Assignment Task
Abstract: The Convention on the Rights of Persons with Disabilities (CRPD) is a modern human rights treaty with innovative components. It impacts on disability studies as well as human rights law. Two innovations are scrutinized in this article: the model of disability and the equality and discrimination concepts of the CRPD. It is argued that the CRPD manifests a shift from the medical model to the human rights model of disability. Six propositions are offered why and how the human rights model differs from the social model of disability. It is further maintained that the CRPD introduces a new definition of discrimination into international public law. The underlying equality concept can be categorized as transformative equality with both individual and group oriented components. The applied methodology of this research is legal doctrinal analysis and disability studies model analysis. The main finding is that the human rights model of disability improves the social model of disability. Three different models of disability can be attributed to different concepts of equality. The medical model corresponds with formal equality, while the social model with substantive equality and the human rights model can be linked with transformative equality.
Introduction The United Nations Convention on the Rights of Persons with Disabilities (CRPD) [1] of 2006 has had profound impact on disability law and human rights law globally. With 162 State Parties the Convention has reached more than 80% universal ratification for its 10th anniversary. Most State Parties have reviewed and revised domestic disability law and have established National Monitoring Mechanisms as prescribed by the Convention. The CRPD seeks to bring about a paradigm shift in disability policy that is based on a new understanding of disabled persons as right holders and human rights subjects. The theoretical background for this change is a modern model of disability as developed in disability studies and recent group oriented approaches in modern human rights law. According to Article 1 the purpose of the CRPD “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” It is the first human rights instrument which acknowledges that all disabled persons are right holders and that impairment may not be used as a justification for denial or restrictions of human rights. Such an approach recognizes that disability is a social construct which is created when impairment interacts with societal barriers. It is based on a new thinking about disability which is usually described as a paradigm shift from the medical to the social model of disability. The theoretical background is disability studies, a multidisciplinary research school that has emerged from disability rights movements in the UK and USA some 30 years ago. The debate about medical versus social model of disability has been the central focus during the first two decades and several scholars have emphasized that disability studies have moved on to new, less dichotomist models such as the political/relational approach of Alison Kafer ([2], p. 7). While it is true that the dichotomy between medical and social model of disability is an outdated subject for disability studies discourse, it has gained new attention within legal discourse. During the negotiations of the CRPD the medical and social model played a pivotal role. During the first decade of its existence the CRPD has been the catalyst for many law and policy reforms, which relate to the shift from, medical to the social model of disability. It is important to understand the new model of disability, which is supposed to be the foundation of modern disability law. Hence it is necessary to address the issue of disability model again. During the negotiations, reference was usually made to the social model of disability, which should replace the medical model of disability. While the latter reduces disability to a medical phenomenon of impairment, the first takes a social-contextual approach to disability. Persons with disabilities are described as “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”([1], art. 1). Disability as a social construct is the main feature of the social model of disability. However, it is opined that the CRPD is based on the human rights model of disability, which moves beyond the social model.
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