Beyond the liberal subject: challenges in interpreting the CRPD, and the CRPD’s challenges to human rights

Abstract

1. INTRODUCTION

It is oft repeated¹ that the Convention on the Rights of Persons with Disabilities (CRPD) creates no ‘new rights’, but merely strives to ensure the implementation of existing rights, and it is certainly correct that a reader casting an eye down the titles of the articles will find much to recognize.² This is not a surprise: other treaties that focus on the needs of specific groups, most notably the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)³ and the Convention on the Elimination of All Forms of Racial Discrimination (CERD),⁴ lie similarly close to the core human rights instruments. These treaties are meant to be about making existing rights real for disadvantaged groups.

The need for these new treaties nonetheless exposes human rights deficits. If the treaty were really just meant to reiterate what has come before, there would be no need for a new treaty. Whether the novelty in a new treaty is articulated as involving ‘new rights’ or ‘new practice’ misses the point: the ‘universal’ rights of the previous treaties had not turned out to be universal, and the need for the new treaty therefore stands as a challenge to what has come before.

That is certainly true of the CRPD. The resolution commencing the process of its development recognized that ‘despite different efforts made to increase cooperation and integration and increasing awareness of and sensitivity to disability issues since the adoption of the World Programme of Action by Governments, bodies and relevant organizations of the United Nations system and non-governmental organizations, these efforts have not been sufficient to promote full and effective participation by and opportunities for persons with disabilities in economic, social, cultural and political life’.⁵ The CRPD text reflects this. It points up a variety of ways in which human rights law has failed some of the most vulnerable, and by implication asks about our approach to human rights and how we need to think about things differently.

The issues raised are not unique to people with disabilities, although their situation may have made them more difficult or impossible to ignore. Existing literature on the CRPD has, appropriately, tended to focus on how human rights law affects our understanding of the situation of people with disabilities. This paper is an attempt to reverse the telescope. Instead of exploring how rights frameworks affect how we think about disabilities, this paper explores what the CRPD tells us about human rights and how we think about human rights.⁶

The issues fall into two different clusters. The first is internalist and essentially doctrinal. The CRPD creates a set of challenges to traditional thinking about human rights, as practiced by human rights lawyers and academics. It raises conceptual tensions, including the division between civil/political and economic/social/cultural rights (and the related issue of immediate versus progressive realization), the divide between public and private spaces in human rights, and the role of the state in human rights.

The latter elements of this raise the second set of issues: the CRPD is clearer than previous treaties on the diffusion of responsibility for implementation. Human rights are no longer limited to an enclosed system of laws and principles, the province of the State. They are instead about how society more broadly understands and engages with people with disabilities and indeed how people with disabilities understand themselves. Those implementing the CRPD will not just be policymakers and legislators, but professionals in communities, families and people caring informally for friends and loved ones, and indeed everyone in society. The State may have responsibility for implementation, but the locus of change is across society: the expectation is that everyone will be expected to get behind the project. That in turn creates problems. Insofar as these groups are engaged with ‘human rights’, their understanding of that phrase may well differ substantially from that of international human rights lawyers. Their understanding of the issues may well be affected by their professional or other culture, and thus markedly differ from the animus of the CRPD. The CRPD is arguably about the reform of the whole state and body politic: how can that possibly be accomplished? And how does that reflect on our understanding of human rights more generally?

Is the CRPD idealistic? Almost certainly. Is it conceptually problematic? Absolutely (and some of the resulting issues will be discussed in this paper). The issues and dilemmas raised by the CRPD will, however, be recognized by many working in the human rights field: not much of this is new. But it is now almost sixty years since the CERD was passed, and racism remains stubbornly present: judging by results, the ways in which we have done human rights in the past are not something to be accepted uncritically. The new directions and approaches of the CRPD must thus be addressed seriously.

This paper aims to explore the ramifications of this. In section two, the human rights novelty of the CRPD is explored. The CRPD was based on the social model of disability, which locates human rights failures not as problems in the disabled rightsholder, but in failures in actions of States. That partly requires the removal of previous discriminatory laws and practices, but the reality of lives for people with disabilities means that it also requires positive supports to be provided. The CRPD is much stronger and more transparent on the indivisibility of rights than previous human rights conventions. Section three considers the challenges of such strong indivisibility to classical human rights doctrine. Questions of immediate realizability for civil and political rights become problematic. In a landscape where immediate and progressive realization blur together, relations between rights become more complex and identification of when violations occur (and what forum should determine violations) become less clear. The role of the State becomes more problematic: on the one hand, it is expected to be more interventionist; on the other, such intervention may in itself raise human rights concerns if for example the decision is one traditionally involving autonomy from the state. CRPD implementation therefore requires the involvement of non-state actors. Section four looks at the involvement of such actors. The CRPD views civil society as an engine for human rights reform, but that raises complex questions about the ways civil society interprets human rights.

The object of this paper is to ask the questions, not to dictate resolutions. The challenges posed by the CRPD to human rights are real, and certainly a return to or continuation of the status quo ante is not to be countenanced. At the same time, if this paper is correct that these challenges are a great deal broader than disability law, the solutions must take into account a much broader range of discourses and human rights actors. People with expertise in those areas will, quite properly, want to be part of the broader discussion of what lessons we should take, and how they should be applied. This is a stage in the discussion, not its conclusion.

The next section of this paper explores the CRPD approach to human rights: what is the CRPD trying to do, and how does it try to do it? It argues that, much more than previous conventions, the CRPD takes a detailed and nuanced approach to human rights and their implementation. Section three explores the resulting doctrinal challenges to conventional approaches human rights. These flow largely from the CRPD’s integration of civil and political rights with economic, social and cultural rights. That creates challenges in itself, and also both complications in how violations of rights are articulated and a new relationship between the citizen and the state. If the rights are to be implemented, the involvement of broader civil society will be needed. That is discussed in section four, where it is argued that divergent meanings given to ‘human rights’ among different actors in the community create challenges to implementation. It is not that the civil society is hostile to the project (although some elements may be hostile to some parts of it), but rather that they understand the human rights project differently. While the issues in this paper are articulated in the context of the CRPD, it is submitted that they are not unique to people with disabilities. Instead, the CRPD has made clear some of the larger challenges to human rights law as we have practiced it.

