‘Q
UEER
’
I
DENTITIES AND
W
HERE TO
F
IND
T
HEM
:
International Human Rights Law
and SOGIESC Right-holders
by Sooyoon Jeon
Master’s Thesis: Public International Law supervised by Prof. Dr. Yvonne Donders
“The Universe is not only queerer than we suppose,
but it is queerer than we can suppose.”
*ABSTRACT
This paper explores the notion of right-holders in international human rights law in relation to sexual orientation, gender identity, gender expression and sex characteristics [“SOGIESC”]. According to the principle of equality, all human beings are formally right-holders of human rights under human rights instruments. However, certain groups of persons are further protected due to historical and persistent disadvantages and denial from the enjoyment of human rights. Conceptualizing a group of right-holders in terms of SOGIESC, based on the approaches taken in other human rights instruments, should not only be based on their characteristics and fundamental identity, but also on the social pattern of perceiving these individuals as a group of persons who are different from what is considered the norm.
* Words of a British biologist J.B.S. Haldane, and later reiterated by Werner Heisenberg, a German theoretical
physicist known for the Heisenberg uncertainty principle: the position and momentum of a particle in quantum mechanics cannot be measured simultaneously with absolute precision.
This Pride flag was redesigned by Daniel Quasar to emphasize inclusion and progression. Colors of stripes represent life (red), healing (orange), sunlight (yellow), nature (green), harmony/peace (blue), and spirit (purple). Arrow-shaped colors represent trans individuals (light blue, light pink, white), marginalized POC communities (brown, black), individuals living with AIDS, those no longer living, and the stigma surrounding them (black). <https://www.kickstarter.com/projects/danielquasar/progress-a-pride-flag-reboot> [last accessed 26 July 2018]
TABLE OF CONTENTS
ABSTRACT ... I
TABLE OF CONTENTS ... II
LIST OF ABBREVIATIONS ... III
1.INTRODUCTION ... 1
2.RIGHT-HOLDERS IN THE CURRENT HUMAN RIGHTS FRAMEWORK ... 3
2.A. Instruments on Human Rights and Principle of Equality ... 4
2.A.I. ICCPR ... 5
2.A.II. ICESCR ... 7
2.A.III. Right-holders: the principle of equality ... 8
2.B. Instruments on Human Rights for Specific Subjects ... 9
2.B.I. CEDAW: sex and gender ... 9
2.B.II. CRPD: disability and difference ... 12
2.B.III. Right-holders: disadvantage, difference and diversity ... 15
3. RIGHT-HOLDERS AND THE CONCEPTS OF SOGIESC IN THE DEVELOPMENT OF INTERNATIONAL HUMAN RIGHTS LAW ... 16
3.A. Principle of Equality and Non-discrimination ... 17
3.B. ‘Sexual Minorities’ ... 17
3.C. Yogyakarta Principles... 19
4.IDENTIFYING SOGIESCRIGHT-HOLDERS IN INTERNATIONAL HUMAN RIGHTS LAW .... 22
4.A. SOGIESC Right-Holder as a Group ... 22
4.B. Identifying (Conceptualizing) SOGIESC Right-holders ... 23
5.CONCLUSION ... 25
LIST OF ABBREVIATIONS
ACHPR African Charter on Human and Peoples’ Rights
ACHR American Convention on Human Rights
CEDAW Convention on the Elimination of All Forms of Discrimination Against Women
CEDAWComm. Committee on the Elimination of Discrimination against Women CERD International Convention on the Elimination of All Forms of Racial
Discrimination
CESCR Committee on Economic, Social and Cultural Rights
CHR Commission of Human Rights
CRC Convention on the Rights of the Child CRCComm. Committee on the Rights of the Child
CRPD International Convention on the Rights of Persons with Disabilities CRPDComm. Committee on the Rights of Persons with Disabilities
ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms
GC General Comment
HRC Human Rights Council
HRComm. Human Rights Committee
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
ILGA International Lesbian, Gay, Bisexual, Trans and Intersex Association LGBTI Lesbian, Gay, Bisexual, Transgender and Intersex
SOGIESC Sexual orientation, gender identity, gender expression and sex characteristics
UDHR Universal Declaration of Human Right
UN United Nations
UNC Charter of the United Nations
UNDRIP UN Declaration on the Rights of Indigenous Peoples
UN SCPDPM UN Sub-Commission on Prevention of Discrimination and Protection of Minorities
UN SCPPHR UN Sub-Commission on the Promotion and Protection of Human Rights
UNGA United Nations General Assembly
UNHCR United Nations High Commissioner for Refugees
YP Yogyakarta Principles
‘Q
UEER’
I
DENTITIES ANDW
HERE TOF
INDT
HEM:
International Human Rights Law and SOGIESC Right-Holders
Sooyoon Jeon*
1. INTRODUCTION
Arguably, we live in the most tolerant time for individuals with diverse sexual orientation, gender identity, gender expression and sex characteristics [“SOGIESC”]1. It is only arguable,
as this idea can be rebutted. Despite the recent development of social acceptance and expanding discourse on human rights concerning SOGIESC in certain regions, the world overall continues to suffer from State-sponsored discrimination and the lack of a sufficient legal framework to protect Lesbian, Gay, Bisexual, Transgender and Intersex [“LGBTI”] individuals. But to whom could and should this protection be afforded? To what extent is it possible to identify a group of right-holders in relation to SOGIESC?
As of May 2017, 72 States out of 193 UN States criminalize same-sex sexual activities between adults in private.2 As the UN High Commissioner of Human Rights noted in 2015,
notwithstanding the positive progress, the overall situations indicate “one of continuing, pervasive, violent abuse, harassment and discrimination affecting LGBT and intersex persons in all regions.”3 Despite the persistent “patterns of human rights violations”,4 there is yet to
be a dedicated international human rights instrument for SOGIESC. This fact does not necessarily point to a complete absence of relevant human rights norms, nor does it dismiss the efforts of various international actors to introduce SOGIESC in the international discourse.5
The question of to whom a possible human rights mechanism should be afforded, if it is to be created, is an ongoing discourse. One of particular difficulties can be attributed to the fact that the protection of SOGIESC is often on the basis of non-discrimination. Under international human rights law, everyone is entitled to all the rights and freedoms without distinction of any kind6 which is interpreted to include SOGIESC. In this context, creating a specific mechanism
for SOGIESC human rights protection may not be necessary since it can be inferred from preexisting instruments. Another difficulty appears to be the complicated, intersectional and
* LL.M. in Public International Law, Amsterdam Law School, University of Amsterdam, under the supervision of
Dr. Prof. Yvonne Donders. Special thanks to Dr. Corina Heri and Jolein Holtz.
