Disability human rights

California Law Review

Volumn 95, Issue 1, 2007, Pages 75-121

  Stein, Michael Ashley ^a  

^a The College of William and Mary

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EID: 33947694735     PISSN: 00081221     EISSN: None     Source Type: Journal    
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References (303)

1. GERARD QUINN ET AL., HUMAN RIGHTS AND DISABILITY 1 (2002), available at http://www.nhri.net/pdf/ disability.pdf.
2. See THE SECOND ANNUAL REPORT ON THE IMPLEMENTATION OF USAID DISABILITY POLICY 1-2 (2000), http://pdf.dec.org/pdf_docs/PDABT610.pdf.
3. For a sense of how the varying levels of disability are reported from country to country, see Statistics Div., U.N. Dep't of Econs. & Soc. Affairs, Human Functioning and Disability, available at http://unstats.un.org/unsd/demographic/sconcerns/disability/default.htm(last visited Aug. 13, 2006).
4. See QUINN ET AL., supra note 1, at 1.
5. Although the proposed convention is an expedient framework for discussing the repercussions of incorporating disability-based rights into the extant body of human rights treaties, my arguments do not depend on its passage. At the same time, I freely admit that I favor enactment of the proposed convention, and, moreover, that I am privileged to have been involved in its development.
6. Strictly speaking, the capabilities approach originates with Amartya Sen's development economics theories. See, e.g., AMARTYA K. SEN, DEVELOPMENT AS CAPABILITY EXPANSION, IN HUMAN DEVELOPMENT AND THE INTERNATIONAL DEVELOPMENT STRATEGY FOR THE 1990s 1 (Keith Griffin & John Knight eds., 1990) [hereinafter SEN, DEVELOPMENT AS CAPABILITY EXPANSION]. The premises proffered, by Nussbaum and Sen, respectively, provide essential support for arguments made in this Article. In Parts III.B-C, I build on - and strongly critique - Nussbaum's version to help model a framework for human rights because I find her feminist perspective conducive to disability rights discourse. I utilize Sen's economic methodology primarily in Part IV.B. to argue in favor of extending human rights protection to the poor because of its deeper link to development economics.
7. By logical extension Nussbaum's capabilities approach also excludes some individuals with non-intellectual disabilities as well as certain lower functioning individuals without disabilities. A full discussion exceeds the boundaries of this Article.
8. Isaiah Berlin, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY 118, 122 (1958) (declaiming that authentic liberty is simply the absence of "the deliberate interference of other human beings within the area in which I could otherwise act").
9. See, e.g., International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), art. 6, para. 1, U.N. GAOR, Supp. No. 16, U.N. Doc. A/6316 (Dec. 16, 1966) ("Every human being has the inherent right to life.") [hereinafter ICCPR]; ICCPR, supra, art. 9, para. 1 ("Everyone has the right to liberty and security of person."); ICCPR, supra, art. 12, para. 1 ("Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence."); ICCPR, supra, art. 18, para. 1 ("Everyone shall have the right to freedom of thought, conscience and religion.").
10. See, e.g., International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), art. 11, para. 1, U.N. GAOR, Supp. No. 16, U.N. Doc. A/6316, 993 U.N.T.S. 3 (Dec. 16, 1966) ("States parties . . . recognize the right of everyone to an adequate standard of living") [hereinafter 1CESCR]; Berlin, supra note 7, at 123 (defining positive liberty as the result of self-reliance and the ability to direct one's own agency).
11. It is significant that development agencies have only more recently embraced first-generation rights. Human rights scholars have long criticized these entities for neglecting human rights to focus exclusively on subsistence issues, meaning food and clean water. See, e.g., Philip Alston, The Fortieth Anniversary of the Universal Declaration of Human Rights, in HUMAN RIGHTS IN A PLURALIST WORLD 1, 11-12 (J. Berting et al. eds., 1990).
12. A notable exception is THE HUMAN RIGHTS OF PERSONS WITH INTELLECTUAL DISABILITIES: DIFFERENT BUT EQUAL (Stanley S. Herr et al. eds., 2003) (publishing the proceedings of a 1995 conference convened at Yale Law School) [hereinafter DIFFERENT BUT EQUAL].
13. The only comparable analysis I am aware of is Pamela S. Karlan & George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 DUKE L.J. 1 (1996), which sought to extend Americans with Disabilities Act reasonable workplace accommodations to members of constitutionally protected classes.
14. Whether treaties are actually enforced, as well as the broader question of whether international law is "law," has long been the subject of academic debate, the resolution of which goes far beyond this Article. For now it bears noting that perhaps the most significant objection to the notion of enforceability is the observation that under international law States parties retain the ability to opt out of treaties, in whole or in part, as well as to reserve independent understandings of their application. For two very different perspectives on the implications of this State prerogative, compare Oona A. Hathaway, The Cost of Commitment, 55 STAN. L. REV. 1821 (2003) (maintaining that traditional understandings of treaty ratification do not adequately account for the likelihood of national compliance)
15. and Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L.J. 1935 (2002) (asserting that some number of States ratify human rights treaties as a means of avoiding observance),
16. with Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International Human Rights Law, 54 DUKE L.J. 621 (2004) (arguing that international human rights treaties encourage domestic legal norm changes) [hereinafter Goodman & Jinks, How to Influence States],
17. and Ryan Goodman & Derek Jinks, Measuring the Effects of Human Rights Treaties, 13 EURO. J. INT'L. L.171 (2003) (same, while also critiquing the empirical evidence upon which Hathaway based her conclusions).
18. For a harmonizing approach, see Alex Geisinger & Michael Ashley Stein, A Theory of Expressive International Law, 60 VAND. L. REV. (forthcoming 2007).
19. Similarly, disabled persons are not explicitly included in non-treaty United Nations instruments. For example, both the Charter of the United Nations and the Universal Declaration of Human Rights promote human rights, but neither expressly references disability. See, e.g., U.N. CHARTER art. 55, para C. (expressing an aspiration to promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion"); Universal Declaration of Human Rights, G.A. Res. 217A (III), arts. 1-2, U.N. GAOR, 3d Sess., U.N. Doc. A/810 (Dec. 12, 1948) (proclaiming that "all human beings are born free and equal in dignity and rights" and are "entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.") [hereinafter Universal Declaration].
20. See Office of the High Comm'r for Human Rights, Fact Sheet No. 2 (Rev. I): International Bill of Human Rights, http://www.unhchr.ch/html/ menu6/2/fs2.htm (the International Bill of Human Rights is a collection of international instruments, including the Universal Declaration, ICCPR, ICESR, and two Optional Protocols).
21. ICCPR, supra note 8.
22. ICESCR, supra note 9.
23. See, e.g., ICCPR, supra note 8, at pmbl. (averring that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world"); ICESCR supra note 9, at art. 2, para. 2 (the rights enumerated in the ICESCR "will be exercised without discrimination of any kind as to race, colour... or other status").
24. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, at 197, U.N. GAOR, 39th Sess., Annex, Supp. No. 51, U.N. Doc. A/39/51 (Dec. 10, 1984) [hereinafter CAT].
25. See generally Gerard Quinn, The International Covenant on Civil and Political Rights and Disability: A Conceptual Framework, in HUMAN RIGHTS AND DISABLED PERSONS 69 (Theresia Degener & Yolan Koster-Dreese eds., 1995) [hereinafter HUMAN RIGHTS AND DISABLED PERSONS];
26. Philip Alston, Disability and the International Covenant on Economic, Social, and Cultural Rights, in HUMAN RIGHTS AND DISABLED PERSONS, supra, at 94;
27. Manfred Nowak & Walter Suntinger, The Right of Disabled People Not to be Subjected to Torture, Inhuman and Degrading Treatment or Punishment, in HUMAN RIGHTS AND DISABLED PERSONS, supra, at 117.
28. These provisions are a mixed blessing. On the positive side, they provide an additional avenue of protection for disabled persons experiencing "double discrimination" based on more than one identity characteristic. For example, a person may suffer prejudice as a result of being disabled and of Inuit heritage. On the negative side, they only protect individuals who encounter discrimination serially. Because disability is almost uniformly relegated to "other" status, disabled people's rights are frequently overlooked. One example of such disregard is the Declaration that proceeded from the 2001 World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance that was convened in Durban, South Africa. See World Conference Against Racism, Racial Discrimination, Xenophobia & Related Intolerance, Aug. 31-Sept. 8, 2001, Durban Declaration and Programme of Action, U.N. Doc. No. A/CONF.189/12, available at http://www.unhchr.ch/pdf/Durban.pdf. Although the Declaration encourages the General Assembly to enact disability specific human rights protection, it does not include disability among the otherwise inclusive catalog of identity statuses it deemed to suffer discrimination. See id. at para. 180. More trenchantly, individuals whose rights are violated "solely" due to their disability identity receive no added protection.
29. International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX), at 47, U.N. GAOR, Supp. No. 14, U.N. Doc. A/6014 (Dec. 12, 1965) [hereinafter ICERD];
30. see generally Theodor Meron, The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination, 79 AM. J. INT'L L. 283 (1985).
31. Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, at 193, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/34/46 (Dec. 17, 1979) [hereinafter CEDAW].
32. Convention on the Rights of the Child, G.A. Res. 44/25, at 166, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49 (Nov. 20, 1989) [hereinafter CRC].
33. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. Res. 45/158, at 261, U.N. GAOR, 45th Sess., Supp. No. 49, U.N. Doc. A/45/49 (Dec. 18, 1990) [hereinafter ICPMW].