2. HUMAN RIGHTS NOVELTY IN THE CRPD

The doctrinal basis at the core of the CRPD during its development was the ‘social model’ of disability that had gained prominence both in the rising academic discipline of disability studies and also among the civil society organizations of people with disabilities in the preceding decades.⁷ Essentially, that model portrays disability not as a ‘problem’ within the individual that needs to be ‘fixed’, but rather in terms of how law, government and social practice marginalize people with disabilities. There are certainly problems to be fixed, but they are to be found in the body politic and its institutions, not in the people with disabilities.

There is a great deal of complex and sometimes heated discussion in disability studies and other academic and professional literature about how exactly the social model is to be understood, and whether it universally expresses the experience of people with disabilities.⁸ A particular concern is how impairments—the bodily or psychosocial manifestations of disability that are experienced by people with disabilities as intrinsic to their condition—are theorized by the social model, and whether the focus on society’s role in creating disablement unduly draws focus from the lived experience of persons with disabilities: does the social model focus unduly on objectified social barriers rather than on the experience of people with disabilities in their realization of their goals and objectives? The response has been the development of a new ‘human rights model’ of disability, based on the interpretation of the CRPD itself.⁹ The focus in that model is on the person with disabilities as a rights holder, taking into account the experience of impairments in the context of social barriers and full citizenship and participation in society more broadly. It certainly does not return to a medical model, and, significantly, it understands impairments as part of the normal diversity of society. It focuses rather on what human rights citizenship means for people affected by these impairments. This approach appears to have been adopted by the CRPD Committee, and can now be taken as the doctrinally orthodox approach to CRPD interpretation.¹⁰

The move to the human rights model marks a shift away from rights as a somewhat theoretical construct flowing from political and legal theory to a closer engagement with the experience of the people rights are meant to protect. That is important. Beyond that, the minutiae of the debates surrounding the characterization of disability, including the relevance of impairments, are not at issue in this paper. This paper is exploring the relevance of the CRPD in our understanding of broader human rights, and an extended discussion of the debates within the disability community would be a diversion. What is relevant here are the ways in which the CRPD addresses practices of marginalization by governments and other parts of society, and how the CRPD looks to make rights real in the lives of rightsholders. Those issues are certainly relevant to human rights more broadly.

To embody that, the CRPD employs the concept of ‘inclusive equality’, articulated as follows:

It embraces a substantive model of equality and extends and elaborates on the content of equality in: (a) a fair redistributive dimension to address socioeconomic disadvantages; (b) a recognition dimension to combat stigma, stereotyping, prejudice and violence and to recognize the dignity of human beings and their intersectionality; (c) a participative dimension to reaffirm the social nature of people as members of social groups and the full recognition of humanity through inclusion in society; and (d) an accommodating dimension to make space for difference as a matter of human dignity.¹¹

To that end, the CRPD includes considerably more detailed instruction than other human rights treaties, both in terms of the mechanisms of treaty governance and implementation and the substance of individual rights. As an indicator, the CRPD is more than twice the length of CEDAW, for example—more than 11,000 words, compared to fewer than 4500 in CEDAW.

Previous conventions have tended to articulate State obligations in broad terms and have required relatively limited regulatory structures. The logic would seem to have been that once the legal barriers were gone and affirming legal structures put in their place, the good human rights outcomes will flow. The CRPD includes those requirements of regulatory reform, but it goes on to articulate much more specific requirements. The general requirements on States Parties in Article 4, for example include not merely the usual overarching duties to legislate to promote human rights and non-discrimination, but also impose the following duties on States Parties:

(f) To undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in article 2 of the present Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines;

(g) To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost;

(h) To provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities;

(i) To promote the training of professionals and staff working with persons with disabilities in the rights recognized in this Convention so as to better provide the assistance and services guaranteed by those rights.¹²

Consistent with other human rights treaties, reports on progress are required every 4 years, but the CRPD goes on to require programmes of research, including the collection of statistical data, so that progress is transparent.¹³ National focal points are to be established by States to oversee and co-ordinate implementation of the convention and national monitoring mechanisms are to be established. These are to include the involvement of civil society, including people with disabilities and their representative organisations.¹⁴ States are thus told in much more specific detail than in other Conventions what exactly they are meant to do.¹⁵

That approach extends into the substantive articles, which are more detailed than other comparable conventions and reaching overtly beyond the realm of regulation. States Parties are required to ensure the accessibility both of physical infrastructure such as buildings and also of services (Art. 9). The right to equal recognition before the law includes at its core a right to support for decision-making (Art 12). The right to independent living includes a right to personal assistance when required (Art 19). Mobility aids are to be available at reasonable cost when required (Art 20). Freedom of expression includes a right to access to information, and that in turn obliges states to make information available in accessible formats such as Braille, and to recognize and promote the use of sign language (Art 21). Inclusive education is a right, coupled with the right to individualized support, and the teaching of Braille and sign language is to be promoted (Art 24). The list goes on. Throughout, there are obligations to ensure that workforces are adequately trained to implement these policies.

This envisages a much more active state than previous conventions. Human rights in the CRPD are no longer about protections against arbitrary measures in a world that accepts that disability will sometimes disadvantage people and deprive them of rights. Human rights are instead about articulating and ensuring the provision of the supports needed to ensure that all people with disabilities can enjoy the same civil, political, social, economic and cultural rights as the rest of society. The result is a much more extensive and more nuanced array of positive obligations for States Parties contained in the Convention, as indicated by the list above.

The jurisprudence that has arisen regarding the de facto detention of people with mental disabilities in social care homes or, sometimes, mental hospitals will serve as an illustration of the shift. These arrangements came to the attention of the European Court of Human Rights (ECtHR) in the early 2000s, with large numbers of people held, often in risible conditions, with no meaningful mechanism to challenge their situations. Some people had been in these situations for decades, and, to its credit, the ECtHR made some very good decisions regarding the failed processes by which the people were held.¹⁶ The difficulty is that the issue was viewed almost exclusively through a lens of civil and political rights, and the difficulty as perceived by the Court therefore tended to be about process. If no alternative accommodation was provided, however, the people in those institutions would have nowhere else to go. The procedural objections might be corrected (although often it seems they have not been), but the person would be left in the same place and the same conditions they had been previously. The substantive problem, which is at the core of the rights violation as experienced by the individual, would have been somehow magicked away. To the person who remains stuck in those institutions, that must be an unsatisfactory result.

