CRPD/C/GC/1
grounds for denying legal capacity or any of the rights provided for in article 12. All
practices that in purpose or effect violate article 12 must be abolished in order to ensure that
full legal capacity is restored to persons with disabilities on an equal basis with others.
10.
This general comment focuses primarily on the normative content of article 12 and
the State obligations that emerge therefrom. The Committee will continue to carry out work
in this area so as to provide further in-depth guidance on the rights and obligations deriving
from article 12 in future concluding observations, general comments and other documents.
II. Normative content of article 12
Article 12, paragraph 1
11.
Article 12, paragraph 1, reaffirms the right of persons with disabilities to be
recognized as persons before the law. This guarantees that every human being is respected
as a person possessing legal personality, which is a prerequisite for the recognition of a
person’s legal capacity.
Article 12, paragraph 2
12.
Article 12, paragraph 2, recognizes that persons with disabilities enjoy legal capacity
on an equal basis with others in all areas of life. Legal capacity includes the capacity to be
both a holder of rights and an actor under the law. Legal capacity to be a holder of rights
entitles a person to full protection of his or her rights by the legal system. Legal capacity to
act under the law recognizes that person as an agent with the power to engage in
transactions and create, modify or end legal relationships. The right to recognition as a legal
agent is provided for in article 12, paragraph 5, of the Convention, which outlines the duty
of States parties to “take all appropriate and effective measures to ensure the equal right of
persons with disabilities to own or inherit property, to control their own financial affairs
and to have equal access to bank loans, mortgages and other forms of financial credit, and
… ensure that persons with disabilities are not arbitrarily deprived of their property”.
13.
Legal capacity and mental capacity are distinct concepts. Legal capacity is the
ability to hold rights and duties (legal standing) and to exercise those rights and duties
(legal agency). It is the key to accessing meaningful participation in society. Mental
capacity refers to the decision-making skills of a person, which naturally vary from one
person to another and may be different for a given person depending on many factors,
including environmental and social factors. Legal instruments such as the Universal
Declaration of Human Rights (art. 6), the International Covenant on Civil and Political
Rights (art. 16) and the Convention on the Elimination of All Forms of Discrimination
Against Women (art. 15) do not specify the distinction between mental and legal capacity.
Article 12 of the Convention on the Rights of Persons with Disabilities, however, makes it
clear that “unsoundedness of mind” and other discriminatory labels are not legitimate
reasons for the denial of legal capacity (both legal standing and legal agency). Under article
12 of the Convention, perceived or actual deficits in mental capacity must not be used as
justification for denying legal capacity.
14.
Legal capacity is an inherent right accorded to all people, including persons with
disabilities. As noted above, it consists of two strands. The first is legal standing to hold
rights and to be recognized as a legal person before the law. This may include, for example,
having a birth certificate, seeking medical assistance, registering to be on the electoral role
or applying for a passport. The second is legal agency to act on those rights and to have
those actions recognized by the law. It is this component that is frequently denied or
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