Back to: Fifth Session of the Ad Hoc Committee
Summaries of the Fifth Session
Daily summary of discussion at the fifth session
25 January 2005
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UN Convention on the Human Rights of People with Disabilities
Ad Hoc Committee - Daily Summaries
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Volume 6, #2
January 25, 2005
ARTICLE 8: RIGHT TO LIFE (continued)
Egypt supported the inclusion of special factors which
impact right to life because this Convention is about the rights of
PWD and must have clear and frank language about the obstacles to these
rights such as natural disasters, armed conflict, foreign occupation,
etc. These conditions restrict the rights of PWD; therefore this Convention
must reaffirm this guarantee of the right to life. This is not political
in nature; the international community rejects natural and manmade disasters.
This Convention must reject particular opinions, doctrines, or ideologies.
The fundamental principle must be special circumstances and special
Colombia supported Costa Rica's wording proposal because
it reaffirms other treaties by stating that PWD have a right to life.
Nothing should be added to Article 8; perhaps the proposed addition
belongs in Article 10, on the security of persons.
Republic of Korea spoke in favor of Article 8 because
without the right to life, other rights cannot be enjoyed. It agreed
with other delegations that the current, concise WG text should be kept.
Listing various situations would weaken this article. It supported Costa
Rica's proposals to delete "PWD" in the middle of the sentence
and to replace "them" at the end of the sentence with "PWD,"
in order to reinforce that this Convention reaffirms the right to life
for all people.
Holy See agreed with El Salvador that this article
should more explicitly express the right to life at all stages of life
including at conception.
Trinidad and Tobago stated that although it understands
why other delegations want to add important issues to this Article 8,
the Article should only deal with the inherent right to life. It supported
Costa Rica's approach which would cover all situations. If the Convention
contained a list, would it be an indicative list or an exhaustive list?
Would this Committee become embroiled in a long debate about every situation
which impacts the right to life? Simplicity is the most appropriate
Nigeria affirmed its belief that Article 8 is vital
to this Convention, and supported Costa Rica's proposed language and
New Zealand's proposed addition. However, particular issues, such as
war, conflict and natural disaster need to be added to this article
because vulnerable groups must be assured their security during these
The Coordinator noted the consensus for keeping Article
8 in the Convention. Two amendments to the WG text received widespread
support: Costa Rica's proposal to reaffirm the inherent right to life
of "all persons" (instead of "PWD" as in the WG
text) and to change "them" to "PWD"; and New Zealand's
proposal to add "on an equal basis with others." The full
article with additions will read: "States Parties reaffirm the
inherent right to life of all persons and shall take all necessary measures
to ensure its effective enjoyment by persons with disabilities on an
equal basis with others." There was wide support to broaden this
article to include special measures for PWD at particular risk such
as those facing natural disasters, war, foreign occupation and other
events. At the same time, there was strong support for keeping the present
brief text. There is no general agreement to broadening this article.
However, there was no opposition to including these issues in other
areas of the Convention or in a separate article. In CRC, there is a
separate provision, in Article 38, dealing with this issue. The term
often used in other Conventions is "public emergency"; whether
this term goes far enough for this group is unclear. Resolving this
article will require flexibility and compromise. He proposed the following
language: "States Parties reaffirm that every human being has an
inherent right to life and shall take all necessary measures to ensure
its effective enjoyment by persons with disabilities on an equal basis
with others." He explained that "human being" is the
term used in the ICCPR. He proposed Article 8(bis): "States Parties
recognize that in situations of risk to the general population persons
with disabilities are especially vulnerable, and shall take all feasible
measures for their protection." The placement of 8(bis) is still
not settled. This language goes further than the right to life. The
obligation during situations of war, foreign occupation, pubic emergency
and humanitarian emergency goes further than ensuring PWD have the right
to life. The risks to PWD are not only to their lives, but to other
aspects of their well-being. This may not be any delegation's ideal
solution, but it could be a compromise formulation. He asked for comments
on these proposals.
Yemen expressed appreciation for the Coordinator's
proposed 8(bis) but it believes the Convention should reflect specific
treatment in specific cases. Listing these examples would give PWD their
due rights. The issue is not political; it is about States' commitment
to protection of PWD.
The Coordinator restated Yemen's preference for enumerating
"situations of risk" including humanitarian disasters, natural
disasters, wars, and foreign occupation. Some delegations had reservations
about making a list. Other Conventions use the term "public emergency,"
but that was too narrow to encompass foreign occupation and other situations.
[Remainder of statement not recorded on tape].
Kenya expressed its support for Article 8 and 8(bis)
and proposed changing the word "feasible" to "appropriate"
or "necessary." It asked for an explanation of the word "feasible."
The Coordinator responded that an adjective was necessary,
and that it might not be possible in a disaster for a State to take
all measures to protect PWD. He agreed that appropriate was another
option but believed that it was weaker than feasible. "Feasible"
means any action that one can take; "necessary" may be too
strong because a State may not be able to take all necessary actions.
"Feasible" is used in CRC, Article 38, paragraph 4 in the
context of armed conflict. Of course, this Committee may adopt any word
Palestine restated its support for listing specific
situations in Article 8. It does not support the Coordinator's proposed
Luxembourg (EU) asked for more time to determine whether
it supports 8(bis).
The Coordinator noted a general consensus for his
proposal for Article 8. Some issues regarding 8(bis) still need to be
worked out for which interested delegations should speak with the facilitator
for this Article, Ecuador. The choices are to use the general term "situations
of risk"; or to refer to "public emergency," which may
not include all situations; or to spell out the situations inclusively
and in detail.
ARTICLE 9: EQUAL RECOGNITION AS A PERSON BEFORE THE LAW
The Coordinator stated that Article 9, "Equal
Recognition of a Person Before the Law," is a more complex Article.
The discussion will need to be structured to avoid misunderstandings.
There are several alternative proposals. In earlier discussions there
was quite a bit of support for Canada's proposal. However, he asked
the group to use the WG text as a basis of negotiation when considering
alternative approaches. In Article 7, there is language about equality
before the law and equal protection under the law so there is a question
about whether Article 9 should repeat that language. There is also a
question about whether the Article should focus on supported decision-making
and not permit substitute decision-making. Disability NGOs have strong
views on this which the Committee should consider. Another issue is
whether to deal with access to justice here or under a separate article.