The CRPD approach would instead ban compulsory detention, based in whole or in part on disability:¹⁷ the adequacy of process would become largely irrelevant, since detention with any process would constitute a violation of the CRPD. Instead, appropriate alternatives would be required so that the people now in the institutions would have real options. Certainly, that would include accommodation in the community and support arrangements that would meet the person’s needs as he or she understood them. Those might well include education, habilitation and rehabilitation, promotion of employment possibilities, and a variety of policies to encourage participation in cultural and similar activities, since meaningful community integration means more than simply accommodation in the community. It would also include a duty to protect the individual from violence and abuse in the community. That is a significant shift from the older requirements of providing procedural protections.¹⁸

The different approach of the CRPD has ramifications for the understanding of the individual rightsholder. Classic human rights theory has tended to articulate the rights holder in a rather atomistic fashion: certainly in the civil and political realm, the rights structure was meant to keep the state in its box, giving space for the rights holder to exercise his (in the traditional vision that gendering is appropriate) autonomy without constraint. The tacet assumption was that he had the resources, financial and otherwise, to be the enlightenment citizen.

The CRPD does not do away with autonomy,¹⁹ but the placement of the rightsholder more transparently in the social structure makes a difference. For the CRPD, the rightsholder is inherently a social and socially dependent being, and autonomy for people with disabilities is understood to be inseparable from the social responses to the individual. That in turn links to the question of state responsibility. Certainly, there is an obligation on the State Party to ensure that the required legal and state supports are put in place, but the supports required by the Convention are a good deal wider. As an obvious example, for real change in the lives of people with disabilities, reasonable accommodation in employment must be comprehensive, extending well beyond employment by the state into the private sector. Indeed, in some circumstances it is questionable whether the support ought to be provided by the State. Decision-making regarding medical treatment will serve as an example. Certainly, in some circumstances, support may be required in making these decisions (as for example in the case of people with some developmental or psychosocial disabilities). The decision to consent is however a civil right, and in traditional human rights theory, therefore a decision that should be made outside the involvement or influence of the state. There are therefore questions as to whether the state can provide support which guarantees the requisite autonomy to the individual. These are live issues in the CRPD debate; suffice it here to note that ‘social’ does not necessarily mean ‘state’.

Before exploring the challenges that this vision of rights poses, it is appropriate to acknowledge its considerable strengths. Certainly, the status quo ante was in need of reform: addressing the rights deficit of people with disabilities was, after all, the point of developing the CRPD. The human rights model of disability, with its expectation that positive supports will be provided by States in tandem with legal protections, acknowledges the realities of the situations faced by people with disabilities without presuming that these will result in a loss of rights. If rights are to become a reality in the lives of people with disabilities, that has to be a base line.

Human rights advocates in other fields will no doubt recognize the power of viewing human rights violations in the context of wider social practices, rather than narrower legislative frameworks. The problems faced by racial and ethnic minorities and by women for example are no doubt affected by the legislative frameworks, but their marginalization is experienced much more broadly. This may appear obvious to advocates in these fields, but the CRPD takes this into the text of the convention itself, and the duties it imposes. That is a potentially significant shift. The CRPD model may have been based in the social model of disability, a model developed in the disability world specifically, but the model of rights to which it leads is of much broader application.

There is thus much here for human rights advocates well beyond the disability sphere to contemplate and celebrate. Indeed, if we think as people who care about what happens to people rather than as human rights technocrats, the new approach feels extraordinarily convincing. We should not lose track of that in the discussion that follows.

3. CHALLENGES TO HUMAN RIGHTS DOCTRINE

While the new directions of the CRPD are compelling, they do create challenges to traditional ways of thinking about rights. The CRPD is much more transparent than other conventions at collapsing the distinction between civil/political and economic/social/cultural rights. In its implementation, it will raise questions as to what human rights are for, and how priorities in human rights are to be set. And it exposes potential tensions in the role of States in human rights provision. These issues will be explored in turn in this section.

3.1. The integration of civil/political and social/economic/cultural rights

As discussed in the previous section, the CRPD locates human rights violations in the practices of States and civil society rather than in the individual, and therefore envisages that the solutions to those rights violations will lie in amendments to those practices. This means that some of the conventional dividing lines in human rights law become blurred. The discussion in the last section makes that clear: the civil and political rights listed contain elements that would normally be considered social and economic rights—the provision of support for decision-making as part of the right to equality before the law, the right to personal assistance for independent living, and the promotion of Braille and sign language as part of the right to freedom of expression for example. Most pervasive in this regard, the right to equality and non-discrimination (generally understood as a civil and political right), understood to include direct and indirect discrimination, the denial of reasonable accommodation, and protection against harassment. The notion of ‘inclusive equality’, is adopted here. As noted above, that is a broad characterization, intended to challenge stigma and economic disadvantage and to allow full participation of people with disabilities in society. It significantly overlaps with the right to accessibility in Article 9, and in the view of the CRPD Committee, extends into the private sector.²⁰ The resulting obligations in many cases may well in practice look a great deal like social and economic rights.

The blurring of the line between civil/political and social/economic rights has been recognized for some time, particularly insofar as civil and political rights are taken to imply the positive obligations more usually associated with social and economic rights.²¹ Rights to a fair trial, for example, have long been understood to include a positive obligation on the State to provide properly functioning judicial system and the right to legal representation, in some cases paid for by the State. Indeed, in the original conception of the key UN covenants, there was never to be a clear dividing line between economic/social and civil/political rights. The records of the drafting processes for the ICCPR and ICESC make this clear, in the debates as to whether there should be two conventions or one:

[T]hose in favour of having two covenants as well as those in favour of a single covenant were generally agreed that ‘the enjoyment of civil and political freedoms and economic, social and cultural rights are interconnected and interdependent’ and that ‘when deprived of economic, social and cultural rights, man does not represent the human person whom the Universal Declaration regards as the ideal of the free man’.²²

Nonetheless, subsequent practice created a firm dividing line between the two families of rights, flowing from different enforcement practices and political developments.²³ Indivisibility of human rights more generally—the notion that economic, social and cultural rights develop in tandem with civil and political rights and that there may be some interdependence between them—resurfaced at the end of the 1980s and has been a part of human rights discourse since that time,²⁴ with considerable debate as to the nature and intensity of the relationship between those sets of rights. Often these debates about indivisibility seem somewhat abstract,²⁵ or flow from specific theoretical concerns, such as the nature of ‘universality’ of human rights and how to engage with cultural diversity.²⁶ Those issues are of course relevant to the disability context as well: how individual cultures view disability, how far that diversity is consistent with human rights doctrine, and how far economic and cultural diversity allow for divergence in human rights implementation are very much live issues in disability rights.²⁷

For present purposes, however, the salient point in the CRPD is rather different. It is that frequently, civil and political rights are entirely bound up with economic and social rights: it is not just that they can buttress each other, but rather that they are often inextricably linked. On this point, and much more than in previous conventions, the CRPD wears its heart on its sleeve. For previous treaties, it has been at best unclear how far positive obligations have been envisaged for civil and political rights treaties, leaving it to relevant judicial and treaty bodies to navigate whether and how far to give life to these links.²⁸ For the CRPD, the connection is clear.

