Legal Capacity in The Disability Rights

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Citation: 34 Syracuse J. Int'l L. & Com. 429 2006-2007
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LEGAL CAPACITY IN THE DISABILITY RIGHTS
CONVENTION: STRANGLEHOLD OF THE PAST OR
LODESTAR FOR THE FUTURE?
Amita Dhanda °
INTRODUCTION
Human rights conventions establish universal norms for the

international community. These norms are to be arrived at through a
process of consensus. It is popularly opined that, in a bid to obtain
unanimity, international human rights law often settles at the lowest
common denominator. If this proposition is even partially true, then
what kind of expectations of empowerment and change should be
entertained from the Convention on the Rights of Persons with
Disabilities (CPRD or Convention)?1 To answer this query, there is
need to analyze the settled text. However, an analysis of the text alone
will not suffice, as the process by which this Convention has been
negotiated differs from the process adopted by other human rights
treaties. The CRPD has created a dynamic process which will influence
the implementation and interpretation of the Convention. Consequently,
it is necessary to evaluate the text in a way that is informed by the
process with which the Convention has been negotiated. 2 The present
' Professor of Law, National Academy of Legal Studies and Research, Hyderabad, India,
amitadhanda@nalsarlawuniv.org.
1. Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, U.N. Doc.
A/RES/61/106 (Dec. 13, 2006), availableat
http://www.un.org/esa/socdev/enable/rights/convtexte.htm (last visited Apr. 4, 2007)
[hereinafter CRPD].
2. The General Assembly by resolution established an Ad Hoc Committee which
invited
[s]tates, relevant bodies and organizations of the United Nations system, including
relevant human rights treaty bodies, the regional commissions, the Special
Rapporteur on... non-governmental organizations with an interest in the matter to
make contributions to the work entrusted to the Ad Hoc Committee, based on the
practice of the United Nations.
G.A. Res. 56/168, 1,4, U.N. Doc. A/RES/56/168 (Feb. 26, 2002). On the strength of this
directive and due to some proactive chairing, there has been unprecedented participation by
civil society in the formulation of the Convention. This participation has influenced every
stage of the Convention process, and explains the holding of a formal plenary subsequent to
every informal session between State Parties. The comprehensive response of the
International Disability Caucus (IDC) to the working text formulated by the Chair and the
news page brought out by the IDC were other mechanisms the civil society employed to
have its voice heard. Thus, the Convention cannot only be seen as a product of state party
430 Syracuse J. Int'l L. & Com. [Vol. 34:429
time is opportune for undertaking this exercise considering the juncture

at which the Convention making process is stationed.3
This evaluation will need to be undertaken on several counts;
however, in this article, I limit myself to evaluating the construction of
"legal capacity" in the Convention.4 An evaluation of legal capacity,
more than any other right, will show how the Convention challenges
stereotypes surrounding disability.
This exercise shall be undertaken as follows. Part I examines how
the legal capacity of persons with disabilities is constructed in national
legislations across jurisdictions, the reform efforts that have been
initiated to offset some of the obvious disadvantages of these laws, and
the limitations of these reform efforts. Part I also introduces alternative
ideational paradigms that could inform the construction of legal
capacity. It is in the background of these formulations on legal
capacity, subsisting in municipal law and academic discourse, that Part
II examines how the issue of legal capacity was deliberated upon in the
Ad Hoc Committee. It will encompass the different kinds of texts and
reasoning that evolved from the First to the Eighth Sessions of the Ad
Hoc Committee. Part III looks at the final text and examines how the
dynamic of the deliberations has influenced the content of the text. It is
this dynamic that explains the conservative strangleholds that have
negotiations; it is as much the consequence of the persuasive, educative, and advocatory

roles performed by civil society.
3. The Eighth Ad Hoc Committee on the Rights of Persons with Disabilities met from
Aug. 14 to Aug. 25, 2006. U.N. Enable, Promoting the Rights of Persons with Disabilities,
http://www.un.org/esa/socdev/enable/rights/adhoccom.htm (last visited Apr. 15, 2007). It
made an ad referendum adoption of the text of the Convention on Rights of Persons with
Disabilities and referred the text to an open-ended Drafting Group. Id. The Drafting Group
was asked to ensure uniformity of terminology through the entire Convention text and
harmonize the versions in the official languages of the United Nations. Id. Subsequent to an
oral report by Chair of the Drafting Group, the text as cleaned up by the Drafting Sub-
committee was adopted by the Ad Hoc Committee at the reconvened session of the Eighth
Ad Hoc Committee on the Rights of Persons with Disabilities on Dec. 5, 2006. Id. The Ad
Hoc Committee then forwarded the draft final report along with the text of the CRPD and
the Optional Protocol, to the General Assembly, which adopted it at its session held on Dec.
13, 2006. Id. According to Article 42 of CRPD the Convention shall be open for signature
by all states and regional integration organization as of Mar. 30, 2007. CRPD, supra note 1,
art 42. The Convention on being opened for signature was signed by of 83 countries and
ratified by one. This number has now climbed to 90 countries.
http://www.un.org/esa/socdev/enable/rights/adhoccom.htm (last visited May 7, 2007)
4. This evaluation has been primarily undertaken on the strength of the various texts on
legal capacity that have been proposed during the Convention negotiations. It also has the
benefit of personal observation in view of the fact that from the Third Session onwards I
have attended all the meetings of the Ad Hoc Committee as a member of the World
Network of Users and Survivors of Psychiatry (WNUSP) delegation.
2007] Legal Capacity in the Disability Rights Convention 431
attempted to be placed on a forward looking text. The indefensible

nature of these constraints can be seen upon examining the relationship
between legal capacity and the other articles of the Convention. The
article concludes by expanding on the interpretation that should be
accorded to the provision on legal capacity, in the light of the entire text
of the Convention, and the measures that States would need to initiate to
fulfill the mandate of ensuring full legal capacity of all persons with
disability.
I. LEGAL CONSTRUCTION OF INCOMPETENCE

The examination of disability laws across jurisdictions shows that
the attribution of incapacity to persons with disability occurs in the
following contexts:
Status Attribution: According to this method, once it is established
that any individual is a person with disability, the law presumes a lack
of capacity. Hence, you have formulations whereby the law declares
that a person with psychosocial, intellectual, or physical disability
cannot perform a specific legal task. For example, the provision that a
person with psychosocial disability cannot adopt a child 5 or the bar on
blind persons' unassisted operation of a bank account.6
Functional Test: In this formulation disability is treated as a
threshold condition. However, the fact of disability alone, unlike the
previous test, does not result in a finding of incompetence. Instead, the
person with disability is considered incapable if, by reason of the
disability, he or she is unable to perform a specified function. For
example, this test would deny legal capacity to one who, due to
cognitive deficits, is unable to understand the nature of a contract 7 or to
understand that an act is wrong or contrary to law.
Outcome Test: According to this model, the attribution of
incompetence is made on the basis of the decision arrived at by the
person with disability. An oft-quoted example of this test is where a
5. The Hindu Adoption and Maintenance Act of 1956, applicable in India, contains
such a provision. See The Hindu Adoption and Maintenance Act, 1956, No. 78, ch., II 7,8
Acts of Parliament, 1956.
6. Such a disqualification may not be explicitly provided in the law but is routinely
reported by blind persons. A number of testimonies to this effect were presented to the Ad
Hoc Committee.
7. See The Indian Contract Act, 1872, § 12 ch. II para. 12. For case law insistent on
similar capacity, see BARTLETT & SANDLAND, infra note 10, at 574-78, 580-82.
8. The M'Naughten test has been adopted as the basis of exculpation in innumerable
common law jurisdictions.
Syracuse J. Int'l L. & Corn. [Vol. 34:429
person with a psychosocial disability who after voluntarily seeking

psychiatric treatment later decides to discontinue it.9 In such cases, a
person's competency to discontinue treatment is questioned, whereas
the person's decision to seek treatment in the first instance is not.
In the first test, the Status Attribution model, judicial interpretation
is confined to determining the presence or absence of disability. As the
presence of the impairment is the basis for surmising lack of
competence, a medicalized mode of perceiving disability is adopted.
Consequently, judges arrive at decisions of incompetence relying upon
medical experts opining as to the presence or absence of disability.
Judicial intervention is only aimed to ensure that the disability label or
diagnosis is not affixed without due process.
In contrast to the first test, the Functional Impairment Test requires
courts to assess both the presence and absence of disability and whether
the particular disability has rendered the person incapable of performing
a specific function. Expert evidence again plays a crucial role here. It
was found in a number of jurisdictions that judges exercised their power
under this test no differently from how they dealt with cases under the
first context; that is, once disability was established, no further
questions were asked. 10 If judges made this error in some legal
contexts, for example, concluding without more that a person with
visual impairment will be unable to parent her child, experts made the
same mistake in other contexts by presuming that a person with
intellectual disability cannot live independently in the community. The
critical evaluation of forensic experts l l has shown that very often
experts, after arriving at a diagnosis, go on to opine on lack of capacity
if the global parameters of the condition cause them to so conclude.
Such experts either do not care to find out or do not have the tools to
find out whether or not the particular litigant, accused, or victim has
been rendered incapable by his or her disability.
Alternatively, in the Outcome Test, questions on competence are
9. Principles for the Protection of Persons with Mental Illness and the Improvement of
Mental Health Care, G.A. Res. 46/119, princ. 15, 3, U.N. Doe. A/RES/46/119 (Dec. 17,
1991).
10. For extensive examples on the interpretation of functional requirements in Indian
law, see AMITA DHANDA, LEGAL ORDER AND MENTAL DISORDER (2000). For reports on
American courts, see THOMAS GRIsso, EVALUATING COMPETENCIES: FORENSIC
ASSESSMENTS AND INSTRUMENTS (2d ed. 2003). For how British Courts deal with questions
of capacity, see PETER BARTLETT & RALPH SANDLAND, MENTAL HEALTH LAW: POLICY AND
PRACTICE (2d ed. 2003).
11. For a critical analysis of some of the difficulties confronting experts, see BARTLETT
& SANDLAND, supra note 10.
raised when the person with disability arrives at a decision that is not
socially accepted. In the presence of legislative provisions allowing for
capacity to be questioned on these parameters, the Outcome Test
operates more or less like the first test. Once disability has been
established, the capacity of the person with the disability is always
subject to question.
A. Efforts to Reform Capacity
All of the above tests have been criticized as being over inclusive.
They operate on the presumption that all persons with disabilities lack
legal capacity. Hence, the burden to prove otherwise is placed upon
them. Over-inclusion happened because all the[T1] tests, whether in
principle or in practice, operated like status tests. Even as the courts
relied on experts to provide psychological guidance, which would assist
decision-making, psychologists were shooting in the dark, preferring to
err on the side of caution. In order to improve accuracy in psychological
predictions, tools were created, and literature generated, to evaluate
competencies. The forensic psychologists obtained information on the
requirements of the law and then developed tools to obtain accurate
information and provide it to the courts. The movement was prompted
by the need to enhance accuracy. Hence, at no stage did the
psychologists interrogate the legal presumptions12
or tests; they only
worked to improve the reliability of the tests.
If the intervention of forensic psychologists was an effort to
enhance the implementation of the incompetence norms, then the law
reform efforts aimed to remedy normative deficits. Such efforts began
with induction of principles stressing the capacity of all persons with
disabilities and requiring that the person alleging incapacity hold the
burden of establishing it. 13 Similarly reform efforts stressed that the
legal concern was with the presence or absence of the ability to reason,
and if such reason was possessed, then incompetence could not be 14
alleged due to the kind of decision which is arrived at with this reason.
Reform efforts also distinguished the inability to make a decision and
12. See GRisso, supra note 10 (highlighting the inadequacies of these tests and the
efforts to upgrade them).
13. See, e.g., English Law Commission Consultation Paper No. 119, 1.8 (1991)
(distinguishing between mental disorder and the lack of capacity and explicitly stating that
the latter did not automatically follow the former) [hereinafter English Law Commission
Paper].
14. See GRisso, supra note 10 (discussing the unsatisfactory nature of the outcome
test).
Syracuse J. Int'l L. & Com. [Vol. 34:429
the inability to communicate it.' 5 Further, these reform efforts