The Coordinator also put forward several other questions that need consideration,
including the following: How should this Convention deal with legal
capacity and property rights? Do these need further elaboration? Should
this article include equal obligations and responsibilities? He suggested
using this time for discussing substantive issues, not for drafting
changes. He asked the group to be aware of time constraints and to keep
the process moving.
Then the Coordinator asked for comments regarding
9(a). During the discussion of Article 7, there was general agreement
on language reading. "States Parties recognize that all persons
are equal before and under the law and entitled without any discrimination
to the equal protection and equal benefit of the law." Essentially
this is the same idea as in 9(a), although 9(a) is more specific because
it refers to PWD. Is 9(a) necessary, in light of the language in Article
Libya opposed the first word of 9(a), "recognize,"
because it implies that States are not recognizing PWD and now they
will. PWD should not be separated from other people before the law.
PWD have legal obligations and rights with the exception of those with
"damaged brains," who should be exempted from certain punishments.
Otherwise, PWD should be treated the same in all obligations and rights.
He supported deleting the word "recognition."
Japan expressed frustration about the decision to
start with the WG text because the Canadian proposal had support from
many delegations including the EU. Japan does not want to rehash previous
discussions. It also expressed the concern which China brought up in
a previous session regarding the fundamental difference between the
systems of Continental Law and Common Law. The Convention should affirm
the general equality of PWD, but it should also accommodate exceptional
situations where PWD are adjudicated to be incompetent and unable to
exercise their legal rights.
The Coordinator agreed that there was widespread support
for the Canadian proposal. He said he was open to reviewing that text
instead of the WG text. He asked for other opinions.
The EU reaffirmed its position that there is a need
for recognition of equal rights and the guarantee of equality. This
Article deals with the capacity of persons and therefore the legal framework
is important. It supported 9(a) & (b), which provide that framework.
It supported negotiating from Canada's proposed text.
Australia supported Japan's proposal to work from
the Canadian proposal. This support was echoed by Serbia and
Costa Rica compared the WG text with the Canadian
proposal. Paragraphs 9(1) & 9(2) are about the same in both versions,
while 9(3) is totally different. If this group begins its discussions
with the Canadian proposal, the differences between it and the WG draft
should be made clear. These are not just drafting differences; they
are legal and philosophical differences. Costa Rica prefers to work
from the WG draft, but is willing to consider either.
The Coordinator stated that the Committee needed to
choose one draft in order to facilitate the discussion, and that there
seemed to be consensus for working from the Canadian proposal.
China stated that there had been much discussion during
AHC4 during which many proposals were offered. Although the Canadian
proposal includes many good ideas, it is not appropriate to use only
one proposed text out of all of the contributions of the WG. The African
Group proposals were also very good. China expressed support for 9(a).
The Coordinator stated that all texts are on the table;
the group just needs to choose one text as a starting point. He stated
that he does not want a long procedural discussion.
Thailand supported the WG text as the basis for discussion.
Other texts should be brought into the WG text; otherwise, there may
Yemen stated that in 9(a), the word "recognition,"
in itself, may not produce the desired results for States or PWD. It
proposed using terms which are legally significant, such as "commit"
or "obligation," that equate to equality for PWD. As Libya
stated, "recognition" does not add anything to this Convention;
recognition is only a process which may not guarantee PWD rights.
Brazil preferred using the WG text because 9(3) of
the Canadian proposal allows for certain authorities to find an adult
not to have legal capacity.
Kenya (Africa Group) supported using the WG framework,
although language from the Canadian proposal may be added to it.
Iran, Uruguay, Jordan and the EU supported using the
WG text as a basis for negotiation.
The Coordinator decided that the WG text would be
the basis for discussions because the General Assembly resolution requires
this and there is no reason to deviate from procedure. Other text may
be added as needed.
Costa Rica suggested that 9(a) is redundant given
its similarity to 7(1) and should be deleted, unless there is strong
Colombia agreed with Costa Rica.
Kenya (Africa Group) stated that 9(a) is about self-determination
and therefore recognition is very pertinent. Recognizing PWD as individuals
having equal rights before the law is appropriate. It supports retaining
9(a) with the following language: "Recognize PWD as individuals
with equal rights before the law."
Libya explained its earlier comments. When legislators
formulate a law, they consider persons on an equal basis; they do not
distinguish between persons and PWD. Therefore, the word "recognition"
is saying that we don't recognize PWD before the law, but when this
Convention is signed, we will. "Obligation" is the needed
term; PWD are already equal before the law. Recognition has already
The Coordinator noted that other international instruments
have used the term "recognition." The UDHR, Article 6, reads:
"Everyone has the right to recognition everywhere as a person before
the law." A verb is necessary. The Coordinator asked Libya whether
it could offer an alternative word.
Libya responded that it had no alternative, but supported
Yemen's suggestion to use a more obligatory term.
Uruguay stated its belief that because Article 7 already
recognizes equality before the law, this group should look at Mexico's
proposed revision which reads: "Recognise persons with disabilities
as subjects of rights and obligations before the law, in equal conditions
to those of persons without disabilities."
The EU reminded the group that the term "recognition"
is found in Article 16 of ICCPR. Article 9 should encompass both the
recognition of equal rights under the law and the guarantee of equality
to enjoy those rights.
The Coordinator asked what the EU thought about the
reformulation of the African Group "equal rights before the law,"
rather than "equal to all other persons." The EU
responded that its proposal would read: "Recognize PWD as individuals
with equal rights before the law and guarantee equality before the law
without discrimination against PWD."
The Coordinator asked the EU why the second half of
its proposal repeats 7(1). The EU answered that this
Article must lay out a clear framework of principles for dealing with
the capabilities of individuals and to reaffirm equality before the
law. The Coordinator said that, presumably, when one
article of the Convention deals with an issue, it should not be repeated
in another parts. That would create a weaker and unwieldy Convention.
The EU said that its delegation would discuss the Coordinator's
suggestion to streamline the text in light of the similar language in
Jordan proposed alternative language for beginning
9(a), given its importance to this Article. Using "believing that"
or "understanding that" or "considering that" instead
of "recognizing" will make clear that a fundamental right
exists, without it having to be recognized.
