The Human Rights of Persons with Intellectual Disabilities.

Vol. 14 No.10 (October 2004), pp.784-787

THE HUMAN RIGHTS OF PERSONS WITH INTELLECTUAL DISABILITIES, by Stanley S. Herr, Lawrence O. Gostin, and Harold Hongju Koh (eds). New York and Oxford: Oxford University Press, 2003. 578pp. Paperback. $49.95 / £35.00. ISBN: 0199264511. Hardback. $175.00 / £100.00. ISBN: 0198267797.

Reviewed by Dr Susan C. Breau, Fellow in Public International Law, British Institute of International and Comparative Law, London, United Kingdom.

Email: s.c.breau@biicl.org.

Long neglected in the curricula of international human rights education is the issue of the rights of persons with intellectual disabilities. This is somewhat surprising given the growth of NGOs in the field. For example, the International Disability Alliance represents more than 600 million people in the world with a disability. The alliance is composed of seven international organisations: Inclusion International, World Blind Union, Disabled Peoples’ International, Rehabilitation International, World Federation of the Deaf, World Federation of the Deafblind, World Network of Users and Survivors of Psychiatry movement. Together they are promoting a Draft UN Convention on the rights of people with disabilities. However, in spite of the growth of advocacy organisations and this important book, disability rights are often neglected in human rights debates. On 20 April 2004, the Commission on Human Rights adopted by consensus a new resolution on the human rights of persons with disabilities. The resolution called upon the Office of the High Commissioner on Human Rights to report on progress on the implantation of the recommendations contained in a major study on human rights and disability prepared in 2002 and urged states to address fully the question of human rights of persons with disabilities in their reporting under the various United Nations Conventions.

This collection of contributions on the rights of persons with intellectual disabilities is dedicated to the memory of Stanley S. Herr, a noted advocate and academic in the field, and contains an impressive array of contributions on every facet of this issue. Although the rights of the disabled is an important part of the domestic human rights agenda in the United States, Canada and the United Kingdom, this issue has been largely neglected in the study of international human rights.

Mary Robinson provides a prestigious foreword to this collection of contributions. She places the issue of disability rights in its proper context—equality. The important international efforts to this date are the UN Declaration on the Rights of Disabled Persons, the General Assembly’s adoption of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, the appointment of a Special Rapporteur on disability, and a movement towards a draft convention. [*785]

The various contributions maintain the thesis set out in the introduction that persons with disabilities are born free and equal in dignity and rights, and are entitled to equality of respect and treatment, even if that equality does not entail identical treatment under all circumstances. The book is organized around the “Yale Declaration” which was drafted and signed at an international symposium on the Rights of People with Mental Retardation held at Yale Law School, 24 March 1995. The Declaration, which is appended to the book, is described in the acknowledgements as enunciating general human rights principles, providing an account of the entitlement of persons with intellectual disabilities, and urges a more robust international recognition of these rights.

The introduction sets out five priorities for the attainment of dignity, equality, and justice for disabled persons. The first is on reconceptualizing the disability question as a human rights issue. The second is on developing knowledge, and the third is on developing a transnational issue network to address problems. The fourth priority is to develop legal precedents under domestic law. The fifth and final priority is on using the reconceptualization, knowledge, and domestic precedents to help crystallize international normative standards. The contributions as a whole provide comprehensive coverage of the topic. The book is divided into five parts. Part I sets out the theoretical framework and reconceptualizing the issue as a human rights issue. Part II focuses on how the violations of human rights of the disabled can be addressed in comparative and international law. Part III views the issue through the frame of domestic litigation. Part IV moves from the legal to the social policy perspective, and Part V reviews the future direction of the disability rights movement and considers international developments.

One of the problems with this collection is the sheer volume of the contributions. The trend in academic literature towards omnibus volumes tends to make the analysis of important international law and human rights issues slightly superficial. Part of the difficulty in this collection is that two separate strains of analysis of disability law are combined—international human rights law and domestic discrimination law. Although the book has international contributors, a major focus is on the American experience of the disability rights movement. The introduction addresses one of the main difficulties in the American context, which is the refusal to ratify or recognize economic, social and cultural rights supported by the Burger and Rehnquist courts. The editors correctly describe the schism between the United States and developing nations and within the United States between the wealthy and underprivileged groups. Although this is an important issue, from the international human rights prospective, the domestic litigation aspect could have been less emphasized as each country has its own particular issues in domestic law and equality.

