Connecting the Right of Collective Legal Capacity by Indigenous Peoples with the Right of Individual Legal Capacity by Persons with Disabilities

2020 ◽  
Vol 9 (2) ◽  
pp. 147-183
Author(s):  
Matthew S Smith ◽  
Michael Ashley Stein
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Indigenous Peoples ◽  
Legal Capacity ◽  
Persons With Disabilities ◽  
American System ◽  
European Court ◽  
United Nations Convention ◽  
The Right ◽  
Three Factor

Abstract This Article explores the juridical implications of indigenous peoples’ right to legal capacity in the Inter-American system for cases involving the same right of persons with disabilities within that system and beyond. It explicates the Inter-American Court of Human Rights’ (IACtHR) three-factor test in Saramaka People v Suriname and analogizes its reasoning with rationales underpinning the right to legal capacity under the United Nations Convention on the Rights of Persons with Disabilities (crpd). It then demonstrates how the IACtHR can apply a Saramaka-style test to future cases brought by persons with disabilities challenging legal capacity restrictions. The Article further argues that the European Court of Human Rights (ECtHR) should also apply this rule to align its legal capacity jurisprudence with the crpd’s mandates. Finally, it suggests that the Committee on the Rights of Persons with Disabilities (crpd Committee) ought to consider this rule when resolving individual communications and thereby guide courts.

Art.20 Personal Mobility

2018 ◽  
Author(s):  
Kovudhikulrungsri Lalin ◽  
Hendriks Aart
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Human Beings ◽  
Persons With Disabilities ◽  
Personal Mobility ◽  
Cultural Activities ◽  
European Court ◽  
United Nations Convention ◽  
The United Nations ◽  
The Right

This chapter examines Article 20 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Personal mobility is a prerequisite for inclusion in a society. According to the European Court of Human Rights, to be mobile and to have access to transport, housing, cultural activities, and leisure is a precondition for the ‘right to establish and develop relations with other human beings’, ‘in professional or business contexts as in others’. The CRPD does not establish new rights for persons with disabilities. It is merely thought to identify specific actions that states and others must take to ensure the effectiveness and inclusiveness of all human rights and to protect against discrimination on the basis of disability. However, the fact that there is no equivalent of the right to personal mobility in any other human rights treaty makes it particularly interesting to examine the genesis and meaning of this provision.

Art.15 Protection against Torture and Cruel or Inhuman or Degrading Treatment or Punishment

2018 ◽  
Author(s):  
Fennell Phil
Keyword(s):  
Health Care ◽  
Informed Consent ◽  
United Nations ◽  
Right To Health ◽  
Legal Capacity ◽  
Persons With Disabilities ◽  
Right To Health Care ◽  
United Nations Convention ◽  
Degrading Treatment ◽  
The Right

This chapter examines Article 15 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which prohibits torture and cruel, inhuman, or degrading treatment or punishment (CIDTP), irrespective of the circumstances and the victim’s behaviour. Article 15 rights overlap with rights under other CRPD articles, including the right to legal capacity on an equal basis with others under Article 12; the right to liberty and security under Article 14; the right to protection against violence, exploitation and abuse under Article 16; the right to physical and mental integrity under Article 17 and; the right to health care on an equal basis with others and based on informed consent under Article 25.

Legislating personhood: realising the right to support in exercising legal capacity

2014 ◽  
Vol 10 (1) ◽  
pp. 81-104 ◽  
Author(s):  
Eilionoir Flynn ◽  
Anna Arstein-Kerslake
Keyword(s):  
Decision Making ◽  
Political Philosophy ◽  
United Nations ◽  
People With Disabilities ◽  
Decision Makers ◽  
Legal Capacity ◽  
Mental Disabilities ◽  
Persons With Disabilities ◽  
United Nations Convention ◽  
The Right

AbstractThis paper examines the regulation of ‘personhood’ through the granting or denying of legal capacity. It explores the development of the concept of personhood through the lens of moral and political philosophy. It highlights the problem of upholding cognition as a prerequisite for personhood or the granting of legal capacity because it results in the exclusion of people with cognitive disabilities (intellectual, psycho-social, mental disabilities, and others). The United Nations Convention on the Rights of Persons with Disabilities (CRPD) challenges this notion by guaranteeing respect for the right to legal capacity for people with disabilities on an equal basis with others and in all areas of life (Article 12). The paper uses the CRPD to argue for a conception of personhood that is divorced from cognition and a corresponding recognition of legal capacity as a universal attribute that all persons possess. Finally, a support model for the exercise of legal capacity is proposed as a possible alternative to the existing models of substituted decision-making that deny legal capacity and impose outside decision-makers.

