Ableism in the college of international lawyers: On disabling differences in the professional field

Abstract

In the wake of the #metoo and #blacklivesmatter movements, the masculine and ‘methodologically white’ nature of the core of the international legal profession has received renewed attention, and attempts to diversify it are well underway. Absent from the conversations that accompany such diversification efforts are reflections on the pervasiveness of ableism in the profession. Ableism describes implicit assumptions about the species-typical condition of the human body and the ways in which it interacts with the material and social world. The importance of ableism in excluding and marginalizing persons with disabling differences in international legal academia has widely been overlooked. This neglect simultaneously contributes to ableist re-productions of the profession and affects how international law understands and governs disability.

[W]e need to think of access with an understanding of disability justice, moving away from an equality-based model of sameness and ‘we are just like you’ to a model of disability that embraces difference, confronts privilege and challenges what is considered ‘normal’ on every front. We don’t want to simply join the ranks of the privileged; we want to dismantle those ranks and the system that maintains them. ¹

1. Introduction

Public international law is in the hands of a highly privileged professional community. The college of international lawyers is composed of people, myself included, who are socially privileged in one way or another. ² The most obvious and universally shared privilege is that all international lawyers came to be such by enjoying access to higher education. Many have even passed through one or more of the ‘top schools’ in the Global North or attended wealthier private universities or elitist law programs in the Global South. Other markers of privilege are salient in the profession as well. Some, like gender, have attracted considerable reflection and engagement. ³ Others, like race, have only recently begun to trigger wider sensitivities. ⁴ One important marker of privilege, which is almost universally shared but remains mostly unspoken, is that of able-bodiedness. Being able-bodied means to be in the species-typical bodily condition and therefore able to interact with the material and social world without difficulty or struggle. In other words, able-bodiedness is how we have come to see the functionality of a human body in a ‘normal condition’. Able-bodiedness determines how the human environment is configured. For instance, the layout of a building, the font size of a book, and the choreography of a lecture are all set in ways that are understood to be functional or rather operational for a person with species-typical ‘normal physical and mental capacities’. In short, we live in an ableist world, which can easily be navigated by some, but is disabling to others, namely to those whose bodies depart from the ‘normal human condition’. An ableist world privileges able-bodiedness in ways which are poorly understood, perhaps even invisible to those to whom it caters. This is also true for the college of international lawyers, which rarely evidences any consciousness for the ableist construction of the professional field and has on even fewer occasions grappled with the implications of ableism in and beyond the profession for how public international law makes sense of persons with disabling differences and of the material and social spaces they can occupy.

Drawing on critical disability studies (CDS), I argue that ableism permits us to problematize the fiction of a ‘normal’ international lawyer and the work this fiction performs in international legal academia in reproducing social hierarchies within and beyond the profession. ⁵ I further argue that (re-)viewing certain practices through the experiences of persons who, due to their disabling differences, are unable to adhere to them can help to cast a fresh eye on the purposes of such practices and help to (re-)evaluate the importance currently attributed to them. More importantly, disability perspectives inevitably present alternative approaches to performing as an international lawyer and legal scholar. I also suggest that the regulation of disability through human rights law is a rich field of study for international law’s potential and limitations to reconfigure socio-economic hierarchies. The adoption of the UN Convention on the Rights of Persons with Disabilities (UNCRPD) shows that international law now recognizes disability as a distinct category of human grouping aside from women, racial minorities, and children who require special protection. Yet the prior history of disability in international law as well as the potential and limits of a specialized human rights regime on disability have widely been overlooked by international legal academics despite these issues providing a rich field of study. I conclude by calling on the ableist college to overcome ableism in the profession. I place this responsibility on the able-bodied members of the college, rather than on its few largely isolated members with disabling differences who, in the highly ableist context which the spread of corporate culture in many universities has re-enforced, already carry considerable and often unseen additional intellectual, emotional, and performative burdens.