The CRPD itself manifests a tension in this regard, however. While as noted above its substantive articles clearly and deliberately blur the lines between civil/political and economic/social rights, it also seems expressly to retain those distinctions in Article 4(2):

With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights, without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law.

What can this mean given the connection acknowledged between the civil and socio-economic rights noted above?

In some circumstances, particularly those Articles that are conventionally understood as social and economic rights, the tension can be reconciled. Thus the right to health (Art 25) is generally considered to be an economic and social right, but its phrasing in the CRPD includes the requirement that treatment be provided on the basis of free and informed consent,²⁹ a civil right. That specific provision can be analytically separated out: the right to consent could be seen as immediately realizable, and the other elements regarding service provision subject to progressive realization. Even here, the division may be more complex than it first seems. As Lombard-Vance et al note, consent is a process involving specific people with specific needs in specific social roles and situations, and that may require forms of support if the right is to be real.³⁰ Here, as elsewhere, we should not jump too quickly to the model of the atomized and self-sufficient enlightenment citizen.

That sort of approach becomes much more difficult when the apparently economic and social element is intimately related to a civil and political right, as for instance in the case of de facto detention in institutions discussed above: unless alternative programmes are put in place, the civil rights violation cannot effectively be addressed. If we understand the civil rights requirement to be immediately realizable, the provision of the alternative programme would need to be immediately realizable.

That has significant effects on Convention obligations. Consistent with the original mandate to focus on the implementation of existing rights rather than the creation of ‘new’ rights, the language of non-discrimination is pervasive in the CRPD. All but four of the substantive articles provide rights to persons with disabilities ‘on an equal basis with others’.³¹ Non-discrimination is a civil right, and in the view of the CRPD Committee, is immediately realizable.³² General Comment 6 on non-discrimination refers specifically requires States to provide programmes for community living, provide inclusive education, provide gender-sensitive health services including sexual health services, ensure adequate standards of living and social protection, and accessibility.³³ Regarding accessibility, the Committee takes the view that insofar as it concerns the right of a directly affected individual, it is governed by the duty of reasonable accommodation—immediately realizable, but subject to a proportionality test. Accessibility issues regarding groups are subject instead to progressive realization.³⁴ There are practical reasons for this approach, but the result is doctrinally problematic. Accessibility issues will often (normally?) raise issues of direct or indirect discrimination against the group as a whole: non-discrimination becomes subject to immediate realization (except when it isn’t).

This is challenging on a doctrinal level, but it does reflect some practical realities. Even in states with the financial resources and the good will to implement such positive obligations, some of the fundamental shifts that are required by the CRPD will require major programme development. The right to liberty is a clear and obvious example. As discussed earlier, if it is to have practical and substantive effect for people currently in institutions, programmes of supported housing need to be developed, with re-training of staff to provide the required support in community settings, restructuring of social service provision to ensure appropriate structures for the provision of support, and appropriate physical premises obtained. Developing those community services, particularly for people with complex needs, will take years—perhaps a significant number of years—and the civil right will not actually be experienced until that happens. Even assuming unproblematic good will in states (an empirically doubtful assumption), actual realization will not be ‘immediate’ in any recognizable sense of that word. Realization is going to be affected by the economic and other factors that make implementation of social and economic rights problematic; realization is going to be progressive, whether we like it or not.

That is a real problem. The experiences of institutionalized people create pressing and compelling human rights issues: their needs are immediate, whatever the practical issues of meeting those needs. And institutionalization is only an example: other comparably pressing human rights issues exist in the lives of people with disabilities. Are we content that civil rights should take years or decades to realize?

How do we make doctrinal sense of this? One possibility is to abandon the notion that civil and political rights are immediately realizable. While many human rights advocates will view this as destructively radical and profoundly distasteful, there is a realism to this approach: laws can in principle be changed reasonably quickly (although even this can take significant time, if the move is to be to a new and human rights compliant régime rather than simply abolishing an old and noncompliant law),³⁵ but real change in civil and political rights practice such as makes real differences to the lives of people often already take significant time. We are all aware of those difficulties. In that sense, civil and political rights are already in reality not immediately realized, and may not be immediately realizable.

Such a changed perspective moves civil and political rights into more direct parallel with social and economic rights. That would mark a return to the intent of the early post-war human rights treaties, where civil and socio-economic rights were intended to proceed in tandem.³⁶ While it was acknowledged that it would take some States Parties some time to reach the standard of rights in the ICESCR, for example, that Covenant does create an obligation to make real efforts to realize the rights in the Covenant. On this reading, social, economic and cultural rights do create immediate obligations, albeit ones that may take time to implement. De Beco further notes that in 1990, the CESCR took the view that States Parties had ‘a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights’ in the Covenant.³⁷ There seems to be a tendency in at least some human rights practice to prioritize civil and political—‘first generation’—rights as a class as taking priority in implementation over economic and social—‘second generation’ rights. Insofar as the CRPD approach, going a long way to unifying the two categories, changes that prioritization, it may perhaps be a return to original views of human rights development.

It does not follow that there can be no prioritization in human rights implementation. Some human rights violations (torture is an obvious example) induce levels of revulsion that should sensibly be reflected in human rights implementation and enforcement. The holistic approach of the CRPD does not necessarily deny that, but it does expose that the priorities do not simply reduce to the traditional categories: civil rights do not somehow trump social and economic rights; the two categories are not readily separable.

That in turn raises challenges. If we are to prioritize rights implementation, how are the priorities to be set? The situations in different States Parties may well raise different priorities, suggesting a localized approach; but it seems undesirable that we would leave individual states to set their own human rights priorities, since often the State will be directly implicated in the human rights violations. The priorities of the States will not necessarily reflect the greatest human right’s needs. There is no obvious appetite among States Parties for priority setting at the international level, and any such priority-setting would in any event be a political nightmare, with specific voices—larger states and the most well-organized special interests for example—shouting loudest. It is difficult to imagine a satisfactory result coming from that approach.