1 The term was introduced in the Yogyakarta Principles on the Application of International Human Rights Law in
Relation to Sexual Orientation and Gender Identity [“YP”] (adopted 9 November 2006) and Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression And Sex Characteristics to Complement The Yogyakarta Principles [“YP+10”] (adopted 10 November 2017); see also ILGA, Sexual Orientation, Gender Identity and Expression, and Sex Characteristics at the Universal Periodic Review (November 2016); ILGA, Kirichenko K., United Nations Treaty Bodies: References to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics 2016 (3rd Ed.) (November 2017)
2 Including Taiwan and Kosovo. ILGA, Carroll A. and Ramón Mendos L., State-Sponsored Homophobia (12th
Ed.) (May 2017) p.37
3 HRC, Discrimination and Violence Against Individuals Based on Their Sexual Orientation and Gender Identity,
UN Doc. A/HRC/29/23 (2015) para.76
4 O’Flaherty M., The Yogyakarta Principles at Ten, Nordic Journal of Human Rights Vol.33(4) 280-298 (2015)
pp.281-283; see also O’Flaherty M. and Fisher J., Sexual Orientation, Gender Identity and international Human Rights Law: Contextualising the Yogyakarta Principles, Human Rights Law Review Vol.8(2) 207-248 (2008) pp.208-214
5 See in general Heinze E., SEXUAL ORIENTATION:AHUMAN RIGHT (1995); Braun K., Do Ask, Do Tell: Where is
the Protection Against Sexual Discrimination in International Human Rights Law? American University International Law Review Vol.29(4) 871-903 (2014)
fluid nature of SOGIESC. Some argue that a formulation of an ‘identity group’ through shared practices or recognizable identities of individuals based on SOGIESC could not be appropriately translated from the traditional framework of cultural, national, religious or ethnic minorities, and would call for particular standards.7 Such conceptualization or standards may
not sufficiently reflect the reality of SOGIESC.
This paper, being mindful of these arguments, nevertheless sets its direction toward searching to whom a specialized SOGIESC mechanism should be afforded. There are several justifications for this endeavor. First of all, any legal conceptualization of a certain group of persons, be it an academic understanding or legal definition, is bound to be artificial and can never fully reflect the complicated and intricate reality. However, the limitations of such identification does not defeat its purpose of locating those who should be protected by law.8
For example, the definition of ‘minorities’ may not fully reflect the reality of minorities. Yet, a legal system nonetheless needs such definition to effectively protect their rights and freedoms. The relevant question from there is how to identify those who are in need of protection, despite its inherent limits. Secondly, there have been considerable developments in international human rights law concerning specific groups and their rights. Specialized human rights instruments such as the Convention on the Rights of Persons with Disabilities [“CRPD”] or UN Declaration on the Rights of Indigenous Peoples [“UNDRIP”] were adopted. There is a growing tendency of consideration on SOGIESC issues at the international level.9 Thus, it
would be appropriate at this point to revisit the articulation of SOGIESC and identification of the right-holders in light of the new developments. The underlying premise of this paper, of course, is that persons of diverse SOGIESC are right-holders of human rights regardless of their SOGIESC, and need a specialized human rights mechanism due to particular disadvantages they experience. It will not focus on justifying the necessity of such instrument, or explaining how would it be feasible to create it. It also should be stressed that the primary focus of this paper is international human rights law rather than sociology or philosophical understandings of SOGIESC.
For this purpose, this paper will proceed in the following steps. First of all, it will examine the current framework of international human rights in terms of defining relevant right-holders. This part will have two focal points: the UN human rights instruments of general protection and the principle of equality from the International Covenant on Civil and Political Rights [“ICCPR”] and International Covenants on Economic, Social and Cultural Rights [“ICESCR”]; and the UN human rights instruments for specific subjects, their approaches to specialized protection and defining their right-holders. The research will be narrowed down to the Convention on the Elimination of all Forms of Discrimination Against Women [“CEDAW”], for its approach on ‘sex’ and ‘gender’; and the CRPD for its inclusive ‘human rights model of disability’. Other instruments such as the CERD or Convention on the Rights of the Child [“CRC”], will be mentioned, but will not be the focus of the paper.
Secondly, the paper will examine the development of the human rights framework in the issue of SOGIESC, from the application of preexisting norms of international human rights, to its attempts to articulate a specialized instrument on SOGIESC. Resolutions, declarations, reports at the UN level, and General Comments by relevant treaty bodies will be the basis of the analysis. Additionally, the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity [“YP”] of 2006 and their
7 Miller A.M., Human Rights and Sexuality: First Steps Toward Articulating a Rights Framework for Claims to
Sexual Rights and Freedoms, American Society of International Law Proceedings Vol.93 288-303 (1999) p.297
8 To be further elaborated infra Part 4.A.
9 See in general ILGA, Kirichenko (fn.1); McGoldrick D., The Development and Status of Sexual Orientation
recent revision [“YP+10”] will be highlighted for their relevance. For the purpose of this paper, the conceptualization of the right-holders within this development will be the main focus.
Finally, it will apply the relevant findings from previous Parts into articulating SOGIESC human rights and right-holders. It will consider if right-holders in this context can be considered a ‘group’, and attempt to suggest possible directions in conceptualizing SOGIESC right-holders.
As for the terminology, there are a handful of terms used to refer individuals at question, from ‘sexual minorities’ to ‘LGBTI persons’, ‘LGBTIAQ+ persons’ (including Asexual and Questioning/Queer and more) and any other variation thereof. The appropriate terminology calls for intricate considerations for its context and nuance. This paper will avoid such terms as far as possible. Instead, these individuals will be addressed as ‘SOGIESC right-holders’10
tentatively.
2. RIGHT-HOLDERS IN THE CURRENT HUMAN RIGHTS FRAMEWORK
This Part of the paper attempts to comprehend the concept of right-holders in the current framework of human rights. Before any observation can be made, there needs to be a brief overview of human rights to set the context of the discussion.
First and foremost, human rights, in a simplified and literal sense, are understood as the rights of human beings stemming from the nature of being human. The term itself suggests “a subtle and particularly interesting derivation of rights from the complex moral notion of humanity; human nature as the source of the rights.”11 Donnelly argues that human nature in
this sense is the moral nature of humanity, the moral dimension in which human rights are needed for human dignity.12
Secondly, because human rights arise out of human nature and dignity, its characteristics are considered equal, inalienable and universal.13 The idea of equality here is of importance for
the identification of the right-holders. As the Universal Declaration of Human Rights [“UDHR”] Article 1 reads, “All human beings are born free and equal in dignity and rights.”14 According
to Raz, on the other hand, a statement that all human beings are equal in itself is more apt for an assertion of human dignity rather than an actual increase of equality.15 In other words, the
existence of equality in law, or formal equality, does not necessarily lead to the guarantee of equality in reality, substantive equality. Substantive equality requires additional and/or special protection for certain groups of individuals which suffer historical or persistent prejudice.16
Finally, human rights can also be understood in the sense of rights as titles and claims. Rights in general involve the relationship between ‘right-holders’ and ‘duty-bearers’ concerning the
10 Due to the recent addition of new notions, the term ‘SOGI’ is more common than ‘SOGIESC’. Considering
that the notions of gender expression and sex characteristics expand the former into latter, however, this paper will opt to use ‘SOGIESC’ even when ‘ESC’ are not explicitly mentioned. The terminology will be elaborated further infra Part 3.
