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 Convention on the Rights of Persons with Disabilities (CRPD) has caused considerable controversy. The adoption of General Comment No 1 by the United Nations Committee on the Rights of Persons with Disabilities in April 2014 sheds new light on major debates in the field, particularly regarding implementation measures to fulfil the obligation of States Parties to provide people with disabilities with ‘support to exercise legal capacity’ on an equal basis with others. This interpretative guidance builds upon the CRPD framework for achieving equal recognition before the law for people with disabilities. Yet commentators have criticized 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 General Comment No 1 to list and respond to major concerns raised about the obligation of States Parties to provide people with disabilities with the support they may require in exercising their legal capacity. The list of concerns and counterarguments are set against a broad range of implementation measures from domestic law and policy from around the world.