I focus on the university as the physical, and legal academia as the social space, not only because public international law is a highly scholarly sub-field of law, but also because both spaces are most likely to resonate with the readership of this article. I use the term ‘persons with disabling differences’ taken from human geography studies because this term both acknowledges the inherent impairments that disability produces as well as the limitations an ableist world imposes. ⁶ I accept the international legal definition of persons with disabling differences to designate persons ‘who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’. ⁷

The following sections of this article are as follows: Section 2 places this article’s turn to critical disability studies into the context and chronology of the disciplinary push towards diversity. It highlights the barriers to diversity in the professional field that other strands of scholarship, notably, post-colonial, feminist, queer, and critical race theory (CRT) scholarship have already identified. Against this background, the section then suggests how critical disability studies can enrich reflections on enabling diversity in international legal academia. Section 3 introduces the concept of ableism in detail and relates it to existing critiques of the legal field’s established assumptions, mannerisms, and value systems. Ableism is introduced here to shed light on pervasive assumptions of able-bodied normalcy in the professional field. Section 4 then introduces the concept of disableism. This concept captures negative assumptions made about persons with disabling differences. Using disability-selective abortions as an example, the section shows how the separation between legal expertise from an understanding of ableism and experiences with disabling differences shapes legal discourses and legal outcomes in ways which re-enforce disableism. Section 5 then turns to the evolution of the conception of disability in international law from an issue of social welfare to a matter for a specialized human rights regime. Pointing particularly to early attempts of modern international law to address disability, this section’s objective is to re-emphasize the problems associated with a sensibility for disability within the international legal profession and also to allude to the absence of disciplinary scholarly engagements with disability in international law. Section 6 concludes.

2. The disciplinary push to diversity

Diversifying international legal academia has been a struggle since the (re-)emergence of this discipline after 1945 and the institution of the Geneva and San Francisco legal orders. Its first defining moment was the challenge raised to the imperial legacies of international legal thought by the flag bearers of the early third world approaches to international law (TWAIL) movement. ⁸ The second defining moment was the feminist challenge to the severe under-representation of women in the profession and consequentially also the absence of female voices in the making of international law and its practice. ⁹ With this feminist challenge having first and foremost been championed by heterosexual, white, and middle-class international lawyers, it was soon complemented, and some of its universalist aspirations contested, by voices pointing to the importance of intersectionality and sub-alterity. ¹⁰ This work challenges the permanent state of victimhood ascribed to subalterns in international law’s imaginary. Similarly, the feminist challenge prompted a response by scholars who drew on queer theory to question the validity of the heteronormativity of international law which has reinforced, rather than undone, the fiction of binary gender identities and even operationalizes the binary male-female distinction. ¹¹ The most recent defining moment in the quest to diversify the international legal academy has been the racial challenge, which has its origins in the US critical race theory (CRT) tradition. ¹² This challenge has some overlaps with the TWAIL tradition but also diverges in some regards, notably in its emphasis on individual and collective human experiences as opposed to that of post-colonial states, which had inspired the original TWAIL tradition. ¹³

At the heart of these different challenges is the understanding that diversity and inclusion should be more than liberal fig leaves and are paramount to the continued relevance of the international legal profession in the wake of ever-growing calls for social change. Measured not only by the number of international instruments and legal processes but also by the number of its practitioners and students, international law has never been more popular. ¹⁴ Yet, the international legal academy remains a profession marked by homogeneity, rather than diversity. While studies on the socio-economic composition of international legal practitioners and academics are not readily available, some empirical work on academic publishing and the composition of law school research staff supports this observation. For example, a survey of German legal academia found that 79 percent of all law professors have at least one parent with a university degree and just about 4 percent of post-doctoral public law researchers were born in non-German speaking countries. ¹⁵ Also, a review of all monograph publications in 2021–2022 in the two top public international law series, the Oxford Monographs in International Law and the Cambridge Studies in International and Comparative Law series, revealed that more than two-thirds of all monographs published in this time were by male authors. ¹⁶ The geographical representation of authors (measured by countries of origin) has been even more tilted. Eighty-four percent of all monographs published in the Oxford series and 89 percent published in the Cambridge series were authored by scholars who appeared to be originating from the Global North. ¹⁷ The continued absence of diversity is not unique to international legal academia. ¹⁸ It is however more concerning in this academic discipline than in some others, given international law’s universalist aspirations.

