Equal Recognition Before the Law Includes Those with Disabilities

Equal recognition before the law for all persons, including persons with disabilities

By Lauren E. Bartlett

 

The U.N. Committee on the Rights of Persons with Disabilities released its first general comments during the April 2014 session.  General comment No. 1 on Article 12 equal recognition before the law is definitely worth a read.  The Committee affirms that persons with disabilities must have full legal capacity and be recognized before the law on an equal basis with others. 

The Committee also clearly and succinctly explains the difference between legal capacity and mental capacity using a human rights-based approach, noting that “[t]he concept of mental capacity is highly controversial in and of itself… It is not, as it is commonly presented, an objective, scientific and naturally occurring phenomenon. Mental capacity is contingent on social and political contexts, as are the disciplines, professions and practices which play a dominant role in assessing mental capacity.” 

The Committee also points out that in most of the State party reports its has examined so far, “the concepts of mental and legal capacity have been conflated so that where a person is considered to have impaired decision-making skills, often because of a cognitive or psychosocial disability, his or her legal capacity to make a particular decision is consequently removed.”  Instead, the Committee explains, State parties must refrain from denying persons with disabilities their legal capacity, and instead must provide persons with disabilities access to the support that may be necessary to enable them to make decisions that have legal effect.  Support could include measures relating to universal design, accessibility, communication, etc.

The Convention on the Rights of Persons with Disabilities is the newest human rights treaty and this interpretation of the right to equal recognition before the law, a right that is also found in the UDHR and ICCPR, is almost revolutionary.  With so much talk again about trying to push for Senate ratification of the Convention, it would be a good idea for all human rights practitioners to gain a better understanding of the Convention and what a human rights-based approach to disability rights entails.