Mexico pointed out that historically, rights were
"granted," but now rights are "recognized." This
change reflects the current thinking on human rights: States do not
create or grant rights, they recognize rights. Mexico supports the WG
text's use of the word "recognize" because this parallels
other Conventions and reflects the current thinking. Mexico cautioned
that the Committee is repeating much of the discussion it had during
its consideration of Article 7. Article 9 involves the juridical capabilities
and capacities of PWD and the actions needed to achieve de facto equality,
not just juridical equality. Its proposal aims to deal with conditions,
not juridical principles which are already established. Everyone enjoys
the same rights under the law; Article 9 should deal with the measures
needed to ensure juridical capabilities can actually be exercised by
individuals with disabilities.
The Coordinator agreed with Mexico that the word "recognize"
is used in other human rights instruments and that the word "believing"
is used in United Nation resolutions and preambles. Legally, "recognize"
is seen as a stronger term; it is a standard term and is used in Article
6 of the UDHR and in Article 16 of the ICCPR. The Coordinator asked
the delegations to reflect further on the term "recognize."
He also asked them to consider the various proposals regarding Article
9 made by the African Group, Mexico, and others, as there is not yet
a consensus. It may be that the Committee prefers the WG formulation.
Cuba suggested the word "reaffirm" to replace
the term "recognize" and thereby resolve the concerns of groups
objecting to that term.
Venezuela urged that Article 9 should deal only with
individuals' juridical capacity. To avoid duplication, it proposed removing
the language about non-discrimination from Article 9, and keeping it
in Article 7. Regarding 9(a), to achieve equality for PWD under the
law this section must include legal obligations. It echoed Uruguay's
support for the Mexican proposal.
Yemen stated that although 9(a) has similar language
as Article 7, they have different purposes and therefore it believes
they should both be kept in the Convention. It supports the EU's proposed
language reading, "Recognise persons with disabilities as individuals
with equal rights before the law and guarantee equality before the law,
without discrimination against persons with disabilities." Guaranteeing
rights is not sufficient; this Convention should include obligations
to comply. Therefore Yemen proposed a word change in the EU version
so that this obligation will be conveyed in the Arabic translation.
Trinidad and Tobago stated that because the word "recognize"
is used in other documents, it should be used in this Convention. It
is concerned about interpretations of other proposed words. In terms
of obligatory language, the chapeau is obligatory so everything which
follows is also obligatory. It suggested adding some cross-referencing
so that the Convention is not unduly duplicative. For example, the EU
language in 9(a) repeats ideas in Article 7. It proposed the following
language: "Without prejudice to the provisions of Article 7, States
Parties shall recognize PWD as individuals with equal rights before
the law." This would both safeguard previous articles and avoid
Chile stated that the word "recognize" is
sufficiently imperative for this Convention. It agreed with others that
this Article focuses on the legal capacity of PWDs and on recognition
of their ability to enjoy these rights. Equality under the law is already
in Article 7; this Article needs to discuss the supports that PWDs may
require in order to use these rights. The Article should also deal with
de facto restrictions on those rights.
New Zealand supported Canada's proposal to delete
9(a) because this idea is covered in Article 7.
Libya expressed its preference for the word "reaffirm,"
which is also used in other Conventions, because it is more obligatory
than "recognize." However it will accept "recognize"
if that is the consensus.
The Coordinator pointed out that there was no consensus
regarding alternative text so he suggested using the language in the
WG text. Several groups have supported deleting 9(a) because it is redundant,
but there has been quite a bit of support for retaining it. The term
"recognize" causes concerns for some delegations, but others
are willing to be flexible. He would like to leave this issue for later;
however, he sees support for 9(a) in the WG text. One of the issues
is whether to include "obligations," as proposed by Mexico,
or whether "rights" is enough. The other issue is whether
the text should be "equal rights under the law" or "equal
to all other persons," though this is not a substantive issue,
but merely a drafting issue.
Iran agreed to accept "equal rights under the
law" but pointed out that the practice in this Convention has been
to compare PWD to other persons. Therefore it proposed the language
"equal rights under the law like other persons." Either formulation
is fine. Regarding obligations, it asked if a person who committed a
crime and is "retarded" or has psychological problems should
be treated the same and have the same obligations. There are exceptional
cases. There should be more clarification and discussion.
Republic of Korea supported the retention of "equal
rights before the law" because it is a core idea of Article 9.
It stated that Article 7, which addresses non-discrimination, does not
have equality before the law at its core. It proposed deleting the phrase
from Article 7 instead of from Article 9, if duplication is a concern.
Libya supported the African Group's proposal.
The Coordinator asked delegates to respond to Iran's
comment about whether obligations are included in the concept of equality
before the law. The other question is whether to use language calling
for recognition of PWD as "individuals with rights before the law,"
as in the original WG text, or as "individuals with equal rights
before the law," as in the revisions proposed by the African Group
and the European Union. He asked if there was a substantive difference
between the two texts.
Kenya (African Group) responded that there is a substantive
difference. From a measurement standpoint, "equal rights before
the law" is a stronger statement.
Mexico explained why it proposed adding "obligations"
to 9(a). In Mexico some civil rights, such as voting, are also obligations.
Also the term "obligation" helps to give this Convention a
non-paternalistic tone. Mexico would be willing to live without the
term "obligations" if that is the consensus. It proposed this
language in order to emphasize equal conditions. If the group rejects
this formulation of 9(a), Mexico would like to draft an introduction
to Article 9.
The Coordinator asked whether any delegation had problems
with referring to "obligations" in 9(a).
Canada responded that this is a human rights Convention
and cannot cover every aspect of a legal framework. The Convention is
intended to deal with human rights and it is not appropriate to refer
to obligations in this Article.
Libya supported the term "obligations" because
without that language, PWD who are convicted of crimes might use the
Convention to try to avoid punishment.
The Coordinator stated that there is no consensus
about the word "obligations." He asked for comments regarding
the change proposed by the African group -- "individuals with equal
rights before the law," as opposed to "individuals with rights
before the law equal to all other persons."
Australia supported the WG text because "equal
rights" with no comparison point is problematic. It raises the
question, equal to what or to whom? "Equal to all other persons"
gives a point of comparison or measurement.
The Coordinator asked Kenya if, after hearing Australia,
it could live with the WG text.