The progress that has been made towards diversifying the profession has done little to change the ontological imaginary of an international lawyer as a Western-educated, middle-class, heterosexual white man of a certain age with no cognitive deficiencies or bodily deformities. As more women, queer, and racialized persons enter the professional field, they often find themselves coerced to assimilate to the social norms of the ‘normal’ international lawyer to be recognized as such enough for their expertise to count. Diversity campaigns have identified many professional norms within legal academia as privileging Western, masculine, and ableist forms of professionalism. ¹⁹ For instance, reflecting on their efforts to queer an academic conference some commentators recently observed that the ‘competitive environment of contemporary academia tends to value self-representation … rather than … common knowledge production’. ²⁰

Of course, the profession can change and has changed already. For instance, only a few years back, one would have been hard-pressed to find women in the decisive editorial posts of the leading international law journals. This has begun to change with significant journals in the core, such as the American Journal of International Law, now being led solely by women. Yet still, what constitutes a citable as opposed to a non-citable source favours scholars associated with wealthy institutions with access to scientific literature inaccessible and unaffordable to independent scholars and scholars from less wealthy institutions. This then poses a problem for knowledge production from the margins, not because of limited access to knowledge, but because of the lack of access to knowledge, which is recognized by those who are recognized. This well-known problem is addressed in part by the increased importance given to open-access publishing, the proliferation of sites such as the Social Science Research Network (SSRN) and ResearchGate, the growing popularity of open-access journals such as TWAIL Review, and the German Law Journal, as well as the increased recognition of academic blogs such as Afronomicslaw and Völkerrechtsblog. ²¹ However, even with the value being attributed to opening access and diversifying sites of legal knowledge production, obstacles remain that re-enforce core-periphery divides in the profession. In a thought-provoking article, Ammann dissects among other things, the marginalization of scholars with no, or limited English-language proficiency, that arise from the centrality of the English language in international legal research. ²² Similarly, publishing, preferably in outlets associated with excellence, is still used as the most important criterion for measuring the competence of a legal academic. The pressures of conforming to this habitus of professional recognition have had rather grotesque results, leading particularly early-career scholars and scholars facing precarious working conditions to prioritize publishing variations of the same analysis and arguments, over other, arguably far more valuable activities such as professional and personal development, outreach to non-scientific communities and engagement in knowledge exchange. ²³ The problems with this dynamic are of course well-known to many, but rarely problematized and even less often confronted. Thus, while the professional field may look or feel more diverse, the privileged positionality of those best able to mimic the imaginary of the normal international legal scholar remains mostly intact.

This is problematic on several counts. First, diversity merely by appearance poorly serves the objective of forming a more inclusive community, as it lends legitimacy to the status quo. Secondly, academics are not only scholars but also teachers and as such gatekeepers and stewards of future generations of international lawyers. Ontologies and social norms of the profession are thus socialized and reproduced by teaching, particularly in academic cultures and legal fields, where scholarship and practice converge. Think, for instance, of the number of investment law practitioners who also hold teaching positions at universities, or the professional trajectory of many US international law academics, which often involve experiences in legal practice, e.g., as legal experts or practicing members of the judicial system. ²⁴ Thirdly, professional imaginaries unfold exclusionary effects not based on merit, but on a social basis and thus foreclose productive disruptions of the field’s social homogeneity.

3. Pathologizing normalcy

To shed light on the pervasiveness of the professional form of the imagined ‘normal international lawyer’, insights from CDS are most instructive. CDS refers to an interdisciplinary body of scholarship that, among other things, engages with the conceptual category of disability and sheds light on intersectional experiences. It draws attention to the violence of the notion of the normalcy of the imagined ‘normal’ subject as an able-bodied one. CDS is thus less concerned with disability and more with the ableist construction of the social world. In that sense it is a radical departure from early conceptions of disability, which, as will be explained in further detail below, viewed it as a pathological human condition, requiring medical attention and deserving of social welfare (medical model). CDS problematizes the human environment’s exclusion of ‘the world’s largest minority’. ²⁵ Chouinard’s work on this is path-breaking. She describes ableist environments as:

spaces in which people with disabling differences are multiply disadvantaged; where lack of access to spaces of everyday life and spatial isolation are compounded and complicated by such facets of social exclusion as poverty, inadequate support services, barriers to inclusion in significant social institutions, and negative reactions to the presence of disabled persons in spaces constructed as “able-bodied”. ²⁶

What then is ableism? Campbell defines ableism as ‘a network of beliefs, processes and practices that produces a particular kind of self and body (the corporeal standard) that is projected as perfect, species-typical and therefore essential and fully human’. ²⁷ In a similar vein, Chouinard describes it as referring ‘to ideas, practices, institutions, and social relations that presume able-bodiedness’ and thereby marginalize and oppress persons with disabling differences and render them into a state of otherness. ²⁸ For former UN Special Rapporteur on Disability Rights Devandas-Aguilar, ‘ableism is a value system that considers certain typical characteristics of body and mind as essential for living a life of value’. ²⁹ In this sense, ableism is distinct from the social model of disability, which shifts attention from a person with disabling differences’ impairments to the social and physical barriers of their environments. ³⁰ Ableism captures implied expectations about the productivity of the human body. It is inextricably linked to capitalist appreciations that measure the human life and body by its ability to labour.

