Social and Human Rights Model of Disability

Abstract

The contemporary era, by virtue of multiple United Nations conventions, has been trying to resolve the global issues by either enacting a convention or a document that may be binding or suggestive to other states. One such global issue is the violation of the rights of disabled persons in society and the discrimination they face on daily basis. Regarding this, the United Nations enacted the Convention on the Rights of Persons with Disabilities, to provide an international protocol for all disabled persons.

By analysis, the convention must be revolving around the Human Rights Model. The convention provides numerous laws which are to be followed by the signing parties to protect the rights of disabled people.

The current manuscript aims at providing the understanding of the two different models i.e. the Social model of disability and the Human Rights model of disability, with the assistance of different articles, journals, reports, etc. Since both the models have failed to provide any rights to the disabled people, the manuscript also has some suggestions. 

The United Nations came up with a Convention i.e. ‘The Convention on the Rights of Persons with Disabilities (CRPD) which is a human rights treaty that revolves around the rights of disabled people. The manuscript further tries to give a brief of laws reserved in CRPD which grants human rights to the disabled individuals in society at the international level.

Key Words:  Disability, Human Rights, Models of Disability, Social model of disability, human rights model of disability, Law

Introduction

The term disability means a physical, mental, cognitive, or developmental condition that impairs, interferes with or limits a person’s ability to engage in certain tasks or actions or participate in typical daily activities and interactions.[1]

Models of Disability are tools for shaping impairment and eventually providing foundations on which the government and society can design strategies to meet the needs of disabled individuals of the society. The models of disability are significantly formulated by individuals for another individual. These models reveal how our society provides access to work, goods, and services, economic and political powers for people with disabilities.[2] 

The social model of disability sees the issue of “disability” as a socially created problem and a matter of full integration of individuals into society. The social model is a complex collection of conditions, most of which are originated due to the social environment, therefore, the problem needs social action and it is the collective responsibility of society to make such modifications in the society.[3]

The human rights model of disability is situated on the pillars of human rights principles which recognizes disability as a natural characteristic in human diversity, which must be respected and supported in every possible way. It also recognizes that people with disabilities have the same rights as everyone else in the society at large and it advocates that the rights of disabled persons must not be denied.[4] It is this model of human rights due to which the United Nations enacted, The Convention on the Rights of Persons with Disabilities,[5] (CRPD) a convention to safeguard the rights of disabled persons at the international level.   

The Convention on the Rights of Persons with Disabilities defines discrimination on the basis of disability as ‘any distinction, exclusion or restriction based on disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation’.[6]

The people with disabilities do not claim any type of special, privileged or disability rights but they seek the same fundamental human rights, available to everyone else in the society. A human rights understanding of disability turns the focus away from a person’s impairment and prevents that person with disabilities from enjoying their fundamental human rights which everyone else in the society is entitled to. The National Human Rights Institutions should be natural champions of the new understanding of disability, and the same is also the foundation of the CRPD convention.[7]

Disabled persons do not have any particular motto or aim or do not tend to attract the attention of other persons unnecessarily but they only expect the society to accept them as a part of the society, in the same manner as every individual of any race, caste, color, religion, etc. expects from others. Therefore, the disabled persons must also be accepted as a part of the society and also social and other fundamental rights must also be enforced and not merely be enacted.

Social Model of Disability

According to the social model of disability, ‘disability is socially constructed.’ The social model of disability contrasts with what is called the medical model of disability.  According to the medical model of disability, ‘disability is a health condition dealt by medical professionals’. People with disabilities are considered to be different from normal or termed as abnormal. ‘Disability’ is seen as a problem of the individual. From the medical model, a person with a disability requires being fixed or cured. From this point of view, disability is a tragedy, and people with disabilities are to be pitied. The medical model of disability is all about what a person cannot do and cannot be.

