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Disability and the Dilemma of Difference

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Disability Law and Human Rights
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Abstract

This chapter shows how the dilemma of difference debate plays out in the context of disability human rights, focusing on universal and disability-specific human rights provisions and the notion of disability as normalcy or difference. It shows how the concept of substantial equality in the Convention on the Rights of Persons with Disabilities moves beyond the dilemma of difference. Achieving equality is not a choice between integrated or targeted approaches; rather, the rights of persons with disabilities (and others) should be taken fully into in general policies as well as having targeted policies or measures combating specific human rights challenges.

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Notes

  1. 1.

    Because human rights are rights one has by virtue of being human, it follows that they are equally (or universally) shared among all human beings.

  2. 2.

    See Skarstad and Stein (2018) for an explanation of this understanding of the concept of mainstreaming.

  3. 3.

    A notable exception is the rights of children with disabilities in the Convention on the Rights of the Child.

  4. 4.

    The Convention on the rights of the child from 1989 includes the rights of children with disabilities in two articles, but fails to include their rights on an equal basis with others, see Peters (2007) and Quinn et al. (2002).

  5. 5.

    In the seven years before the CRPD was enacted (2000–2006) disability was mentioned in 16% of the treaty bodies concluding observations, compared to 62% in the eight years after the enactment of the convention (2007–2014), see Skarstad and Stein (2018).

  6. 6.

    The CRPD conceptualizes rather than strictly defines disability: As society is constantly evolving, so too are disabling barriers and what is considered a disability.

  7. 7.

    “‘Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms” (CRPD, Article 2).

  8. 8.

    The CRPD includes equality of opportunity as a general principle.

  9. 9.

    See e.g. Stein (2007) for examples. Another novelty of the CRPD is the explicit protection against intersectional discrimination. Having the rights of children and women as a general principle and specifying their rights in several articles, the CRPD offers a stronger framework for human rights protection of women and children (with disabilities).

  10. 10.

    The human rights-based model is also a social model as it sees disability as socially constructed. What the human rights-based model adds is first and foremost that persons with disabilities have the same rights as others and as such it creates a human rights-based framework for understanding and solving the challenges and discrimination that persons with disabilities face.

  11. 11.

    In accordance with human rights law, criteria such as proportionality and legitimate aim are also necessarily relevant.

References

  • Arneil, Barbara. 2009. “Disability, self image, and modern political theory.” Political Theory, 37 (2), 218–42.

    Article  Google Scholar 

  • Crenshaw, Kimberle. 1989. “Demarginalizing the intersection of race and sex: A black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics.” The University of Chicago Legal Forum, 1989 (1), 139–67.

    Google Scholar 

  • CRPD Committee. 2018. General Comment No. 6. Article 5: Equality and non-discrimination (Adopted 9 March 2018).

    Google Scholar 

  • Degener, Theresia. 2017. A new human rights model of disability, the United Nations convention on the rights of persons with disabilities. Berlin: Springer, 41–59.

    Book  Google Scholar 

  • Donnelly, Jack. 2013. Universal human rights in theory and practice. Ithaca: Cornell University Press.

    Book  Google Scholar 

  • Elwan, Ann. 1999. Poverty and disability: A survey of the literature. Social Protection Advisory Service.

    Google Scholar 

  • Fiala-Butora, János. 2015. Reconstructing personhood: Legal capacity of persons with disabilities. Dissertation, Harvard Law School.

    Google Scholar 

  • Fineman, Martha Albertson. 2008. “The vulnerable subject: Anchoring equality in the human condition.” Yale Journal of Law & Feminism, 20 (1), 8–40.

    Google Scholar 

  • Ishay, Micheline. 2008. The history of human rights: From ancient times to the globalization era. Berkeley: University of California Press.

    Google Scholar 

  • Jenness, Valerie. 2003. “Engendering hate crime policy: Gender, the ‘dilemma of difference,’ and the creation of legal subjects.” Journal of Hate Studies, 2 (1), 73–92.

    Article  Google Scholar 

  • Kayess, Rosemary, and French, Phillip. 2008. “Out of darkness into light? Introducing the convention on the rights of persons with disabilities.” Human Rights Law Review, 8 (1), 1–34.