The classic human rights response would presumably be that we do not set priorities: human rights are universal. Whatever the ideological power of that view (and that ideological power is not to be under-valued), it does not solve the problem. Once it is acknowledged that real human rights change will require resources in a world where resources are not infinite, priorities are going to need to be set. If that is not done explicitly, it will be done on a haphazard basis. Under the previously existing human rights frameworks, that was done based on political clout of the relevant rightsholders and through standard political mechanisms of resource allocation in individual States. People with disabilities and other marginalized groups have not come out well in that system in the past. If the objective of the CRPD is to change that—to make rights real for people with disabilities—the problem of prioritization cannot be ignored; but it is not at all obvious how it is to be addressed.

3.2. Optimizing rights and articulating violations

The linked identities of civil/political and economic/social/cultural rights in the CRPD and the acknowledgement that the realization of these complex rights may take time runs up against the different logics of different rights.

Traditionally, civil and political rights were thought of as ‘negative’ rights—rights limiting the powers of the state—and economic and social rights ‘positive’ rights—rights identifying what citizens could expect from the state.³⁸ It was never, of course, that simple: the right to vote is clearly a civil right, but difficult to portray as a ‘negative’ right, for example. Nonetheless, the broad divisions made some coherent sense. That in turn mapped onto different theoretical bases for the rights. Negative/civil rights broadly adopted a rather atomistic logic of autonomy: these were about letting people make their own decisions and to get on with their lives. Positive/socio-economic rights obviously also gave people choices, but they were more nuanced, and discussions of how resources could best be employed were part of the picture: a form of utilitarianism became relevant, albeit a utilitarianism tempered by the human rights priorities (health, education and so forth). Thus for example where resources are limited, states were encouraged to prioritize early years education, since early years education gives the best and broadest uplift to the population as a whole in human rights terms. All of this structure is of course underpinned by deontological principles as well: states should not engage in torture, for example, because it is just wrong.

The linkage of the civil and socio-economic rights in the CRPD brings these underlying values into conflict: the line between autonomy-based argument and utilitarian argument becomes less clear. Some of the CRPD literature tends to understand this in terms of relational autonomy, the notion that the subject is in a social environment, and his or her autonomy must be understood in that context. That is fair enough, but it is not the only way in which the values may become reconfigured. A model adopting the logics of economic and social rights would suggest an overarching aim to maximize rights in the society; but that presumably desirable outcome may mask problematic choices. In a world of finite resources, for example, would a state party be justified in focusing on community living arrangements at the expense of classic civil and political rights, such as the right to legal processes? Can broad rights enhancement for the community usurp rights for the individual? Can the State target its resources in this model at the improvement of some groups rather than others (people with disabilities rather than ethnic minorities, for example—or vice versa) if a coherent rights maximization argument could be made to that effect?

While the CRPD is convincing in its acknowledgment of a close connection between economic/social rights and civil/political rights, it does not follow that they are always the opposite sides of the same coin, as they were in the some of the examples above. There is a risk that the closer connection between the sets of rights has unanticipated consequences for the meaning and implementation of both sets of rights. That was discussed in the previous section regarding the challenges to civil rights; the question now arises with regard to economic and social rights. In a world of strong indivisibility of rights, there would be an argument, for example, that priorities in policy and spending relating to the right to health should focus on those elements of the right that would positively affect civil rights, such as ending de facto detention. That is unquestionably an important objective, but the promotion of civil and political rights is not the only (or indeed perhaps the primary) function of the right to health. It is not obvious, for example, that the right to the end of de facto institutionalization should be at the cost of de-funding antenatal care, in countries with limited resources.

In this world of multi-faceted rights, how are violations of rights to be articulated? Traditionally, civil and political rights have been viewed as justiciable, and economic and social rights subject to political realization. Do we view the choices implied in the new framework as legal or political? Lorion argues that the CRPD minimizes the role of law, courts and litigation.³⁹ Whether that turns out to be true is not entirely obvious. An alternative might be the judicialization of what had previously been political choices. Which outcome is preferable is open to debate. Courts tend to be good at determining rights of individuals, rather than balancing competing social interests in the overall provision of services. For that reason, they have been viewed as essential in the protection of civil and political rights, and the protection of autonomy. Political systems tend to be less focused on individual rights, and more on overall community outcomes, and decisions as to economic and social rights priorities have tended to be left in that sphere. Political systems tend to be more susceptible to community pressures, however, with not all voices heard equally (a criticism from which courts are of course not immune). In a judicialized system, courts might at least be required to establish floors for service provision. Courts however often do not appear to like making resource allocation decisions: there is a real risk that courts would require only minimal levels of service. It could then turn out that floors become ceilings: states told they must provide a minimum level of service by their courts might decide to provide only that level of service. At the same time, without some sort of meaningful legal enforceability, there would be reliance on the political system for enforcement of very basic civil rights. Arguably, one reason the CRPD was required is that these political systems had not delivered rights for people with disabilities. That suggests purely political enforcement and implementation mechanisms must be viewed with skepticism.

These questions may arise both at the systemic and the individual level. The Scott Review of mental health law in Scotland,⁴⁰ is ground-breaking in its attempt to engage with the logics of the CRPD. It specifically calls for a baseline right to service provision, and in its strategy of human rights enablement specifically protects economic and social rights as part of the overall policy of rights maximization. There is no express division between these and civil and political rights, beyond a focus on enabling the will and preferences of the people with disabilities in decision-making with and about them. Rather, it proposes a system which ‘[w]eighs advantages to human rights against harms to human rights. Significant harms to certain human rights would be justifiable only exceptionally, on the basis of very significant advantages in the respect, protection and fulfilment of the person’s human rights overall.’⁴¹

The difficulties of establishing the base line right have already been alluded to: it will be a political choice, where the voices of people with disabilities may or may not be heard with appropriate force and clarity. Equally complex, the proposal suggests a certain commensurability in human rights, that we can somehow tell what rights should be upheld and what limited for the overall enhancement of the individual’s human rights. This may well not be the case. If the individual’s real wish is to remain in a care home, even one of poor standard, how is that wish to be weighed against a move into the community? Does it matter if we think that the individual would be happier in the community, once they had settled in? That sort of assessment suggests a reliability of prediction that is at best highly doubtful: how sure are we that the person will in fact live a happier life in the community in the future? Or is life in the community, as contained in Article 19, itself a human rights benefit and a core value of the CRPD, whether the person likes it or not? Lurking in the back of this sort of analysis is the degree to which we ought to adopt a utilitarian calculus to this sort of decision. That is not something we have done expressly as regards civil and political rights in the past; do we want to do so now? Or is this a situation where we would adopt the classic autonomy view of human rights, where people get to make their own choices, even if they are bad choices?