34. CRC, supra note 24, at art. 23, para. 1.
35. See CRC, supra note 24, at art. 23, paras. 1-3 ("[T]he disabled child has effective access to and receives education, training. . . preparataion for employment and recreational opportunities in a manner conducive to the child's receiving the fullest possible social integration and individual development."). The equality of disabled children has, however, been emphasized by the United Nations Commission on Human Rights. See, e.g., U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Rights of the Child, para. 22, U.N. Doc. E/CN.4/RES/2001/75 (Apr. 25, 2001);
36. U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Rights of the Child, para. 29, U.N. Doc. E/CN.4/RES/2000/85 (Apr. 27, 2000);
37. see generally Thomas Hammarberg, The Rights of Disabled Children - The UN Convention on the Rights of the Child, in HUMAN RIGHTS AND DISABLED PERSONS, supra note 20, at 147.
38. See LEANDRO DESPOUY, REPORT ON HUMAN RIGHTS AND DISABLED PERSONS paras. 280-81 (1993), available at http://www.un.org/esa/socdev/enable/ dispaperdes0.htm (noting that "persons with disabilities are going to find themselves in a legal disadvantage in relation to other vulnerable groups" because "unlike the other vulnerable groups, they do not have an international control body to provide them with particular and specific protection").
39. The ICESCR, the CRC, and the ICPRAMW do not allow the assertion of individual complaints. Individual complaints can be brought under the ICCPR, the CAT, the CEDAW, or the ICERD. The website maintained by the office of the High Commissioner for Human Rights contains detailed information on the operation of the United Nations human rights treaty bodies. See Office of the U.N. High Comm'r for Human Rights, http://www.unhchr.ch (last visited Sept. 26, 2006). The decisions of the three relevant monitoring committees can be accessed through the Netherlands Institute of Human Rights web page.
40. See Neth. Inst. of Human Rights, Welcome to the Sim Documentation Site, http://sim.law.uu.nl/sim/Dochome.nsf (under case law) (last visited Oct. 6, 2006).
41. An overview of the basic documentation is maintained by a special unit of the Division for Social Policy and Development from the United Nations Department of Economic and Social Affairs. See United Nations Enable Webpage, www.un.org/esa/socdev/enable.
42. International Year of Disabled Persons, G.A. Res. 36/77, at 176, U.N. GAOR, 36th Sess., Supp. No. 77, U.N. Doc. A/RES/36/77 (Dec. 8, 1981).
43. Implementation of the World Programme of Action Concerning Disabled Persons, G.A. Res. 37/53, at 186-87, para. 11, U.N. GAOR, 37th Sess., Supp. No. 53, U.N. Doc. A/RES/37/53 (Dec. 3, 1982).
44. Declaration on the Rights of Mentally Retarded Persons, G.A. Res. 2856 (XXVI), at 93, U.N. GAOR, Supp. No. 29, U.N. Doc. A/8429 (Dec. 20, 1971).
45. Declaration on the Rights of Disabled Persons, G.A. Res. 3447 (XXX), at 88, U.N. GAOR, Supp. No. 34, U.N. Doc. A/10034 (Dec. 9, 1975).
46. World Programme of Action Concerning Disabled Persons, G.A. Res. 37/52, at 185, U.N. GAOR, 37th Sess., Supp. No. 51, U.N. Doc. A/RES/37/52 (Dec. 3, 1982) [hereinafter World Programme].
47. Standard Rules on the Equalization of Opportunities for Persons With Disabilities, G.A. Res. 48/96, at 202, U.N. GAOR, 48th Sess, Supp. No. 49, U.N. Doc. A/RES/48/96 (Dec. 20, 1993) [hereinafter Standard Rules].
48. The first Special Rapporteur for Disability, Bengt Lindquivist of Sweden, was appointed in 1994, and had his commission renewed in 1997 and in 2000. See United Nations Enable, The Special Rapporteur on Disability of the Commission for Social Development, http://www.un.org/esa/socdev/enable/ rapporteur.htm (last visited Oct. 6, 2006). The current Special Rapporteur for Disability is Sheikha Hissa Al Thani of Qatar. Id.
49. For an insider's perspective on the role of the Special Rapporteur, see Bengt Lindqvist, Standard Rules in the Disability Field - A New United Nations Instrument, in HUMAN RIGHTS AND DISABLED PERSONS, supra note 20, at 63.
50. See, e.g., The Protection of Human Rights in the Context of Human Immunodeficiency Virus (HIV) and Acquired Immunodeficiency Syndrome (AIDS), U.N.C.H.R. Res. 1997/33, U.N. ESCOR, 53rd Sess., U.N. Doc. E/CN.4/1997/150 (Apr. 11, 1997); The Protection of Persons with Mental Illnesses and the Improvement of Mental Health Care, G.A. Res. 46/119, at 188, U.N. GAOR, 46th Sess., Supp. No. 49, U.N. Doc. A/46/49 (Dec. 17, 1991).
51. Notably, in 1987, Italy proffered a convention draft during the forty-second session of the General Assembly. See U.N. GAOR, 42d Sess., 16th mtg., U.N. Doc. A/C.3/42/SR.16 (Oct. 19, 1987). Sweden did the same two years later at the General Assembly's forty-fourth session. See U.N. GAOR, 44th Sess., 16th mtg., U.N. Doc. A/C.3/44/SR.16 (Oct. 24, 1989).
52. Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, G.A. Res. 56/168, U.N GAOR, 56th Sess., Supp. No. 168, U.N. Doc. A/RES/56/168 (Dec. 19, 2001). A detailed description of the political process behind the United Nations decision to go forward with a disability human rights convention is set forth in the (United States) National Council on Disability (NCD), Newsroom, UN Disability Convention - Topics at a Glance: History of the Process, http://www.ncd.gov/newsroom/publications/2003/history_process.htm (last visited Oct. 3, 2006).
53. Ad Hoc Comm. on a Comprehensive and Integral International Convention on the Prot. & Promotion of the Rights & Dignity of Pers. with Disabilities, Report of the Working Group to the Ad Hoc Committee, para. 1, U.N. Doc. A/AC.265/2004/WG.1 (Jan. 27, 2004). The working group included twelve nongovernmental organizations ("NGOs"). See id. at para. 2. The inclusion of NGOs at this stage was unprecedented in the normal course of treaty development at the United Nations, and can be interpreted as acquiescence to NGOs' assertion of "nothing about us without us." Nonetheless, a countersignal was also sent to the disability community by locating the working group in New York - the location of United Nations expertise on soft laws - rather than in Geneva, where core human rights treaties are deliberated.
54. See Ad Hoc Comm. on a Comprehensive and Integral International Convention on the Prot. & Promotion of the Rights & Dignity of Pers. with Disabilities, Draft Convention on the Rights of Persons with Disabilities and Draft Optional Protocol (2006), available at http://www.un.org/esa/socdev/enable/rights/ahc8adart.htm [hereinafter Draft Articles].
55. Id. at pmbl., para. d.
56. Id. at Article 1. The Draft Articles state this goal is to be brought about through the use of "international cooperation." Id. at para. j; see also CRC, supra note 24, at annex, pmbl. ("[r]ecognizing the importance of international co-operation"); CEDAW, supra note 23, at 194 ("[a]ffirming that the strengthening of . . . mutual cooperation among all States" is necessary for effectuation).
57. Draft Articles, supra note 42, at pmbl. (1), (k), (a).
58. Among the first- and second-generation rights enumerated are: rights to life, equality, expression, privacy, education, employment, health, habilitation and rehabilitation, social benefits, political and social participation, access to public venues, mobility independence, recreation, as well as freedom from discrimination, torture and abuse. Id. at arts. 10, 12, 21, 22, 24, 27, 25, 26, 28, 29, 30, 9, 18, 30, 15-16. For a discussion of how these rights intersect and are harmonious with the capabilities approach, see infra Part III.B.
59. Draft Articles, supra note 42, at pmbl., para, c ("Reaffirming the universality, indivisibility and interdependence of all human rights and fundamental freedoms . . . .") (emphasis omitted).
60. See id. at art. 31 ("States parties undertake to collect appropriate information, including statistical and research data."); id. at art. 33 (States parties are responsible for establishing systems for monitoring implementation).
61. See id. at art. 4, para. B; art. 33.
62. See id. at art. 8. These measures include instigating "public awareness campaigns," mainstreaming public education, and "encouraging" positive images of the disabled in the mass media. Id. at art. 8, para. 2 (a)-(c).
63. Draft Articles, supra note 42, at art. 34.
64. See id. at art. 2 (definitions).
65. Specifically, to secure broad support in the General Assembly, several of the Working Group members believed these definitions should be purposely left vague so that States parties could interpret them according to their own legal and social cultures. Put another way, there was strong feeling among the participating government bodies that human rights enforcement is chiefly a local issue. As related in the NCD newsroom, the United States took an even more removed position, asserting that the matter of disability-related rights, in any form, was a "largely domestic mission" that individual states ought to pursue on their own initiatives. See Nat'l Council on Disability (NCD) Newsroom, supra note 40 (quoting Ralph Boyd, former U.S. Assistant Attorney General for Civil Rights). For that reason, the United States rarely participated in the convention process and does not intend to ratify any resultant instrument. See id. (U.S. would "'participate in order to share our experiences . . . [but] not with the expectatoin that we [the U.S.] will become party to any resulting legal instrument.").
66. See Draft Articles, supra note 42, at art. 2.
67. See generally Kenny Fries, Introduction, in STARING BACK: THE DISABILITY EXPERIENCE FROM THE INSIDE OUT 6-7 (Kenny Fries ed., 1997) (noting that "[the medical] view of disability . . . puts the blame squarely on the individual");
68. CLAIRE H. LIACHOWITZ, DISABILITY AS A SOCIAL CONSTRUCT (1988) ([T]he "medical/pathological paradigm" of disability stigmatizes the disabled by conditioning their inclusion only "on the terms of the able bodied majority.").
69. Disability studies is an academic discipline analogous to that of critical race or feminist theory, with dedicated university departments. See Gary L. Albrecht et al., Introduction: The Formation of Disability Studies, in HANDBOOK OF DISABILITY STUDIES 1, 1-8 (GARY L. ALBRECT et al. eds., 2001).
70. See generally Richard K. Scotch & Kay Schriner, Disability as Human Variation: Implications for Policy, 549 ANNALS AAPSS 148 (1997).
