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Human Rights, Disability,
and Capabilities
Christopher A. Riddle
Human Rights,
Disability,
and Capabilities
Christopher A. Riddle
Utica College
Utica, New York, USA
vii
viii ACKNOWLEDGMENTS
1 Introduction 1
6 Conclusion 65
Bibliography 67
Index 71
ix
CHAPTER 1
Introduction
Abstract In this chapter I set out to express the urgency associated with a
project designed to ensure the upholding of a human right to health by
promoting justice for people with disabilities. An emphasis is placed on
how ubiquitous disability is in our world and how damaging the effects of
disabling barriers can be on individuals’ lives. The goal of this chapter is to
briefly outline how I proceed through the remainder of the book.
More than one billion people in the world are said to be living with a
disability. Approximately 13.5 % of our population is disabled, and nearly
200 million of these people experience difficulty in functioning.1 This
statistic fails to take into account the large number of people living with
disabilities who refuse to disclose the presence of impairment out of fear of
stigmatization or worse, blatant discrimination. If this number appears
startling, consider that the prevalence of disability is on the rise and thus,
this number is only likely to grow in the near future. Our population is
aging, and as such, more people will become disabled.2 When paired with
increasing rates of economic inequality, ill health and disability are bound
to appear more frequently. Inspired by Engels’s early observations of the
working conditions of the people of England, I have previously argued
that “education, income, and a wide variety of other factors contribute
NOTES
1. World Health Organization, World Report on Disability (Geneva: World
Health Organization, 2011), xi. (World Health Organization 2011)
2. Ibid. (World Health Organization 2011)
3. Christopher A. Riddle, “Ranking Capabilities,” in Discussing Capabilities,
Emotions and Values: A Cross-Cultural Perspective, ed. Koji Nakatogawa,
Lydia de Tienda, Yousuke Mitsuke, and Yohei Fukayama (Sapporo, Japan:
Keyword, 2015), 113. (Riddle 2015)
4. Amartya Sen, “Equality of What?,” in Equal Freedom: Selected Tanner Lectures
on Human Values, ed. S. Darwall (Ann Arbor: University of Michigan Press,
1995). (Sen 1995)
5. While other publications of mine have expressed this critical attitude, most
of these arguments can be found in Christopher A. Riddle, Disability and
Justice: The Capabilities Approach in Practice (Lexington: Lexington
Books/Rowman & Littlefield, 2014). (Riddle 2014)
CHAPTER 2
Abstract In this chapter I trace how the concept of health and the
experience of disability have been conceptualized and supported through
international legislation and policy. I examine the origins of disability
rights by exploring precisely how the International Bill of Rights helped
people with disabilities. I then extend this examination to look at indivi-
dual instruments such as the Declaration on the Rights of Disabled
Persons to the Convention on the Rights of Persons with Disabilities.
Everyone has the right to a standard of living adequate for health and well-
being of himself and of his family, including food, clothing, housing and
medical care and necessary social services, and the right to security in the
event of unemployment, sickness, disability, widowhood, old age or other
lack of livelihood in circumstances beyond his control.2
Here the social determinants of health are recognized, and the negative
social and economic implications of disability are acknowledged. While
more progressive interpretations take the notion of security employed in
Article 25 to be quite broad and inclusive, the Universal Declaration still
“falls short of the expansive right to health set out by the WHO: it calls for
a standard of living ‘adequate’ for health, rather than the ‘highest attain-
able standard of health.’”3
In light of this and other shortcomings, The International Covenant on
Economic, Social and Cultural Rights, adopted in 1966 and enforced in
1976, elaborated upon those rights set out in the Universal Declaration
and sought to strengthen and defend a more robust conception of human
rights. More specifically for present purposes, Article 12 states that all
should have the highest attainable standard of physical and mental health,
including “the prevention, treatment and control of epidemic, endemic,
2 DECLARATIONS, COVENANTS, AND CONSTITUTIONS 7
Its aim can be summarized as one designed “to promote, protect and
ensure the full and equal enjoyment of all human rights and fundamental
freedoms by all persons with disabilities, and to promote respect for their
2 DECLARATIONS, COVENANTS, AND CONSTITUTIONS 9
inherent dignity.”9 Again, we can see that the notion of dignity appears to
be of primary significance, as it was in the Universal Declaration.
