Fifth Session of the Ad Hoc Committee
Intervention of the Special Rapporteur
On Article 9
I have listened with great interest to the discussion on legal capacity and would like to make an observation based on my experience as Special Rapporteur.
I believe it is important to note the strong consensus on recognizing persons with disabilities fully as persons before the law, or having juridical personality or capacity or whatever appropriate terms may be in different legal systems.
Historically that recognition has sometimes been denied to particular groups—we think of slaves or children or in some cases and eras, even women or indigenous peoples. Acceptance as a person before the law ensures the applicability of guarantees of equality and non-discrimination and is a pre-requisite for individuals to be fully recognized as subjects of rights.
I note that there is less consensus on how to refer to legal capacity, or the capacity to act in all legal matters.
I have heard many delegates refer to national legislation which does not recognize the capacity of everyone to act or to exercise their juridical or legal capacity. I believe we can all agree that children have such limited legal capacity depending on their age and maturity.
The problem is precisely that too often people with disabilities have been assimilated with children in matters concerning legal capacity. In too many cases national legislation allows disability to justify arguing that a person must be “incapacitated” or seen as having “no capacity”. Historically, that has often been the case even for those suffering from disabilities that may effect only, for example, the capacity to communicate, easily views, preferences or decisions.
I would like to call on delegates to remember that we are drafting a new treaty precisely to address the many problems that existing legal systems present for the enjoyment of human rights by persons with disabilities.
Accepting that all adults should be assumed to have full legal capacity and that persons with disabilities may be merely in need of assistance rather than lacking capacity would reflect our commitment to enshrine in this treaty the principle that persons with disabilities are subjects of rights and not objects of protection.
The assistance needed to exert legal capacity may be very modest—translation of legal documents or proceedings into Braille or sign language for example—or it may be very significant. In extreme cases the assistance required may go beyond support for decision making to become almost, in practice, substitute decision making.
But reaffirming the principle that capacity resides with the person and that the role of support or representation is to respect that capacity to the maximum extent possible would, I believe, represent a fundamental statement that this treaty must make.
The change in terminology and conceptual approach will help us emphasize the need for assistance or support to be based on the principle of the dignity of the persons with disabilities as subjects of rights while ensuring that their interests receive the protection that may be required by different types and degrees of disability.