility has not yet been achieved. To that end, accessibility standards may indicate ways and means of achieving access via the accommodation duty, but will not be determinative in and of themselves.⁷⁵

The duty to accommodate has an important role to play in enabling people with disabilities to challenge accessibility barriers in a particular, individualised case.⁷⁶ Moreover, even though the reasonable accommodation duty ‘operates on a bilateral basis’⁷⁷ (between the individual with a disability and the duty-bearer), compliance with the reasonable accommodation duty in the context of one individual with a disability may result in enhancing overall accessibility of structures for persons with disabilities (and indeed for non-disabled individuals)⁷⁸ on an equal basis with others.⁷⁹

Both norms may therefore be seen as complimentary measures to bolster de facto equality for persons with disabilities⁸⁰ and to guarantee equality of opportunities, goals which are implicit in the purpose of the Convention in Article 1, since the norms apply across the substantive provisions of the Convention and are, therefore, relevant to the realisation of both civil and political rights as well as economic, social and cultural rights. The reasonable accommodation norm takes firm roots in the equality principle by virtue of the fact that an unjustified failure to provide a reasonable accommodation is deemed to be a form of discrimination under Article 2 of the Convention. The accessibility norm is also related to the equality norm in some respects, but in a more complex way. It is precisely in this overlapping realm that the issue of justiciability of the accessibility norm surfaces.

Inaccessibility as a form of discrimination?

In light of the close link, yet clear distinction, between the CRPD’s reasonable accommodation duties, on the one hand, and accessibility obligations, on the other hand, it is important to pose the question as to whether inaccessible environments can ever amount to discrimination? The CRPD Committee has stated that a failure to fulfil accessibility obligations, resulting in unequal access to and enjoyment of rights, may constitute discrimination in certain limited circumstances. In that regard, the Committee has noted that:

As a minimum, the following situations in which lack of accessibility has prevented a person with disabilities from accessing a service or facility open to the public should be considered as prohibited acts of disability-based discrimination:

1. Where the service or facility was established after relevant accessibility standards were introduced;

2. Where access could have been granted to the facility or service (when it came into existence) through reasonable accommodation.⁸¹

Under point (ii) above, it would appear that an unjustified failure to accord a reasonable accommodation to ensure the fulfilment of the ‘entitlement’ to accessibility may constitute a violation not only of the non-discrimination norm but potentially also a violation of Article 9 CRPD. More importantly, since the duty to reasonably accommodate is already a justiciable norm in its own right, it emerges from the Committee’s remarks that the creation of new barriers at the national level after the establishment of relevant accessibility standards (point (i) above) may result in a breach of the accessibility norm, and may also amount to a form of discrimination, arguably indirect discrimination. Indirect discrimination occurs where legal provisions, criterion or practices are neutral prima facie (in other words, they do not distinguish directly on prohibited grounds) but where they put persons protected by the general prohibition of discrimination at a particular disadvantage compared with other persons.⁸²

The CRPD Committee has, furthermore, stated that domestic legislation ‘should provide for the mandatory application of accessibility standards and for sanctions, including fines, for those who fail to apply them’.⁸³ Indeed, in circumstances where relevant accessibility standards (which States Parties are required to develop, promulgate and monitor under Article 9(2)(a) of the CRPD) have been enacted,⁸⁴ causing blatant obstructions to accessibility would appear to give rise to a legal claim. It is also arguable that the creation of new barriers simply following ratification of the CRPD (rather than following the adoption of accessibility standards at the national level, as outlined above) can amount to a breach of the accessibility norm in certain circumstances. In that regard, the CRPD Committee has made a distinction between existing barriers to accessibility and new, or emerging, barriers. Naturally, States Parties to the Convention should not be required to eliminate barriers to existing facilities, goods, services and information systems immediately.⁸⁵ Rather, they will be required to remove them gradually, in a systematic way, with the aim of achieving full accessibility,⁸⁶ by establishing a legislative framework with ‘concrete, enforceable and time-bound benchmarks’.⁸⁷ By way of contrast with older barriers in the environment, States Parties should not create new barriers to accessibility and they should monitor the emergence of new barriers in the private sphere.⁸⁸ The Committee has stated that ‘all new objects, infrastructure, facilities, goods, products and services have to be designed in a way that makes them fully accessible for persons with disabilities, in accordance with the principles of universal design’.⁸⁹ Moreover, ‘new investments, research and production should contribute to eliminating inequality, not creating new barriers’.⁹⁰ Thus, failing to take the CRPD’s accessibility obligations into account in the development of new facilities, environments, etc., could give rise to a breach of the Convention, and this demonstrates another element of ‘right and remedy’ attaching to the accessibility norm at the international level.