The Scott Review does not provide draft legislation, and does acknowledge that its approach requires further polishing on the mechanics. A good deal of that is about the practicalities of sharing information across wide and diverse systems (in this case, not just across agencies of government, but also potentially into the private sector and indeed family carers). The Review does note concern in some of the responses to consultation as to how the balancing of rights would actually be done. The Review notes that ‘guidance’ would be issued in this regard.⁴² That is perhaps fair enough for this point in the process; the Review is in this discussion approaching CRPD compliance in ways that are new and innovative, and some latitude might sensibly be accorded to the processes of getting the changes right. Quite how the tensions will play out, however, remains to be seen. That will be interesting both as regards the doctrinal challenges noted above, and also how the voice of the people with disabilities will actually be heard as against the larger administrative voices of governments, private sector interests and professionals.

3.3. The individual, society, and the state: A recalibrated relationship

The integration of civil and political rights highlights the complexity between individuals, broader civil society, and the State. As noted above, one of the foundations of classic human rights theory is that civil and political rights define limits to the role of the state, and by extension defines the scope of individual freedom. That is a strength and a core of traditional civil rights theory: there are some places the state should not go.

That raises problems in the present context, where civil rights become integrated to social and economic rights, since if the economic right is provided too directly by the state, it may undermine the limits to state power and the autonomy of the individual. Provision of advocacy provides an illustration. Advocacy services are a reasonable support mechanism for people with disabilities, and indeed in some human rights systems such as the ECHR are required to be provided as a matter of law.⁴³ That seems clear enough, but the ECHR also requires the State to ensure that the representation meets a reasonable standard.⁴⁴ Administration of this latter requirement is fraught with difficulty, most clearly when the litigation is against the State, for example challenging compulsion or detention by the State: at what point may or must the State object on behalf of the lawyer’s client to the adequacy or tactics of the lawyer in compulsion that the state is actively trying to defend? How is the State (be it the State’s legal counsel or the judge) to know whether the apparently inadequate representation flows from inadequate professional practice, poor support, or from poor instructions from the lawyer’s client (presumably, an exercise of that individual’s autonomy)? Discovery of this would require intrusion into the solicitor-client relationship, which would itself raise human rights concerns. Meaningful support for the individual requires that the advocacy provided must be of a good standard, but it is difficult to see how the State can systematically ensure this.

This sort of situation may arise whenever an individual requiring support seeks to exercise his or her civil rights. The right to consent to or refuse medical treatment, decisions regarding where the individual will live, who he or she will associate with, and how financial choices will be made are obvious examples where standards of support will matter. In a number of these, the State may be directly implicated (the provision of psychiatric treatment to prevent real or perceived dangerous behaviour, for example). If that is the case, there must clearly be arrangements to ensure sufficient distance of the relevant State actors from the decisions being taken: direct conflicts of interest are obviously necessary to avoid. Such conflicts may also apply to supporters in the private sphere, however: choices about serious medical treatment or significant financial decisions for example will affect not merely the person with disabilities, but the rest of that person’s family. If the family is providing the support, those interests may create conflicts as or more telling than those of the State. Even if direct conflicts can be avoided, ‘objectivity’ in these decisions will often be illusory: many of these decisions will involve complex value judgments, moral or legal choices about which some people offering support may have strong views. While they may endeavor to distance their views from the views of the person being supported, it is doubtful that this will always be successful.

That leads back to the problem of ensuring standards in provision of support. That would seem to be a State duty, but it is difficult to see how it can be accomplished in the multitude of contexts where it will need to occur. Certainly, some protections may in practice flow from whistle-blowers, but that can be problematic too: abuse in the eyes of one person may be autonomy in the eyes of another, and in any case, what happens there is no one who blows the whistle?

The provision of support may become a plethora of small interactions between people with disabilities and people providing support—Foucauldean micro-theatres of power, with little control on the standard of the support on offer in many cases. If the system is not self-regulating, with standards of support and engagement established as a matter of broad social expectation, it is not clear how the system can work.

All of that suggests that while resources for rights may come from the State, a good deal of the engines for rights are to be found in civil society and how we treat each other. Disability rights theory and practice are also asking those questions, with the development for example of dementia friendly communities, where support of people with dementia is developed as a shared role in entire communities.⁴⁵ The changes that are implied in this social imagining are however profound. While the notion that human rights provision will come from us all may be correct, and while the difficulty of the project is not an argument against attempts at its implementation, it is clearly a long-term project.

4. THE MOVE BEYOND THE STATE

As discussed, the CRPD has a more expansive vision of the state than previous human rights treaties, and it acknowledges civil society as a core engine of human rights implementation. The state is meant to be active in promoting the objectives of the CRPD and in ensuring implementation in government and civil society in ways that are more clearly articulated than in previous conventions. The state is not meant merely to legislate against discrimination; it is expected actively to pursue a set of policies that reach into the private realm. It does not merely preclude state interference in the planning of families, for example, but requires the state to provide ‘the means necessary’ to realize those rights (Art 23(1)(b)). It contains a wide array of rights to community integration and to accessibility, from buildings to employment to financial services to cultural institutions, that extend well beyond the public sector. In this sense it envisages a much more interventionist state than we have seen before, or, at least, it posits much more explicit relationships between citizens, service providers (be they public or private) and the state.

That is in part reflected in the monitoring systems that are introduced by the Convention. Article 31 requires statistics and research data to be kept and ‘used to help assess the implementation of States Parties’ obligations under the present Convention and to identify and address the barriers faced by persons with disabilities in exercising their rights.’ Compliance is not to be measured simply by the passage of legal rules and regulations, but by what is actually happening in the lives of people with disabilities. There is an obligation to establish a body within the state to monitor compliance and implementation of the Convention—a body required to include persons with disabilities and their representative organizations⁴⁶—and every four years each State Party is required to report to the UN Committee on the Rights of Persons with Disabilities as to its overall progress towards compliance.⁴⁷ All of these elements are meant to be transparent and open.

The approach raises huge questions about how social values develop and change, and what government’s role is in that. Human rights advocates will recognize this problem; it is perhaps the core problem of human rights realization. At this particular juncture, these questions intersect with much broader and more fundamental questions of the place of human rights in society and governance, both at the international and domestic levels. The rise of populist governments, the characterization of human rights as part of a post-colonial project of domination, and vocal criticisms of human rights frameworks even in jurisdictions where they have traditionally been supported, mean that the future of human rights has become more uncertain. Understanding the ways in which human rights engage with civil society is likely to be an essential set of discussions in the coming years. Any comprehensive discussion of those questions is well beyond the scope of this paper, but it does flow from the logic of the CRPD that if we are actually going to realize human rights, we do need to think much more broadly about how those social processes work. While acknowledging the broader context, this paper restricts itself to some reflections that arise from the CRPD.

