ABSTRACT

The adoption of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) marked a paradigm shift in the field of international human rights law, recognising people with disabilities as holders of human rights (as opposed to passive beneficiaries of charity and rehabilitation). Since its entry into force, the CRPD has played a crucial role in the advancement of disability equality within the European human rights system. In the Council of Europe (CoE), the European Court of Human Rights (ECtHR or Strasbourg Court) has slowly begun to apply a standard of protection of disability rights similar to that contained in the CRPD in certain areas, such as with regard to the interpretation of the non-discrimination norm and, until recently, the right to education under the European Convention on Human Rights (ECHR) and its Additional Protocols. This indicates a certain level of convergence between the two legal systems. However, in other fields, such as legal capacity, and, more generally, with regard to the rights of persons with intellectual and psychosocial disabilities, the approach of the Strasbourg Court diverges quite considerably from the interpretation accorded to the CRPD by the Committee on the Rights of Persons with Disabilities (CRPD Committee) in its General Comments. Against this background, this contribution analyses the most recent and, sometimes, contentious case law of the ECtHR on disability, and discusses emerging and future perspectives regarding the influence of the CRPD on the Strasbourg Court's jurisprudence. It contributes to the academic debate on the human rights of persons with disabilities by reflecting on the convergences and divergences that are evident between the protection afforded by the CRPD and the ECHR (as interpreted by the ECtHR), and on the underlying rationale for those convergences and divergences. This contribution analyses the extent to which the ECtHR has shifted towards the human rights model of disability embedded in the CRPD and situates that discussion within the wider debate on fragmentation in international law. In doing so, it ultimately reflects on the willingness of the ECtHR to incorporate progressive international human rights standards into its jurisprudence.