This section of the paper has established the clear justiciability of the accessibility norm in certain limited circumstances and the fact that it enshrines obligations which correlate with a sui generis entitlement, or a new human right. The concluding remarks in this paper reflect on the theoretical implications of the CRPD’s accessibility norm, and specifically what it has added to the international human rights law regime.

Conclusion

The CRPD’s accessibility norm serves to reveal many lessons for the international human rights regime on the whole. The United Nations mechanisms have consistently claimed that the disability rights debate is ‘not so much about the enjoyment of specific rights as it is about ensuring the equal effective enjoyment of all human rights, without discrimination, by people with disabilities’.⁹¹ Uncertainty over the normative status of accessibility has been engendered by the numerous declarations made by the drafters and promoters of the Convention seeking to deny that the CRPD created ‘new’ rights. This denial has been described by Mégret as ‘a denial a little too emphatic to be entirely convincing’.⁹² A small number of dissenting voices have questioned the foregoing claim and, as Celik has pointed out, some authors ‘have detected many novelties of the [C]onvention that could be described as innovative’.⁹³ For instance, Mégret has asserted that the CRPD ‘comes very close to either creating new rights or formulating rights in the context of disability that have never been framed as such’.⁹⁴

This paper argues that the CRPD does not simply come close to creating new rights – it actually does create new rights, with far-reaching implications. In the process of providing details on what States Parties need to do in order to ensure that existing human rights can be actualised in the disability context, the CRPD has created more than mere ‘incidental rights’,⁹⁵ as Harpur terms them. The Convention has created self-standing rights, not previously seen in binding international human rights treaty law.⁹⁶

The unique participatory drafting process of the CRPD, whereby an ‘unprecedented’ number of civil society organisations⁹⁷ took part in the negotiation process leading to the adoption of the CRPD, has shaped the normative content of international human rights law. People with disabilities and their representative organisations were ‘particularly influential’⁹⁸ in the development of the accessibility norm. As demonstrated throughout this article, the final text of the CRPD has resulted in a human rights treaty that sets forth obligations with the potential to have far-reaching effects in the realm of States Parties’ domestic legal frameworks; none more so than the Convention’s accessibility obligations.

From the seemingly innocuous starting point of the so-called pre-existing ‘right to access’, the CRPD Committee has claimed that a sort of sub-right can be carved out, in order to tailor the purported existing human right to access to the needs of people with disabilities and to allow them to achieve a status of true equality. However, it has been argued throughout this article that there is no sound legal basis in international human rights law for a separate right to access and, furthermore, that the obligations enshrined under the heading of accessibility in the CRPD have given rise to distinct and more far-reaching obligations than the purported right of access. Seeking to tailor ‘pre-existing’ human rights to the situation of people with disabilities cannot always be said to involve a mere ‘extension’ or ‘re-statement’ of rights;⁹⁹ rather, in the instant case, it entails the birth of a new human right, the right to accessibility. While the exact parameters of that right have not been clearly defined nor have they been properly tested to date, the significance of accessibility is best explained by Ron McCallum, the former Chair of the CRPD Committee, who has commented that there is nothing ‘more crucial for persons with disabilities than accessibility’.¹⁰⁰

