Disability human rights standards before the European Court of Human Rights—false convergence and methodologically-driven divergence?

ABSTRACT The UN Convention on the Rights of Persons with Disabilities (CRPD) has positively impacted the European Court of Human Rights (ECtHR). Overall, the ECtHR has delivered significant judgments in favour of persons with disabilities and is moving towards a disability-sensitive interpretation of facts. However, in specific areas such as legal capacity, inclusive education, voting, and involuntary treatment, the ECtHR has sharply distanced itself from the CRPD following some initial attempts at harmonizing its norms with that of the treaty. This emerging divergence does not arise from differences in underlying substantive norms, but rather from the ECtHR’s different jurisprudential methods and views on its role relative to the CRPD’s treaty body, as well as the polycentric nature of their respective decisions. Explaining the nature of the disagreement is key to understanding what role adjudicative bodies can play in promoting disability rights, and whether their norms can be harmonized.