Kenya asked for more time to confer with the African
Group. The Coordinator suggested talking to Australia
to see whether substantive differences could be resolved. For now, the
WG text will stay as it is; this group may revisit this later if necessary.
Philippines supported Mexico and Libya in including
obligations because genuine equality includes both rights and responsibilities.
If this group is uncomfortable with the word "obligations,"
it suggested using "responsibilities" instead.
Thailand supported the WG text as written. If the
Committee decides to use the African Group's proposal, it should add
language such as "without distinction or discrimination based on
disabilities." [Remainder of intervention not recorded]
The Coordinator mentioned that the African Group may
want to consider whether the wording in its proposal could be interpreted
as recognizing equal rights among PWD before the law rather than in
comparison to people without disabilities. He suggested that Canada,
the Philippines and others discuss whether obligations or responsibilities
should be included in 9(a). He stated that for now, the WG text will
be used for future negotiations. He then began discussion of 9(b): "Accept
that persons with disabilities have full legal capacity on an equal
basis as others, including in financial matters." Footnote 32 states:
"The intent of this subparagraph is to acknowledge that children
are not generally accepted as having full legal capacity and that neither
would, therefore, children with disabilities. In terms of legal capacity,
persons with disabilities should be treated without discrimination on
the basis of disability."
Iran asked how "retarded people” could be expected
to manage financial matters and how the Convention should treat them.
Should they given full legal capacity? An exception should be added
to the end in order to address this vital question.
The Coordinator stated that the WG approach was to
look at Article 9 as a whole. 9(a) states that PWD have rights before
the law; 9(b) states that PWD have full legal capacity on an equal basis
with others; 9(c) and 9(d) both acknowledge that there are circumstances
in which PWD will require assistance to exercise their legal capacity,
and require the provision of that assistance; and 9(e) and 9(f) ensure
that PWD are not denied the right to own or inherit property or control,
and that they are not deprived of their property. Individual paragraphs
cannot stand alone; the Article must be taken as a whole. This Article
raises complex issues.
Yemen shared its concerns that legal capacity has
broad meaning and covers more than financial matters; it covers all
aspects including social, political and economic. It suggested either
specifying other aspects of legal capacity in addition to the financial
aspect, or just making it a general statement about legal capacity,
leaving it to each State to define what this includes. Yemen added that
individuals unable to exercise full legal capacity on their own must
be given assistance.
The Coordinator recalled the reason the WG specifically
referenced financial matters was because PWD, in practice, are often
precluded from exercising their legal capacity in this area. The reference
to financial matters should not preclude PWD from exercising legal capacity
in other areas.
Syria agreed with the concerns raised by Iran and
Yemen, noting that a person with certain mental disabilities do not
have legal capacity to manage financial affairs or appear in court.
"This is simply a fact." A distinction must be made between
types of disability. Language should be added to 9(f) regarding property,
making distinctions based on the degree and nature of the disability.
"Certain PWD have no legal capacity." This article is too
general; it should specify which PWD do and do not have legal capacity.
Kenya (Africa Group) stated that financial matters
could be addressed in 9(e) and will discuss that later. It proposed
9(b) be changed to read: "Accept that PWD have full legal capacity
on an equitable basis with all others except as provided by law."
Canada asked delegations to use respectful language
when discussing this Convention. Use of negative language may perpetuate
negative stereotypes that this Convention addresses. For example, terms
such as intellectual disabilities are preferable. Paragraph 9(b) gives
rise to confusion. The Committee should carefully consider its proposed
text. It explained some reasons why its 9(1) text may be needed. The
term "full legal capacity" is not clear and may not reflect
all legal systems in the world. Its proposed text uses the term "equal
legal capacity," reflecting a key purpose of this Convention. By
using the term "equality," Canada tries to address EU and
Mexico's desire for this Article to reference "equality before
the law," though this may not be enough and therefore is still
open to discussion. The rest of its proposal, like the WG text, deals
with the issue of legal capacity and sets out concrete examples of exercising
legal capacity in order to give clarity. It is flexible regarding whether
these examples should stay in the article. It proposed "States
Parties shall recognize that PWD have a legal capacity equal to that
of other persons and shall accord them equal opportunities to exercise
that capacity. In particular, they shall recognize that PWD have equal
rights to conclude contracts and to administer property and shall treat
them equally in all stages of procedure in courts and tribunals."
Exceptions should not be dealt with in this Convention; instead the
Article should state the general principle of equal capacity, with no
exception. There are situations where support is needed to exercise
New Zealand agreed with Canada and supported its first
paragraph to replace 9(b), because the Canadian proposal makes a distinction
between assisted decision-making and substitute decision-making and
is preferable to the African Group's proposal to add "except as
provided by law." At one time guardianship was seen as a benign
way to protect PWD; now it is seen as an intrusion into people's basic
human rights. Therefore, there should be careful protections around
substitute decision-making. Canada's proposal does this. The WG text
of 9(d) mentions the rights of PWD to give evidence and act as witnesses;
this is missing from Canada's proposal. It proposed adding this to Canada's
proposal because often PWD are not considered credible witness and this
is especially serious when they are a victim of a crime and are the
only witness. It proposed adding on at the end of 9(1) which will replace
9(b): "including matters of giving evidence and acting as a witness."
Thailand supported New Zealand's and Canada's proposals,
which keep the WG text's concepts. The word "including" in
the WG text does not exclude other matters. The Coordinator is correct
that the Article highlights financial matters because of the practices
of some States. Exceptional circumstances, mentioned by several States,
are addressed in 9(c).
The Coordinator noted that the issue of legal capacity
goes to the heart of this Convention, and during the WG, was vigorously
The session was adjourned.
The Coordinator asked delegates to discuss whether
they support the reference to financial matters in 9(b) as well as the
proposed wording by Canada in 9(1) dealing with the practical ability
of PWD to exercise full legal capacity. Summarizing, he noted that N
ew Zealand pointed out that the WG text provides for assisted decision-making
and that the Canadian proposal provides for both assisted and substitute
decision-making. This was a difficult issue for the WG. Both texts must
be seen in their totality because they both represent a progression.
The WG version moves from legal capacity to assistance, the Canadian
version from legal capacity to substitution.
