One of the blessings of this year has been that I designed, and managed to get approved by my Law School, a postgraduate course on Disability and Human Rights. At the time of writing this, I have no idea if students will actually be interested in taking part in the course, so it may not run after all, due to lack of interest. But that is beside the point of this post.
The real challenge for legal academics who are interested in disability and human rights, like me, is to translate the claims of the disability rights movement in their best legal light. Of course there is now the Convention on the Rights of Persons with Disabilities. Yet, we should not forget that the CRPD is an international convention, which is the product of diplomatic debate and input from disability NGOs. The rights protected by the CRPD require interpretation and the work of the CRPD Committee will prove crucial to this effect.
The best example to illustrate my point is the theoretical cornerstone, upon which the disability rights movement has based its edifice of claims: the social model of disability, about which Jenny Morris has written an amazing blog. Reading this post, and reflecting on it from a legal perspective has been a long process for me, which is still ongoing, so I will incorporate it in the reading list for the first seminar of my Disability and Human Rights module and see what my students will say.
The common approach to the social model of disability in terms of human rights has been that it imposes obligations upon the state to bring down the barriers that exclude persons with disabilities from equal and full participation to society. This approach carries a fatal objection about the allocation of scarce resources: the state, in carrying out its policies, may give precedence to policies other than the social model of disability.
The CRPD has sought to rectify this by taking an integrated approach to the human rights of persons with disabilities: there is no clear distinction between negative rights and socio-economic rights. CRPD rights are a normative bundle of negative rights and positive obligations, which have to be realised progressively. The objection from the argument on the allocation of scarce resources is partly addressed in this way.
Notwithstanding the sheer awesomeness of the CRPD, I have a nagging suspicion that the way forward in human rights protection for persons with disabilities may lie in this direction: clearing the way for the ever greater justiciability of disability rights, by intensifying the review (e.g. the proportionality control) of the allocation of scarce resources.