Vol. 32 No. 3 (March 2022) pp. 32-35 DISABILITY IN INTERNATIONAL HUMAN RIGHTS LAW, by Gauthier de Beco. Oxford: Oxford University Press, 2021. pp.240. Hardcover $99.00. ISBN 978-0-19-882450-3.
Reviewed by Francesca Parente, Department of Political Science, Christopher Newport University. Email: francesca.parente@cnu.edu
Gauthier de Beco’s DISABILITY IN INTERNATIONAL HUMAN RIGHTS LAW examines the philosophical and historical roots of the Convention on the Rights of Persons with Disabilities (CRPD), particular rights protected by the treaty, and the implementation of certain rights contained therein. What is most impressive about this work is that it goes far beyond merely explaining what the rights of the disabled are under international human rights law – which, I should note, would already be a contribution, given the focus on older treaties such as the International Covenant on Civil and Political Rights, the Convention Against Torture, and the Convention on the Elimination of Discrimination Against Women in the literature. Rather, de Beco’s work strives for something more ambitious: examining “how the [Convention on the Rights of Persons with Disabilities] has transformed the very notion of human rights through its consideration for distinct forms of embodiment and how this consideration can spill over in the entire field” (p. 1).
Chapter 1 begins with the historical background on the adoption of the CRPD, which was adopted by the UN General Assembly in 2006. The author characterizes the CRPD as the “cousin” of the Convention on the Rights of the Child (CRC), which entered into force in 1990, as both “international instruments go much further than merely prohibiting discrimination” (p. 19). This is evidenced by both treaties’ nuanced understanding of intersectional discrimination, or when “people are discriminated against on the basis of several different grounds” (p. 22). As such, the CRPD is not only concerned with the rights of disabled people as a group, but also pays special attention to how particular groups of disabled people – disabled women, children, and the elderly – might require additional protections that recognize their multifaceted identities and memberships in marginalized groups.
The second and third chapters take a step back and examine different models of disability and models for including the disabled in society, respectively. For readers familiar with human rights scholarship, but new to the field of disability studies, these two chapters may be the most difficult chapters to understand because they are theoretical and conceptual. However, de Beco does an admirable job explaining the different models and philosophies in a way that is accessible to those of us who are hearing about them for the first time. In Chapter 2, we learn that the CRPD has adopted the social model of disability, which “sees disability as a product of societal organization” (p. 30) and “highlights the need for the removal of the various barriers that hinder participation in society” (p. 36). Understanding this model as the basis of the CRPD helps explain why some of the rights within the treaty are articulated the way they are. In Chapter 3, de Beco explains how capabilities and recognition theories provide better conceptual lenses through which to view the treatment of disability in the CRPD. Capabilities theory “stipulates that society must be arranged so as to enhance people’s own capabilities” (p. 54) while recognition theory “highlights the necessity of providing an equal social status to all members of society” (p. 61). While de Beco argues that combining capabilities theory and recognition theory “can prove useful for the inclusion of disabled people” (p. 61), the discussion would have been strengthened by more explicit discussion of the language in the CRPD that encompasses one or both of these views.
In Chapter 4, de Beco makes good on his promise to elucidate the contributions of the CRPD to the very notion of human rights. He begins by problematizing the implicit assumption behind who is endowed with human rights – the reliance on personhood, or capacity for moral agency. However, this reliance “denies moral status to people with intellectual impairments” (p. 65), and therefore belies the fact that human rights are not truly universal if groups of people are excluded, even though it is not intentional. Interestingly, the CRPD does not define disability at all, which reflects a more universal understanding of disability and who might become disabled. Indeed, because “disability refers to a broad range of impairments that may occur to anyone on many occasions during one’s lifetime…it encompasses the entire population” (p. 79). Human rights are often thought of as universal, but what makes them so? Considering disability as central to the human experience and therefore universal, the CRPD “offers all individuals further human rights protection through its embrace of the multifarious possibilities of human variety” (p. 88). In this way, the inclusion – indeed, the centering – of disability in international human rights law expands the notion of human rights themselves by more fully recognizing their universality.
Chapter 5 begins the second part of the book, focusing on particular rights guaranteed in the CRPD. The first right discussed is the right to equal recognition before the law (Article 12). At first glance, this seems mundane, as equal recognition before the law is guaranteed in numerous human rights instruments. However, limitations on this right in practice, especially by restricting legal capacity, for the disabled make its explicit recognition and articulation in the CRPD of vital importance. Moreover, by recognizing that the “right to legal capacity entails that all human beings are allowed to make choices about their lives, including choices not deemed by others to be in their own best interests” (p. 104), the CRPD reaffirms not only the right to legal capacity for disabled people, but also the fundamental right to legal capacity inherent to all human beings. This is a very progressive notion of legal capacity, at odds with many states’ domestic understandings of the concept. Indeed, a brief glance at the reservations to the CRPD on the UN’s website confirms my suspicion that this is also an article that states have reserved out of, something I wish had been mentioned in the chapter itself.
