Download - juridikum, zeitschrift für kritik | recht | gesellschaft

thema
1. Introduction
Exclusion is usually based on a variety of factors. The right
to equality and the prohibition of discrimination have been
the primary tools of intervention to seek a more inclusive
social fabric. The new UN Convention on the Rights of Persons
with Disabilities (CRPD), which enshrines a paradigm
shift to a rights-based approach to disability, recognizes the
manifold social factors involved in the exclusion of persons
with disabilities. 1 Reflective of these multiple aspects, the
CRPD also includes a general principle on “respect for difference.”
While the intention to make the social fabric
fully and effectively inclusive is obvious, the question
arises whether “respect for difference” adds legal
content to existing concepts of non-discrimination
and equality, in international human rights law.
This article will first consider the use of General
Principles as an obligation. Second, it will analyze
the principle of respect for difference within this
obligation. Third, it will review concepts of nondiscrimination
and equality within a framework
of difference. Finally, it will draw conclusions on
whether respect for difference adds legal content to
existing concepts of non-discrimination and equality
in international law.
2. Norm creation or articulation: the
emergence of respect for difference
2.1. The concept of general principles
The CRPD is the first core human rights treaty providing
explicitly for general principles. While the
Committee of the Rights of the Child uses general
principles as a technique to guide States Parties in
reporting on their implementation of the Convention
on the Rights of the Child (CRC), 2 these were
developed through its jurisprudence. 3
For the CRPD however, the inclusion of general
principles was a natural evolution. A United
Nations Human Rights and Disability study (hereinafter:
the “Study”) 4 was an important initial tool in revitalizing
a debate around the need for a legally binding instrument
on the rights of persons with disabilities. 5 The authors,
Quinn and Degener, highlighted the importance of framing
any debate within a value system: “a clear perception of the
values that underlie the human rights mission is needed to
understand the nature and significance of the switch to a
human rights perspective of disability.” They further stated
that the “core values of the human rights mission underpin a
system of basic freedoms that affords protection against the
abuse of power and creates space for the development of the
human spirit.” The four values they proposed are: dignity,
autonomy, equality and solidarity.
Dignity 6 is characterized as valuing people as individuals
of inherent self-worth and not because of their economic or
other usefulness. 7 Autonomy 8 entails the “opening up of a
Respect for
Difference:
a Value or a
Value-Add to
Discrimination
and Equality
Norms?
Marianne Schulze/Kirsten Young
·································
free space or uncovered space for voluntary action based on
a person’s conscience and freely made life choices […].”
Equality 9 focuses on the inherent equality of individuals regardless
of difference. This also includes equality of opportunity,
which is furthered through non-discrimination laws
1) The Convention on the Rights of Persons
with Disabilities and its Optional Protocol were
opened for signature on 30 March, 2007 at the
United Nations in New York. See also White/
Young, Nothing About Us Without Us: Securing
the Disability Rights Convention, in Williams/Goose/Wareham
(Eds.), Banning Landmines
and Beyond (2008), forthcoming.
2) The use of general principles can be found
in a number of national constitutions, some
(China, Iran) focus on basic elements of state,
while others (Ukraine, Turkey, Moldova) enshrine
human rights as general principles.
Equality is frequently enshrined as a general
principle.
3) Committee on the Rights of the Child, General
Comment No 5, para 12, General Measures
of Implementation for the Convention on
the Rights of the Child (2003). The four general
principles, which are based on substantive
articles are non-discrimination, the principle
of the best interest of the child, the right to
life, and the child’s right to express her or his
views freely.
4) Quinn/Degener, A Study on the Current
Use and Future Potential of the UN Human
Rights Instruments in the Context of Disability
(2002), http://www.unhchr.ch/disability/
study.htm (18.12.2007).
5) Various attempts had been made to initiate
negotiations, but had not been successful. See
e.g. UN General Assembly, Summary Record
of the 16 th Meeting, 42 nd Session, October 19,
1987, A/C.3/42/SR.16, UN General Assembly,
Summary Record of the 16 th Meeting, 44 th Session,
October 24, 1989, A/C.3/44/SR.16.
6) Subtitled “and the social construct of disability”,
Quinn/Degener, Study 9.
7) The underlying capitalist notions of monetary
value are noted critically but not discussed
further.
8) Subtitled “and the creation of space for the
development of the human spirit”; Quinn/Degener,
Study 10.
9) Subtitled “valuing difference”, Quinn/Degener,
Study 11.
juridikum 2008 / 1 Seite 45