71. See Harlan Hahn, Feminist Perspectives, Disability, Sexuality and Law: New Issues and Agendas, 4. S. CAL. REV. L. & WOMEN'S STUD. 97 (1995);
72. Ron Amundson, Disability, Handicap, and the Environment, 23 J. SOC. PHIL. 105 (1992). The framework derives from both British and American disability rights scholars, although the latter have written more extensively on the legal implications of the model. Some scholars credit Michael Oliver with orginating the social model theory.
73. See MICHAEL OLIVER, SOCIAL WORK WITH DISABLED PEOPLE 23 (1983) (the social model is "nothing more fundamental than a switch away from focusing on the physical limitations of particular individuals to the way the physical and social environments impose limitations on certain groups or categories of people"). Political scientist Jacobus tenBroek made an early contribution to the development of the social model of disability in his classic article.
74. See Jacobus tenBroek, The Right to Live in the World: The Disabled in the Law of Torts, 54 CALIF. L. REV. 841, 842 (1966) (demonstrating how people with disabilities were historically held to higher duties of care in respect to the law of torts because they were perceived as inherently less able to engage in social functions).
75. See, e.g., THE ETHNOGRAPHY OF MALINOWSKI: THE TROBRIAND ISLANDS 1915-18 111, 128-31 (Michael W. Young ed., 1979) (the Trobriand society is a matrilineal society, believing that fathers have "nothing to do with the formation of [their child's] body," and that all lineage passes through the mother's side of the family);
76. ROBERT BRIFFAULT, THE MOTHERS: THE MATRIARCHAL THEORY OF SOCIAL ORIGINS 194-95 (1931) (classifying various American Indian tribes, such as the Navajo and Cheyenne, as matriarchal).
77. See, e.g., Jerome E. Bickenbach, Disability Human Rights, Law, and Policy, in HANDBOOK OF DISABILITY STUDIES supra note 56, at 565, 567 (noting the commonly held assumption that "[disability is an abnormality, a lack, and a limitation of capacity"). The results of a recent study of prevailing attitudes towards individuals with intellectual disabilities across ten very different countries reflect this misperception.
78. See MULTINATIONAL STUDY OF ATTITUDES TOWARD INDIVIDUALS WITH INTELLECTUAL DISABILITIES: GENERAL FINDING AND CALLS TO ACTION (2003), available at http://www.soill.org/pdfs/ multinational_study.pdf. However, a minority of cultures believe people with disabilities are especially capable of various functions. In certain Asian countries - for example China - visually-impaired people are frequently trained and valued as masseuses. Moreover, it is illegal for those with ordinary vision to be employed as a masseuse in Taiwan.
79. See DPP City Councilors Say Lein Received Sighted Massage, TAIPEI TIMES, Sept. 27, 2003, at 3, available at http://www.taipeitimes.com/News/taiwan/archives/2003/09/27/2003069422. Indeed, there are social anthropologists who claim that the notion of "disability," at least as a negative concept, is Western in origin and remains unknown to certain cultures, including some African societies.
80. See, e.g., Aud Talle, A Child is a Child: Disability and Equality among the Kenya Maasai, in DISABILITY AND CULTURE 56 (Benedicte Ingstad & Susan Reynolds Whyte eds., 1995);
81. Benedicte Ingstad, Mphoya Modimo - A Gift from God: Perspectives on "Attitudes" Toward Disabled Persons, in DISABILITY AND CULTURE, supra, at 246.
82. Philosopher Anita Silvers provides an eloquent application of the social model of disability to the accommodations required by the Americans with Disabilities Act (ADA), and her underlying theory applies equally well to the statute's international progeny. ANITA SILVERS, Formal Justice, in DISABILITY, DIFFERENCE, D ISCRIMINATION: PERSPECTIVES ON JUSTICE IN BIOETHICS AND PUBLIC POLICY 13 (Anita Silvers et al. eds., 1998). She argues that being physiologically anomalous is viewed as abnormal only because a dominant group imposed conditions favorable to its own circumstances, and not because of "any biological mandate or evolutionary triumph." Id. at 73. Accordingly, the social model of disability recognizes the source of disabled people's relative disadvantage as a hostile environment that is "artificial and remediable" instead of "natural and immutable." Id. at 74-75. "If the majority of people, instead of just a few, wheeled rather than walked, graceful spiral ramps instead of jarringly angular staircases would connect lower to upper floors of buildings." Id. at 74. Thus, a wheelchair-user experiences disability through antagonistic surroundings, including lack of access to workplaces, educational programs, medical services, and other areas open to the public. Because the ADA accommodations seek to eliminate subordination of individuals with disabilities, Silvers argues that the statute implicitly utilizes the social model of disability, and as such is a product of formal and equalizing justice.
83. The same may be said for both the United States and Europe. See, e.g., RICHARD K. SCOTCH, FROM GOOD WILL TO CIVIL RIGHTS: TRANSFORMING FEDERAL DISABILITY POLICY (2d ed. 2001) (assessing the motivations impelling United States policy);
84. Lisa Waddington, Reassessing the Employment of People with Disabilities in Europe: From Quotas to Anti-Discrimination Laws, 18 COMP. LAB. L.J. 62 (1996) (examining the theories informing European employment policies).
85. The term originates with political scientist Ruth O'Brien. See RUTH ANN O'BRIEN, CRIPPLED JUSTICE: THE HISTORY OF MODERN DISABILITY POLICY IN THE WORKPLACE (2001).
86. See HOWARD A. RUSK, REHABILITATION MEDICINE (1964);
87. HENRY HOWARD KESSLER, REHABILITATION OF THE PHYSICALLY HANDICAPPED (2ded. 1953). The timing of the medical model, as advanced by these two medical practitioners, was hardly coincidental. Scientific advances made during World War II resulted in higher survival rates for severely wounded soldiers.
88. See, e.g., SURGERY IN WORLD WAR II: NEUROSURGERY (John Boyd Coates, Jr. ed., 1959) (describing medical advances in neurosurgery, particularly in relation to treating spinal cord injuries).
89. See MARIA RITA SAULLE, DISABLED PERSONS AND INTERNATIONAL ORGANIZATIONS (1982) (providing a catalog of these resolutions);
90. see also U.N. Econ. & Soc. Council [ECOSOC], Social Rehabilitation of the Physically Handicapped, Report of the Social Commission, 6th Sess., U.N. Doc. No. E/AC.7./L.24 (July 13, 1950).
91. International soft laws are comparable to legislation passed in the United States and Europe over that same period requiring the provision of reasonable accommodation as an ameliorative to disabling environments. See generally BRIAN J. DOYLE, DISABILITY DISCRIMINATION: THE NEW LAW (1996);
92. CHRISTOPHER G. BELL, U.S. COMM'N ON CIVIL RIGHTS, ACCOMMODATING THE SPECTRUM OF INDIVIDUAL ABILITIES (1983).
93. For example, the Declaration on the Rights of Mentally Retarded Persons declares that persons with disabilities have the same civil and political rights as other human beings. Declaration on the Rights of Mentally Retarded Persons, supra note 33, at para. 4.
94. See, e.g., id. at pmbl. (emphasizing the need to protect disabled persons and their access to segregated services); Declaration on the Rights of Disabled Persons, supra note 34, at para. 8 (underscoring the needs of disabled persons to "special" services).
95. QUINN ET AL., supra note 1, at 30 (characterizing the change as "an irreversible shift").
96. World Programme, supra note 35, at 185.
97. Id.
98. Equalizing opportunities was defined as "the process through which the general system of society, such as the physical and cultural environment" is rendered accessible. World Programme of Action Concerning Disabled Persons 1 (1982), available at http://www.un.org/esa/socdev/ enable/diswpa01.htm.
99. Id.
100. See id. at 2.
101. Theresia Degener, International Disability Law - A New Legal Subject on the Rise: The Interregional Experts' Meeting in Hong Kong, December 13-17, 1999, 18 BERKELEY J. INT'L L. 180, 184 (2000).
102. See Standard Rules, supra note 36, at rules 1, 4. The social model of disability is reflected in the articulation of the Standard Rules' aspirations: "the planning of societies and that all resources must be employed in such a way as to ensure that every individual has equal opportunity for participation." Id. at introduction, para. 25.
103. Reports issued by the Special Rapporteur are available at U.N. Enable, The Special Rapporteur on Disability of the Commission for Social Development, http://www.un.org/esa/socdev/enable/rapporteur.htm.
104. For a discussion of the unenforceability of the Standard Rules, see Dimitris Michailakis, The Standard Rules: A Weak Instrument and a Strong Commitment, in DISABILITY, DIVERS-ABILITY AND LEGAL CHANGE 117 (Melinda Jones & Lee Ann Basser Marks eds., 1999). The Standard Rules stress that States parties are under a strong moral and political commitment to ensure the equalization of opportunities for disabled persons. See Standard Rules, supra note 36, at introduction, para. 14. Moreover, the Standard Rules obligate States parties "to create the legal bases . . . to achieve the objectives of full participation and equality for persons with disabilities," to "ensure that organizations of persons with disabilities are involved in the development of national legislation concerning" their rights, and to eliminate "[a]ny discriminatory provisions against persons with disabilities." Id. at rule 15.
105. World Conference on Human Rights, June 14-25, 1993, Vienna Declaration and Programme of Action, U.N. Doc A/CONF. 157/24 (July 12, 1993) [hereinafter Vienna Declaration].
106. Id. at para. 5 ("All human rights are universal, indivisible and interdependent and interrelated.").
107. Id. at para. 64 (disabled persons "should be guaranteed equal opportunity through the elimination of all socially determined barriers," including any "physical, financial, social or psychological" obstacles that "exclude or restrict full participation in society").
108. 42 U.S.C. §§ 12101 (2000).