The CRPD literature recognizes that civil society organizations will be pivotal to the realization of human rights; indeed, the involvement of organizations of people with disabilities is expressly required in the development of national implementation and monitoring schemes.⁴⁸ And certainly, there is an assumption that NGOs will be a part of the broader engine of human rights development, by providing information to relevant bodies (domestic and international), assisting in translating the human rights norms into practical interventions and programmes (sometimes serving to translate cultural values), and providing services to affected populations. That is all well and good, and on the risk of stating what ought to be obvious (but is not always obvious in the context of disability), if we are to be talking seriously about human rights, the affected populations must themselves be central participants in that conversation.

There are of course complications. As is well-known to human rights advocates, different NGOs often disagree, even if purporting to represent the same demographic groups of people, and questions about representativeness and accountability are all too real. Those issues are well-known, and will not be pursued here, but they are theoretically complex and they do matter in practice.

If it is accepted that real change in human rights flows from the whole of society, the reality is that there will be a need to engage with social actors and civil society institutions in that broader society. As regards the CRPD, for example, because of the way the issues have been structured in the past, this will include a range of medical professionals (doctors, nurses, health administrators and others) as well as a large range of professionals in the broader social sector.⁴⁹ These are likely to be problematic groups, for a variety of reasons.

The first is a political tension with the affected groups. For people with disabilities, a great deal of the point of the CRPD was to move away from the ‘medical model’ of disability to the new social or human rights model. The medical model is understood (with considerable justification) as the province of the medical and similar professionals, and people with disabilities may well be understandably skeptical as to how far real change will be attained if those professionals remain directly involved. Whatever the merits of that view, engagement with these professionals does seem unavoidable, if for no other reason because they will be part of the networks of support that will be required to implement the new human rights frameworks. It will be necessary to get the traditional stakeholders onside. That will be problematic.

There is at the outset a question of comprehension: what do people whose lives and professional discourses do not centre on human rights think human rights is actually about? They will not have a detailed knowledge; it is not their professional focus or ethos. The best that can be hoped for is that they will be trying to make sense of rudimentary human rights information in the context of their professional and cultural values. This has a variety of articulations. Sometimes, for example, it would seem that ‘human rights’ means little more than doing good things for people. One can see where this comes from: the right to health is a human right, and medical professionals unsurprisingly see that in the context of enhanced service provision, leading to better health outcomes. The view of the medical professionals may lack the nuance of some of the human rights thinking, but their basic view broadly resembles how human rights advocates understand the right to health. In this case, the two discourses intersect reasonably well, at least on the surface.

In other contexts, the discourses do not intersect. The frustration of psychiatrists who view the provision of civil rights as leaving people with mental health difficulties ‘rotting with their rights on’ is an obvious example. In the self-understanding of the psychiatrists, they have the expertise to help people in need, and have long had powers to intervene to ensure that what is in their view necessary or appropriate medical care is provided. They see cases where provision of procedural rights does not lead to good results, and they are critical of what they view as avoidable failures, avoidable pain. That happens in the context of their experience and professional viewpoint: they are in their view wanting to do good things for people. Compare that to classic legal human rights logics, where the control of psychiatric patients is the exercise of power awarded by the state, and the human rights engagement is in the control of that state power: it is a question of social control. This does not really register with the medical professionals, who view themselves as agents of health—for them a broadly scientific concept, not a political or legal one.⁵⁰

In this clash of cultures, human rights tends to want to understand itself as being a trump card. We work in a world of the rule of law, an unassailable good, where human rights in some theories approach the status of universal truths. This is not necessarily the perception outside the human rights realm. Medical professionals view their work in terms of science, a different kind of truth. A foray into the philosophy of science that would demonstrate the fragility of that claim is beyond the scope of this paper, and in any event would miss the point: that truth claim is part of the medical discourse.

If we are looking to these groups as engines of human rights, this raises a problem. It is not obvious how we find enough common ground with this sort of group to promote a human rights agenda. One possibility is to move to a meta level, as for example by saying that human rights are there to make peoples’ lives better (a value, one hopes that can be readily shared by all). That direction has already been noted,⁵¹ with the attendant difficulties: how far are we content that human rights devolve into a logic of utilitarianism? It also returns to the question of measurement, prediction and values: is an individual’s life ‘better’ if he or she is free to make choices, but goes on to make objectively bad choices? If autonomy is a core human rights value, what happens to it in this sort of analysis?

That leads to the second difficulty: do these professional groups understand that they have historically been (and often currently are) part of the human rights problem? The shift to the social model in the CRPD is a shift from the ‘medical model’ of disability. How ‘medical’ is to be understood in this phrase is an interesting question beyond the scope of this paper, but the phrase is significant in that it reinforces the antipathy of large and vocal elements of the disability movement to the medical and related ‘caring’ professions. This view is not to be objectively discounted. Certainly, both historically and now, there have been and are significant human rights violations on any sensible standard.⁵²

At the same time, the situation is more complex. Certainly, there are hideous things on the rap sheet, but there is also no shortage of positive stories about excellent care provided in a sensitive manner to people who acknowledged themselves to be in severe need. The carers who are most likely to engage with us in promoting a human rights project are likely to be the ones already with an interest in human rights, and therefore engaging in some of that excellent care. That said, the world does not divide into neat categories: even the supportive people may have real reservations about a robust human rights agenda, such as envisaged by the CRPD. It will be a difficult task however to go in and start telling people, many of whom have been working in difficult situations and to do a job that they honestly thought was for the public good and the good of the people they have cared for, that they must effectively repent for the human rights violations of the past.

The situation is complicated by the behaviour of NGOs, and the NGOs of the professionals are no exception. The response of medical professional bodies to the CRPD is an excellent example. In 2013, the CRPD Committee commenced a consultation exercise in the development of its draft General Comment 1, on the right to equal recognition before the law. No major medical NGO responded.⁵³ The draft was not changed much, and the result was an interpretation of the CRPD that precludes as discriminatory the use of mental health, psycho-social disability or other disability as criteria for compulsion. Mental health and mental capacity law as we know it would be consigned to history. While the medics had chosen not to participate in the process, there was, nonetheless, a considerable backlash in the medical community against the General Comment.⁵⁴

Between 2017 and 2020, the Special Rapporteur on the Right to Health (himself a psychiatrist) published several reports that started from a different place, looking at next steps in progressing towards CRPD compliance.⁵⁵ This could be understood as a compromise way forward. While the reports never explicitly contradicted the position in General Comment 1, they did argue for more and better community services, and a shift in emphasis away from pharmaceuticals to more extensive provision of social and non-chemical treatments. These reports were really not threatening to medics; indeed, they reflected the professional organizations’ sense of what was good practice at the time. One would have expected a positive response from the medical NGOs.