According to Lord, the CRPD ‘adds considerable content’ to the concept of ‘accessibility’.¹⁰¹ The inclusion of the principle of accessibility within a binding human rights treaty constitutes a novel addition to the international human rights law regime. In the first instance, it reflects the paradigm shift embodied by the CRPD towards the social-contextual model of disability and a model of inclusive equality. The spirit of inclusion underpinning the CRPD promotes a greater understanding of the barriers faced by marginalised groups and those under-represented in all areas of life. This model of inclusive equality has the potential to take on increased relevance across the entire spectrum of human rights treaties at the international level. Secondly, the accessibility norm enshrined in the CRPD imposes obligations of a positive nature never seen before in international human rights law, and those positive obligations apply across a whole range of other rights, both civil and political as well as economic, social and cultural rights. The CRPD has been deemed by O’Cinneide to adopt ‘a particular conceptual view of the [S]tate’s role’,¹⁰² whereby States Parties bear various positive obligations spanning all human rights, designed to ensure the provision of a minimum level of support to persons with disabilities, compatible with their inherent dignity. The CRPD’s conceptual vision of human rights lends greater support than ever before to the indivisibility and interdependence of human rights. This article has demonstrated how the accessibility norm (a socio-economic norm) forms a core element of realising equality (a civil and political right), and how equality measures, specifically the reasonable accommodation duty, form a key component in reaching the end goal of accessibility. In fact, the reasonable accommodation duty, together with the obligations enshrined in Article 9, are a means to an end – that end being the right to accessibility. The CRPD has been acknowledged by many authors as having transcended the civil and political, versus economic, social and cultural rights divide.¹⁰³ In that connection, Porter notes that the CRPD offers an exceptional model of ‘convergent paradigms of rights and remedies’ and emphasises the importance of the standard adopted by the CRPD Committee ‘in reviewing the right to positive measures in light of available resources in the context of both equality rights and [economic, social and cultural] rights’.¹⁰⁴ This statement will have significant bearings on the implementation of the right to accessibility itself.

On the whole, this paper not only adds to current understandings of the interplay between key human rights norms, which are relevant in the disability context and beyond, but also contributes to the debate on the interaction between rights and obligations. By tracing the birth of a new human right, in the form of the accessibility norm contained in Article 9 CRPD, this paper has also supported the premise that state duties, or obligations, can, in certain circumstances, materialise before human rights themselves come into (legal) existence. This latter finding can potentially have more far-reaching impact than with regard to Article 9 CRPD alone, or even with regard to the Convention itself; rather, it contributes to a much wider debate on human rights theory and the formation of new human rights.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Andrea Broderick is an Assistant Professor at the Department of International and European Law, Maastricht University. Andrea holds a Ph.D. in international and comparative disability equality law from Maastricht University. Her Ph.D. thesis was nominated for the Max Van der Stoel Human Rights Award 2016. She received the Edmond Hustinx Prize for Science 2018. Andrea also holds a BA International (law and French), awarded (with First Class Honours) jointly by the National University of Ireland, Galway (NUIG) and the University of Poitiers, France. In addition, she graduated with an LL.B. (Bachelor of Laws), as well as an LL.M. in International and Comparative Disability Law and Policy, with First Class Honours, from NUIG. Andrea is also a qualified solicitor, having worked in professional legal practice for many years. Andrea’s current research interests lie in the areas of international and European disability law, EU equality law, non-state actors, the right to inclusive education and the case law of the European Court of Human Rights.

Notes

1 John Tasioulas, ‘On the Foundations of Human Rights’, in Philosophical Foundations of Human Rights, ed. Rowan Cruft, S. Matthew Liao, and Massimo Renzo (Oxford: Oxford University Press, 2015), 48.

2 UN Convention on the Rights of Persons with Disabilities, 13 December 2006, in force 03 May 2008, UN Doc. A/RES/61/106, Annex I.

3 See Committee on the Rights of Persons with Disabilities, General Comment 2 on Accessibility (CRPD/C/GC/2, para. 14, 2014), where the Committee states that: ‘the right to access for persons with disabilities is ensured through strict implementation of accessibility standards’.

4 See Janet Lord, ‘Accessibility and Human Rights Fusion in the CRPD: Assessing the Scope and Content of the Accessibility Principle and Duty under the CRPD’: 7, Presentation for the General Day of Discussion on Accessibility, UN CRPD Committee, UN, Geneva, October 7, 2010, citing Gerard Quinn, ‘The Interaction of Non-discrimination with Article 9’, unpublished paper.

5 Vienna Convention on the law of treaties (with annex). Concluded in Vienna on 23 May 1969, https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf (accessed July 2, 2019).

6 See generally Jack Donnelly, Universal Human Rights in Theory and Practice (New York: Cornell University Press, 1989). See also Andrew Fagan, Human Rights: Confronting Myths and Misunderstandings (Cheltenham: Edward Elgar, 2009).

