CRPD/C/GC/1
equality between men and women; and respect for the evolving capacities of children with
disabilities and respect for the right of children with disabilities to preserve their identities.
5.
The Universal Declaration of Human Rights, the International Covenant on Civil
and Political Rights and the Convention on the Rights of Persons with Disabilities each
specify that the right to equal recognition before the law is operative “everywhere”. In other
words, there are no permissible circumstances under international human rights law in
which a person may be deprived of the right to recognition as a person before the law, or in
which this right may be limited. This is reinforced by article 4, paragraph 2, of the
International Covenant on Civil and Political Rights, which allows no derogation from this
right, even in times of public emergency. Although an equivalent prohibition on derogation
from the right to equal recognition before the law is not specified in the Convention on the
Rights of Persons with Disabilities, the provision in the International Covenant covers such
protection by virtue of article 4, paragraph 4, of the Convention, which establishes that the
provisions of the Convention on the Rights of Persons with Disabilities do not derogate
from existing international law.
6.
The right to equality before the law is also reflected in other core international and
regional human rights treaties. Article 15 of the Convention on the Elimination of All
Forms of Discrimination against Women guarantees women’s equality before the law and
requires the recognition of women’s legal capacity on an equal basis with men, including
with regard to concluding contracts, administering property and exercising their rights in
the justice system. Article 3 of the African Charter on Human and Peoples’ Rights provides
for the right of every person to be equal before the law and to enjoy equal protection of the
law. Article 3 of the American Convention on Human Rights enshrines the right to juridical
personality and the right of every person to recognition as a person before the law.
7.
States parties must holistically examine all areas of law to ensure that the right of
persons with disabilities to legal capacity is not restricted on an unequal basis with others.
Historically, persons with disabilities have been denied their right to legal capacity in many
areas in a discriminatory manner under substitute decision-making regimes such as
guardianship, conservatorship and mental health laws that permit forced treatment. These
practices must be abolished in order to ensure that full legal capacity is restored to persons
with disabilities on an equal basis with others.
8.
Article 12 of the Convention affirms that all persons with disabilities have full legal
capacity. Legal capacity has been prejudicially denied to many groups throughout history,
including women (particularly upon marriage) and ethnic minorities. However, persons
with disabilities remain the group whose legal capacity is most commonly denied in legal
systems worldwide. The right to equal recognition before the law implies that legal capacity
is a universal attribute inherent in all persons by virtue of their humanity and must be
upheld for persons with disabilities on an equal basis with others. Legal capacity is
indispensable for the exercise of civil, political, economic, social and cultural rights. It
acquires a special significance for persons with disabilities when they have to make
fundamental decisions regarding their health, education and work. The denial of legal
capacity to persons with disabilities has, in many cases, led to their being deprived of many
fundamental rights, including the right to vote, the right to marry and found a family,
reproductive rights, parental rights, the right to give consent for intimate relationships and
medical treatment, and the right to liberty.
9.
All persons with disabilities, including those with physical, mental, intellectual or
sensory impairments, can be affected by denial of legal capacity and substitute decisionmaking. However, persons with cognitive or psychosocial disabilities have been, and still
are, disproportionately affected by substitute decision-making regimes and denial of legal
capacity. The Committee reaffirms that a person’s status as a person with a disability or the
existence of an impairment (including a physical or sensory impairment) must never be
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