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.
Marijke De Pauw and Paul De Hert
Marijke De Pauw, Bridget Sleap and Nena Georgantzi
Ageism and age discrimination lie at the root of many human rights violations faced by older persons worldwide. Addressing these issues is thus essential in ensuring the effective protection of older persons’ rights. This chapter therefore explores the link between ageism, age discrimination and the rights of older persons at a practical level. The chapter then identifies the position and recognition of ageism in international policy documents and human rights instruments, as well as within ongoing negotiations on a new international binding treaty that would focus on older persons. It thus aims to demonstrate the lack of attention for this phenomenon that negatively affects older persons, and to provide recommendations on how to strengthen an anti-ageist approach in a potential new UN convention on older persons’ rights.