Human rights through the lens of disability
| Date | 01 March 2018 |
| Author | Kjersti Skarstad |
| Published date | 01 March 2018 |
| DOI | 10.1177/0924051917753251 |
| Subject Matter | Articles |
Article
Human rights through
the lens of disability
Kjersti Skarstad
Department of Political Science, University of Oslo, Oslo, Norway
Abstract
Notions discriminatory to persons with disabilities commonly underpin political theories of rights.
While persons without disabilities are considered ‘‘normal’’ and independent, persons with dis-
abilities are commonly seen as ‘‘deviant’’ and dependent. Persons with intellectual disabilities are
also seen as lacking the autonomy required to have human rights. Acknowledging the equal human
rights of all human beings, the United Nations Convention on the Rights of Persons with
Disabilities (CRPD) refutes such notions. Drawing upon relational theory, this Article provides a
theoretical basis to some of the novel features of the CRPD. In contrast to many dominant the-
ories of rights, the author argues that 1) disability constitutes a natural part of human diversity, 2)
human beings are interdependent, 3) rights are achieved through supportive relations, and 4)
human rights are ideals that inform how we should treat each other. The Article shows that
a human rights theory fully inclusive of persons with intellectual disabilities also strengthens
the human rights of others.
Keywords
disability, CRPD, human rights theory, intellectual disability, relational theory
1. Introduction
Political theories rarely mention the human rights of persons with disabilities, and when they do,
they commonly argue that not all persons with disabilities are entitled to full human rights
protection.
1
In addition, they tend to portray persons with disabilities as categorically different
Corresponding author:
Kjersti Skarstad, Department of Political Science, University of Oslo, P.O. Box 1097 Blindern, 0317 Oslo, Norway.
Email: kjersti.skarstad@stv.uio.no
1. The author wishes to thank Gordon Bauer, Inga Bostad, Janos Fiala-Butora, Nancy Hirschman, Jon Hovi, Andreas H.
Hvidsten, Robert Huseby, Anita Silvers, Michael A. Stein, Øyvind Stiansen, and Ezgy Yildiz for their comments on
previous versions of the article.
Netherlands Quarterly of Human Rights
2018, Vol. 36(1) 24–42
ªThe Author(s) 2018
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from others.
2
In contrast to ‘‘normal’’ persons who are seen as independent, personswith disabilities
(and persons with intellectual disabilities in particular) tend to be seen as deviant and dependent.
Persons with intellectual disabilities are seen as lackingthe autonomy required to have human rights.
Enacted in 2006, the United Nations Convention on the Rights of Persons with Disabilities (CRPD)
became the firstinternational human rights convention to explicitlyrefute such notions and to firmly
acknowledge that human rights are not subject to disability-based restrictions.
Existing academic literature on the CRPD explains well how the CRPD develops concepts of
human rights law (for example, non-discrimination), and how it is underpinned by the idea of
persons with disabilities as active agents rather than medical objects or objects of pity.
3
Recent
legal literature has also pointed out that human rights law has developed from individualistic to
more relational conceptions of selfhood, with the CRPD being the clearest example of this
change.
4
However, while the literature on the CRPD advances equality-based conceptions of disability
and rights, it does not directly address the discriminatory notions of disability found in political
theories of rights, and hence do not sufficiently explain how we can perceive of human rights as not
having any disability based-restrictions. In particular, theoretical literature on how persons with
intellectual disabilities can have the same human rights as their non-disabled peers is insufficient.
5
Human rights practices are informed by certain understandings,
6
and for the human rights of
persons with disabilities to become a reality, it is thus important that the novel assertions of the
CRPD are understood and underpinned with strong theoretical arguments.
7
How can established
understandings of human rights be revised so that they fully include all persons with disabilities?
2. Martha Nussbaum, Frontiers of Justice: Nationality, Disability, Species Membership (Harvard University Press 2006);
Eva Feder Kittay and Licia Carlson (eds), Cognitive Disability and its Challenge to Moral Philosophy (John Wiley &
Sons 2010); Barbara Arneil, ‘Disability, Self Image, and Modern Political Theory’ (2009) 37 Political theory 218.
3. Rosemary Kayess and Phillip French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons
with Disabilities’ (2008) 8 Human Rights Law Review 1; Raymond Lang and others, ‘Implementing the United Nations
Convention on the Rights of Persons with Disabilities: Principles, Implications, Practice and Limitations’ (2011) 5
ALTER - European Journal of Disability Research / Revue Europe´enne de Recherche sur le Handicap 206; Fre´de´ric
Me´gret, ‘The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?’ (2008) 30
Human Rights Quarterly 494; Fre´de´ricMe´gret, ‘The Disabilities Convention: Towards a Holistic Concept of Rights’
(2008) 12 The International Journal of Human Rights 261; Michael Ashley Stein, ‘Disability Human Rights’ (2007) 95
California Law Review 75.
4. Danai Angeli, ‘Positive Obligations in Human Rights Law: the Disabilities Paradigm Shift’ (Dissertation, European
University Institute, 2015); Arlene S Kanter, The Development of Disability Rights under International Law: from
Charity to Human Rights (Routledge 2014).
5. Eva Feder Kittay and Licia Carlson, Cognitive Disability and its Challenge to Moral Philosophy (John Wiley & Sons
2010).
6. Charles Taylor, Philosophical Papers: Volume 2, Philosophy and the Human Sciences (Cambridge University Press
1985).
7. See Taylor (n 5) for how theory influence the way we act. See Kjersti Skarstad ‘Realizing the Human Rights of Persons
with Disabilities. From Political Ideals to Political Practices’ (Dissertation, University of Oslo, 2017) for how this
applies to human rights specifically. See for example Douglas C Bayton, ‘Disabilitiy and the Justification of Inequality
in American History’ in J Lennard Davis (ed), The Disability Studies Reader (4th edn, Routledge 2013); Michael Ashley
Stein, ‘Same Struggle, Different Difference: ADA Accommodations as Antidiscrimination’ (2004) 153 University of
Pennsylvania Law Review 579; Ja´nos Fiala-Butora, ‘Disabling Torture: the Obligation to Investigate Ill-Treatment of
Persons with Disabilities’ (2013) 45 Columbia Human Rights Law Review 214; Michael Oliver and Colin Barnes, The
New Politics of Disablement (Palgrave Macmillan 2012) for how discriminatory notions similar to those made in
political theory are shared by many decision makers and law enforcers.
Skarstad 25
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