In summary, these declarations, covenants, and constitutions represent
a rich history of attempting to promote the rights of people with disabil-
ities. Of course, some aspects of these instruments require refining, but
nonetheless, the access to health care and health more generally, as well as
a life free from impairment and disabling barriers, has a long record in
human rights discourses.
NOTES
1. United Nations, Universal Declaration of Human Rights (1948). (United
Nations 1948)
2. Ibid. (United Nations 1948)
3. Jonathon Wolff, The Human Right to Health (New York: W. W. Norton &
Company, Inc., 2012), 6. (Wolff 2012)
4. United Nations, International Covenant on Economic, Social and Cultural
Rights (1996). (United Nations 1966)
5. For more on these see Council of Europe, European Convention for the
Protection of Human Rights and Fundamental Freedoms (1950) (Council of
Europe 1950); and Organization of American States, American Convention
on Human Rights (1978). (Organization of American States 1978)
6. United Nations, Declaration on the Rights of Mentally Retarded Persons
(1971). (United Nations 1971)
7. Interestingly, Lesley Jacobs’s discussion of equal opportunities can be mir-
ror onto this framework quite closely. In Lesley Jacobs, Pursing Equal
Opportunities (Cambridge: Cambridge University Press, 2004) (Jacobs
2004), he discusses background fairness, stakes fairness, and procedural
fairness.
8. United Nations, Convention on the Rights of Persons with Disabilities (2006).
(United Nations 2006)
9. Ibid. (United Nations 2006)
CHAPTER 3
Abstract In this chapter I explore two main concepts. First, I ask how, if
at all, health differs from disability. I argue that health and disability, when
properly regarded, can be viewed similarly and that people with disabilities
are rightly regarded as having a decrement in health. Second, I ask
precisely what it is that we mean when we talk about disability. I explore
the origins of the social model of disability and argue that while not
without political usefulness, it is an incorrect way of viewing disability.
Instead, I suggest that the interactional model of disability is a more
accurate conceptualization of the experience of disability.
because the former subsumes the latter, that we cannot gain valuable
information from research designed around such a question.
But if we return to the original research question posed by Shakespeare,
we can see that it has value because people can be disabled in a multitude
of ways that impact daily functioning. Simply because an individual iden-
tifies as disabled in manner x does not preclude that individual from
experiencing disability y, or z. Simply because an individual with HIV/
AIDS might be consider disabled according to Bickenbach does not
prevent us from parsing states of ill health or other disabilities so that we
can meaningfully examine the experiences of all people with disabilities.
Under Bickenbach’s conception of disability and health, and as
Shakespeare highlights, all people with HIV/AIDS are considered dis-
abled. However, many meaningful questions concerning how many peo-
ple with disabilities are disabled by HIV/AIDS, and how many people
with HIV/AIDS experience additional, unrelated disabilities, remain to be
answered.
It is not individual limitations, of whatever kind, which are the cause of the
problem, but society’s failure to provide appropriate services and adequately
ensure the needs of disabled people are fully taken into account in its social
organization.19
including any and all forms of social oppression.24 The thought here is that
“even in the most accessible world, there will always be residual disadvantage
attached to many impairments.”25
It is important to note that there is a causality present between impair-
ment and disability for interactional theorists that is not present for social
theorists. I will reexamine this topic in greater depth later, when I intro-
duce the work of Simo Vehmas, who I think provides an outstanding
argument against social model theorists.
