Integrated Human Rights in Practice
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Integrated Human Rights in Practice

Rewriting Human Rights Decisions

Edited by Eva Brems and Ellen Desmet

This book aims to introduce concrete and innovative proposals for a holistic approach to supranational human rights justice through a hands-on legal exercise: the rewriting of decisions of supranational human rights monitoring bodies. The contributing scholars have thus redrafted crucial passages of landmark human rights judgments and decisions, ‘as if human rights law were really one’, borrowing or taking inspiration from developments and interpretations throughout the whole multi-layered human rights protection system. In addition to the rewriting exercise, the contributors have outlined the methodology and/or theoretical framework that guided their approaches and explain how human rights monitoring bodies may adopt an integrated approach to human rights law.
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Chapter 12: Integrating disability and elder rights into the ECHR: rewriting McDonald v The United Kingdom (ECtHR)

Rewriting Human Rights Decisions

Marijke De Pauw and Paul De Hert

Abstract

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.

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