Critical Perspectives on Human Rights and Disability Law
Critical Perspectives on Human Rights and Disability Law . Marcia Rioux, Lee Ann Basser & Melinda Jones ( eds ) . Leiden, Boston : Martinus Nijhoff Publishers , 2011 , 552 pp . Hardback £ 160.00 . ISBN 9 004 18950 5
In recent years, there have been a number of new volumes on disability and human rights (e.g., Owen and Griffiths, 2009; Shakespeare, 2009). This book is a valuable addition to that literature and explores the changing relationship between disability and the law, with reference to the intersection of human rights and domestic law. At the heart of the discussion is the United Nations Convention of the Rights of Persons with Disabilities (CRPD) that came into effect on 3 May 2008.
The editors rightly assert that ‘the denial or achievement of disability rights is a public responsibility. It is time to think critically about the extent of the barriers for people living in societies that are inaccessible – barriers that are physical, environmental, organisational and attitudinal’ (p. 490). One of the strengths of Rioux, Basser and Jones’s ambitious volume is its incorporation of the experience of disabled people in a synthesis that is based on international literature and research – and, a self-stated focus on ‘everyday situations for people in which the law is implicated’ (p. 490). It is also refreshing to have a single volume that addresses major themes in disability politics by juxtaposing accounts of developments in, for example, Africa (see Kindiki’s lucid chapter ‘Legal Protection of Persons with Disabilities in Kenya’, pp. 308–40) with Latin America (see Reyes’ chapter ‘Standard Rules on Equality of Opportunity for Persons with Disabilities: A Legal View of Provisions on Support Services, Auxiliary Resources and Training/View from Latin America’, pp. 419–50).
The book’s organising themes include the human rights principles of dignity, equality, inclusion and participation. Its stated aim is to consider the way in which human rights principles can be applied in law and policy to achieve positive outcomes for disabled people. The volume succeeds in meeting this objective. In their chapter (‘Beyond Legal Smokescreens: Applying a Human Rights Analysis to Sterilization Jurisprudence’, pp. 243–73), Rioux and Patton assert that, through measures such as the CRPD, ‘creating a rights-based understanding of individuals may provide the most equitable outcome by preserving the importance of the individual within the historical framework of difference’ (p. 271). The volume’s grounding in legal developments and human rights instruments means that it could be overly technical and un-engaging. This is not the case. All of the contributors manage to give accessible accounts. Equality and human rights practitioners will welcome the detailed citations of relevant legal cases and instruments. All readers will value the case studies and international research used to illustrate general themes and debates.
Rioux and Riddle (see their chapter ‘Values in Disability Policy and Law: Equality’, pp. 37–55) begin the volume by providing a useful outline of the nexus between equality and human rights, as well as the conceptual roots of equalities practice. Here, they shift away from Aristotelian idea of equality of treatment to a necessary shift towards ‘equality of outcome’ (as they put it, ‘equality requires distributive justice’, p. 53). Arguably, the authors could have drawn upon mainstreaming theory to explore more fully how such principles might be applied in relation to, for example, state practices, welfare, policy-making – and service delivery. Notwithstanding, they offer a powerful critique of pre-existing practices and refer to contemporary attitudes in unequivocal terms:
‘the values and assumptions around disability are still clearly grounded in presumptions about disability as an individual pathology – residing in the individual and not as a consequence of the political, social and economic conditions. A market-driven perception of what is just and fair, and what is discriminatory, reins the creative potential to effect social change and to radicalize the concept of equality for people with disabilities.’ (p. 55)
The contributors also highlight how the Convention on the Rights of Persons with Disabilities represents a change of emphasis from traditional ‘top-down’ public policy targeted at disabled people to an approach consonant with the social model of disability and resonant of the literature on governance and participative-democratic models of mainstreaming equality (e.g., Chaney, 2011). Thus, Article 4(3) of the Convention states:
‘In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organisations.’
This participative-democratic model underlines the need to incorporate a governance perspective in relation to the administration of equality and disability rights (Chaney, 2012). However, a key unanswered question in the book is whether measures thus far associated with the CRPD are likely to foster truly democratic equality and human rights reforms for disabled people – or lead to the continuation of neo-corporatist, expert-bureaucratic approaches to addressing disabled people’s needs.