7 See, for example, Bülent Algan, ‘Rethinking “Third Generation” Human Rights’, Ankara Law Review 1, no. 1 (2004): 121; See also Wiktor Osiatyński, Human Rights and their Limits (Cambridge: Cambridge University Press, 2009).

8 Gian Maria Greco, ‘On Accessibility as a Human Right, with an Application to Media Accessibility’, in Researching Audio Description: New Approaches, ed. Anna Matamala and Pilar Orero (London: Palgrave Macmillan, 2016), 20, citing Catherine McKinnon, Toleration: A Critical Introduction (London: Routledge, 2006).

9 Wesley Newcomb Hohfeld, Fundamental Legal Conceptions: as Applied in Judicial Reasoning and Other Legal Essays (New Haven: Yale University Press, 1923).

10 See generally Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford: Oxford University Press, 2008).

11 On this point, see generally Pavlos Eleftheriadis, Legal Rights (Oxford: Oxford University Press, 2008).

12 Fréderic Mégrét, ‘The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?’, Human Rights Quarterly 30, no. 2 (2008): 507.

13 Ibid.

14 Prior to the entry into force of the CRPD, accessibility featured as part of the third goal of The World Programme of Action (WPA), entitled ‘equalization of opportunities’. UN General Assembly Resolution 37/52, World Programme of Action concerning Disabled Persons, of 3 December 1982. Another important instrument containing a reference to the principle of accessibility is the UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities (Standard Rules), adopted by the UN General Assembly in 1993. UN General Assembly Resolution 48/96, Standard Rules on the Equalization of Opportunities for Persons with Disabilities, of 20 December 1993. The underlying tenets of the Standard Rules are aimed at ensuring equal access as well as participation and inclusion of persons with disabilities in mainstream society. In Rule 5 of the document, the importance of accessibility is underlined, relating to access to the physical environment and access to information and communications. General Comment No. 5 of the United Nations Committee on Economic, Social and Cultural Rights also highlights the emphasis that the Standard Rules place, inter alia, on accessibility measures. General Comment No. 5 also interprets Article 11 ICESCR as a right to ‘accessible housing’ and to ‘support services including assistive devices’ which enable persons with disabilities ‘to increase their level of independence in their daily living and to exercise their rights’. It recommends that States Parties ‘should promote the accessibility to and availability of places for cultural performances and services’. It also emphasises the fact that ‘the right to adequate housing includes the right to accessible housing for persons with disabilities.’ [United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 5 on Persons with Disabilities UN Doc. E/1995/22, paras. 33 and 36, 1994].

15 Under the heading of accessibility, the Committee on Economic, Social and Cultural Rights states that the right to health in all its forms and at all levels contains the following interrelated and essential elements: Non-discrimination, physical accessibility, economic accessibility (affordability), and information accessibility. [United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 14 on the Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4, para. 12, 2000].

16 CRPD, Preamble para. (e) states as follows: ‘Recognizing the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms’.

17 CRPD, Article 4(1)(h).

18 Accessibility also appears in two of the Convention’s implementation measures. In that regard, see CRPD, Article 31 (‘States Parties shall assume responsibility for the dissemination of these statistics and ensure their accessibility to persons with disabilities and others’); See also CRPD, Article 32 (States Parties shall ensure ‘that international cooperation, including international development programmes, is inclusive of and accessible to persons with disabilities’ and shall facilitate ‘cooperation in research and access to scientific and technical knowledge’).

19 CRPD, Article 21.

20 CRPD, Article 27.

21 CRPD, Article 29.

22 Francesco Seatzu, ‘Article 9 [Accessibility]’, in The United Nations Convention on the Rights of Persons with Disabilities: A commentary, ed. Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (Cham: Springer, 2017), 229.

23 Mental Disability Rights International (MDRI) expressed its ‘alarm’ at that very fact, and stated that it is ‘the specification of rights that is necessary to empower [persons with disabilities] and facilitate enforcement of this obligation by individuals’. 7th Session of the Ad Hoc Committee, Volume 8(2), January 17, 2006.