109. See Theresia Degener & Gerard Quinn, A Survey of International, Comparative and Regional Disability Law Reform, in DISABILITY RIGHTS LAW AND POLICY: INTERNATIONAL AND NATIONAL PERSPECTIVES 3 (Mary Lou Breslin & Silvia Yee eds., 2002).
110. For a discussion of the role and content of reasonable accommodation under the EU directive, see Lisa Waddington, The Framework Employment Directive from a Disability Perspective: Reasonable Accommodation and Positive Action, in DISABILITY RIGHTS' ACTIVIST AND ADVOCATES TRAINING MANUAL 19 (2005).
111. See, e.g.. Draft Articles, supra note 42, at art. 27, para. i (requiring States parties to make reasonable accommodations).
112. See, e.g., Katharina C. Heyer, The ADA on the Road: Disability Rights in Germany, 27 LAW & SOC. INQUIRY 723 (2002);
113. Eric A. Besner, Employment Legislation for Disabled Individuals: What Can France Learn from the Americans with Disabilities Act?, 16 COMP. LAB. L.J. 399 (1995). Despite this trend, there are some disability rights advocates, including myself, who caution against adopting ADA-type rights protection exclusively. See infra Part II.C.
114. G.A. Res. S-24/2, para. 66, U.N. Doc A/RES/S-24/2 (July 1, 2000). See also Theresia Degener, Disabled Persons and Human Rights: The Legal Framework, in HUMAN RIGHTS AND DISABLED PERSONS, supra note 20, at 9, 20-33.
115. Draft Articles, supra note 42, at pmbl., paras. t, v.
116. See Michael Ashley Stein, Same Struggle, Different Difference: ADA Accommodations as Antidiscrimination, 153 U. PA. L. REV. 579 (2004) (arguing that ADA-mandated accommodations are consistent with other antidiscrimination measures in that each remedies exclusion from employment opportunity by questioning the inherency of established workplace norms, and by engendering cost when altering those norms) [hereinafter Stein, Same Struggle].
117. The view is so prevalent that one scholar has termed it "canonical." Christine Jolls, Antidiscrimination and Accommodation, 115 HARV. L. REV. 642, 643-44 (2001).
118. A particularly strong version of this assertion is that of feminist and disability rights advocate Susan Wendell who avers that "the entire physical and social organization of life" has been created with the notion in mind that "everyone w[as] physically strong, as though all bodies were shaped the same, as though everyone could walk, hear, and see well, as though everyone could work and play at a pace that is not compatible with any kind of illness or pain." SUSAN WENDELL, THE REJECTED BODY: FEMINIST PHILOSOPHICAL REFLECTIONS ON DISABILITY 39 (1996). Wendell's point, although valid, should not be overstated. Because I generally agree with the disability studies perspective, but disagree on the extent of its application, I have used the term "artificial" to mean avoidable (because it is either arbitrary and/or can be remedied through a manageable cost) when discussing ADA accommodations.
119. See Stein, Same Struggle, supra note 89.
120. In other words, the social model is predicated on treating like cases alike. For what is perhaps the earliest exposition of this theory, see ARISTOTLE, NICOMACHEAN ETHICS 118-19 (Martin Ostwald trans., 1962) (professing that things that are alike should be treated alike).
121. Social, economic, and cultural rights are derived from the field of social justice which advocates treating all individuals equally, whether or not they are in fact equal. See, e.g., JOHN RAWLS, A THEORY OF JUSTICE 302-03 (1971) (defining distributive justice generally as the theory that "[a]ll social primary goods - liberty and opportunity, income and wealth, and the bases of self-respect - are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantage of the least favored").
122. "Human rights are, literally, the rights that one has simply because one is a human being . . . . Human rights are equal rights: one either is or is not a human being, and therefore has the same human rights as everyone else (or none at all)." JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE 10 (2003).
123. The central tenet of Universal Design is an "approach to creating environments and products that are usable by all people to the greatest extent possible." R. Mace et al., Accessible Environments: Toward Universal Design, in DESIGN INTERVENTIONS: TOWARDS A MORE HUMANE ARCHITECTURE 155, 156 (Wolfgang Prieser et al. eds., 1991).
124. Although the inclusive nature of Universal Design extends beyond disability, e.g., Selwyn Goldsmith, Access all Areas, 213 ARCHITECTS' J. 42 (2001) (asserting that universal design encompasses not only people with disabilities but also parents with small children and women forced to wait for pubic toilets), it is nevertheless frequently described as a disability-specific issue.
125. For rebuttals of this perspective, see ROBERT IMRIE, DISABILITY AND THE CITY: INTERNATIONAL PERSPECTIVES (1996).
126. Clarification is in order. Disability rights advocates applying the social model to this hypothetical instance would surely argue that both public transportation systems and health care systems that excluded disabled persons based on socially contingent factors (e.g., physically inaccessible buses and insurance policies that exclude coverage for people with AIDS) were artificial in nature (because there was no reason to have buses with steps as opposed to ramped ones, and that there was no intrinsic difference between treating pneumonia arising from the flu as opposed to HIV). What disability rights advocates have not traditionally done is link the two concepts so that equality in the artificially excluded workplace also mandates equality in the artificially excluded public transportation and health care areas. The reason for this disconnect is that the two arguments cannot be joined so long as the underlying basis of their assertions is formal justice, meaning that the extent of disabled versus non-disabled equality is assessed in terms of sameness under civil rights statutes that focus on the acts or omissions of one actor (whether an employer or a public service entity) rather than of society at large. This subtle weakness of disability rights advocacy has recently been taken up by Samuel Bagenstos. He points out that as far as the ADA is concerned, there is no statutory reason why the provision of a reasonable accommodation ought to stop at the workshop door. Samuel R. Bagenstos, The Future of Disability Law, 114 YALE L.J. 1, 26-32 (2004) (discussing the importance of proper health care to ensure greater employment opportunities).
127. See generally Stephen P. Marks, Emerging Human Rights: A New Generation for the 1980s?, 33 RUTGERS L. REV. 435, 435-52 (1981).
128. For additional, more tangential concerns, see Stephen P. Marks, The Human Right to Development: Between Rhetoric and Reality, 17 HARV. HUM. RTS. J. 137 (2004).
129. Declaration on the Right to Development, G.A. Res. 41/128, at 183, Annex, U.N. GAOR, 41st Sess., Supp. No. 53, U.N. Doc. A/RES/41/128 (Dec. 4, 1986). A few General Assembly resolutions referenced the right to development prior to the DRD. See, e.g., U.N. ESCOR, 33d Sess., Supp. No. 6, at 74-75, U.N. Doc. E/CN.4/1257; U.N. ESCOR, 35th Sess., Supp. No 6, at 107, U.N. Doc. E/CN.4/1347; U.N. ESCOR, 37th Sess., Supp. No 5, at 238, U.N. Doc. E/CN.4/1475.
130. Vienna Declaration, supra note 79, at para. 10; see also High Comissioner for the Promotion and Protection of All Human Rights, G.A. Res. 48/141, at 261, U.N. GAOR, 48th Sess., Supp. No. 49, U.N. Doc. A/RES/48/141 (Dec. 20, 1993) (General Assembly mandate that the High Commissioner for Human Rights organize "a new branch whose primary responsibilities would include the promotion and protection of the right to development") [hereinafter High Commissioner].
131. E.S.C. Res. 72, at 229, U.N. ESCOR, 54th Sess., Supp. No. 3, U.N. Doc. E/CN.4/1998/177 (1998).
132. High Comissioner, supra note 100, at 262 (mandating the OHCHR "Research and Right to Development Branch" to "[r]ecognize the importance of promoting a balanced and sustainable development for all people" and to "to enhance support from relevant bodies of the United Nations system for this purpose." For the Independent Expert's perspective, see Arjun Sengupta, Development Co-operation and the Right to Development, in HUMAN RIGHTS AND CRIMINAL JUSTICE FOR THE DOWNTRODDEN: ESSAYS IN HONOUR OF ASBJORN EIDE 371 (Morten Bergsmo ed., 2003).
133. See, e.g., Philip Alston, Making Space for New Human Rights: The Case of the Right to Development, 1 HARV. HUM. RTS. Y.B. 3 (1988) [hereinafter Alston, Making Space for New Human Rights];
134. see also Henry J. Steiner, Social Rights and Economic Development: Converging Discourses?, 4 BUFF. HUM. RTS. L. REV. 25 (1998);
135. James C.N. Paul, The Human Right to Development: Its Meaning and Importance, 25 J. MARSHALL L. REV. 235 (1992);
136. Anne Orford, Globalization and the Right to Development, in PEOPLE'S RIGHTS 127 (Philip Alston ed., 2001).
137. For instance, the United Nations Development Programme now explicitly connects these rights in its annual Human Development Reports. See U.N. DEV. PROGRAMME, HUMAN DEVELOPMENT REPORT 2003, MILLENNIUM DEVELOPMENT GOALS: A COMPACT AMONG NATIONS TO END HUMAN POVERTY (2003), available at http://hdr.undp.org/reports/global/ 2003/ [hereinafter MILLENNIUM DEVELOPMENT COMPACT].
138. See Alan Rosas, The Right to Development, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS 247, 248 (Asbjorn Eide et al. eds., 1995) (averring that the human right to development gave developing nations a moral basis in which to ground their demands for more equitable distribution of worldwide resources from more developed nations).
139. PETER UVIN, HUMAN RIGHTS AND DEVELOPMENT (2004). Uvin argues against this prevailing notion by pointing out that both agendas have similar and overlapping goals. To give one example, he notes that if a human rights perspective is added to a traditional development goal of providing subsistence, then the problem of guaranteeing sufficient food in a country is revised towards identifying the factors that limit that availability, that is, "the wide range of mechanisms that exclude some groups from services or resources the state makes available; the way discriminatory employment, land, credit, inheritance or education policies." Id. at 161.