The social model of disability suggests that disability begins from the collapse of a well-established social environment, to adjust to the needs of disabled individuals instead of the disability of an individual to adjust to the requirements of society. In viewing disability as a product of a dynamic interaction between humans and their surroundings, emphasis is shifted from the individual to the broader social, cultural, economic, and political environment.[8] 

According to the social model of disability, disability is socially constructed, the social model of disability contrasts with what is called the medical model of disability. According to the medical model, disability is a health condition that is dealt with by the medical fraternity. The medical model of disability is all about what a disabled individual cannot do.[9]

The socio-political perspective represents a major change in the direction of research on disability. Instead of concentrating on the economic or functional implications of disability, attention is focused on the attitudinal and behavioral significance of perceptions which are formed based on visible and permanent characteristics.[10]

The socio-political standpoint acknowledges policies that shape the environment, as a reflection of widespread social attitudes and values. The features of a social environment that enforce inequality on disabled citizens cannot be seen merely as accidental or coincidental. The Socio-political understanding seems to be the initial point of view that provided a base for altering the ‘expectations’ so that disabled individuals are permitted to seek to adapt to their needs and aspirations instead of merely adjusting themselves to the demand of dominant society.[11]

The model seeks to manifest how disability is socially constructed. It argues that the decisions made to grant accommodations for some individuals to function in the political model, which is significantly influenced by the medical model, however there is a difference of opinion between the extent to which impairment and disability should be served. One argument is that the disability rights movement must emphasize exclusively on the barriers which disabled individuals face in society rather than analyzing individual impairment.[12]

Human Rights Model of Disability

The Human rights model of disability regards disability as an impairment that needs to be treated, cured, fixed, or at least rehabilitated.[13] The CRPD is one of those examples of human rights models of disability. The human rights model of disability is more wide-ranging because it consists of human rights, social and cultural rights, and civil and political rights.

The human rights model of disability is more concerned with providing human or fundamental rights to disabled individuals in society. The model aims to promote and safeguard the human rights and fundamental freedom of all persons with disabilities and promotes respect for such individuals.[14] 

This type of model aims at protecting and providing the right to inherit dignity, individual identity, non-discrimination, inclusion in society, equality of opportunity, accessibility, and respect for the evolving capacities of children who are disabled and protect their identities.[15]

This model considers disability as a normal feature and that disabled individuals are equally entitled to all the rights which are available to others. The model focuses on the dignity of the disabled human being and his/her medical characteristics. It revolves around the problem of lack of responsibility of the state and other organizations towards the difference that disability represents. It also puts a responsibility on the state to combat problems created by the society to ensure that disabled individuals in the society enjoy respect and dignity as other individuals in the society.[16]

National Human Rights Institutes

National Human Rights Institutions are independent bodies that are established to advocate for those who need protection and to hold the government responsible for any human rights violation within its jurisdiction. The National Human Rights Insttutions work to establish fair, just, and inclusive communities where each individual can live with dignity and away from any discrimination or violence made on the grounds of disability. Apart from this, the National Human Rights Institutes work to uphold the rights and dignity of those who are marginalized or forgotten.[17]

Convention on Rights of Persons with Disabilities

Human rights are well embedded in the roots of International laws which safeguard and provide models of fundamental human rights which every member state to the United Nations shall abide with. While discussing the international human rights jurisprudence, The Universal Declaration of Human Rights, 1948[18] has always been considered as the most significant human rights convention. However, when the discussion is further classified and rights of disabled persons are discussed, The Convention on Rights of Persons with Disabilities,[19] (CRPD) is always put into the limelight. It is a classic example of a merger between the social and human rights model of disability.

Adopted by the UN General Assembly on 13 December 2006 and entered into force on 3 May 2008, CRPD has been signed by 154 countries and ratified by 125 countries as of October 2012.[20] The rights of disabled persons are further classified as:

Civil and political rights: Equality and non-discrimination (Article 5), Right to life (Article10), Equal recognition before the law and legal capacity (Article 12), Equal access to justice (Article 13), Liberty and security of the person (Article 14), Freedom from torture or cruel, inhuman or degrading treatment or punishment (Article 15), Freedom from exploitation, violence, and abuse (Article 16), Right to respect for physical and mental integrity (Article 17), Right to liberty of movement and nationality (Article 18), Right to freedom of expression and opinion and access to information (Article 21), Respect for privacy (Article 22), Respect for home and the family (Article 23), Right to participation in political and public life (Article 29).

Economic, social, and cultural rights: Right to education (Article 24), Right to health (Article 25), Right to rehabilitation (Article 26), Right to work and employment (Article 27), Right to an adequate standard of living, and social protection (Article 28), Right to participation in cultural life, recreation, leisure and sports (Article 29).

Other Specific Rights: Equality and non-discrimination (Article 5), Right to access (Article 9), Right to live independently and to be included in the community (Article 19), Rights of women with disabilities (Article 6), Rights of children with disabilities (Article 7), Protection of persons with disabilities in situations of risk, armed conflicts and humanitarian emergencies (Article 11) International cooperation (Article 32).