Putting this issue aside temporarily, this so-called interactional
model has been presented in various forms previously, appearing as
both philosophical arguments, such as those made by Shakespeare,
Vehmas, and Bickenbach, and policies or classificatory instruments
(the 1980 International Classification of Impairments, Disability,
and Handicaps (ICIDH) and the 2001 International Classification
of Functioning, Disability and Health (ICF)). These philosophical
positions were designed to inform our social policy, and these social
policies or classificatory instruments were designed to adequately
characterize disability to begin to redress some of the injustices cur-
rently perpetuated against people with disabilities.
perform less intricate movements with one’s hands, surely the amount of
pain experienced would be minimized. This minimization of pain seems
inadequate however, considering the potential medical interventions at our
disposal. Would we not be promoting a greater form of well-being if we
tended to this welfare deficiency? Would we not be unjust in permitting
this kind of avoidable suffering when an individualistic or medical inter-
vention would almost surely reduce it entirely? Imagine us denying one’s
claim to medical interventions to reduce this sort of pain through a denial
of the causal relationship between impairment and disability. Imagine us
refusing to take individual initiatives to reduce pain through medication
seriously in this instance. I hope the reader is with me in thinking that such
a response would constitute a significant injustice, and thus, think the
answer to the above questions is a resounding and obvious “yes,” that we
do in fact have an obligation to intervene to provide health resources—an
obligation a social model theorist cannot account for.
Take another example of a critique, this time launched by Shakespeare.
Shakespeare suggests that to make a distinction between impairment and
disability, and to suggest that the latter is social and the former not, is
incorrect.36 He, I think, correctly argues that “what counts as impairment
is a social judgement.”37 After all, it is primarily the values within a
particular culture that determine what an impairment is. Perhaps less
importantly, attitudes of the wider society impact how many people with
impairments there are.38
Shakespeare points us to the fact that the “visibility and salience of
impairment depend on the expectations and arrangements in a particular
society.”39 He uses dyslexia as an example to further highlight his point:
dyslexia may not be a problem for an individual until society places a
demand on its citizens to be literate.40
This example shows quite clearly I think, that impairment has a social
element—that how we conceptualize impairment is, at least in part, a
cultural issue.41
This shows an “inextricable interconnection [between] impairment and
disability.”42 Perhaps most importantly, this example demonstrates that
these different factors (both social and political) are not only inextricably
linked, but that they compound each other through a complex relationship
of how the traits inherent to the individual manifest themselves socially.43
In other words, impairment has both physical and social dimensions.
Finally, I want to present a position advanced by Simo Vehmas. I think he
has most convincingly, and perhaps most recently as well, demonstrated why
20 HUMAN RIGHTS, DISABILITY, AND CAPABILITIES
from oppression against people. Vehmas highlights the fact that “[by]
definition, then, disability as a social phenomenon includes not just a mere
institutional level, but a brute level of facts as well, namely, impair-
ments.”50 Thus, social model theorists are only acknowledging part of
the phenomenon of disability. For Vehmas, the problem with social model
conceptualizations of disability is that their “foundation[s] [are] based on
the upper stairs of the ontological ladder, as it were, and that [they]
[ignore] the inevitable physical foundation of the social phenonmena.”51
That all said, I think the best way of characterizing the debate thus far is as
follows. I believe the social model theorists have entered a debate they
have failed to engage in. This failure to engage is, I think, a very innocent
failure. This is to say, I do not suspect they are aware that they have
entered a debate with a different mandate than their own. The criticisms
most often launched against interactional theorists tend to revolve around
what might happen to people with disabilities if the interactional position
were regarded as being an accurate characterization of disability. Or
perhaps more succinctly, they are concerned with how people with dis-
abilities might be perceived, and how this in turn, might affect social
policy, legal decisions, the built environment, and more obviously, attitu-
dinal barriers. They are concerned that the political success the social
model has had will unravel and society will regress into the old, medical
model ways of viewing people with disabilities. This would understandably
have tremendously negative impacts on the lives of the disabled. To use
Vehmas’s words, “the horse before the disability studies carriage is often
politics, not science.”52
Take for example, Michael Oliver. He has argued that the interactional
position has “diminish[ed] [social model theorists’] past achievements.”53
He discusses numerous “realities of severe impairment”54 that Shakespeare
has ignored in advocating on behalf of an internationalist model. What
is implied here is quite vast, but I think the most obvious concern permeat-
ing this point is that by allowing a redirection of attention back toward
impairment, we risk shifting back to medicalized ways of viewing
disability, and consequently, risk reenacting the troubling treatment
of people with disabilities of the past. He says quite explicitly that by
22 HUMAN RIGHTS, DISABILITY, AND CAPABILITIES
[t]he judgements we make about the causes of disability, about the meaning
of the concept and about the factors to hold responsible for the experience
of disability have profound consequences for the directions pursued by
advocates, policy-makers, politicians and the courts.57
More pointedly still, Rioux thinks that what is important in our defining of
disability is that in that definition, we direct those she mentions (advo-
cates, policy-makers, politicians and the courts) toward the pursuit of what
is perceived by her and other social model theorists to be the correct
political mandate.