140. See, e.g., HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 247 (2d ed. 2000) ("The interdependence principle, apart from its use as a political compromise between advocates of one or two covenants, reflects the fact that the two sets of rights can neither logically nor practically be separated in watertight compartments.");
141. C.B. MACPHERSON, DEMOCRATIC THEORY: ESSAYS IN RETRIEVAL 111-12 (1973) (disputing Berlin's fixation on negative liberty by pointing out the material prerequisites to meaningful choices).
142. See Cass R. Sunstein, Why Does the American Constitution Lack Social and Economic Guarantees? 5 (U. of Chicago, Public Law and Legal Theory Research Paper Series, Working Paper No. 36, 2003) (rights "cannot exist simply with government abstinence").
143. JACK DONNELLY, INTERNATIONAL HUMAN RIGHTS 25 (2d ed. 1998).
144. Id.; see also Brad R. Roth, The CEDAW as a Collective Approach to Women's Rights, 24 MICH. J. INT'L L. 187, 203 (2002) ("[A] line between 'direct' and 'indirect' interferences with the range of chosen activity seems not only arbitrary, but potentially obfuscatory, absolving politics of responsibility for the greater part of the real impediments to chosen activity, and characterizing as 'free' a polity in which individuals are as effectively constrained, perhaps, as those in an 'unfree' polity.").
145. STEINER & ALSTON, supra note 107, at 197 (adding that "[t]he formal removal of barriers and the introduction of temporary special measures to encourage the equal participation of both men and women in the public life of their societies are essential prerequisites to true equality in political life").
146. G.A. Res. S-24/2, para. 67, U.N. Doc A/RES/S-24/2 (July 1, 2000).
147. See CRC, supra note 24, at art. 23, para. 1.
148. See generally Draft Articles, supra note 42.
149. Uvin identifies debates over "Western-centrism" as a fourth, insurmountable concern. UVIN, supra note 106, at 31. However, some commentators claim that central themes of human rights theory are common to all cultures and faiths, even if expressed in different ways. See, e.g., HANS KUNG, A GLOBAL ETHIC FOR GLOBAL POLITICS AND ECONOMICS (1998);
150. ABDULLAHI AHMED AN-NA'IM, HUMAN RIGHTS IN CROSS-CULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS (1992).
151. UVIN, supra note 106, at 140.
152. The efficacy of the United Nations treaty system is a subject that far exceeds this Article. Briefly, the most recent attempt at overhauling the system was given impetus by the Secretary-General's second reform report of 2002, Strengthening of the United Nations: An Agenda for Further Change, U.N. Doc. A/57/387 (Sept. 9, 2002), which calls for more coordination among monitoring bodies, greater standardization of reporting requirements, and increased monitoring at the national level.
153. See Michael J. Perry, Protecting Human Rights in a Democracy: What Role for the Courts?, 38 WAKE FOREST L. REV. 635, 641 (2003) (distinguishing human rights as moral, rather than legal, rights).
154. Some exogenous factors are described in Goodman & Jinks, How to Influence States, supra note 13.
155. Tom Ginsburg & Richard H. McAdams, Adjudicating in Anarchy: An Expressive Theory of International Dispute Resolution, 45 WM. & MARY L. REV. 1229, 1303-29(2003), use game theory to demonstrate the efficacy of international judicial decisions in the absence of sanctions, and provides empirical data support from the International Court of Justice's docket.
156. In very stark contrast, JACK LANDMAN GOLDSMITH & ERIC. A. POSNER, THE LIMITS OF INTERNATIONAL LAW (2005), proffers a realpolitik explanation for international adjudication based on rational actor theory that is largely immune from external influence.
157. See generally Karl E. Klare, Legal Theory and Democratic Reconstruction: Reflections on 1989, 25 U. BRIT. COLUM. L. REV. 69, 98 (1991).
158. See Jerome J. Shestack, The Philosophical Foundations of Human Rights, in HUMAN RIGHTS: CONCEPTS AND STANDARDS 31,33 (Janusz Symonides ed., 2000).
159. See, e.g., Universal Declaration, supra note 14, at art. 22 (limiting responsibility "in accordance with the organization and resources of each State"); ICESCR, supra note 9, at art. 2, para. 1 (States must undertake steps "to the maximum of its available resources"); CRC, supra note 24, at art. 4 ("States parties shall undertake such measures to the maximum extent of their available resources"). Thus, the caution expressed by the Independent Expert that allocation concerns should not be "used as a pretext for avoiding action." U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Working Group on the Right to Dev., Study on the Current State of Progress in the Implementation of the Rights to Development, at para. 29, U.N. Doc. E/CN.4/1999/WG.18/2 (July 27, 1999) (prepared by Arjun K. Sengupta).
160. See David Copp, Equality, Justice, and the Basic Needs, in NECESSARY GOODS: OUR RESPONSIBILITIES TO MEET OTHERS' NEEDS 113, 113 (Gillian Brock ed., 1998) (noting that neither egalitarian nor liberal theories regarding distribution of social goods adequately address issues of prioritization).
161. As part of her continuing research agenda, Nussbaum has applied the capabilities approach to women in a number of contexts. To date, the fullest enunciation of her theory, and the one I reference most for the sake of convenience, is MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH (2000) [hereinafter NUSSBAUM, CAPABILITIES APPROACH].
162. The notion originates with bioethicist Norman Daniels, who argues that a universal right to health care must be circumscribed to instances of ensuring or revising the "normal species functioning" necessary for individuals to arrive at the "normal opportunity range" of function within their respective societies. See, e.g., NORMAN DANIELS, JUST HEALTH CARE 26-35 (1985);
163. Norman Daniels, Health-Care Needs and Distributive Justice, 10 PHIL. & PUB. AFF. 146, 158-60 (1981).
164. NUSSBAUM, CAPABILITIES APPROACH, supra note 123, at 78.
165. Id. at 35, 72.
166. RAWLS, supra note 93, at 62.
167. NUSSBAUM, CAPABILITIES APPROACH, supra note 123, at 82.
168. Id. at 84-85 (emphasis in original).
169. Id. at 85.
170. Ultimately, this tenet is called the "principle of each person as end." Id. at 56 (emphasis omitted).
171. This reasoning provides an additional argument against aggregate analysis of public good, for an absence of political liberty could not conceivably "be made up for by tremendous economic growth." Id. at 81.
172. Id. at 32-33.
173. Her list, is therefore, "a list of capabilities or opportunities for functioning, rather than of actual functions" because it "protects spaces for people to pursue other functions that they value." NUSSBAUM, CAPABILITIES APPROACH, supra note 123, at 74.
174. That people would choose not to achieve their own full potential raises a secondary concern, namely that of preference deformation. This concept posits that circumstances exist in which people's basic preferences (which they would recognize if unimpeded) are negatively influenced by external social forces, such as traditional hierarchies or religious beliefs. Nussbaum's response, which draws on the work of scholars as diverse as Gary Becker, Richard Posner, Thomas Scanlon, and Amartya Sen, is that her approach makes the possibility of central capabilities (which should be universally appealing) available, but does not force the issue. Id. at 115-22.
175. Nussbaum acknowledges that "even if one defends theory as valuable for practice, it may still be problematic to use concepts that originate in one culture to describe and assess realities in another." Id. at 36. Conversely, she also notes the cultural arrogance of assuming that particular values originate with particular countries, for example, assuming that sex equality is an American construct in the face of counter-cultural examples that include India's passage of a sex-based equal rights amendment in 1951. Id. at 39. Of course, not everyone agrees with these propositions. For the views of two scholars who decry, in varying degrees, the cultural invasiveness of human rights norms, see MICHAEL IGNATIEFF, HUMAN RIGHTS AS POLITICS AND IDOLATRY (2001);
176. WENDY BROWN, STATES OF INJURY: POWER AND FREEDOM IN LATE MODERNITY (1995).
177. NUSSBAUM, CAPABILITIES APPROACH, supra note 123, at 97.
178. Although I take issue with Nussbaum's position on capablities as far as individuals with intellectual disabilities, I stress my admiration for and agreement with the majority of Nussbaum's work and thank her for a willingness to discuss our different perspectives.
179. tenBroek, supra note 58, at 842. Jacobus tenBroek and Floyed Matson made this assertion in the context of welfare benefits by arguing that meaningful social participation means not only caring for those who are unable to work through the welfare system, but more importantly, assuring that disabled persons are able engage in society at large. Jacobus tenBroek & Floyd W. Matson, The Disabled and the Law of Welfare, 54 CALIF. L. REV. 809, 809-10 (1966).
180. The point is borne out by reading the ADA's Legislative Findings section documenting adverse conditions encountered by people with disabilities living in the United States, the world's wealthiest nation. See 42 U.S.C § 12101 (2000).
181. Nussbaum's model is concerned about participatory justice as evidenced by the inclusion of respect and non-humiliation as two key elements. For instance, Nussbaum asserts that Sescha, Eva Kittay's severely disabled daughter, lives a more socially participatory life at a segregated facility than she did in her parent's home. That may well be true, and so Secha has benefited. However, one can interpret the capabilities approach to permit people with severe intellectual disabilities to live in group homes that (unlike Sescha Kittay's) are also completely segregated from mainstream society so long as the residents interact with their peers and carers in a respectful and non-humiliating manner. Nussbaum would likely disagree with this wholly exclusionary situation, but it is one that can be interpreted from the way her model is set out. See generally Ann Hubbard, The Major Life Activity of Belonging, 39 WAKE FOREST L. REV. 217(2004);
182. Elizabeths. Anderson, What is the Point of Equality?, 109 ETHICS 287 (1999);
183. IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE (1990).
184. "[I]ndividuals cannot flourish without their joining with other humans in some sort of collective activities." Anita Silvers, People with Disabilities, in THE OXFORD HANDBOOK OF PRACTICAL ETHICS 300, 318 (Hugh LaFollette ed., 2003).
185. A State can also consider what practices and capacities it values and then allocate some (small) proportion of its restricted resources towards that end. Currently, Malawi is using this approach. Correspondence from Minister June Ntabaz to Professor Michael Stein (December 21, 2004) (on file with author). A cynical argument can also be made that developing nations eagerly press the United Nations towards second-generation rights in order to obligate more developed nations to financially assist their implementation.