acknowledged that, if assistance is required to exercise capacity, then
such assistance should be provided instead of holding a person to be
incompetent.' 6 Accepting this premise, legal systems experimented
with establishing legally recognized persons who could provide this
assistance. 17 A finding of incompetence in traditional legal systems has
resulted in guardians of person or property being appointed, who then
were charged with making decisions on behalf of the incompetent
person. In comparison, the reform efforts were aimed at supporting
rather than supplanting the person in need of assistance. 8 The
possibility of substitution, however, has been retained.' 9
In addition to providing officially approved individuals to provide
15. English Law Commission Paper, supra note 13, 1.8.

16. See Stanley S. Herr, Self Determination Autonomy and Alternatives for
Guardianship,in THE HUMAN RIGHTS OF PERSONS WITH INTELLECTUAL DISABILITIES 429-50
(Stanley S. Herr et al. eds., 2003). The author highlights various efforts to this end made in
Sweden and Germany. He also sees movements towards greater autonomy and choice in
Israel, Austria, Netherlands and New Zealand. Id. According to the author, Sweden now
offers a continuum of services, none of which disenfranchise persons with disabilities
regardless of the severity of the disability. These services in Sweden include the "God
Man," or mentor, who is to act with the consent of the person for whom he is appointed, and
whose powers can be seen as somewhat similar to those of a person who had been given a
power of attorney. Most importantly the appointment of a "God Man" does not cause loss
of civil rights for the person with disability. The mentor's area of operation is tailored to the
needs of the person and can be limited to representation of individual rights or supervision
of financial matters or attending to other needs for support and guidance. Id. at 430-33.
17. See id The "God Man," or mentor, and the personal assistant and escort person
hired by the disabled person, represent two experiments with supported decision-making
and support prevalent in Sweden. Id. at 430-38. The German law has, on the other hand,
enhanced the participation of a person for whom a guardian is to be appointed and has
tailored the powers of the guardian to the needs of person with disability. Also, though
intervention in personal matters is permitted in exceptional situations, as a general rule, the
legal capacity of the person with disability to take decisions of a personal nature has been
protected. Also, the appointment is subject to constant reconsideration. Id. at 441-44.
18. PO-Skine, http://www.po-skane.org/text/sub30.htm (last visited Feb. 20, 2007).
For example, the Swedish law allows a person to move the court if the mentor acts outside
his authority or does any act to which the disabled person could have given consent to, but
did not. Id. See also Herr, supra note 16.
19. See Herr, supra note 16. Thus, for example, though the mentor is ordinarily
appointed with the consent of the disabled person for whom he is being appointed, there is
provision in the law to make this appointment without consent, subject to medical
certification and court order. Sweden has also retained the system of appointing a
forvaltare, or administrator trustee, for those persons who object to the appointment of a
"God Man." While a "God Man" has to act with the consent of the person, the administrator
is a substitute decision-maker. The one significant difference from usual guardianship laws
is that the appointment of the administrator does not result in the disenfranchisement of the
disabled person. Id.
assistance, such reform efforts also allowed persons to plan for the
future by formulating advance directives or living wills that state how
the executor of the directive or will wants vital life and health decisions
to be made. 20 The inclusion of these procedures has not eliminated
controversy. For example, the value and validity of advanced directives
have been questioned.2 ' What are the situations and circumstances in
which an advanced directive should be activated? Will the directive be
eclipsed if the maker subsequently recants from his or her earlier
directive? Despite such questions, advance directives are increasingly
recognized as suitable instruments to deal with situations where a
person in need of care and attention is no longer able to communicate
his or her wishes to his or her family and health care providers.
It should be noted that, although such efforts seek to restructure the
law to accord primacy to individual will, they have not obliterated all
the controversies revolving around the principle of incompetence. The
legal redesigning has been prompted by the development of means and
methods by which the law does not take over but only assists persons in
living their lives in accordance with their own genius.22 However, as
these efforts have not done away with the notion of incompetence, they
continue to deny full personhood to some persons. These reform
efforts, however, do show that if the mental frontier of incompetence is
crossed, it is possible to provide support to all persons to develop their
capabilities.
B. Capability Expansion andLegal Capacity
A number of scholars in human development literature have
identified the need to consider human beings as ends in themselves and
20. See, e.g., U.S. Living Will Registry, Advance Directive Forms,
http://www.uslivingwillregistry.com/forms.shtm (last visited Apr. 15, 2007) (providing a list
of state's websites containing information on advance directives, including forms which can
be downloaded and completed).
21. See, e.g., The Bazelon Center for Mental Health Law, Advance Psychiatric
Directives, http://www.bazelon.org/issues/advancedirectives/index.htm (last visited Apr. 15,
2007). For example,
A Vermont law allows doctors to go to court to nullify mental health provisions in a
durable power of attorney/advance directive if the treatment choices made by the
agent do not result in improvement of the declarant's condition. In October 2001, a
federal Magistrate Judge ruled that this provision is discriminatory and violates the
Americans with Disabilities Act.
Id.
22. See, e.g., Herr, supra note 16 (providing example of the Swedish law where the PO
is required to execute the decisions and desires of the persons with disability, not decide for
him or her).
hence have defined development as the expansion of human capabilities

instead of augmenting material resources.23 Such a demand is made
because it is found that a rise in per capita incomes does not always
translate into enhanced life expectancy. 24 Development of human
capabilities enables human beings to undertake all the doings and
functions required to live a complete human life. But such capability
development can happen only if every human being is accorded the
opportunity to so live life as to realize his or her own inner genius. In
my understanding, it then follows that in order to enable an individual to
develop such capabilities, it is important that such individual be
presumed to have the capacity to do so.
In a major piece detailing the side effects of the label of
incompetence, Bruce Winck provides psychological insights on how
individual personality development is affected by such labels. 25 A label
of incompetence can often play out as a self-fulfilling prophecy. Once a
finding is reached that a person is incompetent to perform certain tasks,
such person shall not be given any opportunity to engage in or learn
those tasks. 26 It follows from Winck's analysis that if a person is denied
the opportunity to fulfill certain life activities, he or she fails to develop
the capabilities required to perform those activities.
Once a person is found to be incompetent, a consequent effect is
that the person's own choices and preferences will be ignored and other
people will decide for them. This displacement of internal control
causes people to believe that the events of their lives are outside their
control. This belief has strong negative effects on the person's sense of
self, which impacts on subsequent behavior. Winck goes on to
recognize that the incompetence label forces people to learn
helplessness, which consequently causes them to refuse to wage the
23. Amartya Sen, Development as Capability Expansion, in READINGS IN HUMAN

DEVELOPMENT (Sakiko Fukuda-Parr & A.K. Shiva Kumar eds., 2003).
24. Martha Nussbaum, Nature, Function, and Capability: Aristotle on Political
Distribution (World Inst. for Dev. Econ. Research, Working Paper No. 31, 1987). Martha
Nussbaum, in her exposition on the rights of persons with disability, insists that there cannot
be a different list of capabilities or even a different threshold of capability for persons with
disabilities. See MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY,
SPECIES MEMBERSHIP (2006).
25. Bruce J. Winick, The Side Effects of Incompetency Labeling and the Implications
for Mental Health, 1 PSYCH. PUB. POL'Y & L. 6, 42 (1995).
26. See id. at 10-11 (citing ROBERT ROSENTHAL & LENORE JACOBSON, PYGMALION IN
THE CLASSROOM: FUTURE EXPECTATION AND PEOPLE'S INTELLECTUAL DEVELOPMENT 54-55,
116-18 (1968)).
27. See id. at 20 (citing EDWARD L. DECI, INTRINSIC MOTIVATION 61-62 (1975)).
struggle which is an integral component of living a full life.28 Relying