11 Donnelley J., Human Rights as Natural Rights, Human Rights Quarterly Vol.4 391-405 (1982) p.391, n.1 12 Donnelley J., THE CONCEPT OF HUMAN RIGHTS (1985) p.31
13 There can be an endless discussion on universality of human rights alone which is not exactly the focus of this
paper. For further reading, refer to Donnelly J., The Relative Universality of Human Rights, Human Rights Quarterly Vol.29(2) 281-306 (2007); see also Goodhart M., Neither Relative nor Universal: A Response to Donnelly, Human Rights Quarterly Vol.30(1) 183-193 (2008) and Donnelly J., Human Rights: Both Universal and Relative (a Reply to Michael Goodhart), Human Rights Quarterly Vol.30(1) 194-204 (2008)
14 UDHR Art.1
15 According to Raz, this invocation of equality is rhetorical, no derogatory meaning intended. Raz J., THE
MORALITY OF FREEDOM (1986) p.228
object of the right.17 Because the right limits the freedom of others in order to secure the
right-holder’s control over the object of the right, it creates a set of duties for the duty-bearer. The right-holder, who are directly affected by the violation of their rights, have standing to complain about the violation of their rights.18 In this structure of rights and duties, according to Donnelly,
possession, enjoyment and enforcement of a right are correlated, but do not always operate simultaneously.19 In the case of human rights, all human beings, as the right-holders, possess
human rights by the virtue of being human. However, the enjoyment of human rights and their objects may not be, and often is not, guaranteed or protected by the duty-bearers. This disparity between the possession and enjoyment of human rights gives rise to the needs for substantive equality.
These observations serve as the basis for the general perspective of this research. In principle, all humans are equally right-holders of human rights by the virtue of human nature and dignity. n practice, however, specific groups of individuals are treated less humanely and thus, need additional protection. In this context, this Part will focus on the principle of equality and right-holders of human rights.
2.A. Instruments on Human Rights and Principle of Equality
The principle of equality is, as noted above, one of the foundations of human rights and engraved deeply in international law of human rights. The Charter of the United Nations [“UNC”] in its Preamble reaffirms “the equal rights of men and women”.20 The UDHR refers
to “the inherent dignity and of the equal and inalienable rights of all members of the human family” in its preamble.21 While the UDHR itself was not a legally binding treaty,22 it is
widely accepted that it constitutes an obligation for the members of the international community.23 As noted in the Vienna Declaration and Programme of Action, adopted by the
World Conference on Human Rights in 1993, the principle of equality is one of the fundamental rules of international human rights law.24 Accordingly, every other major international and
regional human rights instruments similarly include the acknowledgement of the principle of equality.25
The principle of equality gives rise to the right to equality and non-discrimination: the entitlement to the enjoyment of the rights and freedoms flowing from human rights without any unjustified distinction, and the entitlement without any discrimination to the equal protection of law.26 In the words of Sir Lauterpacht, the right to equality and
17 Donnelly (1985) (fn.12) p.12
18 Raz J., Human Rights in the Emerging World Order, Transnational Legal Theory Vol.1(1) 31-47 (2010)
pp.35-39; this is a simplified approach to the correlation between rights and duties. “The dynamic approach of rights”, as explained by Raz, expands on this issue and states that rights “are (part of) the justification of many duties. They justify the view that people have those duties”, see Raz (1986) (fn.15) p.170-172
19 Donnelly (1985) pp.13-16: ‘Enforcement’ in this context means entitlement of right-holders to claim for redress
or restitution not only to duty-bearers but also to relevant political authorities. Donnelly notes that enforcement is demanded in extreme cases.
20 UNC Preamble para.2 21 UDHR Preamble para.1
22 Pechota V., the Development of the Covenant on Civil and Political Rights in Henkin L. (ed.), THE
INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 32-71 (1981) p.35
23 Proclamation of Teheran, Final Act of the International Conference on Human Rights at Teheran, UN Doc.
A/CONF.32/41 (22 April to 13 May 1968) p.3 para.2
24 Vienna Declaration and Programme of Action, Adopted by the World Conference on Human Rights in Vienna
(25 June 1993) Preamble paras.3, 8, para.I.15
25 Preambles of the ICCPR; ICESCR; ECHR; ACHR; ACHPR
26 UDHR Art.2 and 7; ICCPR Art.2 and 26; ICESCR Art.2(2); CERD Art.1 and 2; CEDAW Art.1 and 2; CRPD
discrimination is “in a substantial sense the most fundamental of the rights of man. It occupies the first place in most written constitutions. It is the starting point of all other liberties.”27 In
an Advisory Opinion of the International Court of Justice [“ICJ”], Judge Ammoun noted that the right to equality is a preexisting binding customary norm which the UDHR codified, and the common consent for it has always been deemed inherent in human nature.28
Equality and non-discrimination are understood as the positive and negative statement of the same principle.29 According to a 1949 report by the UN Sub-Commission on Prevention
of Discrimination and Protection of Minorities [“SCPDPM”]30, one of the documents which
influenced the drafting of the Covenants following the UDHR,31 ‘equality’ can be understood
in two senses: de jure equality of moral and juridical characters as proclaimed by the UDHR, formal equality in dignity and in rights; and de facto equality of material characters in result.32
It stressed that ‘equality’ is not the same as the purely mechanical absence of differentiation nor does it mean identical treatment.33 ‘Discrimination’, in turn, was understood as a
differentiation excluded by de jure equality, “a distinction made on grounds of natural or social categories, which have no relation either to individual capacities or merits, or to the concrete behaviour of the individual person.”34 In modern legal doctrine, comparably, ‘discrimination’
refers to “arbitrary and unlawful differences in treatment”,35 a definition which this paper
adopts.
2.A.I. ICCPR
The ICCPR is envisioned to be a part of the International Bill of Rights along with the UDHR and the ICESCR.36 One of the most distinguishing features of the Covenants compared to the
UDHR is their designation of specific, legally binding duties and obligations to State Parties.37
As a binding instrument, the ICCPR contains provisions that reflect the norm of equality and non-discrimination. According to the Human Rights Committee [“HRComm.”], the right to equality and non-discrimination “constitute a basic and general principle relating to the protection of human rights.”38 Accordingly, the principle of equality and prohibition of
non-discrimination resonate throughout the various provisions of the ICCPR.39 Most importantly,
27 Lauterpacht H., THE INTERNATIONAL BILL OF THE RIGHTS OF MAN (New Ed.) (2013) p.115
28 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, Separate Opinion of Vice-President Ammoun (translation) 1971 ICJ 16 (21 June 1971) p.76
29 Ramcharan B.G., Equality and Nondiscrimination in Henkin (ed.) (fn.22) 246-269 (1981) p.252; Moeckli, D.,
HUMAN RIGHTS AND NON-DISCRIMINATION IN THE ‘WAR ON TERROR’ (2008) p.57
30 Renamed in 1999 as Sub-Commission on the Promotion and Protection of Human Rights [“SCPPHR”], and
later replaced by Advisory Committee of Human Rights Council in 2006.
31 Ramcharan, p.253
32 UN SCPDPM, Report of the Prevention of Discrimination, UN Doc. E/CN.4/Sub.2/40 (1949) para.30 33 Lauterpacht, p.116
34 UN SCPDPM Report, paras.32-33
35 UN SCPPHR, Bossuyt M., Prevention of Discrimination: The Concept and Practice of Affirmative Action, UN
Doc. E/CN.4/Sub.2/2002/21 (2002) para.91, the Special Rapporteur compares the definition to ‘distinction’ (a neutral term as it is yet to be determined if a differential treatment is justified or not) and ‘differentiation’ (lawful differential treatment).
