The development of disability rights under international law: from charity to human rights

Disabled people are the world’s largest growing minority, yet until very recently they were invisible in international human rights law. Disabled people are not listed among the groups explicitly protected against discrimination in the post-war human rights instruments that make up the International Bill of Rights,¹ nor under the European Convention on Human Rights (Council of Europe 1950). The European Court of Human Rights only made its first ever finding of disability discrimination in 2009 in Glor v Switzerland (2009). Kanter argues that this invisibility extended into the international human rights community itself, including mainstream human rights scholarship and many non-governmental organisations. The UN Convention on the Rights of Persons with Disabilities (CRPD) (United Nations 2006) was developed in response to concerns that existing human rights instruments had ‘yet to create a significant impact on improving the lives of people with disabilities’, and a commitment by disabled people and their representative organisations to ‘strive for a legally binding international convention on the rights of all people with disabilities to full participation and equality in society’ (Disabled Peoples International et al. 2000). The CRPD enhances the visibility of disabled people in international human rights law; I hope that Kanter’s The Development of Disability Rights under International Law will help to enhance the visibility and understanding of the CRPD itself.

The CRPD is a remarkable legal instrument, representing the culmination of many different strands of disability activism over the last few decades. As Kanter explains in the introduction and Chapter 1, it represents a number of ‘firsts’ for an international human rights instrument. True to the spirit of ‘nothing about us without us’, the Ad Hoc Committee meetings where the text of the CRPD was drafted and negotiated were attended by representatives of over 40 countries, and over 400 different non-governmental organisations and disabled people’s organisations. According to Kanter, this ‘represents the first time in which the UN invited the people directly affected by the proposed treaty to participate directly’ in its drafting (40). As a participant in those negotiations herself, Kanter is able to give an interesting and detailed account of the issues and disagreements that arose during the drafting of the treaty.

In Chapter 1, Kanter provides a useful history of the development of disability rights in international law, accompanied by a history of the treatment of people with disabilities that is often missing from legal texts. She describes certain key innovations of the CRPD, including its basis in a social model of disability (Article 1), its inclusion – for the first time in an international human rights instrument – of rights to reasonable accommodation (Article 5) and inclusive education (Article 24). This is the first international treaty to require states to take steps to ensure the accessibility of the physical environment and services for disabled people (Article 9), and to raise awareness regarding persons with disabilities – including fostering respect and combating stereotypes (Article 8). Kanter argues that the CRPD makes explicit the interdependency between civil and political, and economic, social and cultural rights – which have traditionally been treated as distinct and separable in international human rights law. The CRPD established a new and rigorous framework for monitoring its implementation, including a requirement that the UN Committee responsible for oversight of the treaty includes participation of experts with disabilities (Article 34). Cumulatively, Kanter argues, these innovations represent a ‘paradigm shift’ in approach to disability – from medical, charity and welfare responses, to a human rights approach.

The next six chapters of Kanter’s book are devoted to exploring the history, significance and implications of certain key rights contained within the CRPD: the right to independent living (Article 19) – the first such right of its kind; liberty and security (Article 14); freedom from torture and cruel, inhuman or degrading treatment and punishment (Article 15); physical and mental integrity of the person (Article 17); the right to health (Article 25); access to justice (Article 13); and legal capacity and supported decision-making (Article 12).

Kanter’s selection, and the focus of her analysis, will be of special significance to people with intellectual, psychosocial and cognitive disabilities, especially those at risk of involuntary institutionalisation and forced medical treatment. These rights – and in particular Article 12 of the CRPD – have prompted extensive commentaries in the legal literature, but have as yet attracted relatively little attention from disability studies scholars. Kanter’s focus was perhaps influenced by her earlier career as a young lawyer, acting for clients detained in the St. Elizabeth Hospital in Washington, DC – the very facility that formed the basis of Goffman’s fieldwork for Asylums (1961). If her analysis of the normative content of the CRPD is correct, it spells the end of involuntary institutionalisation of disabled people.

In the legal literature, opinion is divided between those who argue that the rights that form the focus of Kanter’s book prohibit all involuntary institutionalisation, forced treatment and any restrictions of ‘legal capacity’ on disability related grounds (for example, Dhanda 2006–2007; Minkowitz 2006–2007), and those who believe that such measures would be permissible so long as they are based on a person’s decision-making ability rather than the existence of a disability per se (Dawson 2015; Nilsson 2014; Szmukler, Daw, and Callard 2013). For the latter group, laws such as the Mental Capacity Act 2005 of England and Wales – subject to certain modifications – provide a template for the future of mental health and guardianship laws. For the former group, the very concepts of ‘mental capacity’ and ‘best interests’ represent a discriminatory basis for violations of fundamental human rights; this approach is taken by the UN Committee on the Rights of Persons with Disabilities (2014). Kanter’s argument weaves an interesting course between these positions, and it is difficult to do it justice in this short review.

Her analysis of the right to independent living emphasises both the socio-economic requirements of appropriate housing, accessibility and support, and the right to exercise a choice as to where and with whom one lives. She argues that the Article 14 prohibition on deprivation of liberty on disability-related grounds does not go far enough – because ‘disability neutral’ laws are likely to rely upon ‘vague and unworkable’ standards such as dangerousness or decision-making incapacity, and may result in greater numbers of disabled people being incarcerated (143–151). Kanter discusses some of the limitations of the text of CRPD for those who argue that it prohibits involuntary treatment, and the complexities around emergency care. Her discussion of Article 12 of the CRPD and supported decision-making goes straight to the heart of the paradigm shift of the CRPD, and its ‘potential to transform how we think about independence and autonomy for people with and without disabilities’ (267).

The Development of Disability Rights under International Law makes a welcome and important contribution to the growing literature on the CRPD. The book’s global coverage is impressive, although this breadth may have made it easier for some inaccuracies – such as the description of the Mental Capacity Act 2005 in England and Wales² – to creep in. Kanter’s book provides an excellent overview of the history, significance and scope of the CRPD, and offers an interesting contribution to ongoing debates about the CRPD and the future of mental health and mental capacity laws.

Lucy Series
School of Law and Politics, Cardiff University, Cardiff, UK
[email protected]
© 2015, Lucy Series
http://dx.doi.org/10.1080/09687599.2015.1066975

Notes

1. These are the Universal Declaration of Human Rights (United Nations 1948), the International Covenant on Civil and Political Rights (United Nations 1966a) and the International Covenant on Economic, Social and Cultural Rights (United Nations 1966b).

2. Kanter says that the Act distinguishes between decision-making and the ability to communicate, such that ‘if a person is able to make decisions, but has communication difficulties, the person could not be denied legal capacity’ (274). This is incorrect. An inability to communicate one’s decision is considered ‘mental incapacity’, just as an inability to understand, retain, use or weigh information is (see s3(1) Mental Capacity Act 2005), and is the basis for restrictions on legal capacity.