Last semester I took a subject called International Human Rights and Law. While I entered the course with relatively little prior knowledge of what I imagined the subject would cover, I had actually picked the politics/economics strand of my degree as my contextual major, specifically to take this subject.
I’ve studied very little law or legal studies in any formal way. At school, in year 10, we were introduced to some of the horrific realities of honour killings, forced marriages and dowry penalties, and similar degrading practices that occur far too commonly, largely in developing nations.
I suppose that subject contributed towards me choosing to pick up Women and International Justice over the spring semester of 2012.
But, today I want to post my final essay for International Human Rights and Law.
While not directly addressed in our course, I chose to focus on the ways in which people with disabilities or mental illness are dehumanised and ‘psychosocially debased’, and how these practices are in fact, violations of their human rights.
It never fails to surprise me how much I can enjoy learning and doing ‘work’ when I’m concentrating on something of personal interest. It is with this realisation, I find even more reason for leading educators to consider the principles of Logan LaPlante’s hackschooling philosophy.
It’s a bit Convention heavy, but if you have the time to sit down and ingest the essay, I’d love to hear your responses.
Discuss whether the dehumanisation and psychosocial debasement of a population or a sector of a population are always leading indicators of potential human rights violations?
Human rights have long been an issue of import and controversy across the globe. Within governments, industries, timeframes and communities, what constitutes a human right has been debated as cultures, generations and evolution bring new and conflicting ideas to the front of popular conversation. Despite this, it is commonly assumed, as recognised in the Universal Declaration of Human Rights (1948), that dignity features as a primary concept across legislative instruments and cultural norms. Basser (2011) considers dignity to be an attribute of each person ‘by virtue of his or her humanity’ (p. 19), independent of social status, political affiliation, economic value, gender, ethnicity, or one’s ability to reason. This paper will work with a flexible definition of dignity, incorporating three significant elements of agency, control and worthiness. As such, any attack on a person’s agency, control or worthiness is inherently an attack on their dignity and thus is a violation of their human rights. To quote Reaume, ‘[t]o ascribe human dignity to human beings… is to treat human beings as creatures of intrinsic, incomparable, and indelible worth’ without the need for further qualification (2003, p. 675). Therefore, one’s physical or mental ability or merit should not diminish the right to dignity and one’s inherent rights to humanity.
Implicit in human dignity and the inherent value of the human person, is an acknowledgement and acceptance of human diversity and difference (Basser, 2011). This paper will address how a disregard for this notion is very present in relation to people with disabilities or mental illness, and how as a consequence, they are collectively dehumanised – deprived of positive human qualities – and debased through the psychosocial, cultural, medical and legal spheres within which we exist. On many occasions, the rights of the disabled have been violated as they are considered to be non-human and are thus de-righted (Quinn and Arstein-Kerslake, 2012). They are often denied access to jobs, services and education, as is the case when children with disabilities find their choices are limited due to schools’ reluctance or inability to provide adequate support or resources to accommodate the child’s differences.
Lawson writes, ‘[t]raditionally, disability has not been regarded as a human rights issue’ (2006, p. 462), and the characterisation of ‘disability rights’ as a social issue was largely absent from global public, political, or legal debate until the early 1990s (Perlin, 2011). Those with disabilities are commonly objectified, and are considered to be a medical ‘issue’ or problem requiring management, care or control. While people with disabilities, like all people, may need care and medical assistance, it is important to highlight that human rights are relational, and that people live together in society where the extent to which any claim to human dignity can be met will be ‘constrained by the need to give equal concern and respect to other human beings’ (Basser, 2011, p. 21). Article 1 of the Universal Declaration of Human Rights states that ‘All human beings… are endowed with reason and conscience and should act towards one another in the spirit of brotherhood’ (Universal Declaration of Human Rights Article 1), and yet many people with disabilities are denied this very first human right.
The issue of one’s ability to reason is in itself, contentious. Robertson (2012) explains the 19th century ‘rationalist fallacy’ where rights were only thought to belong to those capable of logical thought which excluded ‘women, dogs and lunatics’ from equal and professional life (p. 150). Perlin (2011) endorses this critique and locates it within a modern context, referring to it as ‘Sanism’. Perlin defines sanism as ‘an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes’ such as bigotry based on sex, sexual orientation, race and ethnicity (p. 5). He deepens this definition stating that sanism ‘infect[s] jurisprudence and lawyering practices’ and is based on ‘largely invisible… socially acceptable [prejudices] based predominately on stereotype, myth, superstition, and deindividualization… sustained and perpetuated by our use of a false “ordinary common sense” and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process’ (p.5).
