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Pauw, Marijke De; Hert, Paul De --- "Integrating disability and elder rights into the ECHR: rewriting McDonald v The United Kingdom (ECtHR)" [2017] ELECD 1238; in Brems, Eva; Desmet, Ellen (eds), "Integrated Human Rights in Practice" (Edward Elgar Publishing, 2017) 317

Book Title: Integrated Human Rights in Practice

Editor(s): Brems, Eva; Desmet, Ellen

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781786433794

Section: Chapter 12

Section Title: Integrating disability and elder rights into the ECHR: rewriting McDonald v The United Kingdom (ECtHR)

Author(s): Pauw, Marijke De; Hert, Paul De

Number of pages: 34

Abstract/Description:

Through a broad interpretation of article 8 ECHR, the Strasbourg Court has considered an increasing number of disability rights cases. In few cases, however, has it found a violation and identified states’ positive obligations. This chapter re-writes the Court’s judgment in McDonald v The United Kingdom, concerning the reduction in night-time care for an older disabled woman, in which the Court only found a partial violation based on procedural considerations rather than substantive ones. The authors propose an integrated approach to the interpretation of the ECHR, taking into account the broader normative developments concerning persons with disabilities, as reflected most recently in the UN Convention on the Rights of Persons with Disabilities. It also calls for the consideration of the intersection between disability and age, and the integration of the fundamental rights of older persons. More so, it is argued that integration of disability rights and older persons’ rights provided for in external instruments would have left the Court little choice but to assess Ms McDonald’s situation in terms of positive obligations. Such an approach would have increased the visibility of the rights of these particular groups and countered the derogation of the proportionality test as applied in the original judgment.