186. This idea animates the Draft Articles. For example, the convention requires States parties to "take effective and appropriate measures to enable persons with disabilities to live and to be fully included as members of the community" and to be present in all aspects of mainstream society. See, e.g., Draft Articles, supra note 42, at art. 19 ("States parties shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community.").
187. See, e.g., Martha C. Nussbaum, Human Functioning and Social Justice: In Defense of Aristotelian Essentialism, 20 POL. THEORY 202, 229 (1992) (dismissing the notion that macroeconomics can accurately reflect the quality of life within a country because the "measure does not even concern itself with the distribution of resources and thus can give good marks to a country with enormous inequalities").
188. Nearly all Disability Studies commentators accord some influence (whether resulting in overt or unconscious differential treatment) to the phenomenon of "existential anxiety." The term originates with political scientist Harlan Hahn, who asserted that repugnance to disabled bodily difference, combined with fear of also attaining such variation in the future, results in a sociological desire to segregate people with disabilities from the mainstream. See, e.g., Harlan Hahn, The Politics of Physical Differences: Disability and Discrimination, 44 J. SOC. ISSUES 39, 43-44 (1988);
189. Harlan Hahn, Towards a Politics of Disability: Definitions, Disciplines, and Policies, 22 SOC. SCI. J. 87 (1985).
190. DAVID GAUTHIER, MORALS BY AGREEMENT 18 n.30 (1986).
191. The most thoughtful enunciation of this position is Mark Kelman, who distinguishes between the societal norms that exist against "simple discrimination" and those norms which mandate the provision of "accommodation." See Mark Kelman, Market Discrimination and Groups, 53 STAN. L. REV. 833 (2001);
192. MARK KELMAN, STRATEGY OR PRINCIPLE?: THE CHOICE BETWEEN REGULATION AND TAXATION (1999); see also Bd. of Trustees v. Garrett, 531 U.S. 356, 372 (2001) (practices that unquestionably discriminate against disabled employees for economic reasons are constitutional because "it would be entirely rational" for state employers "to conserve scarce financial resources by hiring employees who are able to use existing facilities" rather than accede to ADA requests).
193. This is the thrust of the arguments made by historian Deborah Stone in arguing that "[fjhe very act of defining a disability category determines what is expected of the nondisabled - what injuries, diseases, incapacities, and problems they will be expected to tolerate in their normal working lives." DEBORAH A. STONE, THE DISABLED STATE 4 (1984).
194. Theresia Degener states the case bluntly: "Persons with disabilities are regarded as being incapable of living as autonomous individuals." Theresia Degener, Disability as a Subject of International Human Rights Law and Comparative Discrimination Law, in DIFFERENT BUT EQUAL, supra note 11, at 151, 154. See also tenBroek & Matson, supra note 141, at 809-10 ("Throughout history the physically handicapped have been regarded as incompetent to aid themselves and therefore permanently dependent upon the charity of others . . . .").
195. Martha C. Nussbaum, Capabilities and Disabilities: Justice for Mentally Disabled Citizens, 30 PHILOSOPHICAL TOPICS 133 (2002).
196. NUSSBAUM, CAPABILITIES APPROACH, supra note 123.
197. For an extensive treatment of this phenomenon, see JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT TO DO ABOUT IT (2000).
198. Some social science research supports the notion that caregivers ought to be given priority when it comes to redistribution of resources. See, e.g., Avery Russell, Applied Ethics: A Strategy for Fostering Professional Responsibility, 28 CARNEGIE Q. I, 5 (1980) (case study indicating that individuals with vulnerable dependents ought to be preferred over others).
199. NUSSBAUM, CAPABILITIES APPROACH, supra note 123, at 78.
200. MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP (2006) [hereinafter NUSSBAUM, FRONTIERS OF JUSTICE].
201. Id. at 181.
202. Id. at 192, 179.
203. Id. at 98-100.
204. Id. at 193; see also id. at 195-211 (providing domestic and international examples of guardianship that "maximize autonomy").
205. Distinguishing distribution of goods from the capability to use them, Sen rejects the use of a resources or primary goods list as the sole basis of comparison. AMARTYA SEN, INEQUALITY REEXAMINED 31, 38 (1992).
206. An explanatory note is warranted. Throughout her scholarship, and especially in FRONTIERS OF JUSTICE, Nussbaum takes great pains to rebut the position maintained by John Rawls and other philosophers subscribing to social contract theory. Those commentators maintain that to justify the distribution of primary goods, recipients must adequately contribute to society. In other words, the prevailing philosophical belief she strongly rebuts is that resource distribution should be tied to an individual's capacity to contribute to others. It is therefore odd that the idea of contribution has crept into Nussbaum's capabilities approach. Yet by setting species typicality as the level of capability that is the threshold for cutting off resource distribution, Nussbaum applies this determination both as a descriptive and a normative qualification, and in so doing FRONTIERS OF JUSTICE may be read as letting this idea back in. This is because Nussbaum's use of species typicality is both factual and normative. As applied, it is not only the level of capability that humans typically enjoy, but also the threshold level demanded for a life of human dignity. But why should the level of capability typical of the species also be the level needed for achieving or preserving a dignified life? If this equation is intuitive, it probably is because we associate species typical levels of capability as being valuable because they enable us to care for ourselves and to be perceived as contributing to others. By contrast, lower than typical species functioning is undignified and not truly human because those individuals are a burden to society. Nussbaum frames her arguments in terms of choice, and values species typical levels of capability as an important justification for allocating resources to bring everyone up to these levels. Her capability approach is set forth in terms of agency, and Nussbaum believes that people need not exercise their capabilities. In fact, however, social pressure to exercise capabilities and their associated functioning is a familiar phenomenon. Consider, for example, the debate over cochlear implants. Once the technological capability exists to enable deaf people to access aural communication, social pressure is brought to bear on deaf individuals to use this technology rather than rely on sign-language interpreters precisely because the species typical mode of communicating makes them better able to contribute without being burdensome to others. I thank Anita Silvers for pointing out the difficulties (possibly insurmountable) of invoking species typicality as a standard without also inviting the stigmatization and exclusion of those who cannot be brought up to the standard.
207. To illustrate: Nussbaum's capabilities approach does not provide resource distribution to child prodigies or savants to enable either group to exceed a species typical norm by developing their special talents. This is because resources to these individuals (assuming they were otherwise capable of attaining the ten capabilities) would stop being distributed at the point that they achieved an average human functioning level. By contrast, a disability human rights approach would provide resources for the members of both groups who are impaired in some respects but gifted in others to exceed species typical levels of the capabilities they can achieve, regardless of whether they could attain species typicality in all ten capabilities.
208. NUSSBAUM, FRONTIERS OF JUSTICE, supra note 155, at 133-36.
209. Id. at 97.
210. EVA FEDER KITTAY, LOVE'S LABOR: ESSAYS ON WOMEN, EQUALITY, AND DEPENDENCY 166, 172, 154-55 (1999);
211. NUSSBAUM, FRONTIERS OF JUSTICE, supra note 155, at 96, 134.
212. MICHAEL BÉRUBÉ, LIFE AS WE KNOW IT: A FATHER, A FAMILY, AND AN EXCEPTIONAL CHILD 147, 155 (1996);
213. NUSSBAUM, FRONTIERS OF JUSTICE, supra note 155, at 97, 133.
214. NUSSBAUM, FRONTIERS OF JUSTICE, supra note 155, at 96-98. Distressed over the modality of President Bush's 2000 election, Arthur insisted on referring to him as the "Resident." Id. at 170.
215. Id. at 128.
216. Id. at 94-96.
217. Id. at 96.
218. Id. at 96-98, 134.
219. NUSSBAUM, FRONTIERS OF JUSTICE, supra note 155, at 96-98, 134.
220. Id. at 98-99, 128.
221. Id. at 181, 187.
222. Id. at 192-93.
223. Kittay stresses, in the communitarian tradition, the nature of our interconnectedness with one another and the value that connection creates regardless of the range of our capabilities. This is because, in her view, severely disabled persons increase their friends' and families' agency for caring and moral connection. KITTAY, supra note 165. As stated by one feminist scholar, "a relational conception of the self suggests that we come to know ourselves and others only in a network of interactive relationships and that this shapes and is necessary for exercising self-determining capabilities." CHRISTINE KOGGEL, PERSPECTIVES ON EQUALITY: CONSTRUCTING A RELATIONAL APPROACH 127-28 (1998). Put another way, we all depend on one another, and develop in relation to each other.
224. See Jennifer Nedelsky, Reconceiving Autonomy: Sources, Thoughts and Possibilities, 1 YALE J. L. & FEM. 7, 12 (1989) ("[R]elatedness is not, as our [liberal] tradition teaches, the antithesis of autonomy, but a literal precondition of autonomy, and interdependence a constant component of autonomy.").
225. NUSSBAUM, FRONTIERS OF JUSTICE, supra note 155, at 192.
226. As Belden Fields noted, "[h]uman potentialities are developed within a web of cultural, economic, and social relationships that are both facilitating and constraining." A. BELDEN FIELDS, RETHINKING HUMAN RIGHTS FOR THE NEW MILLENNIUM 76-77 (2003).
227. For ways that disability theory can learn from both feminist and communitarian theory, see Carlos A. Ball, Looking for Theory in all the Right Places: Feminist and Communitarian Elements of Disability Discrimination Law, 66 OHIO ST. L. J. 105 (2005).
228. In this way, the gap in Nussbaum's capabilities theory dovetails with Norman Daniels's perception of disability, namely, that those individuals with disabilities for whom redistribution of health care resources would fail to help achieve a normal range of opportunity ought not to receive that social wherewithal. See, e.g., Norman Daniels, Justice and Health Care, in HEALTH CARE ETHICS 290 (Donald VanDeVeer & Tom Regan eds., 1987) (maintaining that society ought to redistribute resources in the form of health care to those disabled people whose receipt would enable their function).