An ableist social world diminishes the humanity of a person with disabling differences. ³¹ When understood as a failure to control or use the body in a species-typical fashion, disability sub-consciously shapes the self-portrait of normalcy. ³² Normalcy then not only describes a bodily condition, but also its ability to interact with, and function in a socio-physical world, which only through the feasibility of these interactions becomes normalized. To put it in other words, disability as a departure from ‘the normal’, rather than a different bodily state is what is socially constructed as pathological. ³³ It is this technique of assigning inferiority, that makes disability a human condition, which, to use the language of the UNCRPD, needs to be reasonably accommodated in the ‘normal’ socio-physical world. ³⁴ International law is quite clear in its aspiration not to have the social world altered but simply rendered accessible. To this end, the UNCRPD defines ‘reasonable accommodation’ as ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden’ to ensure human rights and fundamental freedoms of persons with disabling differences. ³⁵ This language of rights and conditional solidarity underlines not only the ‘personal tragedy’ problem that international law ascribes to the human condition of being disabled but also the (conditional) solution that it has to offer, which is assisted assimilation to the state of normalcy. ³⁶

Yet what is ‘reasonable’, ‘necessary’, and ‘appropriate’, and who decides? Particularly for sensory disabilities, determining the answer to that eludes the legal discursive process by which reason is established. It requires more than considering what is possible technically and weighing this against what is appropriate (ethically, financially, etc.) as the law suggests. This is because reason requires sensitivity or, in Berleant’s words, ‘perceptual awareness’. ³⁷ This type of sensibility is difficult to develop, due to diverging ontological ‘realities’ that form, when the outside world is sensed differently. Writing on deafness, Corker has observed that this human condition necessarily requires the development of a different way of sensing and making sense of socio-physical realities that can never be fully understood by people who hear. ³⁸ This is then further complicated by the vastly different experiences with deafness that different economic and socio-cultural factors co-constitute and co-determine. ³⁹ Without sensitivity to the normalcy of one another’s ontological realities, one can never really know how to access the other’s world and render one’s own accessible. This state of not knowing, once accepted, can be a productive one. It unsettles what one understands to be natural. As Wendell wrote in her seminal work, The Rejected Body:

When people cannot ground their self-worth in their conformity to cultural body-ideals or social expectations of performance, the exact nature of those ideals and expectations and their pervasive unquestioning acceptance become much clearer. ⁴⁰

For people who (are able to) conform, the non-conformity of ‘the Other’ can be a productive encounter toward rendering them in the pre-conditional mindset toward re-thinking their normalcy. The mindset is that of uncertainty. It tends to cause extreme discomfort to legal academics whose professional identity hinges on knowing, or rather on knowing better than others how the social world ought to be.

At the same time, hardly anyone would dispute that the profession is riddled with norms, which seem to be persisting without a valid reason. Returning to the theme of publishing, one could for instance wonder about the value attributed to the written form, as opposed to other modes of preserving and diffusing knowledge. Similarly, one may wonder about the persistence of ‘lecturing’ as the conventional form of teaching despite the widely-accepted limitations and inefficiencies of this way of knowledge conveyance. Even without the prisms offered by CDS, these questions have been asked before. ⁴¹ Yet, while for persons who can conform to ableist norms, possibilities for doing things differently may be difficult to imagine, persons who cannot conform, will have already found ways of doing things differently.

One issue with standardizing how academic performance through publishing is measured is that it incentivizes certain types of academic engagements over others. For example, in some European legal academic cultures, such as the United Kingdom, the Netherlands, and some Swiss universities, being ‘well-published’ is a shorthand for having published a number of articles in line with one’s academic maturity (quantity), preferably in peer-reviewed journals (quality), which receive so many submissions that publishing with them is competitive and requires one to make a contribution of general interest (majoritarian social recognition). This incentivizes publishing on popular subjects or contributing to distinctive scholarly debates. Ableism as a concept may offer valuable fruit for thought towards disrupting this machinery of knowledge production in international law and reshaping it in ways, which are not only more inclusive towards persons with disabling differences, but also permit for less masculine, less classist, less Global North dominated, and less output-driven systems of knowledge production to flourish.