36 The term “Covenant” was chosen to indicate “the solemn and inviolable nature of the obligations which states
would accept by adhering to it.” Pechota, pp.33-34
37 Ibid, p.35; see also Hannum H., The Status of the Universal Declaration of Human Rights in National and
International Law, Georgia Journal of International and Comparative Law Vol.25 287-397 (1995) p.318
38 HRComm. GC18, UN Doc. HRI/GEN/1/Rev.9 (Vol.I) 195-198 (1989) para.1
39 Other than the two examples mentioned above, ICCPR Art.3 (the equal right of men and women), Art.4(1)
(prohibition of derogation based on discrimination), Art.24(1) (equal protection of children without any discrimination), Art.25 (equal participation in public life without any distinction mentioned in Art.2)
Article 2(1) requires each State Party to respect and ensure the rights recognized in the Covenant to all individuals “without distinction of any kind.”40 Article 26 similarly proclaims
the equality before the law and entitlement to the equal protection of law without any discrimination.41
Interpretation of Article 2 is crucial in identifying the right-holders of the rights recognized in the ICCPR. Under Article 2(1), each State Party is to respect and ensure the rights of “all individuals within its territory and subject to its jurisdiction.”42 The drafters specifically chose
the term ‘individuals’ instead of ‘persons’ for two reasons. First of all, it was suggested that the word ‘persons’ covered not only individuals but legal persons such as corporations with which the ICCPR was not concerned. Secondly, the word ‘persons’ in legal context denoted the individuals the law recognized as possessing rights and obligations.43 Later in its General
Comment, however, the HRComm. noted that some of the rights such as freedom of religion, association and rights of members of minorities can be enjoyed in community with others.44
The fact that the Optional Protocol to the ICCPR only refers to communications by or on behalf of ‘individuals’ in its mechanism does not prevent such individuals from claiming that a measure against legal persons or similar entities amount to a violation of their own rights.45
Furthermore, by the virtue of Article 2(1), the rights in the ICCPR “apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness.”46 The
State obligation extends to “all individuals within its territory” as well as “all individuals subject to its jurisdiction”.47
The further substantiation of right-holders under Article 2 is achieved by the phrase, “all individuals (...) without distinction of any kind, such as race, colour, sex (...) or other status” under the principle of equality. The grounds enumerated in the Article are neither exhaustive nor exclusive, considering the formulation of ‘such as’ and ‘other status’.48
The term ‘discrimination’49 under the ICCPR is understood as “any distinction, exclusion,
restriction or preference (...) which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.”50 Hence, the HRComm. observed that not all differentiation will amount to
discrimination as long as such differentiation has a legitimate purpose, and is reasonable and objective.51 This is in lined with the observation made by the UN SCPDPM that the principle
40 ICCPR Art.2(1)
41 ICCPR Art.26 the difference between Arts.2 and 26 is that the former is limited to enumerated rights in the
ICCPR while the latter “prohibits discrimination in law or in fact in any field regulated and protected by public authorities”, HRComm. GC18, para.12; Ramcharan, pp.253-254; Alternatively, these rights are classified as subordinate and autonomous rights, Moeckli, pp.63-64
42 ICCPR Art.2(1)
43 The amendment was suggested by Japan to stress that certain basic rights were shared by all human beings
from birth, UNGA, Draft International Covenants on Human Rights, UN Doc. A/5655 (1964) para.17
44 HRComm. GC31 UN Doc. CCPR/C/21/Rev.1/Add.13 (2004) para.9
45 Ibid; see also Buergenthal T., To Respect and Ensure: State Obligation and Permissible Derogations inHenkin
(ed.) (fn.22) 72-91 (1981) p.73
46 HRComm. GC15, UN Doc. HRI/GEN/1/Rev.9 (Vol.I) 189-191 (1986) para.1; HRComm. GC31, para.10 47 For the detailed reasoning, see Buergenthal (1981) pp.73-77. The author explains that the phrase “within its
territory and subject to its jurisdiction” should be read as a disjunctive conjunction; for extraterritorial application, see HRComm., Lopez v. Uruguay, Merits, Comm. No.52/1979, UN Doc. CCPR/C/13/D/52/1979 (29 July 1981) paras.12-12.3
48 Ramcharan, p.256; Moeckli, p.64
49 It should be noted that the terms ‘distinction’ and ‘discrimination’ were used interchangeably by drafters within
the ICCPR and between different instruments, Draft International Covenants on Human Rights (1964) (fn.43) para.19; see also Ramcharan, pp.258-259
50 HRComm. GC18, paras.6-7 51 Ibid, para.13
of equality does not exclude every kind of differentiation.52 The prohibition of
non-discrimination, in this context, does not preclude positive measures taken in favor of disadvantaged or vulnerable groups.53 This was noted by the delegation of Philippines during
the drafting of Article 26 of the ICCPR, who noted that the term ‘discrimination’ is used “in a negative sense only, to mean a distinction of an unfavourable and not of a favourable kind.”54
2.A.II. ICESCR
Similar to the other Covenant but pertaining to a different group of rights, the ICESCR was consciously adopted as a legally binding treaty.55 The inclusion of economic, social and
cultural rights in the drafting of the Covenant was requested by General Assembly, in recognition that the enjoyment of civil and political rights are interconnected and interdependent to said rights.56
The principles of equality and non-discrimination are fundamental to the ICESCR and reflected throughout the Covenant.57 First and foremost, Article 2(2) guarantees the exercise
of rights enunciated in the Covenant without discrimination of any kind.58 While this provision
does not identify to whom such right is afforded per se,59 the Preamble emphasizes that the
freedom from fear and want can only be achieved where ‘everyone’ enjoys their economic, social and cultural rights as well as the civil and political rights.60 The formulation of
provisions in the ICESCR frequently uses the term “the right of everyone to”.61 In this context,
the right-holders intended for the ICESCR can be considered analogous to ‘all individuals’ similar to that of ICCPR Article 2.62
Concerning non-discrimination, the Committee of Economic, Social and Cultural Rights [“CESCR”] has made an extensive observation in its General Comment. For starters, the CESCR accepted the view of HRComm. and its definition of ‘discrimination’.63 Especially in
terms of tackling ‘substantive discriminations’, discrimination in practice, the CESCR notes that “the effective enjoyment of Covenant rights is often influenced by whether a person is a member of a group characterized by the prohibited grounds of discrimination.”64 In the
52 The UN SCPDPM found two classes of differentiations, based on conduct imputable to the individual
(delinquency, lawfulness, etc.), or based on individual quality with social values (physical and mental capacities, talent, etc.) The latter class of differentiation, especially in terms of disability and impairments, will be dealt infra Part 2.B.II., UN SCPDPM Report (fn.32) para.31; see also Bossuyt, para.91
53 Ramcharan, pp.259-260
54 UNGA, Third Committee, Official Record of the 1102nd Meeting, UN Doc. A/C.3/SR.1102 (1961) para.53 55 Hannum, p.318; see also Riedel E., Giacca G., and Golay C., The Development of Economic, Social, and
Cultural Rights in International Law in Riedel E., Giacca G., and Golay C. (eds.), ECONOMIC,SOCIAL, AND
CULTURAL RIGHTS IN INTERNATIONAL LAW:CONTEMPORARY ISSUES AND CHALLENGES 3-48 (2014) pp.6-7
56 UNGA, Resolution 421-E, UN Doc. A/RES/421(V) (1950) p.43; see also Vienna Declaration para.I.5; see also
ICESCR Preamble para.3
57 CESCR GC20, UN Doc. E/C.12/GC/20 (2009) paras.2-3 58 ICESCR Art.2(2)
59 During the drafting, Nigerian delegation suggested to amend the current Art.2(2) to include “to respect and to
ensure to all individuals the rights recognized in this Covenant”, but it was later withdrawn, UNGA, Draft International Covenants on Human Rights, UN Doc. A/5365 (1962) para.43
60 ICESCR Preamble paras.1-3
61 Almost all provisions in the ICESCR Part III include this formulation. For examples, ICESCR Art.6
(opportunity to work); Art.11 (an adequate standard of living, freedom from hunger); Art.12 (the highest attainable standard of health); Art.13 (education), Art.15 (participation in cultural life)
62 For example, CESCR emphasizes the similarities between ICCPR Art.2 and ICESCR Art.2 in terms of State
obligation on non-discrimination. CESCR GC3, UN Doc. E/1991/23 (1990) para.1; ICESCR Art.3 also addresses “the equal right of men and women” which will be substantiated in infra Part 2.B.I.