on Deci's work on human motivation, 29 Winck writes that the intrinsic
motivation or need to be self-determining is a basic human need.3° Thus
"[p]eople who have been labeled incompetent are deprived of their
ability to satisfy the basic human need to be self-determining and self-
actualizing.'
By contrast, Amartya Sen and Martha Nussbaum have constructed
their "capability approach" drawing from the thought of Adam Smith,3 2
Karl Marx, 33and Aristotle.3 4 Even as Aristotle's insight of a full and
meaningful life has been adopted by contemporary theorists, this
adoption has been undertaken with awareness of the fact that Aristotle
did not extend this opportunity to all human beings. The exclusion of
28. See id. at 16-17 (citing MARTIN E.P. SELIGMAN, HELPLESSNESS: ON DEPRESSION,
DEVELOPMENT, AND DEATH (1975)); Martin E.P. Seligman, Human Helplessness: Theory
and Applications (1980)). E.P. Seligman conducted a study on animals which showed "that
animals exposed to uncontrollable and inescapable aversive stimuli in a laboratory setting
developed 'helpless' behavior in other settings." Id. at 15. Applying this helplessness to
humans, he found that such helplessness aggravates when humans attribute their
uncontrollability to internal causes (i.e., lack of intelligence), global deficits (i.e., lack of
problem solving skills) and stable causes of failure (i.e., brain damage). Winick, supra note
25, at 17. As incompetence labeling could feed into such like thinking it could hence result
in learned helplessness. Id at 16-17.
29. Winick, supra note 25, at 20 (citing DECI, supra note 27, at 61-62).
30. See id. (citing EDwARD L. DECI, PSYCHOLOGY OF SELF-DETERMINATION 41 (1980)).
On how the three inmate psychological needs of competence, autonomy, and relatedness
yield enhanced self motivation and mental health, see Richard M. Ryan and Edward L.
Deci, Self-Determination Theory and the Facilitation of Intrinsic Motivation, Social
Development, and Well-Being, 55 AM. PSYCHOL. 68-78 (2000). For more literature
establishing the premise, see Self-Determination Theory, Publications,
http://www.psych.rochester.edu/SDT/publications/pub-well.html (last visited Apr. 15,
2007).
31. See Winick, supra note 25, at 22. Although Winick mounts a strong critique of the
legal concept of incompetence, and uses that critique to ask for a very strict and restrictive
use of the label, he does not go so far as to seek its total abandonment. Id. Winick wrote
this piece nearly a decade ago. Even though the birth of the Disability Movement had
already happened (and Winick refers to the writings of some self advocates), it had not
obtained the assertion and certitude of today. Id.
32. See generally ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE
WEALTH OF NATIONS (1776) (discussing the importance of functioning and capability to
function as determinants of well being).
33. See Sen, supra note 23. Marx is quoted as saying, "in place of wealth and poverty
of political economy come the rich human being and rich human need. The rich human
being is simultaneously the human being in need of totality of human life activities - the
man in whom his own realization exists as an inner necessity, as need." Id.at 4 (citing
KARL MARX, ECONOMIC AND PHILOSOPHIC MANUSCRIPTS (1844)).
34. See id. For Aristotle, the good of human beings was linked with the functions of
man and the exploration of life as activity. Id.at 4.
women and slaves, for example, was dictated by Aristotle's belief that
these excluded groups lacked the capacity to live a full and meaningful
life. 35 Thus, the abilities of the excluded group were dictated by how
the dominant group perceived them. Social justice theorists have
termed this process "cultural imperialism., 36 It is this cultural
imperialism which renders the aspirations of the excluded group
invisible, along with stereotyping them in accordance with the beliefs
and perceptions of the dominant group.37 Persons with disabilities have
been included among the groups who are subjugated by cultural
imperialism, which rules through policies, laws, social practices and
every day discourse.38 In fact, it was in the wake of this cultural
imperialism that the Ad Hoc Committee was required to consider how
the legal capacity of persons with disability should be constructed in the
Convention. The following section will discuss how the competing
concerns of protection and participation have played themselves out, in
the various formulations of "legal capacity," deliberated upon by the Ad
Hoc Committee.
II. DELIBERATIONS ON LEGAL CAPACITY BY THE AD Hoc COMMITTEE
A. The Working Group Text

The Working Group of State Parties, inter-governmental
institutions, human rights institutions, and non-governmental
organizations formulated the first text on legal capacity for the
consideration of the Ad Hoc Committee.39 In undertaking its
35. ARISTOTLE, POLITICS, at part V, available at The Internet Classics Archive,

http://classics.mit.edu/Aristotle/politics. 1.one.html (last visited Apr. 2, 2007).
36. Maria C. Lugones & Elizabeth V. Spelman, Have We Got a Theory for You!
Feminist Theory, Cultural Imperialism and the Demand for "The Woman Voice, " 6
WOMEN'S STUDIES INTERNATIONAL FORUM 573 (1983), cited in IRIS MARION YOUNG,
JUSTICE AND THE POLITICS OF DIFFERENCE 58 (1990).
37. YOUNG, supra note 36, at 59.
38. The last being of special significance as even when it is no longer politically correct
to argue for racism, sexism, or ableism: "Judgments of beauty or ugliness, attraction or
aversion, cleverness or stupidity, competence or ineptness, and so on are made
unconsciously in interactive contexts and in generalized media culture, and these judgments
often mark, stereotype, devalue or degrade some groups." Id. at 133.
39. U.N. Dep't of Econ. & Soc. Affairs, Ad Hoc Comm. on Comprehensive & Integral
Int'l Convention on Promotion of Rights & Dignity of Pers. with Disabilities, Working
Group on Rights of Persons with Disabilities, Report of the Second Session, U.N. Doc.
A/58/118 & Corr. I (July 3, 2003), available at
http://www.un.org/esa/socdev/enable/rights/ahcwgreport.htm. The Ad Hoc Committee, at
its 14th meeting on June 27, 2003, "[established] a Working Group with the aim of
deliberations, the Working Group had the benefit of a number of

proposals for elements of the Convention from regional groups,
particular countries, and disabled peoples' organizations. 40 An
examination of these proposals shows that although the recognition of a
person with disability as a person before the law was uncontroversial,
there was divergence of opinion in how the question of assistance and
support should be approached. For example, Article 25 of the Bangkok
Draft recognized the right of a person with a disability to own and
administer property.
Another part of the Article introduced a caveat with regard to the
universal enjoyment of the right.42 This clause provided that "'where a
person with intellectual disability is not able to exercise this right, the
legal guardian of that person shall be entitled 43
to exercise the right on
behalf of and in the interests of, that person."
In direct opposition to this suggestion, was the proposal of
Inclusion International, a non-governmental disability organization,
which avowed its commitment to fight against the introduction of any
reference to paternalistic guardianship laws in the Convention. The
organization also asserted that everybody has the right to self
determination and autonomy, and emphasized that "it is not necessary
any longer to place persons under guardianship by labeling them as
being totally incapacitated and by denying some or all of their rights. 44
The fact that requiring assistance cannot be the basis of denying
preparing and presenting a draft text which would be the basis for negotiation by Member
States and Observers at the Ad Hoc Committee of the draft convention." Id. 15.1. The
Working Group was comprised of representatives of governments, non-governmental
organizations, and national human rights institutions. Id. 15.2.
40. See G.A. Res. 57/229, 4, 7, U.N. Doc. A/57/229 (Feb. 27, 2003) (where the
General Assembly "[e]ncourage[d] States to hold meetings or seminars to contribute to the
work of the Ad Hoc Committee... [and invite] regional commissions and
intergovernmental organizations... non-governmental organizations... and human rights
institutions and independent experts with an interest in the matter" to suggest possible
elements to be considered in the proposals for a Convention).
41. Asia Pacific Regional EGM, Revised Bangkok Draft,
http://www.worldenable.net/bangkok2003a/bangkokdraftrev.htm (last visited Apr. 3, 2007)
(drafted by the Coalition of Individuals, Organizations and Agencies of the People, for the
People and by the People with Disabilities in Eastern Europe (Ukraine, Russia, Belarus,
Moldova and Poland)).
42. Id. art. 25.
43. Id. art. 25(3).
44. U.N. Enable, Working Group, Contribution by Inclusion International,
http://www.un.org/esa/socdev/enable/rights/wgcontrib-inclintl.htm (last visited Apr. 3,
2007).
persons the legal capacity to act was also stressed upon by the World
Network of Users and Survivors of Psychiatry. The Network therefore
demanded that "[p]ersons with disabilities who experience difficulty in
asserting their rights, understanding information presented to them or
articulating or communicating their choices have a right to be provided
with advocacy assistance and other reasonable accommodation with the
aim of giving effect to the person's own decisions. 45
Other than these suggestions, a number of country proposals also
emphasized the need for ensuring equality between the non-disabled
and persons with disabilities.4 6 Thus the Chinese proposal required all
countries "[t]o incorporate the principle of equality and non-
discrimination for all people in their national legislations
47
[and] amend
or abolish any legislations that permits to the contrary.
Subsequent to deliberations, the Working Group proposed the Text
of Article 9 of the Convention. This text put forth the universally
acceptable proposition and "[recognized] persons with disabilities as
individuals with rights before the law equal to all other persons. 48 On
the question of legal capacity, the article adopted a variegated approach.
First, in application of the non-discrimination principle, a general
proposition was made whereby it was accepted that "persons with
disability have full legal capacity on an equal basis as others, including
45. U.N. Enable, Working Group, Contribution by World Network of Users and
Survivors of Psychiatry, http://www.un.org/esa/socdev/enable/rights/wgcontrib-wnusp.htm
(last visited Apr. 3, 2007).
46. For proposals that stress the right of equality and non-discrimination, other than the
Bangkok Draft, see U.N. Enable, Working Group, Contribution by the European Union,
http://www.un.org/esa/socdev/enable/rights/wgcontrib-EU.htm (last visited Apr. 3, 2007);
U.N. Enable, Working Group, Contribution by India,
http://www.un.org/esa/socdev/enable/rights/wgcontrib-india.htm (last visited Apr. 3, 2007);
U.N. Enable, Working Group, Contribution by New Zealand,
http://www.un.org/esa/socdev/enable/rights/wgcontrib-NewZealand.htm (last visited Apr. 3,
2007); U.N. Enable, Working Group, Contribution by China,
http://www.un.org/esa/socdev/enable/rights/wgcontrib-china.htm (last visited Apr. 3, 2007)
[hereinafter Contribution by China].
47. Ironically, it was China who, at the initiation of the negotiations, required State
Parties to incorporate the principle of equality and non-discrimination in their national
legislations and to amend or abolish any legislation that provides the contrary that would
take leadership in trying to save national laws which are in conflict with the Convention.
See Contribution by China, supra note 46.
Group on Rights of Persons with Disabilities, Report of the Working Group to the Ad Hoc
Committee, art. 9(a), U.N. Doc. A/AC.265/2004/WG/1 (Jan. 27, 2004) [hereinafter Draft
Convention], availableat http://www.un.org/esa/socdev/enable/rights/ahcwgreport.htm.
in financial matters. 49 The financial entitlements of legal capacity

were further stressed in clauses (e) and (0.50
The controversial question of assistance was dealt with in clause
5
(c). ' Although Footnote 33, appended to clause (c), stressed that the
fact of seeking assistance did not negate full legal capacity, at the same
time, assistance was accommodated within the paradigm of the
autonomous independent individual. 52 Therefore, clause (c)(i) required
that the "assistance is proportional to the degree of assistance required
by the person concerned and tailored to their circumstances and does
not interfere with the legal capacity, rights and freedoms of the
person." 53 Section (c)(ii) also acknowledged situations where decisions
for one may be taken by another. 54 At this stage of the deliberations this
problem of substitution was handled through safeguards. And clause
(c)(ii) provided that whenever assisted decisions are taken they be "only
in accordance with a procedure established by law and with the
application of relevant legal safeguards. 55 The tension between
supported and substituted decision-making was acknowledged in the
footnote where it was reported that "some members of the Working
Group proposed that where others are exercising legal capacity for a
person with disability those decisions should not interfere with the
rights and freedoms of the person concerned., 56 Thus, for these
members of the working group, the standard of "best interest" was
insufficient since it allows the substituted decision-maker to act
according to what he or she thinks is in the best interest of the person
with[T2] disability, whether or not the person with disability thinks
likewise. With this interrogation of the best interest standard, the
opposition between paternalism and participation was set up in the
Working Group text. It is this opposition that had to be addressed before
the final draft text for "legal capacity" in the Convention could be
accepted.
49. Id.art. 9(b).

