During its eleventh session earlier this month, the Committee on the Rights of Persons with Disabilities (CRPD) adopted general comments on Article 12 (equal recognition before the law) and Article 9 (accessibility) of the Convention on the Rights of Persons with Disabilities. [OHCHR] These two texts are the first general comments adopted by the CRPD. See CRPD, General Comment No. 1, Equal Recognition before the Law, UN Doc. CRPD/C/GC/1, 11 April 2014 (advanced unedited version]; CRPD, General Comment No. 2, Accessibility, UN Doc. CRPD/C/GC/2, 11 April 2014 (advanced unedited version).
General Comment No. 1
General Comment No. 1 clarifies States parties’ general obligations under Article 12 of the Convention on the Rights of Persons with Disabilities to ensure disabled persons’ equal recognition before the law. See CRPD, General Comment No. 1, Equal Recognition before the Law, UN Doc. CRPD/C/GC/1, 11 April 2014 (advanced unedited version]. The Committee decided to develop this general comment in response to States parties’ initial reports, in which it observed a “general failure to understand” that the human rights framework requires governments to move away from substitute decision-making (such as by forced mental health treatment, guardianship or conservatorship) in favor of supported decision-making, in which persons with disabilities enjoy full recognition and equality under the law and can exercise their legal capacity to make fundamental decisions about their own lives. Id. at paras. 3, 7-9.
The general comment clarifies the definition and scope of the term “legal capacity.” It confirms that legal capacity includes recognition, under the law, of a person’s rights and duties, as well as his or her authority to take action to exercise those rights or duties. Id. at paras. 11, 12. The Committee notes that States parties have confused legal capacity with mental capacity, and discriminatorily limit or deny a person’s legal capacity based on his or her perceived disability or decision-making skills. Id. at para. 13. According to the general comment, a disability or impairment should never be the basis for a denial of legal capacity. Id. at para. 9.
Rather, Article 12 requires States to provide access to supports for the exercise of legal capacity and to implement safeguards to protect against abuse. Id. at paras. 12 and 18. Supports for persons with disabilities may take many forms, such as peer support and assistance with communication, and should allow individuals to create an advanced plan for times when they cannot communicate their own will or preferences. Id. at para. 14-17. However, the general comment stresses that supports should not take the form of substitute decision-making. Id. at para. 15. Supports are intended to remove barriers and aid individuals in exercising their full legal capacity. Id. at paras. 14-15.
Similarly, safeguards should be designed to guarantee that a person’s rights, will and preferences are respected and protected from abuse on an equal basis with the right of others. The general comment specifically recommends the replacement of the “best interest” standard with the “best interpretation” safeguard to ensure that the rights of persons with disabilities to legal capacity are protected. Id. at para. 18-18ter.
In this general comment, the Committee also highlights the close relationship between Article 12 and other articles of the Convention including, Article 5 (equality and non-discrimination), Article 6 (women with disabilities), Article 7 (children with disabilities), Article 9 (accessibility), Article 13 (access to justice), Articles 14 (liberty and security), 25 (health), Article 18 (nationality), Article 19 (living independently and being included in the community), and Article 29 (political participation). Id. at paras. 27-45.
The general comment concludes with recommended steps for the full implementation of Article 12 at the national level. The Committee calls on States to: (1) abolish “substitute decision-making regimes” and other mechanisms that unequally deny legal capacity to persons with disabilities, and implement legislation to protect the right to legal capacity for all persons; (2) provide supports for the exercise of legal capacity that comply with Article 12, paragraph 3, and; (3) involve persons with disabilities of all ages in the development of legislation, policies and other efforts to implement Article 12. Id. at paras. 46-48.
General Comment No. 2
The CRPD’s second general comment addresses accessibility, as protected by Article 9 of the Convention on the Rights of Persons with Disabilities. See CRPD, General Comment No. 2, Accessibility, UN Doc. CRPD/C/GC/2, 11 April 2014 (advanced unedited version). It emphasizes the importance of accessibility as a precondition to equal participation in society and provides more detailed explanation of States parties’ obligations to respect, protect and fulfill the right. Id. at paras. 1. In its discussion of “accessibility,” the Committee includes “access to the physical environment, to transportation, to information and communication, including information and communications technologies and systems, and to other facilities and services open or provided to the public…” Id. at para. 1. It identifies a lack of adequate monitoring, a lack of stakeholder training, and insufficient involvement of persons with disabilities as common challenges, to States parties’ implementation of Article 9 domestically.
The Committee clarifies that accessibility standards apply to both public and private entities, stating, “As long as goods, products and services are open or provided to the public, they must be accessible to all, regardless of whether they are owned and/or provided by a public authority or a private enterprise.” Id. at para. 13. In this regard, “States parties are also required to take measures to ensure that private entities that offer facilities and services that are open or provided to the public take into account all aspects of accessibility for persons with disabilities…,” and they should include such stakeholders in training, and address discrimination by such actors in national legislation. Id. at paras. 18, 19, 31. To maintain consistency, allow for interoperability, and respect individuals’ freedom of movement, the Committee also indicates that each State’s accessibility standards should be consistent with those of other State parties. Id. at para. 18.
The general comment advocates the use of “universal design,” which makes society equally accessible to all persons. It ensures that all products, facilities, and services meet consistent accessibility standards. Id. at para. 15 The Committee does, however, distinguish between the obligation to ensure that all new facilities, goods, and services are accessible and the obligation to ensure that existing infrastructure and services are accessible. With the respect to the former, States have an obligation to guarantee immediate accessibility, but with respect to the latter, States may implement accessibility standards gradually. Id. at para. 24.
The general comment also makes clear that the duty to provide accessibility is an ex ante duty. The State may not wait until it receives a request to implement accessibility standards for a good or service. When accessibility standards are not sufficient, the duty to provide reasonable accommodation for an individual is ex nunc, meaning that the request is immediately enforceable. Id. at paras. 25-26.
In this general comment, the Committee explains the steps that State parties may take to ensure accessibility. According to the Committee, States should review their legal framework and implement appropriate accessibility legislation in consultation with persons with disabilities and other relevant stakeholders. States must also establish minimum standards for services provided by both public and private enterprises. Additionally, bodies that have the authority to ensure that plans and strategies are implemented and enforced should continually monitor compliance with accessibility standards. Id. at paras. 27-33.
Finally, the general comment addresses the close relationship between the right to accessibility and other rights protected by the Convention on the Rights of Persons with Disabilities, including the rights to freedom of expression and opinion and access to information (Article 21), education (Article 24), health (Article 25), work and employment (Article 27), and participation in political and cultural life (Articles 29 and 30). Id. at paras. 34-48.
Committee on the Rights of Persons with Disabilities
The Committee on the Rights of Persons with Disabilities (CRPD), a UN treaty body composed of 12 independent experts, monitors the implementation of the Convention on the Rights of Persons with Disabilities through its consideration of State reports, individual complaints, early-awareness and urgent actions, and inquiry requests, and its preparation of general comments and general discussion days. The Committee will hold its 12th Session from September 15 to October 3, 2014, when it is scheduled to consider State reports from Belgium, Denmark, Ecuador, Germany, Mexico, New Zealand, and the Republic of Korea.
Visit IJRC’s page on the CRPD for more information about the Committee and its functions.