Libya supported Syria and Yemen in terms of the kind
of disability which should be exempted from full legal capacity. It
firmly believes all PWD have full legal capacity except those with mental
disabilities such as brain damage. This could work against people with
other types of disabilities. For example, if there are no exceptions
specified, someone who is paralyzed could be said not to have full legal
capacity by a court. It would be better to say that all PWD enjoy full
legal capacity except those with mental disorders.
The Coordinator pointed out that both the WG and Canadian
texts distinguish between having legal capacity and exercising legal
capacity. Everyone has legal capacity; however, there will be certain
circumstances in which a person will have difficulty exercising that
legal capacity. In such cases, both texts require giving assistance
to allow PWD to exercise legal capacity. The WG text requires assisted
decision-making and perhaps by implication, substituted decision-making,
while 9(3) in the Canadian text explicitly addresses substituted decision-making,
with a clear procedure. Neither text excludes any specific type of PWD
from legal capacity, though both recognize that PWD may differ in their
ability to exercise it. The Coordinator asked delegates to look closely
at this important distinction before changing that structure. To deny
people with certain disabilities legal capacity would be a significant
Costa Rica thanked the Coordinator for his wise comments.
Article 9 is based on the premise that everyone has legal capacity,
and that some need assistance. In order to provide protections for those
needing assistance, Article 9 guarantees an independent, competent authority
in accordance with the law. The Canadian proposal, 9(1), includes more
than just legal capacity. It also refers to the right to administer
and own property, to sign contracts, and to be equally involved in all
legal procedures. Other delegations have suggested adding the right
to be witnesses. If this Committee believes it is necessary to include
all these issues, which Costa Rica does not support, it would propose
two separate articles. Given that this Article is already very complex,
further additions would prove difficult. Paragraph 9(b) of the WG text
and 9(1) of the Canadian proposal are basically the same, except that
the Canada proposal addresses more issues. It proposed changing 9(b)
to read: "Recognize the legal capacity of PWD on an equal basis
with others in all fields" (or "in all matters"). This
avoids restrictive language. The cases requiring assistance for the
exercise of legal capacity should be defined in 9(c). Costa Rica supported
the EU's proposal for 9(c).
The EU expressed its view that Article 9 should state
a strong, concise, and brief principle at the beginning, guaranteeing
PWD equal rights before the law. PWD have the same rights and legal
capacity as people without disabilities. It supported "equal rights
before the law" and could support obligations or responsibilities,
though these terms are not typically used in international legislation.
The Coordinator asked for delegations' positions on
Costa Rica's proposed language for 9(b), referring to all fields, not
just financial matters. He noted that some delegations find the WG text
to be restrictive even though it uses the word "including."
Another issue is whether delegations prefer the language of 9(b) or
India stated this article is important because it
seeks to place PWD on equal footing with others as legal entities with
legally enforceable rights, duties, and obligations. It supported the
WG text for 9(a) and 9(b); however, it supported removal of financial
matters because this may be seen as a limiting factor. It supported
the Costa Rican formulation. Regarding 9(b), it recognizes the legal
capacity of all PWD, but also recognizes some PWD will need varying
amounts of support, depending on their disability, to exercise that
right. It proposed adding to 9(b) a sentence about supported or assisted
decision-making. It supported the language in the EU's 9(3).
Norway stated that throughout history there have been
grim examples of discrimination against and denial of PWD on questionable
legal grounds. This complex Article was inspired by CEDAW. There is
a need to differentiate between women and PWD. A person who is blind
or deaf should have full legal rights, however some PWD need some assistance
to exercise legal capacity. But there are certain disabilities, for
example serious learning disabilities, developmental disabilities, and
major mental illness, which may prevent the person from representing
his own interests and may create a need for protection. Norway cannot
agree that everyone has legal capacity. Neither the WG text nor the
Canadian text take into account the great diversity of disabilities
and the need to assist or protect certain groups. It will be difficult
to balance the need for protection with the necessity not to undermine
the scope of the Convention. It supports the EU's proposal for 9(b):
"Recognize PWD as individuals with equal rights before the law
and guarantee equality before the law without discrimination against
PWD." This is also an issue in Articles 10, 11 and 12.
The Coordinator asked for clarification from Norway
regarding its statement that not all PWD have legal capacity. In response,
Norway referenced CRC, which recognizes that the child
has legal rights, but not necessarily legal capacity. Instead, legal
capacity comes gradually. The Coordinator stated he
would like to hear other opinions on this complex legal concept.
Brazil supported Costa Rica's proposal on 9(b) because
it is broader than just financial matters, and because it does not contain
any exceptions to the exercise of legal capacity. Exceptions are not
necessary because 9(c) specifies when assistance would be given. In
Brazil, a person with a severe mental disability has full legal capacity,
though a tutor or assistant might be named to help the person exercise
Kenya stated that financial, property, and other issues
are covered by 9(e), and could therefore be deleted from 9(b) so that
they will not appear to be more important than other issues. Exceptions
for PWD who need assisted or supported decision-making are covered in
The Coordinator, trying to reach consensus on whether
to keep "financial matters" in the text, asked Thailand, which
spoke for retention, if it could support Costa Rica's proposed language,
"in all fields." Thailand responded that
it is flexible, but that the word "including" is not a limiting
term; the phrase only means that financial matters should receive high
attention. It could accept Costa Rica's proposal. Having full legal
capacity is different than the ability to exercise it and should be
dealt with differently. No disability should be singled out for a lower
standard of legal capacity. The best approach can be found in 9(c),
dealing with assistance. Paragraph 9(b) is based on the principle that
no one has less legal capacity; this is much better than labeling certain
disabilities as having less capacity.
Russian Federation agreed with the distinction the
Coordinator made between legal capacity and the possibility for an individual
to exercise that capacity. It explained the difficulty in translating
to Russian. The language has two different concepts of legal capacity:
One is the capacity of an individual to be a subject of law and have
responsibilities and the other is capacity to exercise those rights
and responsibilities. If this Committee decides to make any exceptions,
the second concept and translation, concerning the capacity to act,
should be adopted because the other type of legal capacity should not
be limited. The wording of 9(a) is slightly different from the wording
in other international conventions. This Convention should be the same
as other human rights conventions. The Russian Federation suggested
two ways of rewording 9(a) -- either "equality of each and every
person before the law" or "equal rights." It objects
to "equal rights before the law", because it substantially
modifies the concepts found in CERD, CEDAW, and UDHR. It proposed revising
9(a) to read: "Recognize PWD as having rights equal to all other
persons" or "Recognize that PWD have rights to equality before
the law." It has some doubts about stressing financial matters
in 9(b), and it does not fully understand what is meant by financial
matters. It supports the Costa Rican proposal, because 9(e) in the WG
text deals in a more detailed manner with financial matters. This Article
should avoid mentioning specific areas of law.