50. Id.art. 9(e)-(f).
51. Id.art. 9(c).
52. Id.art. 9(c), n.33.
53. Draft Convention, supra note 48, art. 9(c)(i).
54. Id. art. 9(c)(ii).
55. Id.
56. Id.art. 9(c), n. 33.
B. Responding to the Working Group Text

The Working Group text was considered by the Ad Hoc
Committee during the Third,57 Fourth58 , Fifth5 9 and Sixth 60 Sessions.
The primary points of controversy surrounded the meaning of legal
capacity, provision of support, substituted decision-making
arrangements, and safeguards against misuse.
In the deliberations surrounding the meaning of legal capacity,
some States, based on the strength of their national laws, introduced 6a
distinction between legal capacity for rights and legal capacity to act.
1
They consequently contended that while all persons with disability

possessed the capacity for rights, a similar universality did not exist in
relation to the legal capacity to act.6 2 It was this contention that caused
clause (b) of the Working Group text to be altered and an ambiguous
footnote to be introduced.
Clause (b) of the Working Group text stated that State Parties
"accept that persons with disabilities have full legal capacity on an
63 Subsequently, 64
equal basis as others, including in financial matters."
57. U.N. Enable, Third Session of the Ad Hoc Committee (from May 24, 2004 to Jun.
4, 2004), www.un.org/esa/socdev/enable/rights/ahc3.htm (last visited Mar. 28, 2007).
58. U.N. Enable, Fourth Session of the Ad Hoc Committee,(from Aug. 23, .2004 to
Sept. 4, 2004), www.un.org/esa/socdev/enable/rights/ahc4.htm (last visited Mar. 28, 2007).
59. U.N. Enable, Fifth Session of the Ad Hoc Committee, (from Jan. 24, 2005 to Feb.
4, 2005), www.un.org/esa/soedev/enable/rights/ahc5.htm (last visited Mar. 28, 2007).
60. U.N. Enable, Sixth Session of the Ad Hoc Committee, (from Aug. 1, 2005 to Aug.
12, 2005) www.un.org/esa/socdev/enable/rights/ahc6.htm (last visited Mar. 28, 2007).
Group on Rights of Person with Disabilities, Report of the Ad Hoc Committee on a
Comprehensive and Integral International Convention on the Protection and Promotion of
the Rights and Dignity of Persons with Disabilitieson Its Fifth Session, para. 18 n.b, U.N.
Doc. A/AC.265/2005/2 (Feb. 23, 2005), availableat
http://www.un.org/esa/socdev/enable/rights/ahc5reporte.htm (last visited Mar. 28, 2007).
62. Id.
63. Draft Article 9, http://www.un.org/esa/socdev/enable/rights/ahcwgreporta9.htm
(last visited Apr. 23, 2007).
64. All the informal sessions in the Fourth and Fifth Ad Hoc were coordinated by
Ambassador McKay of New Zealand while the formal sessions were chaired by
Ambassador Gallegos of Ecuador. The Coordinators Report on the Fifth Session reported
the disagreement and required the altered text to be considered at the Sixth Session. See
U.N. Econ. & Soc. Council [ECOSOC], Ad Hoc Comm. on a Comprehensive & Integral
Int'l Convention on the Prot. & Promotion of the Rights & Dignity of Pers. with
Disabilities, Report of the Ad Hoc Committee on a Comprehensive and Integral
International Convention on the Protection and promotion of the Rights and Dignity of
Persons with Disabilitieson its Fifth Session, U.N. Doc. A/AC.265/2005/2 (Feb. 23, 2005),
available at http://www.un.org/esa/socdev/enable/rights/ahc5reporte.htm (last visited Apr.
this text was altered as follows: "States Parties shall recognize that
persons with disabilities have [a legal capacity] 65 on an equal basis with
others in all fields and shall ensure, to the extent possible, that where
support is required to exercise [that capacity, the capacity to act]. ' ' 66
The introduction of this distinction between legal capacity for
rights and legal capacity to act was strongly questioned by
representatives of civil society and non-governmental organizations.
The International Disability Caucus (IDC), in its text analysis, pointed
out that legal capacity, in the sense of juridical personhood, had already
been recognized by clause (a) of Article 9. The second paragraph was
required primarily to ensure that persons with disability in any legal
system should be guaranteed the legal capacity to act, on an equal basis
with others.67 It was also pointed out that though Article 15(2) of the
Convention on the Elimination of All Forms of Discrimination Against
Women ("CEDAW") did not expressly mention the capacity to act, the
manner in which the article was formulated in CEDAW implies such an
interpretation.6 8 In support of this position, reference was made to
General Recommendation 21 where the Women's Committee states that
"when a woman cannot enter into a contract at all, or have access to
financial credit, or can do so only with her husband's or male relative's
concurrence or guarantee, she is denied legal autonomy." 69 Once this
composite formulation of legal capacity was accepted in CEDAW, it
could not be derogated from in the Disability Convention. Such a
departure would well be introducing a division between non-disabled
women and women with disabilities. If women with disabilities are
23, 2007).
65. In Chinese, Russian, and Arabic, legal capacity means "legal capacity for rights"
and not "legal capacity to act." Id, n. (b).
66. Id. art. 9.
67. See id. 17-20.
68. Convention on the Elimination of All Forms of Discrimination Against Women,
art. 15(2), openedfor signatureDec. 18, 1979, 1249 U.N.T.S. 13, 19 I.L.M. 33, available at
http://www.ohchr.org/englishlaw/cedaw.htm (last visited Mar. 29, 2007).
State Parties shall accord to women, in civil matters, a legal capacity identical to that
of men and the same opportunities to exercise that capacity. In particular, they shall
give women equal rights to conclude contracts and to administer property and shall
treat them equally in all stages of procedure in courts and tribunals.
Id. (emphasis added).
69. Office of the High Comm'r for Human Rights, Equality in Marriageand Family
Relations, CEDAWGeneralRecommendation 21, cmt. 7, U.N. Doc. A/47/38 (Apr. 2, 1994),
available at
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/7030ccb2de3baae5cl 2563ee00648fl f (last
visited Mar. 29, 2007).
included in CEDAW, a division would exist between men and women

with disabilities. It would be ironic if human rights instruments, such as
CEDAW and the proposed Disability Convention, were interpreted to
perpetuate discrimination instead of eradicating it.
The Working Group text had formulated the text on support, not as
an entitlement or right of persons with disabilities, but as a duty of State
Parties. State parties therefore raised questions around the extent of the
obligation. 70 The IDC 71 responded by suggesting that the passive
language of the draft Convention be changed. The IDC pointed out that
the Working Group text seemed to indicate that persons with disabilities
may not have the final authority to decide whether to use or accept
support. The IDC therefore suggested that the language of the clause be
altered to "ensure that persons with disabilities are entitled to [seek]
support to exercise legal capacity," 72 and that the conditions
surrounding such support should also be positively formulated. To that
end, IDC recommended that the Working Group text be amended to add
that "'such support is adequate to meet the person's requirements," shall
not undermine the legal rights or capacity of the person" 73 and "shall
respect the will and preferences of the 74 person and shall be free from
conflict of interest and undue influence.,
The third kind of response to the legal capacity provisions centered
around clause (c)(ii). In the informal negotiations on the article three
kinds of opinions were propounded.7 5 The first view required an
70. Some State Parties did want limitations to be introduced with regard to the extent of
the obligation; for example, India wanted clause (c ) to be amended so that State Parties
should not be required "to ensure" but only "endeavor to ensure" assistance. U.N. Enable,
Daily Summary at the Third Session of the Ad Hoc Committee (May 26, 2004),
http://www.un.org/esa/socdev/enable/rights/ahc3sum9.htm (last visited Mar. 29, 2007).
Interestingly all States Parties did not go the same way and there were some who suggested
amendments aimed to make explicit the all encompassing scope of the rights guaranteed
under the Article. Id. Illustratively, Uganda amended clause b so that it should "ensure that
[persons with disabilities] have full legal capacity.. in political, civil, social, cultural and
economic matters." Id
71. The International Disability Caucus was a loose network of more than 70
organizations, which was formed at the United Nations and registered with the Department
of Economic and Social Affairs (DESA) to participate in deliberations of the Convention.
See Participation of the Civil Society in the Convention on Disability,
http://www.advancednewcomers.com/module3.htm (last visited Apr. 11, 2007).
72. INTERNATIONAL DISABILITY CAUCUS, UPDATED CONTRIBUTION ON THE DRAFT TEXT
(2005), available at www.un.org/esa/socdev/enable/rights/ahc5docs/ahc5idcaucus.doc (last
visited Apr. 11, 2007).
73. Id.
74. Id.
75. The narration in the next two paragraphs has been constructed from my personal
explicit enumeration of the safeguards, which would need to be