Changing professional modes in international legal academia means changing corresponding norms in legal practice. Four decades ago, Duncan Kennedy described legal teaching as ‘nonsense’ and accused the legal academy of being deeply implicated in the reproduction of social hierarchies through how law was taught and social interactions in the classroom were structured. ⁴² He argued that law schools were places where students were trained to show deference to authority and to evaluate the effectiveness of a legal argument by the style and grammar in which it was presented. As a result, students were best able to abide by the social rules of the legal classroom and proficient in upper-middle class masculine mannerisms would do better than students who were not. Indeed, style, grammar, and mannerisms are inseverable from the legal form and their mastery is not only key to professional success, but also how the profession maintains its relevance and elevates itself over related disciplines. ⁴³ Disruptions of the normal ways in which law is taught and practiced thus tend to trigger existential fears, particularly among international legal academics who, finding themselves frequently accused of not being ‘real lawyers’, already tend to overemphasize the juridical elements of their professional identity to delineate themselves from politics. ⁴⁴

Ableism as a vernacular may help to uncover and critically examine such performative dynamics in the teaching and practice of international law. It may even help to invent forms of communicating international law in ways that may be relevant to those who do not primarily practice it in courts or conference rooms but use it instead to sway the court of public opinion and mobilize for justice. Some international law academics are well-aware that many students are not as much interested in the ‘high life’ of international law that takes place in selected locations such as New York, Geneva, or The Hague, as they are in its everyday life and its potential as a galvanizing force. ⁴⁵ Instilling in them merely conventional forms of international law may be doing them a disservice. Instead, it is upon the college of international lawyers to acknowledge that law is at times more effective when it is audible, visible, and, most importantly, easily intelligible. Perhaps, it is precisely by severing the links between the substance of law and the mannerisms that Kennedy lamented all those years ago, that it can be rescued from the provincial place it occupies within law schools and the legal profession as a whole.

CDS has also taken on the politics of visual symbolism as being an obstacle, rather than a driver of change. Just like (white) women are often used as visual representations for diversity and the success stories of men of colour are pointed to, for re-assurance that today’s Western professional communities have become colourblind, disability politics legitimizing the ableist status quo, favour the promotion of inclusion measures which lend themselves to visual representations (e.g., the wheelchair or cane). ⁴⁶ One advantage of this visual approach to diversity is, of course, that it normalizes the presence of women and people of colour and with disabling differences in the workplace. At the same time, it risks being tokenistic and motivated by an institutional self-interest in giving the appearance of diversity, rather than truly committing to work towards its realization. In that vein, Burgis-Kasthala and Schwobel-Patel describe British universities’ public pledges to work towards ending racial inequalities in the curricula and beyond as a ‘competitive move’ in the wake of the Black Lives Matter movement, less driven by a motivation to overcome their institutional racial inequalities, and more by an interest to appeal to prospective students in the competitive higher education market. ⁴⁷ In the context of disability, inclusion efforts motivated by visual symbolism frequently fail to account for the spectrum of human conditions that this concept refers to, leaving behind those whose conditions do not lend themselves to visual politics (e.g., dyslexia) and who are not easily categorized as disabled. On this issue too, shifting attention from disability to assumptions of able-bodiedness that shape the university as a workplace and a place for learning may be a first step to move it beyond inclusion by optics towards a space of enablement.

4. Disabling disability

Ableism’s flipside is disableism, which is, to use Campbell’s definition, ‘a set of assumptions and practices promoting the differential or unequal treatment of people because of actual or assumed disabilities’. ⁴⁸ Watermeyer and Görgens observe that disableism is so deeply woven into the fabric of contemporary social orders that it is virtually undetectable to most with the cultural idealization of bodily normalcy and vitality being so entrenched, that disability prejudice is not the premise of a bigoted few, but a pervasive, unspoken, and intrinsic social reality. ⁴⁹ It is not a coincidence that the 250,000–300,000 persons with disabling differences killed by the German Nazi Regime were among the earliest to lose their life to the national-socialist ideology of social Darwinism and are the last ones to be remembered. ⁵⁰

For international legal scholars, a lack of understanding of the devastating, even deadly effects of disableism, is highly problematic as disableism is not only upheld by social and environmental barriers, but also by law. Disableism informs views on which lives are worth living and which ones are better not lived. ⁵¹ It plays a role in highly complicated ethical issues such as human bio-engineering to eliminate congenital forms of disability and physician-assisted suicide in instances of non-terminal diseases ⁵² Issues that are becoming increasingly legalized and frequently addressed through quasi-judicial processes. Notably, to the extent that persons who live with disabling differences are consulted in such processes, their expertise is often separated from the technical expertise of legal experts. ⁵³ This should sound alarm bells. How would we view a quasi-legal process affecting women’s rights which took place without a single female legal expert? How would we view this process if none of the legal experts consulted was even familiar with the concept of sexism?