63 CESCR GC20, para.7; see also HRComm. GC18, paras.6-7 64 CESCR GC20, paras.8-10
interpretation of the prohibited grounds, it takes a flexible approach since discrimination “varies according to context and evolves over times”65 reflecting the function of human right
treaties as living instruments of evolving practice.66 Hence, the term ‘other status’ is
understood to “reflect the experience of social groups that are vulnerable and have suffered and continue to suffer marginalization.”67
The consideration on the realities of disadvantaged or marginalized individuals or social groups68 is essential to the achievement of substantive equality.69 At the same time, it should
be reiterated that the concepts of affirmative actions for the disadvantaged are exceptions to the principle of equality and non-discrimination.70 The drafters unanimously agreed that the
protective measures taken for the benefit of the disadvantaged groups were aimed at re-establishing equality and could not constitute violations of Article 2.71 The CESCR
accordingly recognizes an obligation of State Parties ”to adopt special measures to attenuate or suppress conditions that perpetuate discrimination.”72 The Limburg Principles, developed and
proposed to the CESCR by experts,73 similarly recognizes the possibility of special
measures.74
2.A.III. Right-holders: the principle of equality
As highlighted in this Part, right-holders under the ICCPR and ICESCR are identified as ‘all individuals’75 under the principle of equality, especially in terms of substantive equality. The
underlying idea behind this formulation is that all human beings are equal in their dignity regardless of their differences. At the same time, the emphasis on substantive equality acknowledges the reality in which possession and enjoyment of human rights operate separately. While ‘all individuals’ possess human rights by the virtue of human dignity, not every one of them enjoy human rights equally. Recognition of this reality creates room for the possibilities of affirmative actions taken in favor of the ‘disadvantaged’, ‘marginalized’ or ‘vulnerable’ groups. In other words, the fact that ‘all individuals’ are right-holders does not conflict with special protections afforded to certain groups of disadvantaged individuals under the principle of equality.
65 Additionally, it addresses the multidimensional, intersectional discrimination in which an individual faces
discrimination based on multiple prohibited grounds. Ibid, paras.17, 27
66 Riedel et al., p.17; Ratjen S. and Satija M., Realizing Economic, Social, and Cultural Rights for All in Riedel
et al. (eds.) (fn.55) 111-133(2014) p.114
67 It was also formulated as “groups of individuals which suffer historical or persistent prejudice”, CESCR GC20,
paras.8, 27
68 These terms are often used interchangeably and are not clearly defined. For further discussion, see Chapman
A. and Carbonetti B., Human Rights Protections for Vulnerable and Disadvantaged Groups: The Contributions of the UN Committee on Economic, Social and Cultural Rights, Human Rights Quarterly Vol.33(3) 682-732 (2011)
69 CESCR GC20, para.8; Strand V., Non-Discrimination and Equality as the Foundations of Peace in Marcela
Bailliet C. and Mujezinovic Larsen K. (eds.), PROMOTING PEACE THROUGH INTERNATIONAL LAW 229-251 (2015)
p.236
70 Riedel et al., p.17
71 Draft International Covenants on Human Rights (1962) (fn.59) para.58, as discussed above, the ICCPR adopts
the similar approach.
72 CESCR GC20, para.9; Ratjen and Satija, pp.115-116
73 CESCR, Background Paper Submitted by the International Commission of Jurists, UN Doc. E/C.12/2000/13
(2000)
74 The Limburg on the Implementation of the International Covenant on Economic, Social and Cultural Rights,
UN Doc. E/C.12/2000/13 (2000) para.39
75 Or formulated as “everyone”, (or “no one” in the context of protection from certain conducts,) “all members of
2.B. Instruments on Human Rights for Specific Subjects
As noted above, international human rights framework recognizes the need for special protection of disadvantaged populations. Both the ICCPR and ICESCR, as well as most regional human rights instruments, at least recognize these types of groups in their provisions on non-discrimination,76 and throughout their specific human rights provisions.77 The
Committees of both Covenants also provide for General Comments on the human rights of specific groups. 78 Several international legal instruments were developed to address
discrimination based on specific grounds, such as race, sex, disability, age, indigenous peoples, etc.79 However, there is still no central theory or framework for identifying vulnerable and
disadvantaged populations nor is there an accepted definition of ‘vulnerability’.80 For example,
the CESCR does not state how the relationship between discrimination and vulnerability is conceptualized, nor does it clarify “whether all groups and individuals at risk for discrimination should automatically be considered vulnerable and disadvantaged.”81
Mindful of this background, this Part will discuss the identification of the right-holders in these human rights instruments for specific subjects, especially ‘women’ under the CEDAW and ‘persons with disabilities’ under the CRPD.
One of the key features in these instruments is the development of substantive equality. In connection to this, Fredman suggests the multi-dimensional model of substantive equality to address the “different facets of inequality.”82 This multi-dimensional model of substantive
equality encompasses redressing ‘disadvantages’, 83 the notions of transformative and
inclusive equality, and diversity which will be discussed in the following Parts.84
2.B.I. CEDAW: sex and gender
The linkage between women’s right and human rights had already been introduced in the UN Charter,85 establishing the legal basis for affirming women’s human rights.86 For example, the
76 ICCPR Art.2(1) and ICESCR Art.2(2) prohibit any discrimination based on race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status; see also ECHR Art.14 and Protocol 12 Art.1; ACHR Art.1(1); ACHPR Art.2
77 For examples, ICCPR and ICESCR Art.3 (equality of men and women); ICCPR Art.24 (children), Art.27
(minorities); ACHPR Art.18(3) (women and children), Art.18(4) (age and disability); ACHR Art.19 (children)