The persons with disabilities most affected by such potential human rights violations are those with intellectual disabilities, mental illness or problems, or those with communicative disabilities, and it was not until 2006 that The Convention on Rights of Persons with Disability was constructed in the hope to provide a guarantee that such persons should have adequate access to community services and facilities. The 1948 Genocide Convention outlawed the attempted destruction of a race or ethnic group, yet Robertson (2012) notes the Convention makes no reference to those judged as ‘feeble-minded’ by the popular 1920s eugenics movement in the United States and United Kingdom (p. 150), a category under which those with disabilities were constituted. In what may be considered a similar vein, the Universal Declaration of Human Rights made no reference to those with disabilities, until the European Convention on Human Rights took hold in 1953. After what the United Nations claims to have been ‘decades of work… to change attitudes and approaches to persons with disabilities’ (United Nations Enable, 2006, para. 2), the urgency of a specific charter was finally met with the adoption of The Convention on the Rights of Persons with Disabilities in December 2006.
Perlin (2011) heeds the United Nations’ notion that society has an obligation to ‘remove the attitudinal and physical barriers to equality and inclusion of people with disabilities’ (p. 4). He considers the extent to which society was blind to the frequent and enduring violations of international human rights law particularly concerning the institutionalisation and legal inequities people with disabilities are so often subject to (2011). Article 12 of The Convention on the Rights of Persons with Disabilities, ‘Equal recognition before the law’ states: ‘persons with disabilities have the right to recognition everywhere as persons before the law’ who are able to ‘enjoy legal capacity on an equal basis with others in all aspects of life’ (The Convention on the Rights of Persons with Disabilities, Article 12). Articles 12.3 and 12.4 refer to involved parties’ duty to ensure appropriate support and safeguards are in place for helping persons with disabilities exercise their legal rights and capacity, and that these structures ‘respect the rights, will and preferences of the person’, while being free from any conflict of interest. Article 12.4 specifically states these measures will be put in place ‘to prevent abuse in accordance with international human rights law’.
Despite this, one of the first interventions denied to a person with a disability is their legal capacity to exercise their moral agency, including and especially, a right against forced treatment and an authority to give or refuse consent to various procedures, medical or otherwise (Quinn and Arstein-Kerslake, 2012). Quinn and Arstein-Kerslake (2012) cite Blackstone’s (1765) naming of this to be effectively a ‘civil death’ (p. 42), where the individual is automatically subject to being treated as ‘less than’ equal to other human beings. Medical or legal decisions are substituted to a third party, much like the protocol observed when caring for a minor. However, unlike when caring for children, it is assumed that these lost or diminished capacities will not return to those with disabilities. Quinn and Arstein-Kerslake (2012) note that ‘[t]here remain many laws, practices and policies throughout the world (including in Europe) that unduly restrict the legal capacity of persons with disabilities to make decisions for themselves’ (p. 43).
A large proportion of human rights violations of persons with disabilities are calculated through medical examinations and protocols. A significant proportion of persons with disabilities will be faced with institutionalisastion, where they are confined against their will, as a result of a ‘negative’ medical analysis that has deemed them to be somehow unfit to look after themselves. Perlin notes that despite formerly hospitalised individuals and their supporters taking an active role in advocating for mental health reform, ‘there is little evidence that these groups are taken seriously either by lawyers or academics’ (Perlin, 2003, pp. 699–700). Thus, routinely, persons with disabilities are deprived of their freedom, dignity and basic human rights in violation of Article 14.1b of The Convention on the Rights of Persons that states that ‘the existence of a disability shall in no case justify a deprivation of liberty’.
Article 5 of The Universal Declaration of Human Rights condemns torture, including ‘inhuman or degrading treatment or punishment’. However, as mentioned above, persons with disabilities are sometimes considered to be ‘inhuman’ themselves and are consequently placed in situations of restraint or seclusion undermining their worthiness and human rights. In early 2013, United Nations’ torture Special Rapporteur, Juan E. Méndez, stated that torture is the ‘most serious violation of the human right to personal integrity and dignity’, where the victim is thought of as powerless, is deprived of their legal capacity, their liberty, and is ‘under the total control of another person’ (Méndez, 2013, p. 7). He called for ‘an absolute ban on all coercive and non-consensual measures, including restraint and solitary confinement of people with psychological or intellectual disabilities … in all places of deprivation of liberty, including in psychiatric and social care institutions’ (McSherry, para. 3).
The General Assembly of the United Nations adopted Principles for the Protection of Persons with Mental Illness and for the improvement of Mental Health Care in 1991. Principle 9.1 mandates patients be treated in the ‘least restrictive environment’ and Principle 9.2 states that treatment shall always be ‘directed towards preserving and enhancing personal autonomy’. This, however, becomes more complex in relation to Principle 11 that deals with consent to treatment. Richardson (2011) notes standards published by the Committee for the Prevention of Torture in 2004, of which paragraph 4 states ‘[t]he admission of a person to a psychiatric establishment should not be construed as authorizing treatment without his consent’ except in the cases of involuntary admissions were the person’s condition poses significant risk to their own health or to others’ (p. 140). It is imperative to remember here, that persons with disabilities or mental health problems must be considered to have the capacity or potential to make a full recovery, or to return to a place of stability in which they could regain greater agency and personal control. Richardson (2011) also highlights that ‘the intensity of some mental disorders can vary over time and a patient’s level of competence may fluctuate over the course of the disorder and its treatment’ (p. 152). Throughout treatment, whether voluntary or involuntary, the patient is to be respected and treated with dignity, and as an equal before the law. Under no circumstance should the person be dehumanised, exploited or coerced. If any of the aforementioned was to occur, the individual’s fundamental human rights will have been violated.
