This book examines the changing relationship between disability and the law, addressing the intersection of human rights principles, human rights law, domestic law and the experience of people with disabilities. Drawn from the global experience of scholars and activists in a number of jurisdictions and legal systems, the core human rights principles of dignity, equality and inclusion and participation are analyzed within a framework of critical disability legal scholarship.
This book breaks new ground in its consideration of the way in which human rights principles can be applied in law and policy to achieve positive outcomes for people with disabilities. This information is provided by a service that aggregates data from review sources and other sources that are often consulted by libraries, and readers.
The University does not edit this information and merely includes it as a convenience for users. It does not warrant that reviews are accurate. As with any review users should approach reviews critically and where deemed necessary should consult multiple review sources. Contact University of Toronto Libraries St. Connect with us Twitter YouTube Instagram more social media. Your Name:. Include PDF. Record Title:. Record Author s :. Is there a problem with an e-resource? The artificial distinction between private and public spheres of life and the assumption that states only hold responsibility for violations in the public sphere were successfully challenged by feminist international lawyers.
Human rights violence taking place in the private sphere, such as domestic violence, was ignored within the first four decades of international human rights law.
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Feminist critical race lawyers such as Mari Matsuda 92 and Angela Harris 93 have taken feminist legal theory a step further by introducing anti-essentialist approaches to civil rights law. The human rights model of disability as based on the existing canon of core human rights treaties gives consideration to different layers of identity.
It acknowledges that disabled persons may be male or female, non-whites, disabled, children or migrants. It is clear that there are more layers of identity to be considered in international human rights law 95 and that the issue of intersectionality of discrimination has yet to be solved. In addition to human rights law in general, the CRPD also acknowledges different layers of identity within the context of disability and human rights.
For instance, disabled children and disabled women have their own stand-alone articles. Further recognition of gender and age can be found throughout the treaty. A few impairment-related groups are recognized though. These are deaf, blind and deaf-blind persons. Article 24 CRPD demands that persons who belong to these impairment groups are provided with the tools to education that are adequate to their identity, such as Braille and sign language, and that they are provided with role models and qualified teachers; the most disputed paragraph reads: 1 … States Parties shall ensure an inclusive education system at all levels and lifelong learning directed to:.
I remember very well the long nights we fought over the wording of this paragraph in the Ad Hoc Committee. We had long debates about whether or not there should be a human right to special education or at least a right to choose between mainstream and special education. These debates were loaded with identity issues, showing us that it was important to make room for them.
The final text is a true compromise and in my opinion a masterpiece. The credit for it goes to a large extent to Rosemary Kayess — an eminent international lawyer and disability rights activist from Australia, who acted as a facilitator to the article on the right to education.
My fifth argument is that while the social model of disability is critical of prevention policy, the human rights model offers a basis for assessment when prevention policy can be claimed as human rights protection for disabled persons. Prevention of impairment is an element of public health policy which has long been criticized by disability rights activists as being stigmatizing or discriminatory.
The object of critique can be the mode of implementation of public health policy or the goals. While prevention of traffic accidents or polio is not seen as problematic, the ways these policies are proclaimed can be stigma-tizing towards disabled persons. The goals of medical prevention programmes can be the target of protest if they have to do with life or death issues such as selective abortion or assisted suicide.
The message that some see conveyed with these programmes is that a life with a disability is not worth living. What is claimed as a prevention of impairment policy is in fact a policy that aims at eliminating disabled persons. Michael Oliver has characterized these programmes as the core of ideological construction of disability. These two declarations are the most important human rights instruments preceding the CRPD.
At the time of their adoption, they marked a milestone in the eventual recognition of human rights of disabled persons because they added a human rights component to traditional disability policy. The latter consisted of a three-tiered approach to disability: definition, prevention and rehabilitation. However, both instruments refer to prevention of impairment as an element of disability policy and include prenatal care as an important measure. The WPA has been criticized for perpetuating the medical model of disability. This was a deliberate decision taken during and before the negotiations.
It was argued that it was incoherent to deal with prevention of disability in the same instrument. Thus, with the adoption of the CRPD, it was made clear that primary prevention of impairment might be an important aspect of the right to health as enshrined in the ICESCR, but that it is certainly not an appropriate measure to protect the human rights of people living with a disability. This is an important message to member states who claim that they spend a lot of money for disabled persons and then submit reports which show that a large part of the budget is spent on impairment prevention policy.