These concerns about social and legal change are not of direct interest
to interactional theorists however. This is not to say interactional theorists
are not concerned with enacting real, positive change, but rather, to
simply suggest that they realize there is an ontological question to be
tackled prior to enacting this change. I return to this point later.
Take the following example to highlight the point I am attempting to
make. Let us ask the question: ‘Who or what is Santa Claus?’58 We can
answer this question differently when attempting to achieve different
goals. Let us imagine there are only two potential mandates we might
have when answering this question. The first mandate is to promote the
happiness of children and to enjoy a festive season. Most children in
Western societies, barring religious observances that prevent a belief in
Santa Claus, will be told that Santa Claus does in fact exist, and that he
delivers presents to well-behaved children on December 24th while they
sleep. He flies in a sled lead by reindeer and enters homes through their
chimneys by touching his nose to raise and lower himself. He then places
toys, candies, and other goodies in stockings hung on a mantel and under
3 DISABILITY AND HEALTH 23
Mutta minä, minä tiesin… Tiesin kaiken tämän, kun hääpäivä tuli.
Luontoni oli aina noussut näitä tympäiseviä tapoja vastaan, mutta
etenkin tänä vaarallisena aikana, jolloin aistini pettivät minut niin
surkuteltavasti, oli minulle tärkeää saada estetyksi tämä synkkä
ilveily.
Mutta nämä hetket olivatkin viimeiset, mitkä meidän oli sallittu elää
yhdessä. Ihmisvihan hyökyaalto lähestyi meitä.
Se oli eräs kreikkalainen, joka kerran oli ollut ystäväni, mutta tuli
nyt ilmiantajana ja rikoksellisena.
Seisoen kaikki kolme auki jääneen oven edessä, edes hyvää iltaa
toivottamatta, petturi otti ensimäisenä sananvuoron. Minua osoittaen
hän sanoi romaniankielellä:
*****
KIRA KIRALINA
Niin, elämä oli ihanaa, paitsi niinä päivinä, jolloin isä tai hänen
poikansa tai molemmat yhdessä syöksähtivät sisään keskelle juhlaa,
pieksivät äitiä, iskivät nyrkeillään Kiraa ja taittoivat keppinsä minun
pääkallooni, sillä nyt otin minäkin osaa tanssiin. Kun puhuimme
sujuvasti turkinkieltä, nimittivät he molempia naisia patshura'ksi ja
minua kitshuk pezevengh'iksi [portto; pieni makrilli]. Nuo onnettomat
heittäytyivät kiduttajiensa jalkoihin, syleilivät heidän polviaan,
rukoillen, että he säästäisivät heidän kasvojaan.
»Isä!… Pelastautukaa!…»
*****
Näin kului vielä kaksi tai kolme vuotta, ainoat lapsuuteni vuodet,
joiden muisto on säilynyt mielessäni selvänä. Olin yksitoistavuotias,
ja Kira, josta en hetkeksikään tahtonut erota, oli viisitoista.
Aistihurma, joksi sen myöhemmin käsitin, sitoi minut häneen.
Seurasin häntä kaikkialle kuin koira, katselin salaa hänen
pukeutumistaan, suutelin hänen vaatteitaan, joissa viipyi hänen
ihonsa tuoksu. Ja tyttö-parka torjui minua luotaan heikosti ja
hellävaroen, pitäen minua viattomana eikä ollenkaan vaarallisena.
Minulla ei toden totta ollutkaan mitään selviä aikeita, en tietänyt, mitä
tahdoin. Minä riuduin kaipuusta ja hänen läheisyytensä huumasi
minua.