229. One must also wonder who would care for Sesha under Nussbaum's capabilities approach if Eva Kittay was not able to provide support.
230. NUSSBAUM, FRONTIERS OF JUSTICE, supra note 155, at 128-34.
231. For a general jurisprudential argument along much the same line, see LARRY S. TEMKIN, INEQUALITY (1993).
232. The ICERD targets racial discrimination that has "the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life." ICERD, supra note 22, at part 1, art. 1. The CRC, likewise combining first- and second-generation rights, recognizes "that every child has the inherent right to life" and charges parties to "ensure to the maximum extent possible the survival and development of the child." CRC, supra note 24, at art. 6, paras. 1-2.
233. Indeed, many NGOs consider the enforcement of economic, social, and cultural rights as either pragmatically infeasible or beyond their basic mandates. Compare, e.g., ARYEH NEIER, TAKING LIBERTIES: FOUR DECADES IN THE STRUGGLE FOR RIGHTS xxix-xxx (2003) (President of the Open Society Institute asserts that economic, social, and cultural rights are not legitimate rights),
234. with Kenneth Roth, Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization, 26 HUM. RTS. Q. 63 (2004) (Executive Director of Human Rights Watch explains that NGOs are most effective, and so concentrate, on using shaming methods against clear first-generation rights violations),
235. with Leonard S. Rubenstein, How International Human Rights Organizations Can Advance Economic, Social, and Cultural Rights: A Response to Kenneth Roth, 26 HUM. RTS. Q. 845 (2004) (Executive Director of Physicians for Human Rights points out that NGOs need not choose one generation of right over another, but can seek justice in both instances by collaborating with peer organizations),
236. and Alston, Making Space for New Human Rights, supra note
237. Recall the discussions, many centering on China, about how some nations prioritize either CP or ESC at the expense of the other. See, e.g., Charles H. Brower II, NAFTA's Investment Chapter: Initial Thoughts About Second-Generation Rights, 36 VAND. J. TRANSNAT'L L. 1533, 1536-45 (2003) (discussing the fundamental differences between the two forms of rights in practice, and Western nations' reluctance to provide ESC rights ordered in the ICESCR).
238. See HENRY SHUE, BASIC RIGHTS: SUBSISTENCE, AFFLUENCE, AND U.S. FOREIGN POLICY (2d ed. 1980). Alternatively, Shue sets forth three State obligations in relation to human rights: the duties to respect, protect, and fulfill human rights. The first two may be thought of as requiring a State to refrain from violating an individual's human rights and to protect that person from violations by non-State actors. The third, however, mandates the State to proactively and positively provide the means by which to achieve human rights.
239. CEDAW, supra note 23, at 194, arts. 1-2. The CEDAW defines discrimination as any action that impairs women's full and equal enjoyment of their human rights. CEDAW, supra note 23, at 194, art. 1. See generally Renee Holt, Women's Rights and International Law: The Struggle for Recognition and Enforcement, 1 COLUM. J. GENDER & L. 117 (1991);
240. NATALIE KAUFMAN HEVENER, I NTERNATIONAL LAW AND THE STATUS OF WOMEN (1983).
241. CEDAW, supra note 23, at 195, art. 5.
242. See, e.g., M. Christina Luera, No More Waiting For Revolution: Japan Should Take Positive Action To Implement the Convention on the Elimination of All Forms of Discrimination Against Women, 13 PAC. RIM L. & POL'Y J. 611, 615-16 (2004) (discussing the broad and ambitious goals of the CEDAW in Japan).
243. Lisa A. Crooms, Indivisible Rights and Intersectional Identities or, "What do Women's Human Rights Have to do With the Race Convention? ", 40 HOW. L. J. 619, 627 (1997), discusses the general conception of first-generation rights as privileged over second-generation rights, and applies that concept to women's rights.
244. This in turn has affected the practice of NGOs and other entities monitoring human rights violations. See generally KATARINA TOMASEVSKI, DEVELOPMENT AID AND HUMAN RIGHTS REVISITED 113-14 (1993) (explaining that human rights are thought to prevent states from abusing people, while development is typically aimed at increasing economic growth and satisfying basic needs).
245. For a comparative analysis of how women's civil and political rights are asserted, see Jessica Neuwirth, Inequality Before the Law: Holding States Accountable for Sex Discriminatory Laws Under the Convention on the Elimination of All Forms of Discrimination Against Women and Through the Beijing Platform for Action, 18 HARV. HUM. RTS. J. 19 (2005). However, these complaints have not targeted the broader remedies that could be invoked under the CEDAW provision requiring States to "modify the social and cultural patterns of conduct" that perpetuate stereotypical gender roles.
246. Laura Grenfell, The Participation of Afghan Women in the Reconstruction Process, 12 HUM. RTS. BRIEF 22, 22-23 (2004).
247. The point is made by Tracy E. Higgins, Anti-Essentialism, Relativism, and Human Rights, 19 HARV. WOMEN'S. L. J. 89 (1996);
248. ELIZABETH V. SPELMAN, INESSENTIAL WOMAN: PROBLEMS OF EXCLUSION IN FEMINIST THOUGHT (1988).
249. See generally Nicola Lacey, Feminist Legal Theory and the Rights of Women, in GENDER AND HUMAN RIGHTS 13,51 (Karen Knop ed., 2004);
250. Hilary Charlesworth, Alienating Oscar? Feminist Analysis of International Law, in RECONCEIVING REALITY: WOMEN AND INTERNATIONAL LAW 1 (Dorinda G. Dallmeyer ed., 1993).
251. LACEY, supra note 191, at 13, 51; Karen Engle, After the Collapse of the Public/Private Distinction: Strategizing Women's Rights, in RECONCEIVING REALITY, supra note 192, at 143, 155;
252. see also HILARY CHARLESWORTH & CHRISTINE CHINKIN, THE BOUNDARIES OF INTERNATIONAL LAW: A FEMINIST ANALYSIS (2000).
253. See discussion supra Part I.A.; see also MICHAEL FREEMAN, HUMAN RIGHTS: AN INTERDISCIPLINARY APPROACH 60 (2002) (defining civil rights as "deriv[ing] from the laws or customs of particular societies," whereas human rights are those one has simply by virtue of being human).
254. Jerry Mashaw has suggested that, when discussing disability-related policy choices, foundational issues should be eschewed in favor of pragmatic and prudential considerations. See generally Jerry L. Mashaw, Against First Principles, 31 SAN DIEGO L. REV. 211, 221 (1994). I agree that policy discourse ought to include concrete proposals, and so proffer a vision of what a disability human rights paradigm would look like, but strongly disagree that "just" theorizing is inadequate.
255. See also Martha C. Nussbaum, Why Practice Needs Ethical Theory: Particularism, Principle, and Bad Behavior, in THE PATH OF THE LAW AND ITS INFLUENCE: THE LEGACY OF OLIVER WENDELL HOLMES, JR. 50 (Steven J. Burton ed., 2000) (asserting that philosophical theorizing is a necessary ingredient in analyzing large systemic issues).
256. For parallels of this perspective within the race and sex civil rights categories, see Mary F. Radford, Sex Stereotyping and the Promotion of Women to Positions of Power, 41 HASTINGS L. J. 471, 489-90 (1990) (noting that "[s]ex stereotyping in the workplace is embedded in a complicated matrix of interlocking beliefs" based on socially constructed definitions of "male" and "female");
257. see also Kimberle Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331 (1988) (noting the pervasive and racist nature of seemingly neutral legal norms).
258. Adherents of behavioral economic scholarship would argue that a law's very existence, in turn, shapes individual preferences by changing their taste for specific outcomes beyond the traditional effect of sanctions through altering behavior. This can be either because the new law carries a symbolic social meaning, or because it affects the way individuals mediate that symbolic social meaning. For a survey of the literature and an initial application of the theory to disability law, see Michael Ashley Stein, Under the Empirical Radar: An Initial Expressive Law Analysis of the ADA, 90 U. VA. L. REV. 1151, 1181 (2004).
259. Interestingly, while disability is protected in the United States at the federal level, sexual orientation is not. The opposite was true in Europe until Article Thirteen of the European Convention was amended to include disability. M. A. Stein, Anti-Discrimination Law and the European Union, 62 CAM. L. J. 508, 508-09 (2003).
260. See generally WILLIAM N. ESKRIDGE, GAYLAW: CHALLENGING THE APARTHEID OF THE CLOSET (1999). Doing so, however, first requires acknowledging the socially contingent nature of many cultural norms that are otherwise taken for granted as "natural" and "normal."
261. As observed by Robert Gordon: "[T]he power exerted by a legal regime consists [of] . . . its capacity to persuade people that the world described in its images and categories is the only attainable world in which a sane person would want to live." Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 109 (1984).
262. See also ALAN HYDE, BODIES OF LAW 231 (1997) ("Law veils its own power . . . by pretending to find what it in fact makes itself."). These norms include, among others, heterosexuality, opposite sex monogamy, and male-female human reproduction.
263. See generally Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Arguments from Immutability, 46 STAN. L. REV. 503 (1994). Each of these conditions has a strong counterfactual. Consider homosexuality, same sex unions, and the increasingly prevalent use of scientifically assisted reproduction. As to the former, numerous articles are published in the Journal of Homosexuality;
264. as to the latter, see JANET L. DOLGIN, DEFINING THE FAMILY: LAW, TECHNOLOGY, AND REPRODUCTION IN AN UNEASY AGE (1997). Accepting one version of social ordering over another is a matter of communal choice, not biological or logical necessity. Understanding this elective as an elective paves the way forward for equal treatment of sexual minorities.