    Article  Google Scholar 

  • Lord, Janet E., and Stein, Michael Ashley. 2009. “Social rights and the relational value of the rights to participate in sport, recreation, and play.” Boston University International Law Journal, 27, 249–281.

    Google Scholar 

  • Lord, Janet E., and Stein, Michael Ashley. 2013. “Contingent participation and coercive care.” In Bernadette McSherry and Ian Frecelton (eds.), Coercive Care: Rights, Law and Policy. New York: Routledge, 31–49.

    Google Scholar 

  • Mégret, Frédéric. 2008a. “The disabilities convention: Towards a holistic concept of rights.” The International Journal of Human Rights, 12 (2), 261–78.

    Article  Google Scholar 

  • Mégret, Frédéric. 2008b. “The disabilities convention: Human rights of persons with disabilities or disability rights?” Human Rights Quarterly, 30 (2), 494–516.

    Article  Google Scholar 

  • Minow, Martha. 1985. “Learning to live with the dilemma of difference: Bilingual and special education.” Law and Contemporary Problems, 48 (2), 157–211.

    Article  Google Scholar 

  • Minow, Martha. 1990. Making all the difference: Inclusion, exclusion, and American law. Ithaca/New York: Cornell University Press.

    Google Scholar 

  • Norwich, Brahm. 2007. Dilemmas of difference, inclusion and disability: International perspectives and future directions. Oxon: Routledge.

    Book  Google Scholar 

  • Nussbaum, Martha. 2006. Frontiers of justice: Nationality, disability, species membership. Cambridge, MA: Harvard University Press.

    Google Scholar 

  • Oliver, Michael. 2009. Understanding disability: From theory to practice. 2nd edn. Hampshire: Palgrave Macmillian.

    Google Scholar 

  • Oliver, Michael, and Barnes, Colin. 2012. The new politics of disablement. New York: Palgrave Macmillan.

    Book  Google Scholar 

  • Peters, Susan J. 2007. “Education for all? A historical analysis of international inclusive education policy and individuals with disabilities.” Journal of Disability Policy Studies, 18 (2), 98–108

    Article  Google Scholar 

  • Quinn, G., et al. 2002. Human rights and disability: The current use and future potential of United Nations human rights instruments in the context of disability. New York/Geneva: United Nations Publications.

    Google Scholar 

  • Rioux, M. H., and Riddle, C. A. 2010. “Values in disability policy and law: Equality.” In Critical perspectives on human rights and disability law. Leiden: Brill Nijhoff, 37–55.

    Google Scholar 

  • Shakespeare, Tom. 2014. Disability rights and wrongs revisited. London: Routledge.

    Google Scholar 

  • Skarstad, Kjersti. 2017. Realizing the human rights of persons with disabilities: From political ideals to political practices. Dissertation, University of Oslo.

    Google Scholar 

  • Skarstad, Kjersti. 2018a. “Human rights through the lens of disability.” Netherlands Quarterly of Human Rights, 36 (1), 24–42.

    Article  Google Scholar 

  • Skarstad, Kjersti. 2018b. “Ensuring human rights for persons with intellectual disabilities? Self-determination policies and the use of force in the case of Norway.” The International Journal of Human Rights, 22 (6), 774–800, 20.

    Google Scholar 

  • Skarstad, Kjersti, and Stein, Michal A. 2018. “Mainstreaming disability in the United Nations treaty bodies.” Journal of Human Rights, 17 (1), 1–24.

    Article  Google Scholar 

  • Stein, Michael. 2007. “Disability human rights.” California Law Review, 95 (1), 75–121.

    Google Scholar 

  • Taylor, Charles. 1985. Philosophical papers: Volume 2, philosophy and the human sciences. Cambridge: Cambridge University Press.

    Google Scholar 

  • Wasserman, David et al. 2013. “Disability and justice.” In Stanford Encyclopedia (Online: https://plato.stanford.edu/entries/disability-justice/).

  • World Health Organization and World Bank. 2011. World report on disability. Malta: World Health Organization.

    Google Scholar 

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Skarstad, K. (2022). Disability and the Dilemma of Difference. In: Felder, F., Davy, L., Kayess, R. (eds) Disability Law and Human Rights. Palgrave Studies in Disability and International Development. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-86545-0_5

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