24 The IDC's proposals for Article 19, including two information sheets and a draft article, can be found at http://www.un.org/esa/socdev/enable/rights/ahc6contngos.htm and at http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7idcchairamend1.doc (accessed July 2, 2019).

25 Tara Melish, ‘An Eye Towards Effective Enforcement: A Technical-Comparative Approach to the Drafting Negotiations’, in Human Rights and Disability Advocacy, ed. Maya Sabatello and Marianne Schulze (Philadelphia: University of Pennsylvania Press, 2013), 82.

26 Ibid.

27 See https://www.eud.eu/news/accessibility-human-right/ (accessed July 2, 2019).

28 European Economic and Social Committee. (2014). Opinion on accessibility as a human right for persons with disabilities. https://eur-lex.europa.eu/legal-content/GA/TXT/?uri=CELEX:52013IE3000 (accessed July 2, 2019).

29 See Anna Lawson, ‘Accessibility Obligations in the UN Convention on the Rights of Persons with Disabilities: Nyusti & Takacs v. Hungary’ South African Journal of Human Rights 30, no. 2 (2014): 380; See also Delia Ferri and Anna Lawson, Reasonable Accommodation for Disabled People in Employment: A legal Analysis of the Situation in EU Member States, Iceland, Liechtenstein and Norway (Luxembourg: Publications Office of the European Union, 2016), 11; See also, Francesco Seatzu, who continuously refers to ‘accessibility rights’ in her writings - Seatzu, ‘Article 9 [Accessibility]’, 227/232 - where the author refers to accessibility as a ‘social economic right’. Notably, the Chairman of the Ad-Hoc Committee that was set up to draft the CRPD, Don MacKay, Ambassador of New Zealand, referred to accessibility as a ‘right’. Ad Hoc Committee on the Disability Convention, Daily Summaries, Sixth Session, 5 August 2005, volume 7(5).

30 Marianne Hirschberg and Christian Papadopoulos, ‘“Reasonable Accommodation” and “Accessibility”: Human Rights Instruments Relating to Inclusion and Exclusion in the Labor Market’, Societies 6, no. 1 (2016): 3.

31 General Comment 2 on Accessibility, CRPD/C/GC/2, para. 4.

32 CRPD, Article 9(1). Emphasis added.

33 General Comment on Accessibility, CRPD/C/GC/2, para. 4.

34 Ibid., para. 14.

35 Janet Lord and Michael Stein, ‘Charting the Development of Human Rights Law through the CRPD’, in The United Nations Convention on the Rights of Persons with Disabilities: A Commentary, ed. Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (Cham: Springer, 2017), 732.

36 Greco, ‘On Accessibility as a Human Right’, 22.

37 Ibid.

38 Ibid.

39 UN General Assembly, International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly Resolution 2200A (XXI) of 16 December 1966.

40 General Comment on Accessibility, CRPD/C/GC/2, para. 2.

41 UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, adopted in by General Assembly resolution 2106 (XX) of 21 December 1965).

42 General Comment on Accessibility, CRPD/C/GC/2, para. 3.

43 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl: N.P. Engel, 2nd Edition, 2005), 605. This interpretation also accords with: Committee on Economic, Social and Cultural Rights, General Comment 16: The equal right of men and women to the enjoyment of all economic, social and cultural rights (E/C.12/2005/3, para. 9, 2005).

44 General Comment on the Equal Right of Men and Women to the Enjoyment of all Economic, Social and Cultural Rights, E/C.12/2005/3, para. 7.

45 Committee on the Rights of Persons with Disabilities, General Comment No. 6 on Equality and Non-Discrimination (UN Doc. CRPD/C/GC/6, para. 11, 2018).

46 Ibid.

47 Ibid.

48 Andrea Broderick, The Long and Winding Road to Equality and Inclusion for Persons with Disabilities: The United Nations Convention on the Rights of Persons with Disabilities (Cambridge-Antwerp: Intersentia 2015), 77.