78 See HRComm. GC4, UN Doc. HRI/GEN/1/Rev.9 (Vol.I) 175 (1981) and GC28, UN Doc.
CCPR/C/21/Rev.1/Add.10 (2000) (equality of men and women), GC17, UN Doc. HRI/GEN/1/Rev.9 (Vol.I) 193-195 (1989) (children); CESCR GC5, UN Doc. E/1995/22 (1994) (disability), GC6, UN Doc. E/1996/22 (1995) (age), GC16, UN Doc. E/C.12/2005/4 (2005) (equality of men and women)
79 Namely, the CERD, CEDAW, CRC, CRPD, UNDRIP 80 Chapman and Carbonetti, p.683
81 Ibid, p.693
82 Fredman S., Substantive Equality Revisited, International Journal of Constitutional Law Vol.14(3) 712-738
(2016a) pp.727-728
83 The term ‘disadvantage’ is not explicitly defined under neither CEDAW nor CRPD. Fredman broadly
understands it as “the constraints which power structures impose on individuals because of their status” and “a deprivation of genuine opportunities to pursue one’s own valued choices”. She also recognizes the complexities of such notion and thus, calls for an interactive understanding with different dimensions such as stigma and stereotypes. Ibid, pp.729-730
84 While Fredman’s model was criticized by MacKinnon in several accounts and requires a cautious consideration,
this paper contemplates the multi-dimensional model as a point of reference. See MacKinnon C.A., Substantive Equality Revisited: A Reply to Sandra Fredman, International Journal of Constitutional Law Vol.14(3) 739-746 (2016); MacKinnon C.A., Substantive Equality Revisited: A Rejoinder to Sandra Fredman, International Journal of Constitutional Law Vol.15(4) 1174-1177 (2017)
85 UNC Preamble para.2, Art.1(3)
86 Fraser A.S., Becoming Human: The Origins and Development of Women’s Human Rights, Human Rights
First Chairperson of the Commission on the Status of Women Begtrup stressed that the drafting of UDHR was “of fundamental importance for women” and called for the explicit expression of equality of men and women in the provisions.87 In the same meeting, she suggested the
word ‘men’ in ‘all men are brothers’ to be replaced by ‘human beings’.88 At a later meeting,
Mehta suggested that the wording ‘all men’ could be interpreted to exclude women, and it should be replaced with ‘all human beings’ or ‘persons’.89 The UDHR reflects this
consideration in its formulation.90
Against this background, the CEDAW was established upon the recognition of “the equal right of men and women” on the one hand, and recognition of continuing and extensive discrimination against women on the other.91 Its Article 1 defines the term ‘discrimination
against women’ as any distinction, exclusion or restriction made on the basis of sex.92 Article
2 of CEDAW further stipulates the immediate and continuing State obligation to condemn discrimination against women in all forms,93 but also to ensure that “women and men enjoy
equal rights de jure and de facto”.94 Another element of Article 2 is the obligation to pursue a
policy of eliminating discrimination against women “towards the goal of fully eliminating all forms of discrimination against women and achieving women’s substantive equality with men.”95 In the view of the Committee on Elimination of Discrimination Against Women
[“CEDAWComm.”], “a purely formal legal or programmatic approach is not sufficient to achieve women’s de facto equality with men, which the Committee interprets as substantive equality.”96
The CEDAW, however, does not limit itself to the achievement of formal and substantive equality but rather adopts a so-called ‘transformative equality’.97 Its Article 3 stresses “the full
development and advancement of women”98, which requires affirmative actions “to ensure the
elimination of structural inequalities that impede women’s access to enjoyment of rights.”99
Article 5 further calls for the elimination of stereotypes and of structural disadvantages. The CEDAWComm. clarified that the Convention requires States to progress toward “a real transformation of opportunities, institutions and systems so that they are no longer grounded in historically determined male paradigms of power and life patterns.”100
UNCONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN:ACOMMENTARY
(2012) pp.4-5
87 CHR, Working Group on the Declaration of Human Rights, Summary Record of the Second Meeting, UN Doc.
E/CN.4/AC.2/SR.2 (1947) pp.2-3
88 Ibid, p.4
89 CHR, Working Group on the Declaration of Human Rights, Summary Record of the Thirty-Fourth Meeting,
UN Doc. E/CN.4/SR.34 (1947) pp.4-5
90 For examples, UDHR Art.1 (“All human beings are”) and Art.2 (“Everyone is”) 91 CEDAW Preamble paras.1-6; Freeman et al., p.44
92 CEDAW Art.1; this definition is comparable to that of CERD Art.1, and both HRComm. and CESCR
interpreted the term “discrimination” similarly. See HRComm. GC18, paras.6-7; CESCR GC20, para.7
93 It should be noted that the language of condemnation is “among the strongest forms of disapproval used in
international treaties”, Freeman et al., p.75; this language also appears in the context of racial discrimination, CERD Art.2(1)
94 CEDAW Art.2; CEDAWComm. GC28, UN Doc. CEDAW/C/GC/28 (2010) para.16 95 CEDAWComm. GC28, para.24
96 CEDAWComm. GC25, UN Doc. HRI/GEN/1/Rev.9 (Vol.II) 365-373 (2004) para.8
97 Freeman et al., p.9; see Fredman (2016a) (fn.82) for comparison; see also Goldschmidt J.E., New Perspectives
on Equality: Towards Transformative Justice through the Disability Convention? Nordic Journal of Human Rights Vol.35(1) 1-14 (2017) pp.4-5
98 CEDAW Art.3 99 Freeman et al., p.114
Identifying right-holders under the CEDAW may appear to be a simple task. Since the Convention, quite literally, seeks to eliminate the discrimination against women, it would be easy to conclude that the right-holders are women. The CEDAW, however, does not provide for the definition of ‘women’.101 It only defines the ‘discrimination against women’ to which
it attaches a phrase “made on the basis of sex”, one of the prohibited grounds of discrimination under international law.102 In this context, it is possible to understand ‘women’ on the basis of
‘sex’ which is more inclusive and universal.103
Notably, the pervasive assumption under the CEDAW is that “there exist two different sexes and that there are biological differences of significance between men and women, as well as culturally constructed differences”.104 For example, during the drafting of the Declaration on
the Elimination of Discrimination Against Women [“DEDAW”]105 , draft Article 1 stated
“discrimination based on sex, denying or limiting as it does equal rights between men and women” which was later amended to “discrimination against women, denying or limiting as it does their equality of rights with men”.106 Although the CEDAWComm refers the term ‘sex’
as “biological differences between men and women”107, this definition in itself is ambiguous.
‘Biological differences’ could mean, for examples, biological capability, anatomical or genetic traits which in reality may not even be coherent or identical among those who are perceived to be ‘women’.108 The Committee does not expand on this issue.
Alternatively, CEDAW Article 5(a) read in conjunction with 2(f) contemplates discriminations based on gender.109 While the drafters did not extensively discuss the
distinction between the notions of ‘sex’ and ‘gender’,110 Article 5(a) recognizes “the ideas of
the inferiority or the superiority of either of the sexes or on the stereotyped roles for men and women” as a cause of the systematical and structural practices of discrimination against women.111 In the DEVAW, ‘violence against women' is also defined as “any act of
gender-based violence.”112 According to the CEDAWComm., ‘gender’ refers to “socially constructed
identities, attributes and roles for women and men”, as well as the social and cultural meaning attached to the biological differences which result from the asymmetry of power between women and men.113
101 Rosenblum argues that “[t]he very silence conveys a presumption of universality with an obvious meaning”
and questions the use of ‘women’ altogether in the CEDAW, Rosenblum D., Unsex CEDAW, or What's Wrong with Women's Rights, Columbia Journal of Gender and Law Vol.20(2) 98-194 (2011) p.124 n.88
102 CEDAW Art.1; UNC Art.1(3); UDHR Art.2; ICCPR Art.2(1); ICESCR Art.2(2)
103 For a general criticism on the use of ‘women’ instead of ‘sex’, see Rosenblum in general; see also
Hernández-Truyol B.E., Unsex CEDAW? No! Super-Sex It! Columbia Journal of Gender and Law Vol.20(2) 195-223 (2011) pp.219-222 where Hernández-Truyol suggests retaining the notion of ‘women’ but expanding it with other concepts such as sex, gender, gender identity, etc., by incorporating the YP with the CEDAW.