observed, before decisions were taken on behalf of persons with
disability. The second view was that the clause should explicitly
mention the circumstances in which a personal representative could be
appointed. The third set of recommendations stemmed from the belief
that the claim of universal legal capacity could not be extended to all
persons with disability. According to this view, there could exist a small
number of persons with disability who would not be able to function
even with support, and would require others to make decisions on their
behalf. If that is the reality, then according to this view, it was
necessary for the Convention to acknowledge that reality and make
provisions for substituted decision-making as well as safeguards against
its misuse.
To counter these justifications asking for an explicit mention of
substituted decision-making in the Convention, it was pointed out that if
support was to be provided proportionately to the actual needs of the
person with disability, then it would encompass the entire range of
support, from the lowest to the highest level of support. The fact that a
person requires high support was not a reason to surmise absence of
capacity. As irrespective of its quantum, such support will have to be
provided without undermining the rights and capacity of the person with
disability, be free from conflict of interest and undue influence, while
respecting the will and preferences of the person.
Even if it is conceded that the rule of substituted decision-making
was being incorporated in the Convention only for a very small
percentage of persons with disability, it becomes necessary to ask: by
what procedure will this small percentage of persons be identified?
Presumably, it would be done on a case by case basis, but even so, this
process of identification will render the capacity of all persons with
disability open to question, since it would give rise to a situation where
for questionable advantages to a small group of persons, all persons
with disability shall be disadvantaged. The IDC made the contention of
questionable advantage, on the strength of studies evaluating the
functioning of guardianship.76 These studies had found that abuse was
participation in conversations around the Article. The narration highlights the opinions
discussed rather than stating who held these opinions, because adherence to these views
changed with lobbying and counter-lobbying.
76. U.N. Enable, Article 13 - Status of Discussions - Fifth Session,
http://www.un.org/esa/socdev/enable/rights/ahcstatal 3fiscomment.htm#idc (last visited
Apr. 11, 2007).
facilitated, and not prevented, by guardianships. 77

Substituted decision-making is premised on the incapacity of the
person with a disability. Consequently, once made, these arrangements
allow guardians to make all decisions on behalf of, and without
consultation with, their ward. It was therefore argued by the
International Disability Caucus, in its interventions at the fifth Ad Hoc
Meeting, 78 that the paradigm of supporteddecision-making, rather than
substituteddecision-making, is preferable since it more fully recognizes
the right of people with disabilities to equal treatment and the protection
of their human rights.7 9 In further defense of this model, it was argued
that as the model made for an acknowledgement of human
interdependence, it furthered the human rights of all persons. The
imposition of dependence, on the other hand, is evidenced by the
substituted decision making model, which negates human aspiration,
respect, and choice.
These deliberations regarding decision-making exemplified the
dichotomous perspectives with which the issue of legal capacity was
being approached in the Ad Hoc Committee. There was the clash
between paternalism and autonomy, between what was easily possible
and what was necessarily desirable, and between living in the present
and planning for the future. These varied perspectives have influenced
the textual course of Article 12 at every stage, as the following section
will show.
C. Legal Capacity in the Chairs' Working Text

In the inter-session between the Sixth and Seventh Sessions, a new
working text was issued by the Chair for consideration by the Ad Hoc
77. For example, see the research on guardian ship undertaken in Central and Eastern
Europe by Mental Disability Advocacy Center, which described guardianship as "legal
death," especially for persons with intellectual and psychological disabilities. Mental
Disability Advocacy Center, MDAC Guardianship Project,
http://mdac.info/projects/guardianship.htm (last visited Apr. 3, 2007). See also CANADIAN
ASSOCIATION FOR COMMUNITY LIVING, REPORT OF THE CACL TASK FORCE ON
ALTERNATIVES TO GUARDIANSHIP (1992), available at
http://www.worldenable.net/rights/adhoc3meetguardianship.htm (last visited Apr. 3,
2007); Canadian Association for Community Living, Disability Support,
http://www.cacl.ca/english/priorityresouces/dissupport/index.html (last visited Apr. 3, 2007)
(disseminating information on independent living and supported decision-making).
78. U.N. Enable, Article 12 - Equal Recognition as a Person before the Law:
Comments, Proposals and Amendments Submitted Electronically,
http://www.un.org/esa/socdev/enable/rights/ahcstatal2fiscomment.htm (last visited Apr. 3,
2007).
79. Id.
Committee. This text aimed to capture the consensus and dissension on

each of the articles. "Legal capacity," for example, was incorporated as
Article 12 in the Chairs' Working Text.80 The dispute between
supported and substituted decision-making was depicted by including a
bracketed paragraph that allowed for the appointment of personal
representative as a matter of last resort.8 1
In the ensuing discussion, some States asked for the deletion of
brackets surrounding Article 12(2)(b) on the reasoning that as
guardianship will need to continue for some persons with disabilities, it
was only appropriate that there be explicit incorporation of the due
process requirements for appointing a guardian, and of the safeguards
against abuse in the Convention. 82 Other states alerted the Ad Hoc
Committee to the fact that the Convention was not just a legal
document, but also a political document, and as such, its message on the
legal capacity of an excluded community should be unequivocal and
80. U.N. Enable, Working Text- Article 12: Equal Recognition before the Law,
http://www.un.org/esa/socdev/enable/rights/ahcstatachtxtartl2.htm (last visited Apr. 3,
2007):
1. States Parties reaffirm that persons with disabilities have the right to recognition
everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities have [legal capacity]
on an equal basis with others in all fields and shall ensure that where support is
require to exercise that capacity:
(a) The assistance provided is proportional to the degree of support required and
tailored to the person's circumstances, that such support does not undermine the
legal rights of the person, respects the will and preferences of the person and is
free from conflict of interest and undue influence. Such support shall be subject
to regular and independent review;
(b) Where States Parties provide for a procedure, which shall be established by
law, for the appointment of personal representation as a matter of last resort,
such a law shall provide appropriate safeguards, including regular review of the
appointment of and decisions made by the personal representative by a
competent, impartial and independent tribunal. The appointment and conduct of
the personal representative shall be guided by principles consistent with the
present Convention and international human rights law.]
3. States Parties shall 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 shall ensure that persons with disabilities are not arbitrarily
deprived of their property.
Id.
81. Id. art. 12(2)(b).
82. Such a demand was made amongst others by Kenya, Mexico and Serbia and
Montenegro. (Personal notes on the proceedings of the Seventh Ad Hoc, on file with
author).
forward looking. 83 To make this paradigm shift, it was necessary that

the Convention should express its concern for persons with high support
needs within the supported decision-making model. 84 Further, Canada
suggested that as the issue of violence and abuse had been addressed in
other articles of the Convention, notably Article 16, the discord could be85
handled by maintaining silence on the question of guardianship.
According to this view, the Convention does not have to prohibit
guardianship, but neither should it endorse it. Other states expressed
flexibility86 on the issue and their intention of going along with the
majority.
The need for the Convention to make a paradigm shift was again
stressed by the IDC, which underscored the fact that while supported
decision-making was premised on the competence of persons with
disabilities, substituted decision-making was based on their87
incompetence, and hence the two concepts could not subsist together.
This Convention was necessary because other human rights conventions
and national laws had not addressed the rights of persons with
disabilities. 88 The number of people with psychosocial, intellectual, and
severe disabilities who had addressed the Ad Hoc Committee proved
that they were capable of reasoning, expressing opinions, voicing
aspirations and making decisions, even with their disabilities. These
voices, of people who society may consider as incompetent and in need
of guardians, were heard and respected. 89 Nonetheless, the IDC took
note of the concerns that had been expressed by a number of State
Parties with regard to persons with high support needs and consequently
recognized the merit of the Canadian proposal, which proposed silence
on this issue
90
by neither prohibiting nor endorsing substitute decision-
making.
83. Id.
84. Liechtenstein made the most powerful intervention to this effect. (Personal notes,
on file with author).
85. Personal notes on the proceedings of the Seventh Ad Hoc, on file with author.
86. Id.
87. Id.
88. The following narration on the DC intervention has been constructed from my
personal notes on file as I made the intervention on behalf of the International Disability
Caucus. See also International Disability Caucus, Explanatory Note on Legal Capacity and
ForcedInterventions,
http://www.un.org/esa/socdev/enable/rights/ahc8docs/ahc8idcl218ex.doc (last visited Apr.
3, 2007).
89. Personal notes, on file with author.
90. Id.
It may be pertinent to note here that while the IDC adopted a

forward looking approach towards the issue of legal capacity, other non-
governmental and disabled persons' organizations continued to express
the view that guardianship should be expressly permitted in some
cases. 91 Thus the (stereotypic) view that people with disabilities lack
capacity for decision making was not confined to states parties; some
members of civil society also advocated for the92 recognition of the
appropriateness of guardianship in the Convention.
Efforts to break the stalemate were undertaken by (progressive)
state parties and the IDC in a number of informal interactions that
continued on the sidelines throughout the Seventh Ad Hoc Committee
meeting. A particularly evocative effort at persuasion was a special
edition of the IDC newsletter entitled Imagine.
As a result of these many conversations, an effort to break the
deadlock was made by the European Union, Canada, Australia, Norway,
Costa Rica, United States, and Liechtenstein. 94 These parties proposed
91. PEOPLE WITH DISABILITY AUSTRALIA & AUSTRALIAN NATIONAL ASSOCIATION OF

COMMUNITY LEGAL CENTRES, ARTICLE 12: EQUAL RECOGNITION BEFORE THE LAW, available
at http://www.un.org/esa/socdev/enable/rights/ahc8docs/ahc8pwdaartl2.doc (last visited
Apr. 15, 2007).
92. Id.
93. International Disability Caucus, Nothing about Us without Us, INT'L DISABILITY
CAUCUS SPECIAL ED., Jan. 31, 2006, http://www.ideanet.org/content.cfm?ID=595D77 (last
visited Apr. 3, 2007). The text of the newsletter was as follows:
Imagine if someone else was making decisions for you. They could decide to take
you away, lock you up, not listen to you, give you medication, block you from doing
your work and living your life with your body and mind the way they are.
WOULD YOU WANT THIS TO HAPPEN TO YOU?
Wouldn't you have the feeling that you have lost you dignity and want it back?
Wouldn't you feel your integrity has been violated? Wouldn't you want to have
support in making decisions without being taken over and to ask for help without
being seen any the less for it? Wouldn't you want to maintain your inherent dignity
and be supported to make your decisions? Wouldn't you want to retain your
integrity and continue to be you?
The principles established in this Convention are universal and will apply to all
human beings, as much to you as to me.
Let us make a Convention for a world where we can all grow and develop with
mutual support.
IMAGINE A CONVENTION FOR ALL.