Ultimately, The Convention on the Rights of Persons with Disabilities seeks to reverse disadvantage faced by people with disabilities through ‘empowering rather than a constraining approach to human dignity’ (Richardson, 2011, p. 155). At present, United Nations’ Secretary-General Ban Ki-moon is calling on the 134 states that have ratified the Convention to ‘energize the international community to move from commitment to action [giving] greater recognition… to the issue of disability in sustainable, inclusive and equitable development’ (UN News Centre, para. 3). People with disabilities make up nearly 15 per cent of the world’s population (UN News Centre, para. 4), and are considered to be the ‘world’s largest minority’ (Perlin, 2011, p. 14). Fortunately, there are many established organisations and foundations worldwide seeking progress and activity surrounding disability and human rights. One such organisation is the World Network of Users and Survivors of Psychiatry, that recognises the need for care and communication continues post-active treatment. Similarly, there is an International Day of Persons with Disabilities, as well as efforts by the United Nations to mainstream disability and recognise the inclusion of disability into the Millennium Development Goals as integral to their prevailing success.
People with disabilities must be given the opportunity to prosper and exercise their legal capacities through consolidated support from the global network. Sanism, discrimination and questionable treatment of persons with a disability are all undeniable indicators of potential human rights violations. It is those who are most vulnerable who face continuous denials of their agency, control and worthiness, yet they are as human and as equal, as individuals living free from disability.
Basser, L A 2011, ‘Human Dignity’, in Critical Perspectives on Human Rights and Disability Law, Martinus Nijhoff Publishers, Leiden, pp. 17-36.
European Court of Human Rights, 1953, European Convention on Human Rights, European Court of Human Rights, viewed 22 September 2013, http://www.echr.coe.int/Documents/Convention_ENG.pdf.
Lawson, A 2008, ‘People with psychosocial impairments or conditions, reasonable accommodation and the Convention on the Rights of Persons with Disabilities, in Law in Context, vol. 26, pp. 62-84.
McSherry, B 2013, ‘Targeting isolation and restraint in mental health facilities’, The Conversation, 9 September, viewed 22 September 2013, http://theconversation.com/targeting-isolation-and-restraint-in-mental-health-facilities-16519?utm_medium=email&utm_campaign=Latest+from+The+Conversation+for+10+September+2013&utm_content=Latest+from+The+Conversation+for+10+September+2013+CID_a1e59d76a2229c3e1581ca325f634a89&utm_source=campaign_monitor&utm_term=Targeting%20isolation%20and%20restraint%20in%20mental%20health%20facilities.
Méndez, J 2013, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, United Nations, viewed 22 September 2013, http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A.HRC.22.53_English.pdf.
Perlin, M 2003, ‘You have discussed lepers and crooks: Sanism in clinical teaching’, in Clinical Law Review, vol. 9, pp. 683-729.
Office of the High Commissioner for Human Rights, 1991, Principles for the Protection of Persons with Mental Illness and for the improvement of Mental Health Care, United Nations, viewed 22 September 2013, http://www.equalrightstrust.org/ertdocumentbank/UN_Resolution_on_protection_of_persons_with_mental_illness.pdf.
Quinn, G & Arstein-Kerslake, A 2012, ‘Restoring the ‘human’ in ‘human rights’: personhood and doctrinal innovation in the UN disability convention’, in Human Rights Law, Cambridge University Press, Cambridge, pp. 36-55.
Reaume, D 2003, ‘Discrimination and Dignity’, in Louisiana Law Review, vol. 63, no. 3, pp. 645-696.
Robertson, G 2012, Crimes Against Humanity, 4th edn, Penguin Group, London.
United Nations, 1948, Genocide Convention, United Nations, viewed 22 September 2013, http://www.hrweb.org/legal/genocide.html.
United Nations, 1948, Universal Declaration of Human Rights, United Nations, viewed 22 September 2013, http://www.un.org/en/documents/udhr/index.shtml.
United Nations, 2006, The Convention on Rights of Persons with Disability, United Nations, viewed 22 September 2013, http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf.
United Nations News Centre 2013, Countries must increase commitment to rights of persons with disabilities – UN chief, media release, United Nations, Spain, 9 September, http://www.un.org/apps/news/story.asp?NewsID=45800&Cr=disability&Cr1=#.Uj0YkBZ7m0u.