Navigating the 'Flashing Amber Lights' of the Right to Legal Capacity in the United Nations Convention on the Rights of Persons with Disabilities: Responding to Major Concerns

Abstract

In recent years, the enumeration of the right to legal capacity in the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) has caused considerable controversy. The adoption of General Comment No. 1 by the UN Committee on the Rights of Persons with Disabilities (‘CRPD Committee’) in April 2014 sheds new light on major debates in the field, particularly regarding implementation measures to fulfill the obligation of States Parties to provide people with disabilities with ‘support to exercise legal capacity’ on an equal basis with others. This interpretive guidance builds upon the CRPD framework for achieving equal recognition before the law for people with disabilities. Yet commentators have criticised both the CRPD Committee’s interpretation and the enumeration of Article 12 in the CRPD itself, as wanting in key respects. This article draws on the General Comment No. 1 to list and respond to major concerns raised about the obligation of States Parties to provide people with disabilities the support they may require in exercising their legal capacity. The list of concerns and counter-arguments are set against a broad range of implementation measures from domestic law and policy from around the world.