Another example of a context in which disableism is an unspoken factor is reproductive rights. Public outrage over the US Supreme Court’s overturning of Roe v. Wade has framed the issue of disability-selective abortions in a manner which sets women’s reproductive rights on a collision course with disability rights. ⁵⁴ This framing has permitted pro-life proponents to co-opt disability rights for their purposes by equating disability-selective abortion to eugenics. ⁵⁵ The irony in this is of course that conservative US Supreme Court judges have in the past been in favour of upholding laws and policies, which denied persons with disabling differences their reproductive rights. ⁵⁶ What gets lost in this framing is the very real issue that whether to have or not to have a child with disabling differences is often not informed by a woman’s personal preferences, but by grave concerns about its place in an ableist social world. Also, disability-selective abortions are not always a woman’s choice but are often forced on her when prenatal testing indicates the mere possibility of a child being born with a congenital disability. While for gender-selective abortions, this type of coercion is understood to be the result of structural sexism, the role of disableism in disability-selective abortions is rarely considered. ⁵⁷ In some regards, the language of women’s rights and choices omits that these rights and choices are always exercised within, and sometimes limited by a social world, which shares a collective responsibility for connoting disability as an inherently inferior human condition. The unequal distribution of persons living with disabling differences between the Global North and the Global South further testifies to a troubling dynamic between ableism-disablism and poverty. ⁵⁸ Due to the tireless efforts by disability rights advocates, persons with disabling differences have in recent years finally been given attention in humanitarian and development policy instruments. ⁵⁹ However, the welcome attention that the needs of persons with disabling differences receive, when they live in poorer nations or in times of armed conflict or natural disasters strands in stark contrast to the decrease of persons being born with congenital forms of disability in wealthier countries. Due to this dynamic, disability risks soon became a symbol of collective tragedy and under-development. This then raises complicated theoretical, practical, and ethical questions about the human rights approach to disability and international law’s aspirations of reshaping value systems in the Global South, to which the Global North does not appear to be fully subscribing. ⁶⁰ Unfortunately, I cannot tackle the significant questions that this dynamic should raise for human rights and international lawyers alike here but only point to the significance and urgency of these questions.

To conclude this section, I instead want to briefly turn attention to the issue of internalized oppression. Whereas interpersonal and institutional forms of disableism are well-covered terrain in disability studies, the effects of constantly encountering disableism on the consciousness of people with disabling differences are rarely examined. ⁶¹ Here too, the perception of disability as being a personal tragedy, which in and of itself would naturally cause disabled persons suffering, exonerates the social world’s obsession with bodily perfection and functionality from culpability. ⁶² As Devandas-Aguilar observes, ‘ableist ways of thinking consider the disability experience as a misfortune that leads to suffering and disadvantage and inevitably devalues human life’. ⁶³ In a perverted logic, a world that persistently signals a disabled person their inferior position in the social hierarchy attributes the responsibility for the emotional and mental distress and sometimes lasting harm that this produces, to the material condition of disability rather than the social experiences of disableism. This not only permits for a social world that caters first and foremost to the able-bodied, but it also allows for all efforts to make it more accessible and inclusive to be weighed against other imperatives, such as financial burdens or institutional or personal inconveniences. The problems with this pervasive attitude may seem self-evident when seeing it written out in this manner, yet while we may acknowledge that we are ableist, we hardly know when we are ableist. ⁶⁴

Unfortunately, disableism is a violent, and at times cruel reality, which, despite the obvious emotional distress that it causes those who are subjected to it constantly, is rarely identified as a cause for trauma. Building on theoretical work on internalized trauma experienced by constant racialization, critical disability scholars have drawn attention to the phenomenon of internalized disableism. ⁶⁵ In a social-cognitive reading of internalized racism, members of oppressed racial groups internalize the oppression they experience so deeply that they develop ‘a knowledge system characterized by automatic negative cognitions and presumptions of their racial group’. ⁶⁶ Oppression in this context is both a state and a process. It is characterized by unequal power relations between individuals and groups and entails the use of power to marginalize. ⁶⁷ If ableism is a form of power, disableism is the corresponding form of oppression.