However, as Tom Shakespeare has pointed out, not all impairment prevention policy is bad, and most disabled persons actually are in need of this kind of public health policy. In fact, the WHO World Report on Disability gives evidence that disabled persons experience poorer level of health due to a variety of factors, such as inaccessible health care services, risk of developing secondary conditions, higher risk of being exposed to violence, and increased rates of health risk behaviour.
It demands equal access to general and specialized health care services for disabled persons. Services must be community based and sensitive to freedom rights and to the dignity of disabled persons. Discrimination through provision or denial of health care must be prohibited and prevented. As the WHO Report underlines: Viewing disability as a human rights issue is not incompatible with prevention of health conditions as long as prevention respects the rights and dignity of people with disabilities, for example in the use of language and imagery.
As a sixth argument, I opine: Whereas the social model of disability can explain why two-thirds of the one billion disabled persons in this world live in relative poverty, the human rights model offers a roadmap for change. From early on, social model proponents and critics acknowledged the close link between poverty and disability. Lack of resources, lack of education, and dearth of access to fundamental services are among the factors to be considered when trying to understand why two-thirds of the world population of disabled people live in the developing world.
The social model has helped to understand that disability is a development issue. Social model advocates and disability studies researchers have had a significant impact on empowerment policies that address these issues. Thus, disability was initially not recognized as one of the issues in the Millennium Development Goals.
Only after the adoption of the CRPD did this change dramatically, and disability became a central subject of international cooperation policy. The CRPD is the first human rights treaty with a standalone provision on development. Article 32 CRPD on international cooperation was one of the major controversial provisions from the beginning to the end of the negotiations. Article 32 CRPD demands that international cooperation is inclusive and accessible to disabled people, that disability is mainstreamed in all development programmes and that DPOs are involved in the monitoring of these activities.
Article 11 CRPD demands that states take adequate actions to protect disabled persons in situations of natural disaster or humanitarian emergencies. This latter article was introduced after the tsunami of in the Indian Ocean, which led to the death of several hundred thousand human beings, among them many disabled individuals who were excluded from rescue.
By the time of the end of the negotiations, the Lebanon war had started in July , which increased the already politicized nature of the article. Under these circumstances, it was amazing to reach consensus on the text of these articles.
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These aspects are not new — they have been raised before — but with the CRPD, they have become binding international law. A human rights approach in development means that people living in poverty are not objects of welfare and charity but rights holders who have a say in the distribution of resources and needs assessment. Participation is a means, and a goal and strategies need to be empowering. Development projects need to target disadvantaged, marginalized and excluded groups. These are some of the principles that make up the UN common understanding of the human-rights-based approach to development cooperation which was adopted in Disability mainstreaming is an important strategy to overcome segregation structures implemented and maintained by traditional disability policies.
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Without active and equal participation of disabled people and their representative organizations, development strategies and programmes will perpetuate and exacerbate discrimination against disabled persons. My intention is not to abandon the social model of disability, but to develop it further.
The social model of disability was the most successful dictum during the negotiations of the CRPD. If there is one single phrase which summarizes the success story of the CRPD, it is that it manifests the paradigm shift from the medical to the social model of disability in international disability policy.
Not everyone who used the term during the negotiation process was knowledgeable about disability studies. The social model of disability had become the motto of the international disability movement and it served as a powerful tool to demand legal reform. The British social model has been distinguished from the US minority group approach and from the Nordic relational approach. Like many other human rights projects, the CRPD once planted into this world through adoption by the General Assembly took on a life of its own. The impact has been enormous so far in many areas, such as human rights monitoring, international cooperation, accessibility and legal capacity discourse, or inclusive education, to name but a few.
In the context of the background study, we found that the disability rights movement had embraced the idea of human rights but many disability rights organizations had not become human rights organizations in terms of agents in the system, comparable to mainstream human rights organizations like Amnesty International or Human Rights Watch. Thus, it could be concluded that political activism has turned to human rights and the CRPD is a codification of the human rights model of disability.
The Committee has embraced the term human rights model of disability in its more recent concluding observations. While it has become unfashionable to rely on the medical model of disability, the paradigm shift to the human rights model has yet to be reflected in implementation. GC No 1 on legal capacity Art. European and Scandinavian Perspectives Hermes and E. Quinn and L. Waddington eds , European Yearbook of Disability Law Breslin and S. Yee eds , Disability Rights Law and Policy , at Other models are e. Lawson and C. Barnes and G. Mercer eds , The Social Model of Disability , at Degener and Quinn, supra note 19, at 6; C.