49 On the social model generally, see Michael Oliver, ‘If I had a Hammer’, in Implementing the Social Model of Disability: Theory and Research, ed. Colin Barnes and Geof Mercer (Leeds: The Disability Press 2004), 18–31. See also Mark Priestley, ‘Constructions and Creations: Idealism, Materialism and Disability Theory’, Disability and Society 13, no. 1 (1998): 75–94. The ‘pure’ social model has been criticised for, among other things, not taking the role of impairment properly into account in the analysis of disability. For a critique of this aspect of the social model of disability, see Deborah Marks ‘Dimensions of Oppression: Theorising the Embodied Subject’, Disability & Society 14, no. 5 (1999): 661. The social-contextual model is a more refined elaboration of the ‘pure’ social model: see Andrea Broderick, The Long and Winding Road to Equality and Inclusion for Persons with Disabilities: The United Nations Convention on the Rights of Persons with Disabilities (Cambridge-Antwerp: Intersentia, 2015), 77; see also Andrea Broderick and Delia Ferri, International and European Disability Law and Policy: Text, Cases and Materials (Cambridge: Cambridge University Press, 2019, in press). Under the social-contextual model, disability is perceived as an interactive process between people with impairments and societal barriers.

50 See paragraph (e) of the Preamble of the CRPD, which recognises that: ‘Disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’.

51 See generally Theresia Degener, ‘A New Human Rights Model of Disability’, in The United Nations Convention on the Rights of Persons With Disabilities: A Commentary, ed. Valentina Della Fina, Rachele Cera, and Giuseppe Palmisano (Cham: Springer, 2017), 41–60.

52 The United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) highlights the fact that guaranteeing access to education means ensuring: ‘(a) Availability; (b) Accessibility; (c) Acceptability; and (d) Adaptability’. Committee on Economic, Social and Cultural Rights, General Comment 13 on the right to education (E/C.12/1999/10, 1999), provides at para 6(a) that: ‘Functioning educational institutions and programmes have to be available in sufficient quantity within the jurisdiction of the State party (..)’. Ibid, para. 6(b): ‘Educational institutions and programmes have to be accessible to everyone, without discrimination, within the jurisdiction of the State party (..)’. Ibid, para. 6(c): The form and substance of education, including curricula and teaching methods, have to be acceptable (e.g. relevant, culturally appropriate and of good quality) to students and, in appropriate cases, parents (..).’ Ibid, para. 6(d): ‘Education has to be flexible so it can adapt to the needs of changing societies and communities and respond to the needs of students within their diverse social and cultural settings’.

53 General Comment on Accessibility, CRPD/C/GC/2, para. 14.

54 Greco, ‘On Accessibility as a Human Right’, 20.

55 Ibid. On this point, see however Mégrét, ‘The Disabilities Convention’, 516.

56 Ibid.

57 Several authors, including Onora O’ Neill, have asserted that ‘there can be no rights unless some configuration of counterpart duties that could realise or secure them is possible.’ Onora O’Neill, ‘Response to John Tasioulas’, in Philosophical Foundations of Human Rights, ed. Rowan Cruft, S. Matthew Liao, and Massimo Renzo (Oxford: Oxford University Press, 2015), 48.

58 Lord, ‘Accessibility and Human Rights Fusion in the CRPD’: 7.

59 Committee on the Rights of Persons with Disabilities, Individual Communication: Szilvia Nyusti and Péter Takács v. Hungary (1/2010, 2013).

60 Ibid., paras. 9.2 and 9.6.

61 As Oliver de Schutter observes, the CRPD Committee has ‘clarified the State’s responsibility to prevent non-State actors from discriminating, and it has ensured that the State obligation on accessibility which is set out in the Convention is justiciable by individual applicants. Oliver Lewis, ‘Case Comment on Nyusti and Takacs v Hungary: Decision of the UN Committee on the Rights of Persons with Disabilities’, European Human Rights Law Review 1 (2013): 419–24, 419.

62 Maria Ventegodt Liisberg, ‘Accessibility of Services and Discrimination: Concentricity, Consequence, and the Concept of Anticipatory Reasonable Adjustment’, International Journal of Discrimination and the Law 15, no. 1–2 (2015): 123–44, 129.

63 Gerard Quinn, ‘The interaction of Non-discrimination with article 9’, unpublished paper, cited by Lord, ‘Accessibility and Human Rights Fusion in the CRPD’. For a discussion of the CRPD Committee’s failure to allude specifically to the progressively realisable nature of Article 9 CRPD in its General Comment No. 2 on Accessibility, see Anna Lawson, ‘Article 9: Accessibility’, in The UN Convention on the Rights of Persons with Disabilities: A Commentary, ed. M.A. Stein, I. Bantekas and D. Anastasiou (Oxford University Press, 2018).