The Coordinator announced that 9(a) of the WG text
would be retained, and that there is consensus to delete financial matters
from 9(b) and to use the Costa Rican language. He asked for more input
about the Canadian and WG text as well as whether all PWD have legal
capacity, an essential issue in both the texts.
Serbia and Montenegro agreed with Norway in many ways,
and supported the EU's merger of 9(a) and (b). It, like Norway and the
Russian Federation, has linguistic problems in relation to the concept
of legal capacity. Serbia-Montenegro appreciates understanding the difference
between having full legal capacity and exercising it; there are times
that some PWD will be unable to exercise it. The EU proposal is preferable
to the WG text, but if the latter is adopted financial matters should
not be included. In response to the Coordinator's question about whether
some PWD have no legal capacity, Norway has said that the presumption
should be for full legal capacity, but there should be legal safeguards
and exceptions. S-MN noted that other countries' delegations also have
reservations about all PWD having full legal capacity.
The Coordinator asked whether there should be exceptions
to legal capacity or just to its exercise. His impression of the group's
consensus is that there will be exceptions to exercising legal capacity,
but not to having legal capacity.
Yemen asserted that all people should be allowed to
enjoy rights but not all may be capable of enjoying these rights. Legal
duties and obligations should also be considered. It supported the Costa
China agreed with the Russian Federation that the
term "legal capacity" has different meanings. It recalled
the WG discussion regarding the world's two legal systems, Continental
and Anglo-Saxon. Legal capacity is difficult to translate into many
other languages. The key is that PWD enjoy rights equal to others. China
suggested thinking of some ways to avoid using the disputed term "legal
capacity." The Canadian and African texts both have many favorable
elements which could be combined as follows: "Recognize that PWD
have a legal capacity on an equal basis with others as provided by the
law and accord them equal opportunity to exercise that capacity."
The Coordinator stated that given the difficulties
legal capacity is raising, maybe alternative language is needed. There
are several options including the Chinese proposal which uses the first
part of Canada's 9(1) referring to legal capacity, and the EU proposal
which does not refer to legal capacity but instead reads, "Recognize
PWD as individuals with equal rights before the law and guarantee equality
before the law without discrimination against PWD." This issue
of legal capacity is proving to be somewhat problematic. In some legal
systems, it does not appear to be a problem, but in others it is a problem.
Some legal systems appear to accept that everyone has legal capacity
though some people may not be able to exercise it in every situation,
while other legal systems do not accept that everyone has legal capacity.
This is taking a lot of time, but it is a fundamental issue.
Chile stated that legal capacity is a fundamental
right which must be recognized for all persons, including PWD, though
the exercise of this right may be restricted. The country of Chile recognizes
this right and distinguishes between the exercise of this right and
the enjoyment of this right. In extreme cases, a tutor or guardian may
need to be appointed to assist a person to exercise their rights. A
person always is entitled to these rights, and should never be deprived
of these rights.
The Coordinator stated that is also true in his country,
but other countries have different systems and somehow this Committee
needs to address both systems. China spoke of the differences between
the Anglo-Saxon system and the Continental system. Neither Chile nor
Brazil are part of the Anglo-Saxon legal system; they are much closer
to the Continental legal system. The divide is not between these legal
Argentina explained that its legal system is similar
to most Latin American countries, in that all individuals have legal
capacity and distinctions are made in exercising this right. It is aware
of differences in the meaning of "legal capacity." This Committee
needs to try to create uniform criteria. The EU's position causes concern
because it does not have a generic provision that all persons have the
same legal capacity before the law. If the term "legal capacity"
is a problematic issue, another term should be found. It wants to avoid
restricting legal capacity to the exercise of rights before the law.
It is vital that this Article state that everyone has the same capacity
to be subject to duties and obligations before the law. The EU's language
"without discrimination against PWD" introduces discrimination
into the article. Argentina supported Costa Rica's proposal. It also
supported adding language which covers all legal systems, but this new
wording should not open the way to any distinctions.
United Arab Emirates proposed an alternate draft to
9(b), reading: "Reassert that PWD enjoy equal legal capacity before
the law in spite of their disabilities which may prevent their full
enjoyment of that capacity."
Norway clarified its position. Everyone has rights;
rights are inherent. It supported 9(a) and acknowledged that in certain
cases, for certain people, 9(c) is needed. Just as a newborn baby has
legal rights, but must mature into legal capacity, there are situations
where an adult's legal capacity may be compromised by a disability.
For example, an unconscious person needs someone to look after her/his
interests, raising the question: Does this person have legal capacity?
As another example, a person may commit a serious crime, but due to
a major mental illness cannot be prosecuted.
The Coordinator acknowledged Norway's examples of
limitations in exercising legal capacity, but this does not necessarily
equate to a lack of legal capacity. Clearly children have no legal capacity,
but they do acquire it at a certain age. And at certain ages children
develop legal capacity for certain activities, such as entering contracts.
Thailand stated that legal capacity determines how
disability is defined. It expressed support for the social model of
disability, i.e., the idea that society imposes disability upon people.
Limiting the legal capacity of PWD would reinforce the medical model
of disability. This general provision in 9(b) does not need exceptions,
because 9(c) deals with exceptions. This Committee has so far avoided
defining disability in the Convention by characterizing type and/or
severity, and it should not start doing so now.
Jamaica stated that the WG text's 9(b) is really referencing
rights, not the exercise of legal capacity. People without disability
with limited financial means are not able to exercise their legal capacity.
At certain times in some countries, women were unable to exercise that
right. The Jamaican delegate recalled that in her country, as a young
married woman, she was not allowed to sign a legal document without
her husband's permission or a lawyer to explain it; this has since been
changed. There have often been assumptions that some people were not
capable of having legal capacity, and PWD have for centuries suffered
from this stereotype. This Convention must recognize legal capacity
for PWD separately from the ability to exercise the capacity, which
is dealt with in 9(c). Since there are different opinions about the
meaning of the term "legal capacity," Jamaica proposed including
a section containing definitions.