104 Freeman et al., p.59; see in general Otto D., Queering Gender (Identity) in International Law, Nordic Journal
of Human Rights Vol.33(4) 299-318 (2015)
105 UNGA, Declaration on the Elimination of Discrimination Against Women, UN Doc. A/RES/2263 (1967) 106 UNGA, Draft Declaration on the Elimination of Discrimination Against Women, UN Doc. A/6880 (1967)
paras.36-38
107 CEDAWComm. GC28, para.5
108 Meyer E., Designing Women: The Definition of “Woman” in the Convention on the Elimination of All Forms
of Discrimination Against Women, Chicago Journal of International Law Vol.16(2) 553-590 (2016) pp.573-575
109 CEDAW Art.2(f); Art.5(a); see also DEDAW Art.3 110 Freeman et al., p.59;
111 Ibid, pp.146-147; see also Holtmaat R. and Post P., Enhancing LGBTI Rights by Changing the Interpretation
of the Convention on the Elimination of All Forms of Discrimination Against Women? Nordic Journal of Human Rights Vol.33(4) 319-336 (2015) p.324
112 UNGA, Declaration on the Elimination of Violence Against Women, UN Doc. A/RES/48/104 (1993) Art.1 113 CEDAWComm. GC28, para.5; GC25, para.7 n.2; UNGA, 1999 World Survey on the Role of Women in
The approach to gender in the CEDAW, however, has been criticized to be limited. Because of its focus on the binary of asymmetrical structure between women and men, it excludes the situations that do not follow this “traditional gender scripts.”114 Accordingly, the protection of
women’s rights under the CEDAW “is limited by its own sexual and gender normativity, and it has measured women’s equality with men in a limited register.”115 Furthermore, because
gender is a social construct, it can be understood as: a performance or expression, as in certain behaviors or components understood by society as those of ‘women’; and/or an identity, as in experienced by those who identify themselves as a ‘woman’.116 Again, the Committee does
not expand on the understanding of gender. It does, however, note that discrimination based on sex and gender “is inextricably linked with other factors that affect women, such as (...) sexual orientation and gender identity.”117
2.B.II. CRPD: disability and difference
Adopted in December 2006, the CRPD is one of the relatively new international human rights instruments which recognizes ‘persons with disabilities’ as subjects of human rights.118 It
essentially changed the approach toward persons with disabilities from considering them as objects of welfare policies and medical treatments to right-holders.119 ‘Persons with
disabilities’ are defined under Article 1 as “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”120 This definition is
remarkable compared to the previous approach to disability.
Traditionally, disability was perceived exclusively as a functional limitations similar to illness. For example, in the Declaration on the Rights of Disabled Persons from 1975, ‘disabled person’ was understood as any person unable to ensure by themselves the necessities of a ‘normal’ individual and/or social life as a result of deficiency.121 Since disability was
understood as an individual rather than societal problem, neither the society nor the environment needed a change.122 Under these ‘individual or medical models’ of disability,
persons with disabilities were “not recognized as rights holders but are instead ‘reduced’ to their impairments.”123
Through 1980s and 90s, however, the perception of disability shifted to address structural and societal aspects of disability. The World Programme of Actions concerning Disabled Persons [“WPAD”], by adopting an approach taken by WHO,124 distinguishes between
114 Stemple L., Human Rights, Sex, and Gender: Limits in Theory and Practice, Pace Law Review Vol.31(3)
824-836 (2011) p.828
115 Miller A., Fighting Over the Figure of Gender, Pace Law Review Vol.31(3) 837-872 (2011) p.861; see also in
general Rosenblum; Hernández-Truyol; Otto, pp.302-303
116 Meyer pp.558, 575-577; Otto, p.303 117 CEDAWComm. GC28, para.18
118 Degener T., 10 Years of Convention on the Rights of Persons with Disabilities, Netherlands Quarterly of
Human Rights Vol.35(3) 152-157 (2017) p.152
119 Della Fina V., et al. (eds.), THE UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES:
ACOMMENTARY (2017) p.93
120 CRPD Art.1
121 UNGA, Declaration on the Rights of Disabled Persons, UN Doc. A/RES/30/3447 (1975) para.1
122 Degener T., Disabled Persons and Human Rights: The Legal Framework in Degener T. and Koster-Dreese Y.
(eds.),HUMAN RIGHTS AND DISABLED PERSONS:ESSAYS AND RELEVANT HUMAN RIGHTS INSTRUMENTS 9-39 (1995) p.13
123 CRPDComm. GC6, UN Doc. CRPD/C/GC/6 (2018) para.8
124 WHO, International Classification of Impairments, Disabilities, and Handicaps: A manual of Classification
impairments, disabilities and handicaps.125 The Programme acknowledges the notion of
‘handicap’ as “a function of relationship between persons with disability and their environment” caused by social barriers which limit their access to the various systems of society.126 The
Standard Rules on the Equalization of Opportunities for Persons with Disabilities [“StRE”] further elaborates this approach which focuses on the shortcomings in the environment preventing persons with disabilities from participating on equal terms.127 At the same time, the
StRE addresses a concern that the concept of ‘handicap’ is “too medical and too centered on the individual and may not adequately clarify the interaction between societal conditions or expectations and the abilities of the individual.”128 In a similar context, the CESCR in its
general comment on disability preferred the term ‘persons with disabilities’ over ‘disabled persons’ for the latter “might be misinterpreted to imply that the ability of the individual to function as a person has been disabled.”129
In light of this context,130 the CRPD adopts a ‘human rights model’ of disability.131 The
‘disability’ is understood as an evolving concept that “results from the interaction between persons with impairments and attitudinal and environmental barriers.”132 This approach to
disability recognizes that “disability is a social construct and impairments must not be taken as a legitimate ground for the denial or restriction of human rights.”133 Distinguishing
impairments from disabilities shifts the focus from functional limitations of individuals to disabling barriers of society as the problem.134 To say that disability is a ‘social construct’ is
based on three premises.135 First of all, human difference is not innate but rather, socially
constructed and applied through labels such as ‘the disabled’. Secondly, such labels and the evaluation of them are not neutral but selected through an apparatus of power in order to preserve that power. Thirdly, such a social construct of labels not only set people apart but also keep people apart. These premises, coupled with the emphasis of human dignity as a core value of the CRPD, form the basis of the human rights model of disability.136
According to Degener, the human rights model not only explains disability in a social dimension, but also provides the moral principles or values, such as the universality and
125 UNGA, The World Programme of Action concerning Disabled Persons, adopted in UN Doc. A/RES/37/52
(1982) para.6: it defines impairments as “any loss or abnormality of psychological, physiological, or anatomical structure or function”, and disabilities as “any restriction or lack (resulting from an impairment) of ability to perform an activity”.
126 Ibid, paras.6-7
127 UNGA, Standard Rules on the Equalization of Opportunities for Persons with Disabilities, UN Doc.
A/RES/48/96 (1994) paras.17-18
128 Ibid, paras.19-21: accordingly, the term ‘handicap’ is no longer used in the CRPD but adopts more
comprehensive understanding of ‘disability’; see also Despouy L., Human Rights and Disabled Persons, UN Centre for Human Rights, Human Rights Study Series No.6, UN Sales No.E.92.XIV.4 (1993) paras.89-96: the Special Rapporteur of the UN SCPDPM notes a close relationship and considerable overlap between impairment, disability and handicap, as well as the fact that WHO classification is made on the context of health experience and thus, basically clinical.