64 Ibid. Several scholars have written about the general interface between the intertwined norms of accessibility, reasonable accommodation and equality. See, for instance, Anna Lawson, Disability and Equality Law in Britain: The Role of Reasonable Adjustment (Oxford and Portland, Oregon: Bloomsbury, 2008) and Anna Lawson, ‘Reasonable Accommodation and Accessibility Obligations: Towards a More Unified European Approach?’, European Anti-Discrimination Law Review 11 (2011): 11–21; See also Maria Ventegodt Liisberg, Disability and Employment: A Contemporary Disability Human Rights Approach Applied to Danish, Swedish and EU Law and Policy (Cambridge: Intersentia, 2011).

65 Delia Ferri, ‘The Conclusion of the UN Convention on the Rights of Persons with Disabilities by the EU/EC: A Constitutional Perspective’, in European Yearbook of Disability Law 2, ed. Lisa Waddington and Gerard Quinn (Antwerp: Intersentia, 2009), 54.

66 Daily Summary of discussions at the seventh session of UN Convention on the Rights of Persons with Disabilities, Ad Hoc Committee, January 31, 2006, Volume 8(12), http://www.un.org/esa/socdev/enable/rights/adhoccom.htm. (accessed July 2, 2019).

67 Ibid.

68 Ibid.

69 Lisa Waddington and Andrea Broderick, Disability Law and the Duty to Reasonably Accommodate Beyond Employment: A Legal Analysis of the Situation in EU Member States (Luxembourg: Publications Office of the European Union, 2016), 45.

70 Ibid.

71 General Comment on Accessibility, CRPD/C/GC/2, para. 25.

72 Ibid.

73 Ibid., para. 26.

74 Ibid., para. 25.

75 Ibid., para. 26.

76 Anna Lawson sets out the ‘close and mutually reinforcing relationship’ between reasonable accommodation and accessibility measures: ‘The disadvantage caused to a person with intellectual disabilities by inaccessible information would call for reasonable accommodation (perhaps in the form of a verbal explanation) whereas, had the information been accessible to that person (eg because it was in easy read format) there would have been no requirement for reasonable accommodation’. Anna Lawson, ‘Reasonable Accommodation in the Convention on the Rights of Persons with Disabilities and Non-Discrimination in Employment: Rising to the Challenges?’, in Disability Law and Policy: An Analysis of the UN Convention, ed. Charles O’Mahony and Gerard Quinn (Dublin: Clarus Press, 2017), 366; See further Anna Lawson, ‘Reasonable Accommodation and Accessibility Obligations: Towards a More Unified European Approach?’, European Anti-Discrimination Law Review 11 (2011): 11–21.

77 Rosemary Kayess and Philip French, ‘Out of Darkness Into Light? Introducing the Convention on the Rights of Persons with Disabilities’, Human Rights Law Review 8, no. 1 (2008): 1, 9.

78 Jenny Goldschmidt has stated that a clear example of third party benefits arising from the reasonable accommodation duty can be seen in the US context under the Americans with Disabilities Act. In that regard, she states that when the Metropolitan Transport Agency in Washington, DC was under an obligation to make the public transport system (including platforms, exits and trains) accessible for people with disabilities, ‘they subsequently noticed that the metro was used much more by fathers and mothers with prams, and this led to far more profit than expected’. Jenny Goldschmidt, ‘Shifting the Burden of Proof: How the CRPD is Transforming our Understanding of Discrimination, Intersectionality and Priorities’, in Disability and Human Rights: Legal, Ethical and Conceptual Implications of the Convention on the Rights of Persons with Disabilities, ed. Joel Anderson and Jos Philips (Netherlands Institute of Human Rights: SIM Special 35, 2012), 52.

79 See generally Rosemary Kayess and Philip French, in their article: Kayess and French, ‘Out of Darkness Into Light?’, 10.