That is not what happened: medical NGOs were instead almost universally and aggressively scathing.⁵⁶ It is not obvious why. A move towards better community services and enhanced social treatments had been a part of their official policies for years, and these were the key recommendations of the Special Rapporteur’s approach. Politically, engagement with that agenda would have given them considerably enhanced influence in how the CRPD was implemented in this area. Why the aggressively negative response to matters that had been their policy?

Answers to that are speculative, but there are a variety of related possibilities. One is about professional expertise and professional power: insofar as the reports acknowledged interests outside the psychiatric establishment in the provision of services to people with psychosocial disabilities, that in itself was an affront to the dignity of the professions. In this explanation, it is a question of turf war. Perhaps that is convincing in some cases, but it is a crass explanation, and crass explanations should be approached with hesitancy.

Another set of possibilities stems from how NGOs behave, but these too seem unconvincing. Is the sense that this sort of response will put them in a stronger position in the future when States look to implement the CRPD, or in further engagement with the CRPD Committee? The latter seems unlikely, given that they did not respond to the initial consultation. Do NGOs in this situation reflect the views of their most conservative members? Again, there is no obvious reason to think so. Are the responses written by the most offended members of the NGO? That might make sense for small, volunteer-based NGOs, but it seems unlikely for the relatively well-funded professional bodies.

On the positive side, experience in the field does suggest that professionals do not all speak with the voice of their professional organizations. Good and progressive practice does exist, which if implemented more broadly will constitute significant progress towards human rights objectives. The point of this section is not that we should simply throw in the towel. It is instead that human rights are not an uncontested good, even among professionals and other social élites, who are likely to have had some at least rudimentary engagement with human rights discourses. We cannot assume the persuasiveness of a human rights viewpoint, and need to develop more coherent strategies to advance our causes.

For human rights to be real, in the CRPD framing, they must extend not just to professional organizations, but to society as a whole. Families are central to that, of course, since that is a space where people with disabilities spend so much of their time, and look to so often for support. The issues are broader, though, extending to how people are treated in the community as a whole—as when they go to the shops, for example. The problems in the general public seem likely to mirror some of those in the professional groups: they may well take the medical model as the appropriate theoretical construct, they will have minimal knowledge of human rights doctrine and practice, and they may well not understand the need for them to change their attitudes and practice to accommodate and be part of the implementation of human rights frameworks. Changing social cultures is hugely difficult. Governments are required to report back, as part of their Article 35 reporting, as to progress in this area, but there is no obvious corpus of successful programmes to rely on. Getting into the private sphere is not easy. At least the professional organizations are organized, giving some entry point to that engagement; it is not clear how we begin to change the ethos of the bulk of society. If we are really looking at real positive change in the daily lives of people with disabilities, however, that is what needs to happen.

Realization of rights in the daily lives of people with disabilities will require complex discussions, engagements, service developments and changes of attitude. These are procedurally and substantively complex, however, and there is a risk that the process becomes one of negotiation rather than implementation. The programmes to be implemented by professionals will be successful only if the professionals implementing those programmes are in support of them. In negotiations of how those programmes are shaped, the risk is that the professional values dominate the programme design. The CRPD endeavours to avoid this, with the express requirement in Article 4(3) that States Parties ‘closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations’ in their development and implementation of policies and legislation relevant to the Convention. It is not clear, however, how the discussions among the stakeholders will develop. Professional stakeholders have considerably more economic and social power than the people with disabilities generally do. How far the end result reflects the priorities of the organizations of people with disabilities and a robust advance of their human rights remains to be seen. If implementation falls into an endless negotiation of progressive realization, for example, real change can be delayed for a very long time indeed. If the implementation merely masks or re-produces pre-existing power imbalances, it is difficult to see that there will be much change, and the transformative potential of the CRPD will be lost.

That returns us to an earlier question relating to the characterization of the rights: do we understand the setting of priorities as a political process or a legal process? And here there is a dilemma. If it is the latter, there may be ways in some legal jurisdictions to pressure governments and get a stronger human rights framework; but if this is over the objections of the professionals and other stakeholders, it is doubtful how successful the results will be. If however it is the former, there is a risk that the political priorities will not match the wishes of the people with disabilities, and they will lose out (again).

5. CONCLUSION

While the examples in this paper have been drawn from the CRPD, they will spark parallels that will be familiar to advocates in other fields. The interrelation of civil/political and economic/social rights, the need to implement rights throughout civil society and the complexities of involving in change stakeholders who benefit from (or at least have no desire to depart from) the status quo ante will resonate with all involved in human rights projects. In those projects, we have felt our way through as best we could, in varying degrees of success.

The CRPD brings to the fore some of what has been below the surface, challenging some of the distinctions and borders that have been key to human rights thinking for at least seventy-five years. It challenges some of the theoretical orthodoxies that we have taken for granted for so long. At the same time, the old ways of thinking developed as they did for coherent reasons, and should not be discarded lightly. This paper has posed questions rather than proposed solutions, since the ramifications of change are extensive, and need to be considered in human rights scholarship broadly. The CRPD is a marker that people with disabilities should have rights consistent with others, but it is part of a bigger constellation of human rights discourse, and disability does not obliterate all previous human rights scholarship. Developing new ways of thinking about approaches to human rights is a complex business, and unanticipated consequences may abound. Fundamental human rights victories of the past—sometimes hard won indeed—do matter and reform must often be approached with caution.

Changes to the existing framework will also create pragmatic political challenges. In much of the world, human rights is out of fashion at this time, ever losing ground to the sea of populism in some countries and a perceived western imperialist bias in others. Even if governments have signed up to the new model (and they signed up in droves to the CRPD), holding them to these new commitments is likely to be difficult.

But this paper closes by returning to its original point: the need for new conventions focusing on the needs of marginalized groups makes it clear that ‘universal’ human rights have not actually been universal at all. The way we have done things in the past is not an unproblematic template for the future. The CRPD provides new ways of thinking; we should reflect upon and learn from them not merely for their approach to disabilities, but for their approach to human rights.

Footnotes

Author notes