265. See generally Janet E. Halley, The Politics of The Closet: Towards Equal Protection for Gay, Lesbian, and Bisexual Identity, 36 UCLA L. REV. 915 (1989). Admittedly, some people do not feel that sexual minorities are an appropriate group for either civil or human rights protection. This sentiment has been borne out in recent years in the United States, as demonstrated both by the defeat in Congress of a bill which would have prohibited workplace discrimination based on sexual orientation.
266. See Chai R. Feldblum, The Federal Gay Civil Rights Bill: From Bella to ENDA, in CREATING CHANGE: SEXUALITY, PUBLIC POLICY, AND CIVIL RIGHTS 149 (John D'Emilio et al. eds., 2000) (describing the failure to pass the proposed federal Employment Non-Discrimination Act). This sentiment is also demonstrated by the passage in eleven states during the 2004 election of same-sex marriage ban referenda.
267. See generally Carlos A. Ball, The Backlash Thesis and Same-Sex Marriage: Learning from Brown v. Board of Education and its Aftermath, 14 WM. & MARY BILL OF RTS. J. 1493 (2006).
268. This is also a dilemma that Nussbaum argues causes difficulty to Rawls's theory because his allocation of primary goods is based on insufficiently nuanced distribution principles. See Nussbaum, FRONTIERS OF JUSTICE, supra, note 155, at 178-84.
269. See generally M.V. LEE BADGETT, MONEY, MYTHS, AND CHANGE: THE ECONOMIC LIVES OF LESBIANS AND GAY MEN (2001) (empirically debunking commonly held myths of homosexual affluence).
270. Like other self-fulfilling prophecies, this is a Catch-22: certain workers are disadvantaged in the workplace because they are believed to have lower net productivity values. In turn, those workers invest less in their own human capital because they believe that they will be disadvantaged in the workplace. See David A. Strauss, The Law and Economics of Racial Discrimination in Employment: The Case for Numerical Standards, 79 GEO. L.J. 1619, 1640 (1991) ("[S]tatistical discrimination encourages minorities to underinvest in human capital, which in turn makes statistical discrimination rational.").
271. Kenji Yoshino argues that sexual minorities assimilate in three different ways: converting, (changing their underlying identity) passing, (retaining their underlying identity but masking it to observers) and covering (retaining and disclosing their underlying identity, while allowing it to be revealed to acute observers). Kenji Yoshino, Covering, 111 YALE L.J. 769 (2002).
272. For sociological accounts of the effect that identity repression has on gay men, see Han H. Meyer, Minority Stress and Mental Health in Gay Men, 3 J. HEALTH & SOC. BEHAV. 38, 39-42 (1995),
273. and JAMES D. WOODS & JAY H. LUCAS, THE CORPORATE CLOSET: THE PROFESSIONAL LIVES OF GAY MEN IN AMERICA 74-75 (1993).
274. See, e.g., Kenneth L. Karst, Why Equality Matters, 17 GA. L. REV. 245, 247-49 (1983);
275. Paul Brest, Foreword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1, 7-8 (1976).
276. For representative examples of his enunciation, see AMARTYA SEN, DEVELOPMENT AS FREEDOM (1999) [hereinafter SEN, DEVELOPMENT AS FREEDOM];
277. SEN, DEVELOPMENT AS CAPABILITY EXPANSION, supra note 5, at 94. Briefly stated, Nussbaum's framework arises from Aristotelian principles and is harmonious with much of what Sen argues, but also differs in several significant ways.
278. For an elaboration of these differences, see David A. Crocker, Functioning and Capability: The Foundations of Sen's and Nussbaum's Development Ethic, 20 POL. THEORY 584 (1992);
279. David A. Crocker, Functioning and Capability: The Foundations of Sen's and Nussbaum's Development Ethic, Part II, in WOMEN, CULTURE, AND DEVELOPMENT: A STUDY OF HUMAN CAPABILITIES 153 (Martha C. Nussbaum & Jonathan Glover eds., 1995).
280. Although I reframe matters of distributive justice in this Article using "rights talk," one could also use the currency of "welfare," understood objectively rather than subjectively in terms of preference satisfaction. I elect "rights talk" mainly for its strategic advantage. It is easier to enshrine a normative principle in a legal document, like a treaty, while acknowledging that there might not be a difference in result from utilizing other currencies. On the "choice of currency issue," see Richard J. Arneson, Welfare Should be the Currency of Justice, 30 CANADIAN J. PHIL. 497 (2000).
281. For a perspective by the Chair of the Millennium Development Goals, see JEFFREY D. SACHS, THE END OF POVERTY: ECONOMIC POSSIBILITIES FOR OUR TIME (2005).
282. "Poverty both affects, and is affected by, other human rights violations." Joe W. Pitts III, The First U.N. Social Forum: History and Analysis, 31 DENV. J. INT'L L. & POL'Y 297, 298 (2002);
283. see generally David Durman, The Dynamics of Poverty and Race in South Africa, 1994-1999, 9 GEO. PUBLIC POL'Y REV. 69, 70 (2003) ("Lack of access to health care, education, and employment opportunities also increase a household's likelihood of poverty.").
284. Specifically, the United Nations aims to halve the proportion of people living in poverty or hunger, as defined by earning less than one dollar a day, by 2015. See MILLENNIUM DEVELOPMENT COMPACT, supra note 104.
285. See MILLENNIUM DEVELOPMENT COMPACT, supra note 104;
286. U.N. DEV. PROGRAMME, HUMAN DEVELOPMENT REPORT 1997, available at http://ww.undp.org.
287. See DEEPA NARAYAN ET AL., VOICES OF THE POOR: CRYING OUT FOR CHANGE 32 (2000) (the World Bank's position "reinforces the case for making the well-being of those who are worse off the touchstone for policy and practice").
288. See The Chairman-Rapporteur, Report of the Chairman-Rapporteur: The Social Forum, para. 50, delivered to the Economic and Social Council, U.N. Doc. E/CN.4/Sub.2/2002/18 (Aug. 9, 2002) (explaining that the purpose of the U.N. Social Forum was to address the need "to give special voice to new actors, including the poor and the marginalized and their organizations, which have no space within the United Nations system");
289. Kaushik Basu, On the Goals of Development, in FRONTIERS OF DEVELOPMENT ECONOMICS: THE FUTURE ON PERSPECTIVE 61, 65 (Gerald M. Meier & Joseph E. Stiglitz eds., 2001) (stating that "in evaluating an economy's state or progress, we must focus primarily on how the poorest people are faring").
290. These arguments are set forth in a chapter entitled "Poverty as Capability Deprivation." SEN, DEVELOPMENT AS FREEDOM, supra note 205, at 87-110.
291. Id. At this point, one could plausibly argue that it is not any inherent limitation of disability, female gender, or particular ethnicity that creates capability deprivation, but rather the correlation of these characteristics with the means of accessing goods and services.
292. Id.
293. John Foster-Bey, Bridging Communities: Making the Link Between Regional Economies and Local Community Development, 8 STAN. L. & POL'Y R. 25, 27 (1997) (outlines the culture of poverty thesis by stating: "[P]overty is not merely a function of lack of income, but also results from social disorganization and unproductive behavioral traits that imbue low-income people with a sense of inferiority, conditioning them to accept their status as unavoidable. These beliefs create a set of psychosocial barriers - a culture of poverty - that perpetuate poverty from generation to generation").
294. This point is made in the disability context by Anita Silvers, Double Consciousness, Triple Difference: Disability, Race, Gender and the Politics of Recognition, in DISABILITY, DIVERS-ABILITY AND LEGAL CHANGE, supra note 78, at 75.
295. For a discussion of the interface between disability and gender at the international level, see Theresia M. Degener, Disabled Women and International Human Rights, in 3 WOMEN AND INTERNATIONAL HUMAN RIGHTS LAW 267 (Kelly D. Askin & Dorian M. Koenig eds., 2001).
296. For a broader discussion of the implications of double discrimination in this context, see the contributions in GENDERING DISABILITY (Bonnie G. Smith & Beth Hutchison eds., 2004);
297. WOMEN AND DISABILITIES: THE DOUBLE HANDICAP (Mary Jo Deegan & Nancy A. Brooks eds., 1985).
298. According to the World Bank, one-fifth of the poorest individuals have a disability. See ANN ELWAN, POVERTY AND DISABILITY: A SURVEY OF THE LITERATURE (The World Bank Social Protection Paper No. 9932, 1999). See also tenBroek & Matson, supra note 141, at 809 (claiming that "poverty and disability are historically so intermeshed as to be often indistinguishable").
299. See also James D. Wolfensohn, Poor, Disabled and Shut Out, WASH. POST, Dec. 3, 2002, at A25 (statement by president of the World Bank that "research shows that disabled people are also more likely than other people to live in grinding poverty").
300. Women, for example, constitute some 60% of the working poor, as reported by the U.N. Int'l Research & Training Inst, for the Advancement of Women, Women and Poverty: New Challenges, available at http://www.un-instraw. org/en/images/stories/Beijing/womenandpoverty.pdf (last visited Oct. 6, 2006). Using health and education data as alternative indicators of women's poverty levels also clearly indicates women's disadvantage relative to men in places such as South Asia, where "women have only about half as many years of education as men and female enrollment rates at the secondary level are only two-thirds the male rates."
301. World Development Report 2000/2001, Attacking Poverty: Opportunity, Empowerment, and Security 4, available at http://siteresources.worldbank. org/INTPOVERTY/Resources/WDR/overview.pdf (last visited Oct. 6, 2006).
302. This point is demonstrated by the absence of disability as in the essays comprising DYING FOR GROWTH: GLOBAL INEQUALITY AND THE HEALTH OF THE POOR (Jim Yong Kim et al. eds., 2000).
303. See sources and citations, supra note 107. By contrast, Christopher McCrudden correctly argues that one of the most effective, albeit perplexing, methods for effectuating human rights is to mainstream them into all levels of government decision making. Christopher McCrudden, Mainstreaming Human Rights, in HUMAN RIGHTS IN THE COMMUNITY: RIGHTS AS AGENTS FOR CHANGE 9 (Colin Harvey ed., 2005).