129 CESCR GC5, para.4
130 CRPD Preamble para(f) recognizes the importance of the principles and policy guidelines contained in both
the WPAD and StRE.
131 See Degener T., Disability in a Human Rights Context, Laws Vol.5(3) Article No.35 (2016) 132 CRPD Preamble para(e)
133 CRPDComm. GC6, para.9
134 Morris J., Impairment and Disability: Constructing an Ethics of Care That Promotes Human Rights, Hypatia
Vol.14(4) 1-16 (2001) pp.2-3
135 Quinn G. and Degener T. et al., HUMAN RIGHTS AND DISABILITY:THE CURRENT USE AND FUTURE POTENTIAL OF UNHUMAN RIGHTS INSTRUMENTS IN THE CONTEXT OF DISABILITY (2002) pp.14-15
indivisibility of human rights, as a foundation of the disability policy.137 It essentially “defies
the presumption that impairment may hinder human rights capacity”138 and recognizes persons
with disabilities as subjects rather than objects of human rights.139 This is evident throughout
the provisions of the CRPD. Its purpose under Article 1(1) is “to promote, protect and ensure the full and equal enjoyment of human rights and fundamental freedoms by all persons with disabilities, to promote respect for their inherent dignity.”140 The general principles under
Article 3 reiterate “respect for inherent dignity” and emphasize the principles of non-discrimination and equality of opportunity.141
Consequently, the definition of ‘persons with disabilities’ under the CRPD connotes a comprehensive understanding of a disability as a social construct as well as the moral principles of human rights. This approach of identifying its right-holders is significant in several ways.
First of all, the CRPD recognizes differences of persons with disabilities and the experiences stemming from their differences. In the context of disability, the concept of ‘difference’ is measured against the idea of ‘normality’, what is considered right and desirable in terms of appearance, function, behavior or belief.142 To say that persons with disabilities are different
from ‘the norm’ due to their impairments, however, is not necessarily negative:
“[t]he non-disabled world assumes that we wish to be normal, or to be treated as if we were. From this follows the view that it is progressive and liberating to ignore our differences because these differences have such negative meanings for non-disabled people. But we are different. We reject the meanings that the non-non-disabled world attaches to disability but we do not reject the differences which are such an important part of our identities.”143
This approach clarifies that impairment is not to be regarded as “a deficit or as a factor that can be detrimental to human dignity.”144 Recognition of difference, instead, acknowledges the
different and additional needs of persons with disabilities and promotes disability as a part of human diversity.145 In this sense, CRPD Article 3 emphasizes the “respect for difference and
acceptance of persons with disabilities as part of human diversity and humanity” as one of its founding principles.146 This principle reflects what the Committee on the Rights of Persons
with Disabilities [“CRPDComm.”] calls ‘inclusive equality’ which “embraces a substantive model of equality and extends and elaborates on the content of equality”.147 The expanded
dimensions of equality include redressing socioeconomic disadvantages, combating prejudice and stigma, recognizing human dignity and intersectionality, emphasizing participation and inclusion in society, accommodating differences.148 Essentially, the CRPD premises that
137 Degener (2016) (fn.131) p.4 138 Ibid, p.8
139 Quinn and Degene (fn.135) p.14
140 CRPD Art.1(1); Art.4 (general obligations of State Parties)
141 CRPD Art.3(a), (b), (e); Art.5 (right to equality and non-discrimination); Art.9 (accessibility); Art.12 (equal
recognition before the law); Art.17 (protection of the integrity of the person)
142 Morris J., PRIDE AGAINST PREJUDICE:TRANSFORMING ATTITUDES TO DISABILITY (1991) p.10 143 Ibid, p.11; see also Morris (2001) pp.9-13
144 Degener (2016) p.8
145 Quinn and Degener, p.16: “In positive terms, it means that a genuinely equal society is one that has a positive
approach to and positively accommodates human difference.”; see also CRPD Preamble para(m) (recognizing the contribution made by persons with disabilities to the well-being and diversity of their communities)
146 CRPD Art.3(d)
147 CRPDComm. GC6, para.11
“disability is a social construct, but it also values impairment as part of human diversity and human dignity.”149
Secondly, the CRPD recognizes the diversity and layers of identities within persons with disabilities.150 It was noted in the WPAD that persons with disabilities do not form a
homogenous group and all encounter different barriers of different kinds which have to be dealt in different ways.151 For instance, the CRPD acknowledges specific impairment-related groups,
such as deaf, blind and deafblind persons, in right to inclusive education and right to participate in cultural life.152 Furthermore in connection with inclusive equality, the CRPD does not only
emphasize intersectionality,153 but it is also the first human rights treaty to explicitly state the
concept of ‘multiple discrimination’.154 The CRPD Article 5(2) requires State Parties to
guarantee to persons with disabilities protection against discrimination “on all grounds” additional to disability-based discrimination.155 Article 6 specifically addresses the situation
of women and girls with disabilities being subjected to multiple discrimination.156 The
CRPDComm. defines ‘multiple discrimination’ as “a situation in which a person experiences discrimination on two or more grounds, leading to discrimination that is compounded or aggravated.”157 This definition is distinguished from ‘intersectional discrimination’ which
refers to “a situation where several grounds interact with each other at the same time in such a way as to be inseparable” which expose individuals to unique types of disadvantages and discriminations.158
Finally, the protection against ‘discrimination on the basis of disability’ under the CRPD extends to persons who are presumed to have an impairment. It is noteworthy that the discrimination and prejudice against persons with disabilities is a reaction to difference rather than to limitations.159 Disability-related discrimination, in this sense, is “related to an actual or
presumed abnormality called impairment”160 which is recognized by the CRPDComm.161
Thus, the scope of the CRPD Article 5 on equality and non-discrimination extends its protection to those who are presumed to have an impairment and, consequently, perceived to be different.162 In other words, persons who are not actually disabled “can enjoy the legal
protection against disability discrimination if they are regarded by others as having disabilities.”163
2.B.III. Right-holders: disadvantage, difference and diversity
One of the relevant observations from the way the CEDAW and CRPD identify their right-holders is that both instruments highlight the following three aspects of a particular group of individuals: disadvantage, difference and diversity.
149 Degener (2016) (fn.131) p.8 150 CRPD Preamble para(i)
151 WPAD para.8; Morris (2001) (fn.134) p.9, where she makes a point that ignoring the ‘experience of different
bodies’ can lead to the idea of the ‘typical’ person with disability.
152 CRPD Art.24(3), Art.30(4); see Degener (2016) pp.9-11
153 CRPD Art.3(g) (equality between men and women), Art.3(h) (the right of children with disabilities) 154 Degener (2017) (fn.118) p.153; CRPD Preamble para(p)
155 CRPD Art.5(2) 156 CRPD Art.6
157 CRPDComm. GC3, UN Doc. CRPD/C/GC/3 (2016) para.4(c) and GC6, para.19 158 Ibid; see also CEDAWComm. GC25, para.12 and GC28, para.18
159 Morris (1991) (fn.142) pp.11-15
160 Degener T., The Definition of Disability in German and Foreign Discrimination Law, Disability Studies
Quarterly Vol.26(2) (2006)
161 CRPDComm. GC6, para.20
162 Ibid; CRPDComm. GC3, para.17(c), 53; Degener (2006) 163 Della Fina, et al., p.112