Campbell speaks to how disableism is internalized using the social environment of the liberal university as an example. ⁶⁸ She describes a tiresome identity struggle of academics with disabling differences who are caught between accepting and asserting their difference from the ontological able-bodied normalcy, while simultaneously disavowing it enough to escape the subtle dynamics of disableism, which associate disability with unproductivity and thus with diminished value to the overpowering machinery of commodified education and research. In the liberal university, seamlessly functioning in this machinery is the key to professional success, even survival. Satisfying its ableist demands, while regularly, and sometimes involuntarily, being on the shifting frontlines of the struggle for carving out spaces for persons with disabling differences within its apparatus, can be tedious, tiresome, and at times traumatizing. These dynamics of disableism would unquestionably be a rich field of systematic study, but unfortunately, they are not. ⁶⁹

This places heightened importance on story-telling which is a point of convergence of CDS with critical race theory. ⁷⁰ In the wake of the #metoo and #blacklivesmatter movements, experiences with racism and sexism in the profession were, for the first time, openly discussed and shared. ⁷¹ Testimonies on experiences with ableism however are difficult to find. Perhaps this is because widely-publicized incidents like the Harvey Weinstein scandal, the Trump Access Hollywood tape, and the police killings of George Floyd and Breonna Taylor, not only triggered an inescapable moment of reckoning with the legal profession’s gender and racial biases, but also a (safer) space for testifying to one’s own experiences. Sadly, the everyday violence of disableism is ill-suited for a catchy social media campaign and persons with disabling differences are far less likely to have communal support and generational knowledge to rely on that would permit them to make sense of their experiences with disableism as a form of oppression. Also, because of the divergence in the ontological realities between the able-bodied and between persons with different types of disabilities, it can be difficult for disability rights advocates to galvanize public opinion around relatable experiences. Without any prompt from outside in sight, one can only hope that the ableist college of international lawyers accepts the challenge of ending disableism in its ranks.

5. The twists and turns of disability in international law

Finally, the complicated history international law has with disability merits recalling. A history, as this section shows, that is not adequately captured by the two dominant narratives, which surround the adoption of the UNCRPD. One narrative is that persons with disabling differences have always enjoyed the same human rights as able-bodied persons and that the UNCRPD therefore only affirms existing human rights. ⁷² This narrative does not give the UNCRPD enough credit for having established a distinctly new rights regime that goes well beyond enhancing the implementation of existing human rights for persons with disabling differences. The second narrative is that disability has been absent from international law until the 1990s when human rights law, namely the UN Convention on the Rights of the Child (UNCRC) and the Committee on Economic, Social and Cultural Rights (CESCR) made disability explicitly a matter for child rights and socio-economic rights. ⁷³ This narrative overemphasizes the significance of the absence of any mention of disability in any binding international treaty before the UNCRC. In this section, I show that disability had not simply been forgotten by the international community before the 1990s, but rather, that we seem eager to forget how it had been made sense of, namely as a condition, which diminishes a person’s humanity and therefore also their ability to possess human rights.

Early international law viewed persons with disabling differences as distinct from able-bodied humans. This view was informed by the medical model of disability insofar as it attributed any difficulty that persons with disabling differences experience in their interactions with the social and material world to their ‘functional limitations’. ⁷⁴ This is most evident from the definition of a person with disabling differences in the UN General Assembly in 1975 according to which a ‘disabled person’ is one ‘unable to ensure by himself or herself, wholly or partly, the necessities of a normal individual and/or social life, as a result of a deficiency, either congenital or not, in his or her physical or mental capabilities’. ⁷⁵ As a result, early international legal instruments characterized concessions made to persons with disabling differences as social welfare, which is likely why such commitments did not find their way into any formally binding law at the time. The Universal Declaration of Human Rights (UDHR), which is also the first instrument to mention disability set the tone for this approach in its affirmation of the right to an adequate standard of living, health care, and the provision of social services for persons with disabling differences. ⁷⁶ This explicit acknowledgment of a specific right, begs the question of whether not all rights of the UDHR applied to persons with disabling differences. The answer to this question was given by the 1971 UN Declaration on the Rights of Mentally Retarded Persons, which grants such persons the same rights as other human beings under the condition that the enjoyment of rights is feasible for them. ⁷⁷ The declaration requires that proper legal processes involving the consultation of experts should be put in place, in case a person to whom this resolution applies, it does not define ‘mentally-retarded’, needed to be denied some or all their rights due to the severity of their condition. ⁷⁸ Admittedly, it is not clear whether the declaration refers to all human rights, or only to the rights it lists, which include among others, the right to economic security and the right to be protected from exploitation, abuse, and degrading treatment. ⁷⁹ Either way, the declaration at the very least suggests that to the extent that persons with disabling differences’ have rights, such rights were alienable.

