The Human Rights of Persons with Intellectual Disabilities: Different But Equal (review)

The world is currently experiencing a shift in disability rights. The seeds of the intensive global activity of the disability movement over the past few decades have begun to mature. Many states incorporated disability laws within their national legal systems either in the form of non-discrimination provisions or in more comprehensive approaches. Years of invisibility, marginalization, and deprivation of fundamental human rights have recently coalesced into the United Nations General Assembly resolution in December 2001 that establishes an Ad Hoc Committee to consider proposals for a comprehensive and integral convention on the rights and dignity of persons with disabilities.¹ In a subsequent resolution, a working group was created to compose a draft convention that would serve as a basic text for the considerations and negotiations of the states.² With the aspiration of finalizing the Draft Convention by the end of 2005, disability rights is finally entering mainstream awareness.

Different But Equal comes out at the climax of the process: as states negotiate the provisional text of the Draft Convention under the watchful eyes of the international disability movement, and just before it is sent back to the world's capitals for approvals and signatures.

Different But Equal seeks to provide for the first time, a comprehensive volume that addresses the rights of persons with intellectual disabilities from a comparative, international human rights perspective.³ The book is a product of the International Symposium on the Rights of People with Mental Retardation: Should Difference Make a Difference, held at the Yale Law School in 1995. The book brings together contributions from various disciplines, predominantly legal scholars and activists, but also public health specialists, educators, social workers, and others to explore the interchange between "two great social movements of the past half century: the international human rights movement and the disability rights movement."⁴ By that it hopes to bolster the discourse in three fundamental ways: first, to spell out unequivocally that physical and mental differences do not license deprivation of inalienable human rights nor justify discriminatory treatment and lesser dignity; second, to supply interdisciplinary and cross-cultural perspectives that are indispensable "to create or influence better informed twenty-first-century public policy, national legislation or a new and more relevant generation of international human rights standards"⁵; and, third, to elucidate the tangible "fine line" that domestic and international standards must find to balance the pluralism of opinions within the disability movement, "between those who favor segregation or assimilation as ideals, between prevention strategies or claims for diversity, between remediation or habilitation and on questions of capacity versus choice."⁶ Ultimately, the goal of the book is to persuade treaty makers "to keep the norms of equality and respect for human dignity at the forefront of their thinking. For difference need not mean legal difference, when those with intellectual disabilities are treated as they should be—as human beings who are different but fully equal."⁷

Both the subject and purpose of Different But Equal are laudable. It raises awareness of the discrimination persons with disabilities face and clarifies the inseparable link between human rights and disabilities. In contrast to the traditional focus on physical differences in the context of disabilities, the book undertakes to address disability rights through one of the "most vulnerable and at risk populations," persons with intellectual disability.⁸ The book presents a diligent overview of legal policies in the context of disability and invokes a few of the more challenging policy questions in the field including guardianship, prevention, and multiculturalism. By that, it emphasizes the interdependence of human rights as understood in the contemporary world. With the work of the UN Ad Hoc Committee at its peak, the collection of nineteen articles and an Appendix of the Yale Declaration adopted at the conference is most appropriate and timely.

The book is organized in five parts: (1...