80 Waddington and Broderick, Disability Law and the Duty to Reasonably Accommodate, 45.

81 General Comment on Accessibility, CRPD/C/GC/2, para. 31. Emphasis added.

82 Unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’ (proportional). This is the definition of indirect discrimination according to European Union law. See further, Justyna Maliszewska-Nienartowicz, ‘Direct and Indirect Discrimination in European Union Law - How to Draw a Dividing Line?’ International Journal of Social Sciences 3, no. 1 (2014): 41-55.

83 General Comment on Accessibility, CRPD/C/GC/2, para. 28.

84 See further, European Network for Accessible Tourism, Joint Report on Accessibility in built environment (2011), document no. CEN/BT/WG 207, http://www.lhac.eu/resources/news/cen_joint_report.pdf (accessed July 2, 2019); See also, Zero Project, International Study on the Implementation of the UN Convention on the Rights of Persons with Disabilities: Focus of the Year 2014 on Accessibility (2014), http://www.un.org/disabilities/documents/egm2014/Fembek.pdf (accessed July 2, 2019).

85 The comments by the CRPD Committee on existing barriers seem to contrast with its more ‘radical’ findings in the individual communication against Hungary, outlined above.

86 General Comment on Accessibility, CRPD/C/GC/2, para. 14.

87 Individual Communication: Szilvia Nyusti and Péter Takács v. Hungary (1/2010, para. 10(2)(a), 2013).

88 General Comment on Accessibility, CRPD/C/GC/2, para. 24.

89 Ibid.

90 Individual Communication: F v Austria (21/2014, para. 8.5, 2014).

91 Commission on Human Rights, Human Rights of Persons with Disabilities (E/CN.4/2002/18/Add.1, 2002).

92 Mégrét, ‘The Disabilities Convention’, 498.

93 Elif Celik, ‘The Role of CRPD in Rethinking the Subject of Human Rights’, The International Journal of Human Rights 21, no. 7 (2017): 934/935.

94 Mégrét, ‘The Disabilities Convention’, 510.

95 Paul Harpur, ‘Embracing the New Disability Rights Paradigm: The Importance of the Convention on the Rights of Persons with Disabilities’, Disability and Society 27, no. 1 (2012): 1, 2.

96 As well as the clear justiciability inherent in Article 9 CRPD, one can argue that Article 19 CRPD also constitutes a new human right. Theresia Degener has argued that Article 19 ‘has no clear equivalent in binding pre-treaty law’ and is not rooted ‘in mainstream human rights philosophy’. Theresia Degener, ‘Disability in a Human Rights Context’, Laws no. 5(3), 35 (2016): 5. Degener claims that ‘the common catalogue of human rights of the UDHR does not contain a right to independent or community living’ and that ‘the concept derives from the disability rights movement and other social movements such as the deinstitutionali[s]ation movement, which came into being in the 1960s and 1970s in the United States, Scandinavia, Italy and many other countries’. Ibid., 6.

97 Broderick, The Long and Winding Road, 66.

98 Ibid., 67.

99 As the UNCESCR has previously acknowledged in its General Comment 5 on persons with disabilities: ‘The obligation in the case of such a vulnerable and disadvantaged group [as persons with disabilities]’ is to take positive action to reduce structural disadvantages and to give appropriate preferential treatment to people with disabilities […]. This almost invariably means that additional resources will need to be made available for this purpose and that a wide range of specially tailored measures will be required’. Committee on Economic, Social and Cultural Rights, General comment 5 on persons with disabilities, E/1995/22, para. 9.

100 Ron McCallum, Opening remarks at the General Day of Discussion on Accessibility of the Committee on the Rights of Persons with Disabilities (Geneva, October 7, 2010).

101 Lord, ‘Accessibility and Human Rights Fusion in the CRPD’: 6.

102 Colm O’ Cinneide, ‘Extracting Protection for Persons with Disabilities from Human Rights Frameworks: Established Limits and New Possibilities’, in The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives, ed. Oddný Mjöll Arnardóttir and Gerard Quinn (Antwerp: Martinus Nijhoff, 2009), 164.

103 See generally Mégrét, ‘The Disabilities Convention’.

104 Bruce Porter, ‘The Reasonableness of Article 8(4) - Adjudicating Claims from the Margins’, Nordisk Tidsskrift for Menneskerettigheter 27, no. 1 (2009): 39, 42.