Barnes, Disabled People in Britain and Discrimination Gooding, supra note Power, J. Lord and A. For an illustrative account of the political history of human rights, see R. Normand and S. Zaidi, Human Rights at the UN Statement by Mr. Ivan Simonovic, Assistant Secretary-General. Which in some countries was part of the disability rights movement, in other countries it was not.
Degener and Y. Quinn and S. Doyle, Getting a Life See also Art. For example: R.click here
A Human Rights Model of Disability
Townsley, supra note 39; G. Doyle, supra note 47; C. Parker, supra note 47; J. Mansell et al. Rioux, L. Basser and M. For a combination of capabilities and other approaches see: M. Mercer eds , Implementing the Social Model of Disability Morris, supra note Shakespeare ed , The Disability Reader Marks and M. The report recognized that in order for the human rights of persons with disabilities to be realized, there must be further development in jurisprudence within the human rights mechanisms and institutions at international and at domestic levels and an increased effort to adjudicate the rights of persons with disabilities at a national level.
The available data suggests that many recommendations submitted by Mr. Despouy in his report remain to be substantiated by the international community. In the s, as a significant outcome of the United Nations Decade of Disabled Persons the Standard Rules on the Equalization of Opportunities for Persons with Disabilities were adopted by the forty-eighth session of the General Assembly in Major international conferences and summits that were organized during the first half of the s  on a range of development agendas adopted action plans and programmes in which participation, inclusion and improved well being of persons with disabilities were accorded a special emphasis.
The study further indicated that in order for the rights of persons with disabilities to be recognized, a broad human rights framework, drawing upon the considerable body of international norms and standards in the social, economic, civil, cultural and political fields is needed . This framework does not simply benefit persons with disabilities but also contributes to the advancement of the rights of all persons in society. The resolution also urges Governments to include the question of human rights of persons with disabilities in their reporting requirements under the existing human rights treaties and calls for cooperation with the Special Rapporteur on Disability of the Commission for Social Development and the High Commissioner for Human Rights to examine possible measures to strengthen the protection and monitoring of the human rights of persons with disabilities.
A number of initiatives have been taken to address the issue of elaborating a new disability-specific international instrument. At the forty-fourth session of the Assembly, in , the Government of Sweden proposed the elaboration of an international instrument on the rights of persons with disabilities .
However, a consensus was not reached on a legally binding instrument; many representatives expressed the view that existing human rights instruments would seem to guarantee persons with disabilities the same rights as persons without disabilities. Agreement was ultimately reached on elaboration of a non-binding instrument on the rights of persons with disabilities. Following a series of technical meetings and consideration by the Commission for Social Development, the Standard Rules were unanimously adopted by the General Assembly at its forty-eighth session in .
In February , the Special Rapporteur presented his report on the results of his first mandate to the thirty-fifth session of the Commission for Social Development  and outlined options to further implement the Standard Rules. In February , Mr. Lindqvist reported on the results of his second mandate to the thirty-eighth session of the Commission for Social Development.
The question of elaborating a new international instrument on the rights of persons with disabilities was discussed in the report on the second mandate of the Special Rapporteur on Disability of the Commission for Social Development.
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The report of the Special Rapporteur also will be an input to the fourth quinquennial review and appraisal on the implementation of the World Programme of Action concerning Disabled Persons which will examine the progress made and obstacles encountered in implementation of the Programme of Action in the past five years as well as for the period of a decade after the United Nations Decade of Disabled Persons President Vincente Fox of Mexico, during general debate of the fifty-sixth session of the General Assembly , called upon the international community to combat poverty and social exclusion; he stated that societies should involve all citizens as stakeholders and that a just world must be inclusive of all groups.
For that reason Mexico had proposed establishment of a "Special Committee" to study the elaboration of an international convention on promoting the rights of persons with disabilities. The report of the meeting will also be made available at the following internet home page: www.
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Experience would suggest that there are advantages and disadvantages to elaborating a new international instrument specifically addressing the human rights of persons with disabilities. There are extensive lists of existing norms, principles, declarations, standards, and guidelines dealing with disability issues that are dispersed throughout various instruments. The existing human rights mechanisms at the international level have not yet fully addressed the rights of persons with disabilities within their respective mandates.
There is a view that a sufficiently specific, legally binding instrument could be a much better resource than the present dispersed measures in that a new instrument could bring clarity to the current understanding of the rights of persons with disabilities and how they fit into the general human rights framework.
A counter-argument to the elaboration of a new international instrument is that it could have the unintended consequence of marginalizing the rights of persons with disabilities within the United Nations human rights mechanisms as well as within the overall work of the United Nations in the field of disability.