A further key theme in the CRPD is the need to recognise multiple-discrimination, see, for example, Article 5(2) which states that . . . ‘Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds’. This presents significant challenges and links to the literature on ‘intersectionality’ (see Conaghan, 2009; Crenshaw, 2000). This is concerned with promoting equality of opportunity in a sophisticated manner; one that takes account of the multiple, simultaneous identities held by individuals. In this regard, the volume could do more to engage with intersectional theory and how human rights instruments can be applied in ways that recognise disabled people’s multiple and simultaneous identities and the equality and discriminations issues that attach to these (e.g., arising from the intersection of disability and age, sexual orientation, and ethnicity). Mykitiuk and Chadna’s chapter (‘Sites of Exclusion: Disabled Women’s Sexual Reproductive and Parenting Rights’, pp. 157–201) partially addresses this issue. It surveys recent developments as well as the international evidence – and underlines the need for an intersectional approach to disability rights. They conclude that, notwithstanding human rights law that has endorsed women’s rights to sexual education, reproductive health services and the right to found a family: ‘this has not translated into protecting the rights of women with disabilities . . . due to the tendency to view women with disabilities as genderless and sexless, society has marginalised the social and economic issues that are critical to promoting their parenting, sexual and reproductive rights’ (p. 197).
Later in the volume, Lord and Brown’s chapter presents a key discussion of the cross-fertilisation between equalities and human rights practice by exploring the developing impact of the CRPD in relation to the notion of ‘reasonable accommodation’. They describe the ‘adoption and entry into force of the CRPD represent(ing) a watershed moment in the development and recognition of this critical concept’ (p. 288) – and offer the optimistic assessment that: ‘the detailed articulation of the right to education for children as well as adults with disabilities in the CRPD, inclusive of the duty to accommodate, provides a highly contextualised, disability-specific understanding of this right. As such, it would be surprising if (it) did not serve as a prominent guide for regional and international human rights procedures’ (p. 293).
An albeit limited number of criticisms could be levelled at the book. Arguably, the conclusion does not do full justice to the preceding discussion. It is overly brief and could do more to outline future research paths and theoretical dimensions – as well as present a clear summary of international best practice. Another problem is its price – it is clearly aimed at institutional purchasers. This is likely to deter non-government organisations, practitioners and individuals from securing a copy – which is regrettable. The chapters contain a wealth of knowledge that deserves to be disseminated widely.
Overall, this is a solid and useful volume reflecting a key development in human rights law on disability. Ultimately, the impact of the CRPD will have much to do with the robustness of the monitoring and enforcement regimes applied in relation to Article 35 (inter alia –‘Reports by States Parties – Each State Party shall submit to the Committee, through the Secretary-General of the United Nations, a comprehensive report on measures taken to give effect to its obligations under the present Convention and on the progress made in that regard’) – and, Article 36 – (‘Consideration of reports – each report shall be considered by the Committee, which shall make such suggestions and general recommendations on the report as it may consider appropriate and shall forward these to the State Party concerned’). Accordingly, Waterstone’s chapter (‘Political Participation for People with Disabilities’ pp. 371–97) alludes to a potential implementation gap – an issue sadly familiar in the history of disability equality laws. Thus, he offers the caveat ‘the enforcement of laws as written is not a strong suit of international law where state-level compliance with human rights treaties is always a matter of concern’ (part IV, p. 394).
In concluding the volume, the editors point to the danger that the Convention may add to the ‘traditional failure to translate rights’ and amount to little more than ‘hollow promises’. Yet they also note that the CRPD’s greatest legacy may well be as a ‘catalyst for change’. They state: ‘the success of the CRPD, and of law generally, will be measured by the extent to which the underlying principles are reflected in the development and administration of laws, policies and programmes, in the rulings of domestic courts and tribunals, and the changes experienced at the grass roots’ (p. 487). Overall, Convention’s emphasis on disabled people as rights-bearers is a signal development. As a number of contributors note, the next decade will be crucial in determining whether, what Rioux, Basser and Jones call ‘a paradigm shift’, achieves widespread positive outcomes for disabled people.
Chaney, P. (2011) Equality and Public Policy. Cardiff: University of Wales Press.
Chaney, P. (2012) ‘The administration of equality and human rights: recent developments and future prospects. Public Policy and Administration, 27 (1), pp. 69–88.
Conaghan, J. (2009) ‘Intersectionality and the feminist project in law.’ In E. Grabham, D. Cooper, J. Krishnadas & D. Herman (eds), Intersectionality and Beyond: Law Power and the Politics of Location. London: Routledge.
Crenshaw, K. (2000) Gender-Related Aspects of Race Discrimination. New York: United Nations.
Owen, F. & Griffiths, D. (2009) Challenges to the Human Rights of People with Intellectual Disabilities. London: Jessica Kingsley Publishers.
Shakespeare, T. (2009) Disability Rights and Wrongs. London: Taylor and Francis.