Disability Human Rights Law

Disability Human Rights Law is an emerging field. It is an amalgamation of human rights law, disability studies, and disability rights law. It views rights in a novel way, opening a new line of scholarly inquiry. It sees rights as they apply to the individual, with regard to the individual’s particular abilities, needs, and circumstances. Disability Human Rights Law represents a shift in the field of human rights. The traditional, and often archaic, rights boundaries are broken down. Civil and political rights exist entwined with social, economic, and cultural rights. The rights of the community and the rights of the individual are not always distinguishable and are often dependent upon one another. The Convention on the Rights of Persons with Disabilities (CRPD) is the epitome of this shift and the epicenter of a new wave of rights protection. This book focuses on this new field. The aim of the book is to begin to explore the potential of Disability Human Rights Law to transform modern human rights law

Disability Human Rights Clinics as a model for teaching Participatory International Human Rights Lawyering

The Disability Human Rights Clinic (DHRC) was established at Melbourne Law School, the University of Melbourne, in 2015.  Its supervisors and students conduct legislative and policy reform projects as well as strategic litigation. The DHRC was created by Anna Arstein-Kerslake to address a significant lack of resources in community-based organisations to undertake in-depth legal analysis. It uses an innovative model of clinical legal education to harness the skills of law students to fill that gap and to expose a new generation of lawyers to the emerging field of disability human rights law. In this article, we draw on our experiences running the DHRC to argue that the model it establishes can create significant scholarly output in the human rights field, direct engagement with the community, and rich doctrinal and experiential learning for students

Criminalisation of Sex with Disabled People with Cognitive Impairments in Commonwealth Countries: A Colonial Remnant that Interferes with the Human Right to Sexual Agency

Sexual offence laws in many Commonwealth jurisdictions criminalise sexual activity with disabled people with cognitive impairments. Many of these laws were created with the intent to protect disabled people with cognitive impairments from sexual abuse. However, they often preclude the possibility for the individual to consent to sexual activity. This preclusion from consenting to sex has the potential to create significant hardship for disabled people with cognitive impairments. It can create barriers to sexual expression and romantic relationships. In addition, it may interfere with the right of disabled people with cognitive impairments to sexual agency, which is protected as part of the right to legal capacity in Article 12 of the 2006 United Nations Convention on the Rights of Persons with Disabilities (CRPD). Many of these sexual offence laws are either colonial remnants or may be a product of colonial influence. Many of the most restrictive laws date back to colonial rule and bear remarkable similarity to laws in the United Kingdom (UK) around the time of colonisation. The UK has since enacted reform in this area and has less restrictive laws. However, even these reformed laws often present barriers to the recognition of sexual consent from disabled people with cognitive impairments. This article reviews sexual offence laws across Commonwealth jurisdictions and analyses their compliance with Article 12 of the CRPD. It identifies a potential need to reform antiquated laws that appear to be a remnant of colonial rule and more modern laws that may continue to create barriers to sexual expression and romantic relationships for disabled people with cognitive impairments

Restoring voice to people: realizing the right to equal recognition before the law of people with Cognitive Disabilities

This thesis examines the right to equal recognition before the law guaranteed in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). It begins by providing definitions and explanations of the rights and states obligations in Article 12, including: the right to equal recognition as a person before the law; the right to legal capacity on an equal basis; and the state obligation to provide access to support for the exercise of legal capacity. It incorporates an analysis of personhood from both a legal and philosophical perspective. Legal capacity law is analysed as a tool for the regulation of personhood of individuals with cognitive disabilities. Parallels are drawn with recent debates in moral philosophy as to whether people with cognitive disabilities are included in theories of personhood. The thesis argues that people with cognitive disabilities can and should be granted full personhood, both in theory and through legal structures. The rights and states obligations in Article 12 are applied to specific jurisdictional examples. It also examines capacity to consent to sex as a discrete area of the law in which the right to legal capacity on an equal basis is routinely denied and can have a profound impact on the most private areas of an individual\u27s life. It examines the use of support for the exercise of legal capacity, as outlined in Article 12(3). It addresses the nature of a support relationship and highlights potential dangers and the need for safeguards. It also analyses the demands of Article 12(3) and provides potential solutions to the \u27hard cases\u27 where individuals are non-communicative or experiencing other barriers to the exercise of their legal capacity. Finally, the thesis outlines the pragmatics of change, describing the nuts and bolts of implementing Article 12. Recommendations are provided for individuals, states, and civil society for the realization of the right to equal recognition before the law of people with cognitive disabilities

Disability Human Rights Law 2018

Disability human rights law is a rapidly growing field. It merges critical disability studies, disability rights, and human rights to inform, identify, analyse, and create solutions to help protect the human rights of people with disabilities. This is the second volume of the Disability Human Rights Law edited collection. This volume delves deeper into this emerging field and begins to explore what human rights law means for people with disabilities, as well as what innovations people with disabilities are bringing to the field of human rights law

The right to legal agency: domination, disability and the protections of Article 12 of the Convention on the Rights of Persons with Disabilities

Article 12 of the Convention on the Rights of Persons with Disabilities has created a revolution in legal-capacity law reform. It protects the right to exercise legal agency for people with disabilities with more clarity than any prior human rights instrument. This paper explores what constitutes an exercise of legal agency and what exactly Article 12 protects. It proposes a definition of legal agency and applies it to the lived experience of cognitive disability. It also uses a republican theory of domination to argue that people with cognitive disabilities who are experiencing domination are forced to assert legal agency in even daily decision-making because of the high level of external regulation of their lives and the ever-present threat of others substituting their decision-making. It identifies Article 12 as a tool for protecting such exertions of legal agency and curtailing relationships of domination

State intervention in the lives of people with disabilities: the case for a disability-neutral framework

People with disabilities continue to experience a disproportionately high level of state intervention in their private lives. Many disabled people\u27s organisations have long sought to challenge this discriminatory approach and, in recent times, have relied upon the provisions of the UN Convention on the Rights of Persons with Disabilities in support of their claims. In this paper, we argue for the abolition of disability-specific legal bases for state intervention in the private lives of adults. We also argue for the introduction of a narrower disability-neutral legislative framework for state intervention in the lives of all adults - based on risk of imminent and serious harm to the individual\u27s life, health or safety, while providing greater respect for the person\u27s legal capacity as expressed through her will and preferences