The Coordinator suggested looking at the EU language
which combines 9(a) and (b) and does not use the term "legal capacity."
He is still puzzled that in some countries, some PWD have no legal capacity.
He presumes that all PWD, even those with serious disabilities, can
inherit property, and can buy or sell property, even if this is done
through a guardian. Even if handled by a guardian, the property is still
registered in the name of the PWD. He asked whether this was not true
in all countries.
Libya stated that the Committee is here to create
a text which provides for the interests of PWD. It suggested postponing
further discussion of this paragraph to allow legal experts to work
on these important issues and to try to find a compromise. As a possible
compromise, Libya proposed the following wording: "recognizing
that all PWD have the right to exercise their legal capacity before
the law." It opposes deleting "legal capacity."
Cuba asserted that the legal capacity of PWD is equal
to that of all other members of society. The only limitation is on the
exercise of this legal capacity. Assistance may be given in many ways;
this is up to each State Party. This Convention should not restrict
the concept of legal capacity; it should instead determine in what context
assistance will be needed, in accordance with State Parties' laws, to
exercise legal capacity. It proposed that the inherent right of legal
capacity should be in this paragraph, i.e., "recognizing that PWD
enjoy the same rights before the law."
New Zealand stated its desire to ensure that this
Convention follows existing human rights instruments in establishing
that all persons have legal capacity. In CEDAW, Article 15, paragraph
2 says: "States Parties shall accord to women in legal matters
a legal capacity identical to that of men . . ." It might be useful
to find out how the CEDAW language is translated; this could help solve
the problem with the term "legal capacity." New Zealand supported
Jamaica's statement, and pointed out that the right to legal capacity
is often not realized for people with intellectual disabilities.
The Coordinator pointed out the language in CEDAW
does not help in dealing with PWD, because it only deals with gender.
Jordan observed that the Committee agrees that legal
capacity relates to the right of the individual, while legal incapacity
relates to the inability to exercise this capacity. There are two kinds
of capacity: potential legal capacity and actual legal capacity. Everyone
has potential legal capacity, but some people lack actual legal capacity,
that is, the ability to exercise it, and they may need assistance. This
can be true of anyone, not just PWD. For example, under Islamic law
a judge cannot pass sentence if he is hungry or angry because it could
affect his mental faculties. The text should state that all PWD have
legal rights, but not everyone can exercise those rights. Jordan supported
Costa Rica's proposal to not limit that right.
Costa Rica agreed with Libya's suggestion to refer
this issue to legal experts. It opposed the EU's proposal because it
is redundant with 7(1) and does not solve the problem of legal capacity
but only goes around it. In the Continental legal system, there is a
difference between legal capacity and capacity to act; there is no such
difference in the Anglo-Saxon system. All humans have full legal capacity,
but the capacity to act involves the exercise of legal capacity as well
as having rights and obligations. In Latin America, children have legal
capacity, but are unable to exercise it until they reach a certain age.
It proposed, as a solution to the translation problem, delineating full
legal capacity and the ability to act. If translators use the correct
language, there should be no problem. No system disallows inheritance
by PWD; even if the inheritance is handled by a guardian, PWD are assumed
to have legal capacity. This Convention should reject countries which
do not acknowledge the legal capacity of PWD. Paragraph 9(b) needs to
recognize legal capacity and 9(c) the exercise of legal capacity.
The Coordinator stated that although he agrees with
Costa Rica, he has heard a few colleagues say that some PWD have no
legal capacity. He understood Norway and China to say that some PWD
have no legal capacity. If they meant the ability to act, there may
be a solution; however, if there is a more fundamental difference, there
may be no way to use the term "legal capacity."
Mexico echoed Cuba's and Brazil's support for the
Costa Rican proposal. Some people need assistance to exercise legal
capacity. Types of disabilities should not be listed; this would be
based on a medical model of disability. This Committee needs to ensure
that different legal systems are compatible for the purpose of protecting
PWD, by inserting a final clause, applicable particularly to Article
9 and 14, reading: "This Convention shall affect any provisions
that are not more conducive to the full enjoyment of full human rights
and fundamental freedoms and the dignity of PWD which may be contained
in (a) the law or practice of the State Party or (b) any other international
convention, treaty or agreement in force for that State."
Australia suggested that the way to get beyond the
impasse between capacity and the exercise of capacity is to understand
that the Convention puts obligations on States Parties, not on individuals.
So States Parties should recognize capacity first and then address the
exercise of capacity, with or without necessary assistance or, in extreme
cases, with substitute decision-making to the minimum extent required
and accompanied by safeguards. The Canada proposal follows this logic.
Even in jurisdictions where PWD are not recognized as having the capacity
to inherit property, they must still be recognized as having legal capacity
before the law. For example, if violence happens against them, the law
still recognizes them as victims of violence. Perhaps the issue is the
term "full"; legal capacity is legal capacity, and no qualifier
is necessary. Australia supported Canada's proposal.
The Coordinator agreed that one of the issues is the
meaning of legal capacity. There is a certain amount of cross-purpose
discussion among delegations from different legal systems. Under all
systems PWD, no matter how severe their disability, are people under
the law and entitled to its protections. There may be limitations on
what that person can do in terms of exercising rights or how they exercise
those rights. If legal capacity means juridical capacity, everyone has
it. However, if legal capacity means capacity to act, then not everyone
has it in all systems. This is not just a translation issue; rather,
different concepts are being discussed. After the next three speakers,
the Committee will move on to 9(c), concerning the exercise of legal
capacity, and this discussion may clarify the issue.
Thailand stated that if this Convention does not differentiate
between legal capacity and the ability to exercise that capacity, a
country could pass a law to prohibit PWD from entering the legal profession.
This has happened before. Some countries prohibit PWD from being lawyers,
believing they have no or lesser legal capacity.
China wanted to focus on practical concepts, not theoretical
ones. The equal rights of PWD are not in doubt. PWD should be able to
exercise their rights and use their abilities. At issue is the understanding
and translation of the term "legal capacity." This Committee
needs to avoid misunderstandings. If "legal capacity" refers
only to rights and entitlements, and not to the capacity to act, this
concept should be supported. China suggested looking at its proposal.