Suggestions

The CRPD is of significant importance as it supports and maintains the human rights model of disability, which is something society has been excepting for a long and therefore the CRPD must be interpreted positively and to protect the rights and interests of disabled individuals.

States parties must hold a responsibility towards an advanced and sustained focus on individuals with disabilities as an obligation and responsibility under international law. Apart from this, The National Human Rights Institutes must be established at central and state levels to protect the rights of disabled individuals.[21]

Apart from National Human Rights Council, civil societies or NGOs must be established and promoted to protect the rights of disabled individuals by not only quality awareness but also by trying to merge disabled individuals’ community with other people of the society.  

The state must also be responsible for providing special laws relating to disabled people and such laws must emphasize the recognition, preservation, and assistance of disabled people in society. However, if the state already has a mechanism to combat the problems faced by disabled individuals, then such legislation and policies must be reviewed timely to protect the interests of disabled people.

Critical Analysis

According to a report, in developing countries, 80% to 90% of persons with disabilities of working age are unemployed, whereas in industrialized countries the figure is between 50% and 70%. In Asia and the Pacific, around 370 million persons are with disabilities, while only 238 million of them are of working age and the unemployment rate is as high as 80% or more. In India, according to the 2001 census, 21.9 million people, or 2.13% of the country’s population are persons with disabilities and 74% of persons with physical disabilities and 94% of persons with mental retardation are unemployed.[22]

Despite having national and international legal documents, irrespective of suggestive or binding, the community of disabled peoples has always faced discrimination and denial of not only human rights but a denial of recognition by society. The social and human rights models of disability have failed in their purpose due to multiple reasons.

The social model of disability appears to have been revolving around a social constructionist interpretation of inability accounts. One such debate is that the social model of disability does not engage with a bodily form of experience though distinguishing the disabled body from culture has resulted in political gains at the cost of a disabled person’s personality and identity.[23] Another debate is that it emphasizes on physical inability and does not make the difference into account.[24] Although the social model of disability seems to be sufficient as an essential howbeit it is an extremely victorious political tool but its utilization needs to be increased to develop multiple enabling platforms, and improve its explanatory power.[25][26] 

Not only the social model of disability but also the human rights model of disability has certain limitations and challenges for implementing the new human rights treaty (CRPD), one of them is to establish a national monitoring mechanism that is independent of government and complies with the Paris Principles[27] and works in co-operation with civil society organizations and disabled person’s organizations.[28]

Conclusion

People with disabilities do not claim ‘special rights’ or even ‘disability rights’. They claim the same fundamental human rights as everyone else. Disabled persons have always faced discrimination and are not considered as a part of society. This is something that is not only morally wrong but also legally as multiple international conventions and documents have advocated for legislation relating to discrimination.

The human rights model of disability has focused on the impairment and disability of individuals who face social and attitudinal barriers throughout their life. Such a barrier prevents persons from enjoying their fundamental rights which are otherwise enjoyed by non-disabled persons.

To enforce the international human rights conventions, NHRIs must be established and NHRIs can and should be natural champions for this new understanding of disability, which is also the foundation of the Convention.

Even the CRPD, in its preamble (k), is concerned that despite multiple instruments and undertakings, persons with disabilities continue to face barriers in their participation as equal members of society and violations of their rights in all parts of the world.

The CRPD was initially drafted as a human rights convention that replaces the medical model of disability with the social model of disability. However, the drafters went beyond the social model of disability and codified a treaty that is based on the human rights model of disability.[29]

The social and human rights model of disability have played their roles in society but still, the world is facing numerous cases of discrimination and other human rights violations of disabled persons and by this, it can be concluded that both the models have failed for many reasons including poor implementation, lack of resources, lack of awareness, lack of education, etc. and therefore it is vital to correct these mistakes committed not only by individuals but also by states.

It can be certainly concluded that the social model of disability has failed to meet its aim because people in society are still being discriminated against because they are disabled and are not considered a part of society and therefore it is urged by the author that we accept the disabled peoples and treat them as humans.