Id.
94. See U.N. Enable, Article 12 - Equal Recognition as a Person before the Law:
Comments, Proposals and Amendments Submitted Electronically,
http://www.un.org/esa/socdev/enable/rights/ahcstatal2fiscomment.htm (last visited Apr. 3,
a new text for Article 12 that attempted to combine some of the

safeguards required for guardianship with some of the standards desired
for supported decision-making. 95 It was a periscope-like construction of
the crucial paragraph so that each person could see what they desired in
the paragraph, and thus provide consent to the proposal. This modified
text came up for discussion dramatically as the Seventh Session was
drawing to a close. A large number of States Parties expressed either
full or qualified support for it. Most importantly, a majority of the state
parties and the IDC saw in the modified text enough commonality that
could help then to reach that elusive consensus.96
However, just as it seemed that the modified text would be the
sole text for negotiation in the Eighth Session of the Ad Hoc
Committee, some States sought and obtained retention of the original
Article 12 (2)(b).9 7 Consequently, the Ad Hoc Committee was being
asked to decide between two alternatives in the Eighth Meeting, the
periscope-like modified text, or the text that allowed for appointment of
guardians or personal representatives, subject to the due process
safeguards.9 8
D. The Eighth Ad Hoc and the Adoption ofArticle 12

As the Eighth Ad Hoc was scheduled to deliberate on controversial
articles, Article 12 came up early for discussion in the plenary session.
Inter-sessional deliberations had brought many more States closer to the
modified text, yet consensus remained elusive. The IDC pressed for
changes to the modified text 99 in order to express an unequivocal
2007).
95. Id. The crucial paragraph 12(4) of the European Union proposal reads as follows:
States Parties shall ensure that all legislative or other measures which relate to the
exercise of legal capacity provide for appropriate and effective safeguards to prevent
abuse in accordance with international human rights law. Such safeguards shall
ensure that measures relating to the exercise of legal capacity respect the rights, will
and preferences of the person, are free of conflict of interest and undue influence,
are proportional and tailored to the person's circumstances, apply for the shortest
time possible and are subject to periodic impartial and independent judicial review.
The safeguards shall be proportional to the degree to which such measures affect the
person's rights and interests.
Id.
96. As deduced by the author from statements made by State Parties in the informals on
the Article. (Personal notes, on file with author).
97. Personal notes on the proceeding of the Eighth Ad Hoc, on file with author.
98. Id.
99. International Disability Caucus, Correction to Compilation Article 12,
http://www.un.org/esa/socdev/enable/rights/ahc8docs/ahc8idcl2.doc (last visited Apr. 15,
commitment to the supported decision-making model in the

Convention, while also taking on the concerns of persons with high
support needs. 00 However, the IDC was unable to make an impact and
had to concentrate its efforts on garnering support for the modified text.
State parties were similarly engaged. The modified text with minor
changes emerged as the consensus text. In no version of the modified
text was the footnote to 12(2) included. In fact, no negotiations or
deliberations were undertaken around the footnote. Consequently, the
appearance of the footnote in the text, which the Ad Hoc Committee
was asked to adopt ad referendum, took both states and civil society by
surprise.
The text of Article 12 was introduced with the controversial
footnote differentiating between the legal capacity to act and legal
capacity for rights. This language resulted in a query from Canada on
1°
whether the footnote was going to be a part of the Convention text. 1
The Chair's responded in the affirmative, and before State Parties could
2007). IDC modified this paragraph to underscore that the Convention should only endorse
the supported decision-making model as follows:
States Parties shall ensure that all legislative or other measures that relate to (ADD:
support in) the exercise of legal capacity provide for appropriate and effective
safeguards to prevent abuse (DELETE: in accordance with international human
rights law). Such safeguards shall ensure that measures relating to (ADD: support
in) the exercise of legal capacity respects the rights, will and preferences of the
person, are free of conflict of interest and undue influence, are proportional and
tailored to the person's circumstances (DELETE: apply for the shortest time
possible) and are subject to periodic impartial and independent judicial review.
(DELETE: The safeguards shall be proportional to the degree to which such
measures affect the person's rights and interests).
Id.
IDC also addressed the concerns of persons with high support need by modifying Article 12
(2) as follows:
State Parties shall take appropriate legislative and other measures to (DELETE:
provide access by) (ADD: ensure that) persons with disabilities (DELETE: to)
(ADD: have) the support they may require in exercising their legal capacity (ADD:
such support measures shall include the assistance required to seek and obtain
support).
Id.
100. Side events were organized by Inclusion International, WNUSP and Support
Coalition to underscore how legal capacity was integral to rendering the convention real for
all persons with disabilities and how the requirement for high support in no way negated
legal capacity. (Personal notes, on file with author).
101. Letter from International Disability Caucus to Government Delegate of the Ad
Hoc Committee on the Convention on the Rights of Persons with Disabilities, available at
http://www.aapd-dc.organization/News/intemational/060908.idc.htm (last visited Mar. 29,
2007) [hereinafter IDC Letter].
react, the Article was adopted ad referendum.10 2 The presence of the
footnote ,however, was questioned in the final statements of the state
parties,' O3 the ID C,'0 4 and the human rights institutions.' 0 5The
incorporation of the footnote once again showed the depth of the
prejudice that persisted against persons with disabilities generally, and
against people with certain disabilities, in particular. Even as the
footnote was proposed in the name of particular disabilities, it was
introduced in a Convention that covered people in all countries, with all
sorts of disabilities. Yet so deep was the prejudice, that this
consequence did not concern - or just escaped - the advocates of the
footnote. However, while the induction of the footnote demonstrated
how the stereotype ruled, the protests articulated in concluding
statements of the IDC at a celebratory session showed the resolve to
challenge that stereotype, a resolve which was backed with requisite
action in the deliberations of the drafting committee.
E. The Drafting Committee and Other Language Translations

Following the Eighth Ad Hoc Committee Meeting, the draft
Convention was sent to the Drafting Committee. 10 6 The role of the
Drafting Committee is to review the draft text of the Convention for
linguistic consistency and clarity. 10 7 The Drafting Committee was open
ended and provided an opportunity for States Parties to interact before
the full text was formally adopted in the reconvened Ad Hoc
Committee. ' 8 The move to delete the footnote was initiated in the
Committee because the Convention was the first human rights
102. Id.
103. Most notably, the European Union speaking also for Canada and Australia
expressed concern on the footnote and the need to reconsider the matter if required. See id
104. Id. The IDC made two statements, one cautionary and the other celebratory. The
cautionary statement by Stefan Tromel of the European Disability Forum pointed out how a
human rights Convention could not legitimize the denial of human rights for any people in
any part of the world. Id.
105. Id. Anuradha Mohit while making her statement on behalf of the Human Rights
Institutions did not expressly mention the footnote but expressed anxiety on any efforts to
dilute the universal discourse of human rights. (Personal notes, on file with author).
106. See U.N. Enable, Timeline of Events,
http://www.un.org/esa/socdev/enable/convinfohistl.htm (last visited Apr. 24, 2007)
[hereinafter Timeline].
107. See id.
108. Letter from Don MacKay, Chair of the Ad Hoc Committee, to Members of the Ad
Hoc Committee, availableat
http://www.un.org/esa/socdev/enable/documents/ahc8docs/chairman.doc (last visited Apr.
24, 2007).
instrument that contained such a caveat. Human Rights instruments by

their nature are universal and non-derogable. Thus, according to proper
U.N. protocol, state parties who seek national exemptions from
Conventions are free to file reservations.' 0 9 Such exemptions do not
derogate from the universal consensus but 0
only allow individual State
Parties to choose their time of accession.'"
The disputed footnote provided that "[i]n Arabic, Chinese and
Russian, the term 'legal capacity' refers to 'legal capacity for rights,'
rather than 'legal capacity to act.""" An analysis of this text shows
that it was making a substantive reservation disguised as a linguistic
one. The three named languages are spoken and used in a number of
countries. Can the primary negotiators of the footnote, say China,
Russia, or Syria, bind countries that use Russian or Chinese or Arabic
but have not asked for the footnote? Can a footnote, in the guise of
providing a linguistic clarification, alter the substantive commitment of
the main text? Would the footnote be undermining international human
rights law by making it subject to national laws?
A treaty drawn up in different languages may or may not accord
different status to every language version. Draft Article 50 of CRPD
stated that "[t]he Arabic, Chinese, English, French, Russian and Spanish
' 12
texts of the present Convention shall be equally authentic.
According to the Vienna Convention, such a formulation makes each
version equally authoritative.' 13 In these circumstances, how can the
English version state how the texts in the other languages are to be
interpreted? All these questions were raised in informal deliberations
by concerned State Parties. 14 The IDC and other members of civil
society were not physically participating in the deliberations of the
109. Vienna Convention on the Law of Treaties, arts. 19-23, May 23, 1969, 1155
U.N.T.S. 331 [hereinafter Vienna Convention].
110. Id.
111. U.N. Enable, Working Group: Fourth Revised Text (Oct. 30, 2006), available at
http://www.un.org/esa/socdev/enable/documents/ahc8docs/AHC8DC-4th-rvsd-txt.doc (last
visited Apr. 24, 2007) [hereinafter Fourth Revised Draft].
112. CPRD, supra note 1, art. 50.
113. Article 33(1) of the Vienna Convention states that when a treaty has been
authenticated in two or more languages, the text is equally authoritative in each language,
unless the treaty provides or the parties agree that in case of divergence, a particular text
shall prevail. Vienna Convention, supra note 116, art. 33(1). Article 33(3) further states
that "[t]he terms of a treaty are presumed to have the same meaning in each authentic text."
Id. art. 33(3).
114. Personal notes, on file with author.
Drafting Committee. 1 5 But through a spate of letters, research

memoranda, and informal
16
lobbying, they marked their presence and
shared their views.'
One of the contentions in defense of the footnote was that the
aforesaid languages did not have requisite terminology to make the
distinction between capacity for rights and capacity to act. It was
therefore decided that the terminology employed in CEDAW should
also be utilized in Article 12 of CRPD.' 7 While this method was
employed for all other languages, a study of the Chinese text showed
that this was not the case." 8 In its representations to the Drafting
Committee, the IDC kept stressing that the CRPD uses the same
language as CEDAW and that the footnote be removed without diluting
the main text in any of the three languages. 1 9 However, despite strong
support for deletion of the footnote in the absence of consensus, the
Drafting Committee returned the Convention
120
text to the Ad Hoc
Committee without deleting the footnote
F. Resumed Negotiations on the Footnote in the Eighth Ad Hoc
Due to the extensive negotiations that had occurred in the drafting
Committee, the Chair addressed a letter to the members of the Ad Hoc
Committee urging them to consensually delete the footnote, especially
as the country that had insisted on its inclusion was agreeable to its
12
deletion. 1
In the wake of this consensus, the Eighth Ad Hoc Committee at its
resumed meeting agreed to delete the footnote.' 22 This agreement was,
115. See IDC Letter, supra note 101.

