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Article 12 - Equal recognition as a person before the law

Fifth Session

Report of the Coordinator to the Fifth Session

Draft Article 9

15. There was general agreement in the Committee to restructure draft Article 9 around the text proposed by the facilitator (Rebecca Netley, Canada ) following informal discussions. There was general agreement that the issues contained in paragraphs (d), (e), and (f) from the Working Group draft text, which are not dealt with in the facilitator's proposal, should be addressed in other articles in the Convention.

16. The Committee also noted a proposal for the provision of an effective remedy where the rights and freedoms in the convention are violated, and agreed to return to it at a later point.

Paragraph 1

17. There was extensive discussion on draft Article 9(1). There was general agreement to use paragraph 1 of the text developed by the Facilitator following informal discussions (based on paragraph (a) of the Working Group draft), amended to read:

1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as a person before the law.

Paragraph 2 chapeau

18. There was no general agreement on the wording of the chapeau of the second paragraph, including the meaning of “legal capacity”. Some delegations expressed their concern over the wording of “legal capacity”, and if this wording needed to be used, it should be translated into native languages and interpreted accordingly. Individual delegations will need to consider intersessionally the current wording, based on the facilitator's proposal. The Committee will also need to consider whether to retain the phrase “or the capacity to act”, which is not used in comparable articles in other conventions, such as the Convention on the Elimination of Discrimination against Women.

19. The Committee noted that the phrase “to the extent possible”, is intended to refer to the extent that resources are available, and not to the extent of the capacity of persons with disabilities.

20. The text that delegations should consider for the next session of the Committee is as follows:

States Parties shall recognize that persons with disabilities have [legal capacity] [1] on an equal basis with others in all fields and shall ensure, to the extent possible, that where support is required to exercise [that capacity] [the capacity to act]:

Paragraph 2(a)

21. There was general agreement in the Committee to paragraph 2(a), as follows:

The assistance is proportional to the degree of support required and tailored to the person's circumstances, that such support shall not undermine the legal rights of the person and shall respect the will and preferences of the person, and shall be free from conflict of interest and undue influence. Where appropriate, such support shall be subject to regular and independent review.

Paragraph 2(b)

22. There was no agreement in the Committee on paragraph 2(b). Some delegations considered that there was no need for 2(b), as the issue was adequately covered within the continuum of support outlined in paragraph 2(a). A separate and additional mention in 2(b) might encourage its overuse by States Parties and undermine the concept of all persons with disabilities having legal capacity and the concept of supported decision making. Other delegations, however, did want separate mention of personal representation and the safeguards around its use, although some felt that the language of paragraph 2(b) was too specific.

23. The wording of paragraph 2(b) currently reads:

Where States Parties provide for a procedure, which shall be established by law, for the appointment of personal representation as a matter of last resort, such a law shall provide appropriate safeguards including regular review of the appointment and of decisions made by the personal representative by a competent, impartial and independent tribunal. The appointment and conduct of the personal representative shall be guided by principles consistent with this convention and international human rights law.

Draft Article 9bis

24. During the discussion on draft Article 9, considerable support was expressed to include, somewhere in the convention, language guaranteeing persons with disabilities access to justice. Most delegations supported including the proposal in a separate article. A number of delegations met informally to elaborate a proposal to include as a separate draft Article 9bis:

States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, facilitating their effective role as direct and indirect participants in all legal proceedings, including investigative and other preliminary stages.

Footnotes:

[1] In Chinese, Russian, and Arabic, legal capacity means “legal capacity for rights”, rather than “legal capacity to act”.

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