Emergent disability and the limits of equality: a critical reading of the UN Convention on the Rights of Persons with Disabilities.

• Author: Ribet, Beth

The UN Convention on the Rights of Persons with Disabilities marks a shift in international legal relationships to, and conceptions of, disability. The Convention is the first binding international instrument of its kind related to disability. Its premises differ from the earlier World Programme on Disability, and more closely integrate the frameworks of U.S. domestic equal protection and disability civil rights law. Drawing on critical race and feminist theory, this Article critically examines the implications of internationalizing a U.S. disability law framework, with particular attention to the problem of "emergent disability," or disability which is specifically produced as a consequence of social inequity or state violence.

1. INTRODUCTION

   The United Nations Convention on the Rights of Persons with Disabilities (hereinafter "the Convention") opened for state signatories on March of 2007, following adoption by the General Assembly in December of 2006. (1) The Office of the Joint Secretariat, which administered the implementation of the Convention, notes that transnational support, at least as indicated by the number of signatories on its opening day, exceeded that of any previous UN convention. (2) In July of 2009, President Obama initially committed the United States as a signatory, although formal implementation still awaits Congressional ratification. (3) Although there has been no equivalent document in the history of global disability rights, the Convention was not entirely lacking precedent in international legal conceptualization of disability. Namely, the United Nations designated the year 1982 as the "International Year of Disabled Persons," ultimately leading to the formulation of the "World Programme of Action Concerning Disabled Persons." (4)

   The World Programme is indicative of the type of international legal document that international legal theorists generally characterize as "soft" law, in the sense that its provisions are not binding on states or organizations outside of the UN's own internal bodies. However, as the first major international legal document posing a comprehensive platform that conceptualizes disability as a political, medical and social phenomenon, it would be an error to dismiss it as lacking any wider practical import. The World Programme remains particularly relevant to this analysis, as it anticipated the underlying philosophy of the Convention. (5)

   The World Programme largely prioritized the ideal of "equalization of opportunities," which it defined as follows: "Equalization of opportunities means the process through which the general system of society, such as the physical and cultural environment, housing and transportation, social and health services, educational and work opportunities, cultural and social life, including sports and recreational facilities, are made accessible to all." (6)

   In addition to this primary goal, it also engendered some discussion of rehabilitation and particularly of prevention. (7) The latter term is broken down into primary and secondary categorizations. Primary prevention refers to actually preventing "impairment" entirely, while secondary prevention refers to minimizing its consequences, both individually and socially. (8)

   The text of the Convention partially parallels that of the World Programme, mainly in framing equality as the primary concern of international legal intervention in the status of persons with disabilities. Although the language of the Convention reflects more contemporary concepts of "universal design" (9) with less emphasis on the term "equalization of opportunity," its general tenor is mostly consistent both with the language of several other international conventions (10) and with conceptions of anti-discrimination and equal protection intrinsic in the U.S. domestic legal system. (11) While the specific term "rehabilitation" has mostly vanished from the later document, (12) the Convention recalls many of the goals of earlier rehabilitation language, reframed in terms of "living independently," "personal mobility," and to some extent, within the imperative to promote "accessibility." (13) However, the goal of "prevention," particularly "primary prevention," has been distinctly eliminated from the Convention, either in its original language as reflected in the World Programme, or in any explicit goal geared towards altering the context in which "impairments" initially occur. (14) In this respect the language and agendas represented in the Convention are more closely consistent, for instance, with those embedded in the U.S. domestic statute, the Americans with Disabilities Act (hereinafter ADA), in that they emphasize the individual rights of persons with disabilities to equal access to resources and public spaces, and to equal treatment under law, without any interventionist agenda concerning the emergence or production of disabilities. (15)

   In this Article, I scrutinize the implications of eliminating prevention language from the Convention. (16) In taking on this task, I must first acknowledge an objection that some sectors within disability rights movements and advocacy might raise: namely, that obviously the prevention language was eliminated because it presumptively stigmatized disability as something to be rid of, rather than focusing on structural and social accessibility. (17) Western disability historians note that in recent decades, disability activists have fought very hard to advance the notion of "disability pride" based on the idea that there is nothing inherently negative about disability, other than the social and political barriers and discrimination engendered by "ableism" or disability oppression. (18) In this sense, the elimination of prevention language can be interpreted as simply a reflection of increasing sensitivity to the concerns and self-definitions produced by disability communities.

   I agree with this analysis to a point. My agenda certainly would not be to call to reframe the UN Convention based on the goal of "eliminating" or "stopping" disability, both terms evoked by the concept of "prevention." In multiple respects, I embrace the critique that the term "prevention" has been inherently problematic for the reasons identified in the previous paragraph. In this one sense, I join the ranks of those scholars and advocates who find the shift welcome and otherwise unremarkable. Some adherents of the UN Convention might also highlight that the elimination of prevention language represents a move from a "medical model" of disability to a "social constructionist model." (19) In the latter model the role of societies in turning physical and mental variation into a basis for exclusion or subordination is highlighted in understanding the experience of "impairment." My emphasis on disability as an inflicted medical or psychological harm could easily be misinterpreted as a simple regression to a prior conception of disabilities as inherent tragedies located in bodies and minds, rather than in the dynamic between individuals and social structures. While I am deeply concerned with (inflicted) illness and injury as medical realities, the distinction between the instant critique and a traditional medical model lies in the emphasis on power and social structure (rather than genetic or divine inevitability) in creating medical difference.

   Moreover, my contention in this Article is more specific: I argue that with the elimination of attention to disability prevention, international law has also simultaneously vacated any analysis of disability that acknowledges its social origins or enables recognition that power relations have anything to do with the production of disabilities and not just the treatment of people who are for whatever never-specified reason "impaired." In order to make this argument, I will turn first to the fairly recent literature within disability studies, which focuses on the concept of "emergent disabilities." Part I of this Article discusses this literature and its implications for an analysis of disability and power. In addition, I use this section to attend to the relationship between medical institutions and law in limiting conceptions of disability, the limits of equal protectionist approaches to challenging disability subordination, and the perils and prospects of associating disability and victimization. The second part of this discussion returns specifically to the language of the Convention, with continuing analytical comparison to the World Programme and to the ADA. In this section, I draw from critical race and feminist legal theories in order to delineate some of the implications of relying on an equality, or equal protection, framework in advancing international law regarding disability rights. I highlight differences in the conception of disability relative to torture, race, poverty, gender, age, and economic vulnerability in order to advance the argument that a human rights model patterned after U.S. equal protectionist approaches to disability provides no adequate basis to challenge the production of emergent disabilities. Finally, in the conclusion, I discuss some of the implications of this analysis for disability rights movement discourse, and lay out some very preliminary reflections on potential directions for future legal advocacy, broadly, and relative to the Convention.

2. TOWARDS AN ANALYSIS OF DISABLING OPPRESSION AND VIOLENCE

   Western legal conceptions of disability frequently invoke several specific ideological presumptions. First, disability is treated as an objective, determinable medical fact. (20) Disability historians have repeatedly documented the construction of illness, deformity, and impairment as contingent, shifting categories indicating the medicalization of gender, sexuality, class, nationality, religion, race, and ethnicity. (21) However, contemporary recognition of disability by courts typically presumes a value-neutral...