116. See, e.g., id.
117. Convention on the Elimination of All Forms of Discrimination Against Women,
art. 15(2), G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/34/46
(1979) [hereinafter CEDAW].
118. Id. Article 15(2) of CEDAW the term translating "legal capacity" is "falv
xingwei nengli" meaning exactly "legal capacity to act". However the Chinese text uses the
phrase "falv quanli nengli" which means legal capacity for rights was introduced in the
Chinese text from the Fifth Ad Hoc. Insofar as the Convention has to mean the same in
every language it remains to be seen whether this altered terminology holds any
significance.
119. IDC Letter, supra note 101.
120. Fourth Revised Draft, supra note 111.
121. Letter from Don MacKay, Chair, Ad Hoc Committee to Members, Ad Hoc
Committee (Nov. 29, 2006), availableat
www.un.org/esa/socdev/enable/rights/ahc8chair29nov.htm (last visited Apr. 1, 2007).
122. The Secretary-General, Final Report of the Ad Hoc Committee on a
Comprehensive and Integral InternationalConvention on the Protection and Promotion of
however, not obtained without its dramatic moments. Iraq in a

statement addressed to the chair on behalf of a number of Arab
countries insisted that
the aforementioned States are joining the consensus on the Convention
based on the understanding that legal capacity mentioned in paragraph
2 of Article 12 of the Convention entitled "Equal recognition before
the law" means the capacity of rights and not the capacity to act, [for
those who are unable to practice the capacity to act] in accordance
with the national laws and legislation of these States. 123
The status of this statement, which has been included in the report
of the Ad Hoc Committee, is anomalous and disputed as was evident
from the statement that was made by Finland on behalf of the European
Union and a number of other countries' 24 whereby they insisted that
they were joining the consensus with the "understanding that the
concept of 'legal capacity' has the same meaning in all language
versions."125
G. Adoption by the GeneralAssembly

The pulls and pressures that have haunted the legal capacity article
in all stages of the convention negotiations again came to the forefront
when the CRPD was adopted by the General Assembly on December
13, 2006.126 Variant interpretations on the article were proffered by
different countries while making their statements. 127 Canada took the
the Rights andDignity of Persons with Disabilities, 4, delivered to the General Assembly,
U.N. Doc. A/61/611 (Dec. 6, 2006).
123. The supporting countries are Algeria, Bahrain, Comoros, Djibouti, Egypt, Iraq,
Kuwait, Lebanon, Libyan Arab Jamahiriya, Mauritania, Morocco, Oman, Palestine, Qatar,
Saudi Arabia, Somalia, Sudan, Syrian Arab Republic, Tunisia, United Arab Emirates and
Yemen. Letter from Hamad A-Bayati, Permanent Representative of Iraq to the United
Nations, to Don MacKay, Chairman of the Ad Hoc Committee (Dec. 5, 2006), available at
http://www.un.org/esa/socdev/enable/rights/ahc8documents.htm (last visited Apr. 1, 2007).
See also Letter from Hamad A-Bayati, Permanent Representative of Iraq to the United
Nations, to Don MacKay, Chairman of the Ad Hoc Committee (Dec. 5, 2006), Corr. 1,
available at http://www.un.org/esa/socdev/enable/rights/ahc8documents.htm (last visited
Apr. 1, 2007).
124. Letter from Kirsti Lintonen, Permanent Representative of Finland to the United
Nations, to Don MacKay, Chairman of the Ad Hoc Committee (Dec. 5, 2006), availableat
http://www.un.org/esa/socdev/enable/rights/ahc8documents.htm (last visited Apr. 1, 2007).
125. Id.
126. Timeline, supra note 106.
127. U.N. Enable, Statements Made on the Adoption of the Convention on the Rights
of Persons with Disabilities, Canada,
http://www.un.org/esa/socdev/enable/convstatementgov.htm (last visited Apr. 10, 2007).
line that the article only requires that denial of capacity should not
happen on a discriminatory basis, and "[w]hilst this provision is not a
prohibition on substitute decision-making regimes, it does place
particular emphasis on the importance of supported decision-
making."'' 28 Finland, on behalf of the European Union and a host of
countries, 29 once again stressed that the concept of legal capacity has to
mean the same in all languages. 130 While Japan expressed the belief
"that the term 'legal capacity' should allow flexible interpretation,
bearing in mind the differences in national legal systems."' 3' And the
Philippines took care to point out that "[flor purposes of domestic
implementation, the term 'legal capacity' in Article 12 shall therefore be
construed by the Philippines as the 'capacity to act."" 2 While the
Philippines' representative confined their statement to how the article
shall be read and interpreted in his country, the IDC put forth a
universal and global reading of the article by pointing out that the
Convention spells a paradigm shift, a shift that "was underlined by
deletion of the footnote from Article 12, since the right to enjoy legal
capacity on an equal basis in all aspects, including the capacity to act,33is
fundamental to basic equality and participation in all aspects of life."
III. THE FOUNDATIONAL ROLE OF LEGAL CAPACITY

Perhaps more than any other human rights treaty, the Disability
Convention has demonstrated the falseness of the dichotomy between
civil-political and social-economic rights. This chasm has to be closed
on both ends. Just as some civil-political rights, such as the freedom of
128. Id.
129. These countries include Bulgaria, Romania, Turkey, Croatia, Macedonia, Albania,
Bosnia, Herzegovina, Serbia, Iceland, Norway, the Ukraine and Moldova, as well as
members of the European Economic Area. U.N. Enable, Statements Made on the Adoption
of the Convention on the Rights of Persons with Disabilities, Finland,
http://www.un.org/esa/socdev/enable/convstatementgov.htm#fi (last visited Apr. 10, 2007).
130. Id.
of Persons with Disabilities, Japan,
http://www.un.org/esa/socdev/enable/convstatementgov.htm#jp (last visited Apr. 10, 2007).
of Persons with Disabilities, Philippines,
http://www.un.org/esa/socdev/enable/convstatementgov.htm#phi (last visited Apr. 10,
2007).
of Persons with Disabilities, International Disability Caucus,
http://www.un.org/esa/socdev/enable/convstatementgov.htm#idc (last visited Apr. 10,
2007).
speech and expression, are meaningless without reasonable

accommodation of the physical infrastructure; other social-economic
rights, such as the right to health, become oppressive without informed
consent and freedom of choice.
The need to establish an inclusive and universal paradigm of legal
capacity is necessary so that one of the foundational prejudices against
persons with disabilities is disassembled. This prejudice has to be
addressed for persons with disabilities to move from systems of welfare
to regimes of rights. Without legal capacity, it will not be possible to
obtain rights guaranteed under the Convention, such as the right to live
in the4 community or the right to participate in political and public
13
life.
A similar connectivity can be found between virtually all other
rights and legal capacity. For example, the right to health requires
"health professionals to provide care of the same quality to persons with
disabilities as to others, including on the basis of free and informed
consent"' 135 and the right to education speaks of "[t]he development by
persons with disabilities of their personality, talents and creativity ' as36
well as their mental and physical abilities, to their fullest potential."'
If these rights are to be universally available then it is necessary for the
treaty body, state parties, and disabled peoples organizations to
privilege values of interdependence and support, so that a hierarchy is
not set up between persons with disabilities.
The narrative on the formulation of Article 12 shows that the
negotiations on legal capacity occurred on a rhythm of two steps
forward and one step backward. This movement is understandable if it
is recognized that the article on legal capacity was challenging some
deeply held beliefs on human choice and freedom. It was a foundational
assertion of the right to be human. Thus the reach of this article will
determine how universal is the reach of the Convention on the Rights of
Persons with Disability.
Fundamentally, there are two choices before humankind. One
recognizes that all persons have legal capacity and the other contends
that legal capacity is not a universal human attribute. To ask for the
making of the first choice does not mean that it is also being contended
that all human beings in fact possess similar capacities. Even as all
human beings are being accorded similar value, the differences between
134. CPRD, supra note 1, arts. 19, 29.

