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Article 9 : Equal Recognition As A Person Before the Law

IDC response on article 9

International Disability Caucus Rejects the Provision of Article 9 Dealing with Appointment of a Personal Representative

This Convention is aimed at promoting and protecting the rights of persons with disabilities, and not at maintaining discriminatory laws and practice that take away the personhood of persons with disabilities. The Convention must accordingly establish the principles required to empower persons with disabilities in the eyes of the law.

The Article on General Principles which received wide support from this Ad Hoc Committee includes

• Individual autonomy including the freedom to make one’s own choices
• Non-discrimination
• Acceptance of disability as part of human diversity and humanity
• Inclusion and equal participation in society

Article 2 is a substantive obligation as well as a means to interpret all the substantive obligations in this Convention.

The current draft of 9(3)(b) undermines, is inconsistent with, and violates these principles and obligations as well as the purpose of this Convention. Accordingly, paragraph 3(b) of article 9, providing for appointment of a personal representative for people with disabilities, is unacceptable to the International Disability Caucus.

Although an attempt was made to avoid offensive language, the effect of paragraph 2(b) is to endorse substituted decision-making, which is based on a concept of incapacity and takes away the person’s right to make his or her own decisions. “Personal representative” is a term of art meaning “guardian”.

We applaud the delegations of Costa Rica and others that have called for deletion of paragraph b. The International Disability Caucus affirms that Supported Decision Making is the only paradigm for legal capacity that upholds the principles articulated in Article 2 of this Convention.

The International Disability Caucus is also concerned about two other aspects of this draft article. First, there is language in the chapeau of paragraph 3 that may inadvertently limit all the substantive obligations in that paragraph. We advocate moving the phrase ‘to the extent possible” so that it limits only the assurance that support will be provided, which is a resource-sensitive obligation and subject to the concept of progressive obligation that has been extensively discussed by this Committee.

Second, legal capacity has been differentiated from the capacity to act or exercise that legal capacity, and only equal legal capacity – not equal capacity to act - is guaranteed to people with disabilities. CEDAW, in guaranteeing women and men identical legal capacity, treats it as including capacity to act, for example by concluding contracts. Women and men with disabilities will have inferior rights to non-disabled women and men if equal capacity to act is not guaranteed in our Convention.