Part I The concepts: The human rights framing of disability More traditional ‘positive action measures’ are specifically permitted by the Convention: [S]pecific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.65 In summary, the concept of equality and non-discrimination lies at the heart of the human rights model of disability and is best exemplified in article 5 of the UN CRPD. It is central to the enjoyment of each human right since all the rights in the Convention are to be secured equally. A nuanced understanding of equality requires individually tailored ‘reasonable accommodations’ for people with disabilities. Space is also permitted for positive action measures and, in fact, many of the substantive articles of the Convention spell out what these measures entail. It is worth recalling some of the abuses relating to equality, in theory and practice, that have previously taken place. In the past – at least in some minds – the social exclusion of persons with disabilities was rationalised in the name of equality. Following the thinking of Greek philosopher Aristotle, it was said that the society’s core duty was to ‘treat equals equally and unequals unequally’. Therefore, courts and legislatures, it was believed, had to acknowledge material differences and allow those who were significantly different to be treated differently (‘separate but equal’). Though (barely) superficially plausible, the advent of a human rights frame on disability has thoroughly transformed this calculus. We now see such differences as largely socially constructed or, if real, as exaggerations and stereotypes to be challenged. However, situations may still arise where States attempt to rationalise separate treatment for people with disabilities on the basis that it is not a violation of equality and is in fact demanded by a theory of equality. NHRIs should be mindful of this possibility and strongly challenge it when or if it arises.66 67 CONSTITUTIONAL EQUALITY GUARANTEES FOR PERSONS WITH DISABILITIES Article 3 of the Basic Law of the Federal Republic of Germany states that all persons shall be equal before the law and no person shall be treated unfavourably because of disability. Section 15 of the 1982 Canadian Charter of Fundamental Rights and Freedoms provides: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” The 1995 Constitution of Uganda provides that a person “shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability”.67 65 Article 5(4). 66 For a more nuanced understanding, see R. Colker, When is Separate Unequal: A Disability Perspective, 2008. 67 Constitution of the Republic of Uganda, s. 21(2). Chapter 2: Key elements of the human rights frame on disability | 23