135. Id. art 25.
136. Id. art. 24.
them is not being ignored or devalued. The second, on the other hand,
recognizes the fact that there are some human beings who do not
possess legal capacity and hence can be declared incompetent. One
system is premised on the universal presence of competence; the other
on the selective presence of competence.
Insofar as the first system also allows for a range in capacity, it
could well be contended that the two systems are being artificially
distinguished - a case of a distinction without a difference. To enable
informed choice, it is important that the operational differences between
the two systems are more clearly highlighted. The push and pull
exerted by the proponents of each system, as shown in the deliberations
of the Ad Hoc Committee, makes such an elaboration all the more
necessary.
With the recognition of universal capacity, there is recognition
that, given the opportunity, all human beings can grow and develop.
However, for this growth and development to happen, it is important
that opportunities be tailored according to the needs of each person.
Thus, a claim of equality of opportunity but difference of treatment is
mounted. The difference of treatment is advocated so that the universal
outcome of growth and development is achieved for all human beings
irrespective of race, caste, class, ethnicity, sex, age, or ability. As a
logical extension of this proposition, this opportunity for growth and
development cannot be denied to any human 1 37
being irrespective of race,
caste, class, ethnicity, sex, age, or ability.
Hence, as an opportunity for growth and development has to be
given to all persons, the law and policy has to be geared to create those
diverse options. The Swedish, system of mentors, personal assistants,
and escort persons mentioned above can be seen as clear progress in this
direction. 138 In devising options, the extent to which advance directives
or powers of attorney can assist in situations when persons with
disabilities, as well as persons without disabilities who 39
are unable to
communicate their decisions, may also be considered.
Such options do not exist today in most countries of the world,
which must be taken into account when working out the implementation
137. Principles for the Protection of Persons with Mental Illness and the Improvement
of Mental Health Care, supra note 9. Provisions exist in the laws of several countries
whereby incapacity is a status attribute that denies some persons the opportunity to grow
and develop on just such a reasoning.
138. Herr, supra note 16; PO-Skdne, supra note 18.
139. See, e.g., U.S. Living Will Registry, supra note 20.
time lines for the principle. It would also need to be acknowledged that
these measures would need to be geared to the socio-cultural scenario of
each country. Hence, it may be more appropriate and effective if the
treaty-making body were to elaborate on the principles informing
supported decision-making but leave the actual task of designing those
measures and regulating their use to State Parties in their own domestic
laws. Such an approach may encourage the creation of 1institutions
40
which are suited to the ground level situation of each country.
In creating these diverse options the policy maker should accord
centrality to the growth and development of the individual person with
all those who assist in this growth and development being placed in
support. 141 Analogically, all human beings are accorded the lead role in
the dramas of their lives with everyone and every thing else which
assists in the effective performance of that drama being only cast in
support. The support players can shore up the lead player but can not
displace or replace him or her. 142 As this script is common to all human
beings, everybody has one drama in which they play the lead, along
with several in which they are members of the supporting cast. 143
In contrast, when capacity is viewed as selectively present then the
energies of the law-policy maker must be devoted first to define
capacity. The current standards of legal capacity are primarily
constructed from cognitive capabilities, even as a number of persons use
an emotive or intuitive basis for reaching decisions.1 44 This underscores
140. In making this argument I am not appealing to theories of cultural relativism but
acknowledging the socio-economic diversity that exists worldwide and the need to
accommodate it in setting up support systems.
141. For a reform effort prompted by the capabilities approach, Nussbaum suggests
combining the underlying vision of human dignity and equality in the Israeli law with the
general principles asserted in the German law and the flexible structure of legal and social
categories embodied in the Swedish law. NUSSBAUM, supra note 24. Thus, without
quibbling on the nomenclature of support, that is, whether or not it is called guardianship,
she has sought its reinvention to facilitate accessing of central capabilities by persons with
disabilities. Id.
142. Here note may be taken of the Swedish remedy of interrogating or challenging the
mentor. See PO-Skane, supra note 18.
143. Such an understanding is important both to the recovery of the lead roles of
persons with a disability, as well as the acknowledgement of the supportive roles that
persons with a disability play in the lives of innumerable others. See, e.g., PRAMILA
BALASUNDRUM, SUNNY'S STORY (2005) (for a recent and true narrative of a young adult
with an intellectually disability who lived independently in various parts of India for more
than a year).
144. Amita Dhanda, World Network of Users and Survivors of Psychiatry [WNUSP],
Article 9: Equal Recognition as a Person Before the Law, available at U.N. Enable,
http://www.un.org/esa/socdev/enable/rights/art9legal.htm (last visited Apr. 3, 2007).
460 Syracuse J. Int'l L. & Corn. [Vol. 34:429
the fact that legal capacity is a constructed

45
concept which necessarily
privileges certain types of people. 1
In comparison to the capacity model the incapacity model is a
model of exclusion. In continuation of the dramatic analogy, it is an
exercise of discovering who should stay on stage, who is kept in the
wings and who is left in the oblivion of "rolelessness." This script is
acting out the fact that in the drama of life all persons cannot have a role
let alone a lead role. In recognition of the deprivatory consequences of
the model on the individual person, there have been worldwide
developments attempting to curb and minimize the ill effects of the
model. 146 As discussed above, these developments have been an effort
at enhancing the procedural fairness of this model by either improving
the tools available with experts or by enhancing the procedural
safeguards of the proceeding, be it legal representation, mandatory
personal hearing, reasons for order, etc.147 The only concern of the
reform is that the process of exclusion should be as fool proof as
possible and no one should be wrongfully excluded. As with other
functional parameters, disability figures as a threshold condition. The
legal capacity of all persons with disabilities can be subjected to
interrogation under this model. This is especially so, because there is
long held lay and rofessional belief in the lack of capacity of persons
with disabilities.' 48 Further, while there are disputed reports 14of9
improvements there have been no claims of unqualified success.
Even if unqualified success were conceded, it is necessary to recognize
that this model does not allow for universal inclusion and is also
premised on the belief that some people can never reach the standard of
legal capacity.
CONCLUSION
The text of Article 12 does not prohibit substituted decision-
145. Id.
146. See, e.g., CRPD, supra note 1, art. 4.
147. See, e.g., id. arts. 5, 13.
148. Thus, those judicial decisions, whereby judges have converted a functional
requirement into one of status, are demonstrative of this belief. See, e.g., DHANDA, supra
note 10; BARTLETT AND SANDLAND, supra note 10.
149. For example, while some claim that the use of lawyers in mental health
proceedings makes for a fair process, others hold that lawyers suffer from widespread
rolelessness in the arena of mental health law. JAN C. COSTELLO, REPRESENTING CHILDREN
IN MENTAL DISABILITY PROCEEDINGS 107 (1999),
http://www.courtinfo.ca.gov/programs/cfcc/pdffiles/101-130.pdf (last visited Apr. 3, 2007).
making and there is language which could even be used to justify

substitution. 10 Under the circumstances, it could well be argued that
the Article would be a stranglehold of the past on the Convention.
However, such a contention can be made only if the universal reach of
the capacity formulation is diluted or ignored' and the article is read
divorced from the process of advocacy and negotiation. The above
narration has shown how every effort at keeping legal capacity shackled
to the past has been challenged and fought. When viewed in the light of
these processes, then the paradigm shift made by the article can be seen
and appreciated. Further Article 31 of the Vienna Convention requires
a treaty to be read in accordance with its object and purpose."5 2 The
preamble is an integral component of the context.15 3 Paragraph (n)
recognizes "the importance for persons with disabilities of their
individual autonomy and independence, including the freedom to make
their own choices."' 154 This freedom has been made available to all
persons with disabilities as Paragraph (j) recognizes "the need to
promote and protect the human rights of all persons with disabilities,
including those who require more intensive support.' 5 A progressive
reading of Article 12 is also supported by a number of other substantive
rights guaranteed by the Convention. The recognition of full legal
capacity of all persons with disability is thus mandated by the demands
of equality and non discrimination.156 It is also the basis of the right to
education which speaks of "[t]he development by persons with
disabilities of their personality, talents and creativity, as well as their
mental and physical abilities, to their fullest potential"' 57 and thus
"participate effectively in a free society."' 5 8 Without legal capacity the
1 59
guarantee of free and informed consent in Article 25 is diminished.
The right to marry in Article 23 60and the right to political participation in
article 29 become meaningless.'
150. See CRPD, supra note 1, art. 12.

151. A perspective that is rendered even more questionable by the fact that the Ad Hoc
Committee in its reconvened session felt impelled to delete the controversial footnote. See
Letter from Don McKay, supra note 108; The Secretary-General, supra note 122.
152. Vienna Convention, supra note 116, art. 31.
153. Id. art. 31(2).
154. CRPD, supra note 1, pmbl. (n).
155. Id. pmbl. (j).
156. Id. art 1.
157. Id. art. 24(l)(b).
158. Id. art. 24(l)(c).
159. CRPD, supra note 1, art. 25.
160. Id. arts. 23, 29.
However, I do believe that the forces that have fought for a

forward looking formulation would also struggle for its rightful
interpretation and implementation. 16' They would so fight because they
are the wearers of the pinching shoe. In their struggle lie the real
possibilities that the article on legal capacity will be a lodestar for the
growing aspirations: capability expansion and full inclusion of all
persons with disabilities.
161. A process that is greatly facilitated by the fact that persons with disabilities and
disabled people's organizations have been expressly involved in the process of
implementing and monitoring the Convention. See id. arts. 4(3), 32, 34(4).

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Human rights conventions establish universal norms for the

time is opportune for undertaking this exercise considering the juncture

negotiations; it is as much the consequence of the persuasive, educative, and advocatory

attempted to be placed on a forward looking text. The indefensible

I. LEGAL CONSTRUCTION OF INCOMPETENCE

person with a psychosocial disability who after voluntarily seeking

the inability to communicate it.' 5 Further, these reform efforts

15. English Law Commission Paper, supra note 13, 1.8.

hence have defined development as the expansion of human capabilities

23. Amartya Sen, Development as Capability Expansion, in READINGS IN HUMAN

struggle which is an integral component of living a full life.28 Relying

II. DELIBERATIONS ON LEGAL CAPACITY BY THE AD Hoc COMMITTEE

A. The Working Group Text

35. ARISTOTLE, POLITICS, at part V, available at The Internet Classics Archive,

deliberations, the Working Group had the benefit of a number of

The fact that requiring assistance cannot be the basis of denying

in financial matters. 49 The financial entitlements of legal capacity

49. Id.art. 9(b).

B. Responding to the Working Group Text

They consequently contended that while all persons with disability

included in CEDAW, a division would exist between men and women

explicit enumeration of the safeguards, which would need to be

facilitated, and not prevented, by guardianships. 77

C. Legal Capacity in the Chairs' Working Text

Committee. This text aimed to capture the consensus and dissension on

forward looking. 83 To make this paradigm shift, it was necessary that

It may be pertinent to note here that while the IDC adopted a

91. PEOPLE WITH DISABILITY AUSTRALIA & AUSTRALIAN NATIONAL ASSOCIATION OF

WOULD YOU WANT THIS TO HAPPEN TO YOU?

IMAGINE A CONVENTION FOR ALL.

a new text for Article 12 that attempted to combine some of the

D. The Eighth Ad Hoc and the Adoption ofArticle 12

commitment to the supported decision-making model in the

E. The Drafting Committee and Other Language Translations

instrument that contained such a caveat. Human Rights instruments by

Drafting Committee. 1 5 But through a spate of letters, research

115. See IDC Letter, supra note 101.

however, not obtained without its dramatic moments. Iraq in a

G. Adoption by the GeneralAssembly

III. THE FOUNDATIONAL ROLE OF LEGAL CAPACITY

speech and expression, are meaningless without reasonable

134. CPRD, supra note 1, arts. 19, 29.

the fact that legal capacity is a constructed

The text of Article 12 does not prohibit substituted decision-

making and there is language which could even be used to justify

150. See CRPD, supra note 1, art. 12.

However, I do believe that the forces that have fought for a

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