Last week, the Centre for Disability Law and Policy at NUIG hosted its 4th international summer school on the topic of ‘The Convention on the Rights of Persons with Disabilities: How to Use It’ (see here for programme). Podcasts of the various seminars given at the summer school will be uploaded to the CDLP website in the coming days for anyone who is interested, but at this point I wanted to provide some of my own personal reflections on the new ideas and theories presented at the summer school and how these might shape current trends in international and comparative disability law. I’ve chosen to focus on three seminars – led by Jerome Bickenbach on transformative values, Michael Bach on legal capacity and personhood and Theresia Degener on intersectionality, identity and discrimination - but the full range of videos of the presentations can be viewed (here) for those interested.
Jerome Bickenbach began the first substantive seminar of the summer school with a philosophical discussion of the transformative values enshrined in the UN Convention on the Rights of Persons with Disabilities (CRPD). He conducted a textual analysis of Articles 1 (Purpose), 3 (General Principles) and 5 (Equality and Non-Discrimination) in order to understand how a universalist conception of human rights and equality applies in the context of disability. One of the most interesting aspects of his argument his exploration of the concept of ‘equality of opportunity’ contained in the Convention (when reading Articles 3 and 5 together). Jerome suggested that the CRPD provides a robust conception of equality of opportunity, containing four key components: equality before the law (legal standing), equality under the law (recognition as a legal actor), equal protection of the law without discrimination, and equal benefit from the law. This understanding expands the more traditional conception of ‘equality of opportunities’ as a relatively formalist notion, to a broader concept which encompasses distributive justice. In this way, Jerome suggested that the version of ‘equality of opportunity’ contained in the CRPD might be regarded as one which understands ‘opportunity’ in the same frame as Sen’s capabilities approach in Inequality Reexamined. A further argument in support of this approach is the fact that the definition of equality in Article 5 CRPD requires both the removal of barriers to participation, and the provision of reasonable accommodation (a positive obligation) to ensure that rights can be realised. For those interested in the full content of Jerome’s seminar, the video can be viewed here.
Michael Bach‘s seminar focused on the shift in theory and values concerning the legal capacity of persons with disabilities – and posed the question as to whether these values were capable of being effectively translated into law and policy as States Parties seek to understand the nature of their obligations to implement Article 12 CRPD on Equal Recognition Before the Law. He discussed two approaches to personhood – the idea of human beings as ‘intending subjects’ – capable of expressing our will and preferences to others, and the notion of humans as ‘inter-subjective beings’ with the capacity to be known by others and most coherently held in a shared space with others. Both approaches can lead to a more inclusive theory of personhood and human agency whereby actions and intentions are attributed to the person with a disability, even where others are supporting them to express their intentions and execute their actions. He suggested a four-pronged approach to legal capacity legislation, providing for 4 different types of decision-making: legally independent (a person who might need some informal supports or reasonable accommodation such as accessible/easy to read information to make a decision), supported decision-making (a legally-recognised network of supporters who assume legal duties to assist a person to make decisions which must be respected by third parties) representative decision-making (the person chooses her representative(s) to make decisions e.g. through an Advance Care Directive) and facilitated decision-making (where as a last resort,when the will and preference of the individual is unknown and no other support or representation arrangement exists or can be made, a decision-maker is appointed to take the decision which is based on their best understanding of the person’s wishes). These four elements of decision-making are also reflected in the document Essential Principles: Irish Legal Capacity Law developed and signed off on by 15 NGOs in Ireland which we hope will underpin the forthcoming capacity legislation.
David Stanton TD, Chair of the Oireachtas Committee on Justice, Equality and Defence, responded to Michael’s paper outlining the recommendations of the Justice Committee for the forthcoming capacity legislation in Ireland, and committing to engage with the Executive if the legislation, when published, did not reflect the recommendations of the Committee and adopt a support model approach. Michael’s session produced one of the most intensive debates of the summer school, and the questions about implementing a support model of legal capacity in a legislative framework were also the subject of the summer school’s moot court competition at the end of the week.
Finally, Theresia Degener’s paper on the interaction of disability with other identities and the issue of multiple and intersectional discrimination provided some useful insights into frameworks for deconstructing the law’s response to compound disadvantage. Using Crenshaw’s definition of intersectionality, Theresia discussed different approaches to understanding ‘collisions’ between multiple forms of disadvantage – including the ‘compound’ discrimination idea (whereby more than one form of discrimination is at work e.g. both sex discrimination and disability discrimination can be demonstrated in a single case) and the notion of ‘accumulated’ discrimination (where the discrimination itself arises from the existence of a number of identities but cannot be easily attributed to each separate layer of identity). Ultimately, Theresia argued that these distinctions in terms of types of multiple, or multi-layered discrimination were not, to her mind, as significant as some scholars have argued, and discussed some case studies across a wide range of ‘protected grounds’ to illustrate how even multiple discrimination does not easily lend itself to categorisation in these ways. The full video of Theresia’s seminar can be viewed here.
The presentations and papers written by presenters at the summer school are available to registered participants via a Google Drive page, however, if anyone who couldn’t attend is particularly interested in seeing one of the written presentations just get in touch with me or the author and we should be able to provide it for you.