Reversing hard won victories in the name of human rights: a critique of the General Comment on Article 12 of the UN Convention on the Rights of Persons with Disabilities

Some Parents Are More Equal than Others: Discrimination against People with Disabilities under Adoption Law

“…Despite a plethora of instruments explicitly naming other minority groups and granting them affirmative protections, such affirmative protections were virtually inexistent for people with disabilities 5 (art 25 of the Universal Declaration of Human Rights (1948) was an exception to this, yet even then it only guaranteed an 'adequate' standard of living for people with a 'disability'). While broad-brush instruments like the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights purported to prevent discrimination against any person (including people with disabilities) 6 , these generic instruments ultimately failed to generate the kind of protections that people with disabilities were asking for and desperately needed (Freeman et al 2015;Kayess and French 2008).…”

“…It goes beyond a mere anti-discrimination treaty: it creates new state obligations-both positive and negative-which were absent from any prior treaty. Further, the CRPD is binding on all signatories (as at the time of writing, there are 160, including Australia) and includes an international monitoring mechanism: the Committee on the Rights of Persons with Disabilities (the Committee) (Freeman et al 2015). The CRPD represented the first real pan-national attempt to protect the rights of people with disabilities, and explicitly enshrined the social model of disability in its interpretive principles (see Part B) (Goodley 2011;Kayess and French 2008 The CRPD's legitimacy as a benchmark flows not just from its passage as a United Nations General Resolution, but also from the method of its construction and implementation.…”

The World Psychiatric Association’s “Bill of Rights”: A curious contribution to human rights

“…However, it excises many rights that are more challenging to psychiatry. It does so in the face of a range of publications (by lawyers, clinicians, social scientists, philosophers, mental health service users, and diverse advocacy groups) that interrogate the relationship between international human rights law and psychiatric practice and that offer potential ways forward in relation to the new legal and ethical landscape opened by the CRPD [15][16][17][18][19][20][21][22][23][24][25][26][27]. Through these excisions, the Bill seeks to maintain an aspiration for a "lower ideological temperature" that is less likely to inflame some of its national associations.…”

No longer 'anomalous, confusing and unjust': the Mental Capacity Act (Northern Ireland) 2016

“…1 on article 12 of the Convention on Equal Recognition before the Law (2014) 22 , the debate shifted with increasing questioning of the substantive compatibility of the Bill with the approach of the Convention and thus with human rights standards. However, the literature also contains cogent arguments which see great difficulties in the interpretation of the Convention being put forward by the Committee and suggestions that a more realistic approach is needed (Freeman et al, 2015;Dawson, 2015).…”