The 1975 UN Declaration on the Rights of Disabled Persons clarified that the process for the lawful suppression of rights that the earlier resolution provided for, applied to all civil and political rights. ⁸⁰ This declaration also contained a specific disability rights catalogue, which affirmed fundamental civil rights for persons with disabling differences. ⁸¹ The declaration did not clarify whether this catalogue was simply a disability-specific precision of existing human rights, whether it created new rights for persons with disabling differences to complement the rights that they already possessed, or, whether this rights catalogue was distinct from the two international human rights covenants, which would enter into force shortly after. ⁸² Of course, the covenants were later interpreted as naturally applying to persons with disabling differences, which suggests that the 1975 Declaration simply contained precisions of or additions to existing human rights. ⁸³ This interpretation has never been substantiated further. It would thus be equally plausible to assume that the 1975 declaration contains separate rights for, what at the time was thought of as a separate category of the human species. Doctrinally, this interpretation finds support in three characteristics of the declaration, namely (i) its clarification that civil and political rights were not inalienable; (ii) a lack of reference to social, economic, and cultural rights; and (iii) its provision for rights with a narrower scope than related rights in general human rights law, such as the right of persons with disabling differences to live with their families or with foster parents. ⁸⁴

Disability-based discrimination in a non-disability-specific human rights treaty was only prohibited when the UNCRC entered into force in 1990. ⁸⁵ As a result, the UNCRPD was a much-celebrated accomplishment of the disability rights movement. ⁸⁶ Based on a textual analysis of the convention, Mégret offers a convincing theoretical categorization of the rights it contains. He claims that the convention (i) affirms disability rights as human rights; (ii) reformulates human rights in ways that recognize the particular needs of persons with disabling differences; (iii) extends human rights by recognizing more than other human rights frameworks dynamics of structural power and oppression; and (iv) innovates an entirely new human right, namely the human right to autonomy. ⁸⁷ His work is singular in its attempt to explain how the explicit recognition of disability as a category of vulnerability has changed international law.

The UNCRPD’s centrality in shaping domestic disability law and policy tends to be underestimated by international lawyers who seem to have little interest in the convention altogether. To the extent that the UNCRPD is a subject of research, it has been cited as an example of recent successful human rights codification and used as a basis for calls for the expansion of disability rights into other fields of international law. ⁸⁸ Self-reflection on the place of ableism in the legal field and the profession and critical engagement with the UNCRPD and the extent to which human rights are even a suitable technique of governance to govern relations between persons with disabling differences and the material and social world are rare.⁸⁹

6. Conclusion

Ultimately, able-bodiedness and disability are not two binary categories, but merely signifiers for a myriad of human conditions.⁹⁰ As I described above, within the college of international lawyers, ableism and the broader trends towards the commodification of education and research go hand in hand in keeping persons with disabling differences at the margins of the profession. The wide use of performance indicators for measuring the productivity of academics for instance, not only further solidifies conceptions of normalcy by standardizing how much emphasis a ‘good’ and ‘productive’ academic ought to place on their different professional demands, but also rarely permits for disability being given any consideration at all. The delineation between performing and non-performing professionals by seemingly neutral standards not only has a gate-keeping effect for persons with disabling differences but also lends legitimacy to their exclusion. Attempts to offset this, e.g., by the UK ‘disability confident scheme’ have, at best, had only very limited success.⁹¹ This replicates the tenuous relationship of disability in capitalist labour markets and is one of the factors contributing to the intricate link between disability and poverty.⁹²

The silence on presumptions of, and expectations about able-bodiedness in legal academia is unfortunate. This silence co-conditions the absence, or rather an invisibility of international lawyers with disabling differences within the professional community. Unravelling ableist presumptions can help to reshape the professional field in a manner that is representative of the general public and will permit the introduction of different ontologies of the social and metaphysical world that international law aspires to govern into the ranks of its experts. In other disciplines, this process has already begun. A series of news articles published by the prestigious Nature journal, a multi-disciplinary scientific journal publishing on natural science, called on its academic readership to work towards overcoming ableism.⁹³ International legal academia should follow suit.