For the international scholar, the contributions in Parts I, II and V are particularly interesting. Chapter I discusses the international perspective on disability. Peter Mittler’s contribution on terminology analyses the problems within the general United [*786] Nations declarations and the movement towards an international Convention to promote the dignity and rights of people with disabilities, which was proposed by Mexico in November 2001. The short second chapter on terminology and power seems to repeat in large part Mittler’s discussion on terminology and seems superfluous. In contrast, Chapter III by Alison Dundes Renteln is essential to understand the different ways societies view disability. This is particularly illustrated by the discussion of the IN RE KOU XIONG case about how two different cultural communities differed on how to treat a boy’s clubbed foot and the discussion of the Canadian case R v. HEM. This reminds the reader that the issue of cultural relativism is equally relevant to the discussion of disabled rights as it is to human rights in general.

In Part II, the contributions by the late Stanley Herr and Theresia Degener are particularly illuminating. Herr’s contribution, Chapter 5, “from Wrongs to Rights; International Human Rights and Legal Protection,” is a good general introduction to the applicability of international human rights law to the issues of disability and could constitute an important addition to international human rights reading lists. Degener, one of the architects of the major United Nations study noted above, examines both the UN convention regime and engages in a comparison of anti-discrimination laws globally. It seems surprising that of the 189 UN member states (now 190) only 40 of them (at the time of the publication of this book) have adopted anti-discrimination laws for persons with disabilities. As it is obvious that most human rights enforcement has to be domestic this seems a disappointing statistic. The final contribution in this part again could have been deleted as “Liberty, Due Process and the Pursuit of Happiness” is clearly a United States domestic section and should not be included in the international section.

In Part V, one of the particularly moving pieces in the collection is the contribution by Mitchell Levitz, “Voices of Self-Advocates” which is written from the perspective of someone living with intellectual disability. It is a tribute to Stanley Herr and the other editors that they have chosen to include the voice of the persons they are advocating for. Levitz argues for independence and inclusion in the community. “Count Us In” is an apt slogan for the efforts that must take place within the human rights community.

The remaining two contributions in Part V, future goals and aspirations, are particularly excellent. Rosenthal and Sundram in their Chapter “Recognizing Existing Rights . . .” summarizes the two-track approach discussed earlier by Degener, recognizing existing rights and crafting new ones. The article discusses the finding of the study of the Human Rights Commission by Quinn and Degener which argued that existing human rights conventions and United Nations Treaty bodies have considerable potential in this field and had been underused in advancing the rights of persons with disabilities. The report by Quinn and Degener also strongly backed a new convention, and this chapter highlights the work done by the government of Mexico in drafting a new convention. However, this article points out forcefully that drafting a new convention might lead to compromises [*787] that might weaken existing protections. This is an important debate that could have been developed more fully in the collection, as there certainly is an argument that further codification of the right does not remedy the lack of adherence to existing human rights obligations. A key issue is the lack of will in many nations to implement and enforce their international human rights obligations which will not be remedied by a further international instrument.

The final chapter by Slye, “Recommendations for the United Nations and International NGOs,” encapsulates the conclusions of the1995 Yale Conference for NGOs and the UN. Slye argues that the United Nation’s standard rules are the most comprehensive pronouncement by the UN on the rights of persons with disabilities. He also reveals that 20 countries passed disability rights legislation during the 1990s. However, he is critical that neither the UN disabilities website, nor the site of the Special Rapporteur on Disability, contain plain language version of the standard rules nor a step by step guide for implementing them. Although Slye commends the Special Rapporteur’s office for the collection and dissemination of information on the adoption of the standard rules by states, he is critical of the efforts to mainstream the disability issue into major governmental and non-governmental human rights organizations. Slye argues that, while the Human Rights Committee adopted a general comment examining all the rights of the ICCPR from a gender discrimination perspective, it has neglected to do so with respect to persons with disabilities. Another notable gap is in the training of advocates, which has received little attention. Slye concludes where this review began: “we still have a long way to go before persons with intellectual disabilities are viewed on a par with other individuals as the subjects and objects of the international human rights regime and movement” (p.512). This conclusion is certainly reflected in the recent resolution from the Commission on Human Rights.

In summary, this collection is indeed a fitting tribute to Stanley Herr and is an important and needed addition to the literature of human rights. It is to be hoped that academics will incorporate at least some of the contributions into their reading lists.

REFERENCES:

E/CN.4/2004/L.76 Resolution on Human Rights of persons with Disabilities.

Quinn, Gerald and Degener, Theresia (eds). 2002. THE CURRENT USE AND FUTURE POTENTIAL OF UNITED NNATIONS HUMAN RIGHTS INSTRUMENTS IN THE CONTEXT OF DISABILITY. Geneva: Office of the United Nations High Commissioner on Human Rights.

CASE REFERENCES:

R v. HEM, 72 C.R. (3d) 233, B.C. Co. Ct. (1989).