CREDITS: Varchaswa Dubey, JECRC University, Jaipur


[1] Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/disability    

[2] Models of Disability: keys to perspectives, Applications, and interpretationshttps://www.theweb.ngo/history/ncarticles/models_of_disability.htm

[3] https://www.disabled-world.com/definitions/disability-models.php

[4] Introducing the human rights model of disability, Disability Advocacy Resource Unit, http://www.daru.org.au/how-we-talk-about-disability-matters/introducing-the-human-rights-model-of-disability

[5] Convention on the Rights of Persons with Disabilities and Optional Protocol, https://www.un.org/disabilities/documents/convention/convoptprot-e.pdf

[6] The Convention on the Rights of Persons with Disabilities Art 2

[7] Disability and human rights: A new perspective, https://www.asiapacificforum.net/human-rights/people-disabilities/new-perspective/

[8] Harlan Hahn, The Issue of Equality: European Perceptions of Employment Policy for Disabled Persons, pp. 11 (New York: World Rehabilitation Fund, 1984b)

[9] Social Model of Disability, People with Disability Australia, https://pwd.org.au/resources/disability-info/social-model-of-disability/  

[10] Harlan Hahn, “Paternalism and Public Policy,” Transaction/SOCIETY, vol. 20 (March-April, 1983), pp. 36-46.

[11] Independent Living Institute, Toward a Politics of Disability: Definitions, Disciplines, and Policies, https://www.independentliving.org/docs4/hahn2.html

[12] Abby Buttle, Law and Disability: An Introduction to the Social Model of Disability, 19th February 2018, Oxford Human Rights Club, https://ohrh.law.ox.ac.uk/law-and-disability-an-introduction-to-the-social-model-of-disability/   

[13] Theresia Degener. 14 Jul 2016, A Human Rights Model of Disability from Routledge Handbook of Disability Law and Human Rights Routledge, pp. 32-33, Available at: https://www.routledgehandbooks.com/doi/10.4324/9781315612881.ch3  

[14] Article 1 of CRPD

[15] Article 2 of CRPD

[16] Gerard Quinn and Theresia Degener, Human Rights and Disability: The current use and future potential of United Nations human rights instruments in the context of disability, United Nations New York and Geneva, 2002, https://www.ohchr.org/Documents/Publications/HRDisabilityen.pdf 

[17] https://www.asiapacificforum.net/support/what-are-nhris/  

[18] Universal Declaration of Human Rights, https://www.un.org/en/about-us/universal-declaration-of-human-rights

[19] Convention on the Rights of Persons with Disabilities and Optional Protocol, https://www.un.org/disabilities/documents/convention/convoptprot-e.pdf

[20] Federal Ministry for Economic Cooperation and Development, A human rights-based approach to disability in development, pp. 10,https://reliefweb.int/sites/reliefweb.int/files/resources/A_human_rights-based_approach_to_disability_in_development.pdf  

[21] Gerard Quinn and Theresia Degener, Human Rights and Disability: The current use and future potential of United Nations human rights instruments in the context of disability, United Nations New York and Geneva, 2002, https://www.ohchr.org/Documents/Publications/HRDisabilityen.pdf

[22]Department of Economic and Social Affairs,  Disability and Employment, a factsheet on the persons with disabilities, United Nations, https://www.un.org/development/desa/disabilities/resources/factsheet-on-persons-with-disabilities/disability-and-employment.html  

[23] Hughes, B. and Paterson, K. (1997) The social model of disability and the disappearing body: towards a sociology of impairment, Disability, and Society.

[24] Chappell, A.L. (1998) Still out in the cold: people with learning difficulties and the social model of disability

[25] Finklestein, V. (2001) A personal journey into disability politics. Available online at http://www.independentliving.org/docs3/finkels

[26] Janine Owens, Exploring the critiques of the social model of disability: the transformative possibility of Arendt’s notion of power, Sociology of Health & Illness Vol. 37 No. 3 2015 ISSN 0141-9889, pp. 385–403, 19 December 2014, https://onlinelibrary.wiley.com/doi/epdf/10.1111/1467-9566.12199   

[27] Principles relating to the Status of National Institutions (The Paris Principles), Adopted by General Assembly resolution 48/134 of 20 December 1993, https://www.ohchr.org/en/professionalinterest/pages/statusofnationalinstitutions.aspx  

[28] Theresia Degener. 14 Jul 2016, A Human Rights Model of Disability: Routledge Handbook of Disability Law and Human Rights Routledge, https://www.routledgehandbooks.com/doi/10.4324/9781315612881.ch3  

[29] Theresia Degener, Disability in a Human Rights Context, pp. 19, https://www.mdpi.com/2075-471X/5/3/35  

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