It also supported the Costa Rican proposal.
The Coordinator stated that if "legal capacity"
means legal entitlement and rights and recognition as a person before
the law, rather that the capacity to act, the Committee may move forward.
Serbia and Montenegro stated that if legal capacity
means only juridical capacity, that is rights and responsibilities,
it could accept 9(b). It pointed out that this is an issue in other
The Coordinator asked delegations whether there was
any remaining opposition to 9(b). Hearing no opposition, he asked for
discussion of 9(c) of the WG text which, like 9(2) and 9(3) of the Canadian
text, deals with situations where assistance is needed to exercise legal
capacity. The Canadian text goes further than the WG text because it
specifically provides for substitute decision-making, in addition to
Canada asked delegations to consider supporting 9(2)
as an alternative to 9(c)(1), and 9(3) as an alternative to 9(c)(2)
which is ambiguous about substitute decision-makers. There may be situations
where supported decision-making is not sufficient. It acknowledged that
there may be better ways to draft its proposed language.
Kenya (Africa Group) supported keeping 9(c)(i) with
minor amendments, keeping 9(c)(ii) with major amendments, and adding
a new 9(c)(iii). In 9(c)(i) it proposed changing "interfere with"
to "undermine." It changed 9(c)(ii) to read: "Relevant
decisions are taken by a competent, independent, and impartial authority
in accordance with a procedure established by law and with the application
of relevant legal safeguards including periodic review." This ensures
that not just anyone would be assigned to provide this assistance, and
it adds periodic review. It proposed adding 9(c)(iii), to read as follows:
"Provide persons with disabilities with adequate support services
to develop networks for supported decision-making." This addition
would encourage support groups providing information and help PWD in
making decisions. Decision-making assistants should not be limited to
parents and others; PWD can also assist other PWD.
New Zealand expressed its belief that protections
should be included in 9(c), particularly where there is a potential
for abuse. It proposed adding, either to 9(c) in the WG draft or to
9(2) of Canada's draft, the words "shall respect the will and preferences
of the person receiving support, shall be free from conflicts of interest
and shall not involve undue influence." The protections described
in 9(c)(ii) are too ambiguous and 9(3) goes too far. New Zealand proposed
deleting the first sentence of Canada's 9(3), "Only a competent,
independent and impartial authority, under a standard and procedure
established by law, including provision for review, can find a person
unable to exercise their legal capacity with support." The rest
of 9(3), including 9(3)(a) and 9(3)(b), should be retained. Overall,
Canada's proposal is useful. However, its reference to "a competent,
independent and impartial authority" suggests an adversarial system,
and the appointment of a personal representative need not necessarily
take place within the context of an adversarial system. New Zealand
agreed that a process does need to be established in law.
The EU supported Canada's approach, in which 9(2)
addresses necessary support, and 9(3) provides legal guarantees for
PWD when there is a loss or limitation in their ability to exercise
Costa Rica preferred using the more concise WG text
over the Canadian and African Group texts, all of which, it noted, are
similar in content. Although it has no objections to including examples,
the examples included thus far do not comprise an exhaustive list. Therefore,
Costa Rica supported the African Group's proposal because it is based
on the WG text. Based on the discussions about 9(b), the term "legal
capacity" should be deleted from 9(c)(i) since legal capacity cannot
be undermined. Costa Rica proposed revising 9(c)(i) to read, "Such
assistance is adequate to meet the person's needs and does not undermine
his/her rights and freedoms." This would ensure that the assistance
is proportional to the person's needs. It is also willing to accept
the African Group's proposal. Regarding 9(c)(ii), the WG text is ambiguous,
and so Costa Rica favors the original EU proposal, amended as follows:
"Relevant decisions are taken by a competent, independent, and
impartial authority in accordance with a procedure established by law
and with the application of relevant legal safeguards including provisions
for periodic review." It is important to have clarity on the concepts
and criteria. Costa Rica stated that it would be willing to support
Canada's proposal, but expressed concern that the proposal establishes
"a list which might unnecessarily extend the scope of this Convention."
Chile mentioned that with regard to the procedures
for appointing tutors or guardians, States Parties must ensure that
PWD also receive appropriate legal safeguards, legal assistance and
support to protect their rights.
Serbia and Montenegro supported Canada's proposal
and expressed interest in New Zealand's proposal. It suggested merging
the two into a single, even better text.
Colombia suggested that Korean and Ugandan proposed
amendments to Article 13(e), on assisting PWD to access information,
might make the Canadian proposal redundant. It proposed adding to these
amendments in Article 13 a list of the forms of support and assistance
to be provided for PWD to exercise their legal capacity. In that case,
Colombia would support the African Group's proposal. Alternatively,
it could also support the African Group's suggested addition of 9(c)(iii).
The Russian Federation called for a compromise between
the very different proposals of the EU and the Africa Group, using some
of the elements from the Canadian proposal.
The Coordinator asked delegates to look at the various
proposals. He stated that the African Group's proposal, based on the
WG text, is similar to the Canadian proposal. In the African Group's
text, the assistance must be "proportional"; this term is
qualified by the phrase "to the extent possible." This may
be confusing, but he believes this means that people who require a great
deal of assistance should receive that assistance to the extent that
is possible for States Parties. The WG text and Canadian text both focus
on limiting the amount of assistance to what the PWD actually needs,
in order to ensure that PWD can make their own decisions as much as
possible. Redrafting may be able to capture both concepts. The other
difference between the WG text and African Group's text involves the
terms "interfere" and "undermine." "Undermine"
may be the transferable term. This concept is not in the Canadian text,
but it could be added.
Thailand supported the WG text, but sees merit in
the Canadian proposal, and would like to see how they might be merged.
It appreciates New Zealand's additions to the Canadian proposal and
hopes these may also be consolidated with the WG text.
The Coordinator asked the facilitator to draft language
combining elements of the various proposals to meet the concerns raised
by delegations. He asked interested delegations to meet with the facilitator
after the meeting. The second task which needs to be done overnight
is to draft language making clear the meaning of the term "legal
capacity," such as "PWD have full legal capacity (which shall
mean . . .) on an equal basis with others on all matters." Delegates
with concerns should also speak to the facilitator.
The session was adjourned.
The Fifth Ad Hoc Committee
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