In Chapter 6, de Beco discusses the right to inclusive education (Article 24). Although the right to education is guaranteed in other treaties, it is the CRPD that adds the crucial adjective “inclusive,” thereby marking an advancement in human rights law. However, this chapter is less clear about what inclusive education means as a right beyond one granted to the disabled, a tension perhaps reflected in the treaty’s own uncertainty about how far the right extends. For example, the Committee on the Convention on the Rights of Persons with Disabilities (CRPD Committee) appears to emphasize the application of the right to inclusive education to “all learners” (p. 119) which includes disabled and non-disabled alike. A few pages later, de Beco writes that the CRPD in fact “restricts the right to inclusive education to disabled children” (p. 121). Perhaps this reflects tensions between the CRPD and its interpreters on the CRPD Committee (a distinction, it is worth noting, that might be confusing to readers who are unfamiliar with how UN treaty bodies work), but by the end of the chapter, the reader is left wondering whether inclusive education has transformed the notion of human rights for all, if it appears restricted to a subset of the population.
Chapter 7 discusses the right to work (Article 27). The subtitle of this chapter describes work as “a needed priority,” and the chapter certainly bears that out as I reached the end feeling disappointed that the CRPD had not done more to advance this right. As de Beco explains, the language of Article 27 describes the right to opportunity to work “in a labour market and work environment that is open, inclusive, and accessible” (p. 130), which sounds promising. However, the CRPD never clarifies what is meant by an open, inclusive, and accessible labor market (p. 135), which will no doubt make it easier for states to shirk international obligations to provide such a market.
In the final chapter of Part II, de Beco discusses the right to political participation. Article 29 of the CRPD guarantees the right to disabled persons to “effectively and fully participate in political and public life…directly or through freely chosen representatives” (p. 146). This chapter dovetails nicely with the discussion of legal capacity from Chapter 5, as denying the right to legal capacity is often used to subsequently disenfranchise those deemed mentally unfit to vote. However, as de Beco convincingly argues, nothing “indicates that [disabled] people are more easily manipulated than others,” so attempting to limit their right to vote because of fear of “undue influence” does not make much sense (p. 153). An additional point of emphasis in this chapter is the concern that “[t]oo much attention has gone to the act of voting at the expense of other ways of taking part in political life” (p. 155). In other words, focusing exclusively on access to the right to vote undermines other forms of direct participation, like joining demonstrations or contacting politicians, which states should also strive to make more accessible. The CRPD lays the groundwork for such efforts.
The third part of the book (Chapters 9 and 10) is about implementation of the CRPD. In Chapter 9, de Beco discusses participation of disabled people and organizations representing them (DPOs) in both the drafting and implementation of the CRPD. Article 4 of the CRPD obligates states to “closely consult with and actively involve persons with disabilities” in decision-making processes (p. 165), and in fact, it appears DPOs are very well-represented at the implementation stage, making up most of the CRPD Committee membership (p. 168). However, this risks the Committee being seen “more as a lobbying rather than as an expert body” (p. 169) when potential members’ identity as disabled people is emphasized over other criteria in selecting members. De Beco emphasizes the uniqueness of the CRPD in providing opportunities for the treaty beneficiaries to create and interpret rights about them, something no other treaty offers. But, whether this advances human rights overall is an open question. It is not clear to what future treaties this kind of representation and consultation might apply, and furthermore, it is not clear whether the focus on identity in determining who participates is more beneficial than harmful.
In Chapter 10, de Beco discusses CRPD Article 33, which requires states to set up independent domestic mechanisms for promoting, protecting, and monitoring implementation of the treaty (p. 178). Such tasks are generally carried out by national human rights institutions (NHRIs). The CRPD is unique in requiring states to have NHRIs assist in implementation of the treaty obligations; however, while this is clearly a contribution of the CRPD to international human rights law, it is not clear to me that this contribution is related to disability rights in particular. Rather, Article 33 seems to reflect the evolution of human rights best practices, with the CRPD just being the treaty where these new practices are implemented. The Paris Principles, which govern best practices for NHRIs, were not drafted until 1991; the CRPD is one of only two major international human rights treaties created since then (as opposed to Optional Protocols), so the inclusion of this article might just reflect its post-1991 status, rather than anything inherent to disability. More clarification on this point from de Beco would have helped strengthen the argument in this chapter.
The final chapter offers a summary of the book and circles back to one of the main arguments that is so well-articulated it is worth quoting in its entirety: “By allowing the concept of human rights to incorporate into itself the multifarious possibilities of human variety and re-defining the rights-holders in order to allow for the different forms of embodiment, the disability subject is helping to generate a more humane and true dimension to the notion of universality” (p. 198). More than anything, the ability of the disability subject to enhance universality is, I believe, what answers de Beco’s question of what disability rights can do for human rights overall. This book is an excellent introduction not only to the CRPD, but also to broader philosophical questions about how we ought to view rights-holders at all. After all, rights-holders themselves – the people who possess the rights – are what make human rights so important, so the fact that disability rights bring a dimension of universality that was previously assumed but never reaffirmed is precisely what makes those rights so worthy of study.
© Copyright 2022 by author Francesca Parente.