scholarly journals НЕКИ АСПЕКТИ ПРАВА НА СУДСКУ ЗАШТИТУ ЛИЦА СА МЕНТАЛНИМ СМЕТЊАМА У ПОСТУПКУ ЛИШЕЊА ПОСЛОВНЕ СПОСОБНОСТИ - ПРАКСА ЕВРОПСКОГ СУДА ЗА ЉУДСКА ПРАВА

TEME ◽  
2019 ◽  
pp. 581
Author(s):  
Dušica Palačković ◽  
Sanda Ćorac
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Legal Capacity ◽  
Mental Disabilities ◽  
Persons With Disabilities ◽  
European Court ◽  
Key Concepts ◽  
Protection Of Human Rights ◽  
The Right

The paper analyzes certain important aspects of the procedural position of persons with mental disabilities in the procedures for deprivation of legal capacity. Regardless of the normative framework, both international and national, which largely protects the rights of this sensitive group of people, a significant number of cases before the European Court of Human Rights and decisions in which Contracting States are declared responsible indicate that there is a problem of their procedural position that is principally conditioned by applying (or not applying) the procedural safeguards provided by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, or the right to a fair trial. Although this right is guaranteed for all civil and criminal procedures and for all persons, the special features of persons with mental disabilities also determine the particularities in the application of the right to a fair trial in the court procedures in which these persons are involved. Therefore, we could talk about formulated specific standards that essentially elaborate one of the key concepts of the UN Convention on the Rights of Persons with Disabilities - "reasonable adaptation", as well as a direct link to the need for a specific application of the already mentioned Article 6 of the European Convention. The standards that follow from the application of Article 6 are numerous and the analysis of all from the aspect of protecting the rights of persons with mental disabilities is not possible in the paper of this volume, and therefore, special attention was given to the right of these persons to initiate and conduct the procedures for deprivation of legal capacity, personal participation and representation in that procedures.

Art.30 Participation in Cultural Life, Recreation, Leisure, and Sport

2018 ◽  
Author(s):  
Bantekas Ilias ◽  
Chow Pok Yin Stephenson ◽  
Karapapa Stavroula ◽  
Polymenopoulou Eleni
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
United Nations ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
Disabled Persons ◽  
Persons With Disabilities ◽  
United Nations Convention ◽  
The Right ◽  
Right Of Access

This chapter examines Article 30 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). The article covers many, sometimes disparate, issues, although the underlying entitlements are accessibility and availability. One of the cornerstones of Article 30 is access to culture, one of the least studied human rights and its content remains contested. Culture is subject to several limitations, such as censorship, freedom of expression constraints, sensitivities towards religions, and hate speech. Do these limitations apply to the right of access to culture of disabled persons in the same way as they do to their non-disabled counterparts? Paragraph 3 is perhaps the most contentious of all. It suggests that existing intellectual property laws should be construed in such a way as to avoid imposing any unreasonable or discriminatory barriers against persons with disabilities to the enjoyment of their right of access to cultural materials.

scholarly journals The United Nations Convention on the Rights of Persons with Disabilities and the European Convention on Human Rights: a tale of two halves or a potentially unified vision of human rights?

2018 ◽  
Vol 7 (2) ◽  
pp. 199-224 ◽  
Author(s):  
Andrea Broderick
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Social Dimension ◽  
European Convention ◽  
Political Rights ◽  
Persons With Disabilities ◽  
United Nations Convention ◽  
Civil And Political Rights ◽  
The United Nations ◽  
The Right

The traditional dichotomy of rights between civil and political rights, on the one hand, and economic, social and cultural rights, on the other hand, has been increasingly eroded in scholarly and judicial discourse. The interdependence of the two sets of rights is a fundamental tenet of international human rights law. Nowhere is this interdependence more evident than in the context of the United Nations Convention on the Rights of Persons with Disabilities (CRPD or UN Convention). This article examines the indivisibility and interdependence of rights in the CRPD and, specifically, the positive obligations imposed on States Parties to the UN Convention, in particular the reasonable accommodation duty. The aim of the paper is to analyse, from a disability perspective, the approach adopted by the European Court of Human Rights (ECtHR or ‘Strasbourg Court’) in developing the social dimension of certain civil and political rights in the European Convention on Human Rights (ECHR), namely Articles 2 and 3 (on the right to life and the prohibition on torture, inhuman and degrading treatment, respectively), Article 8 (on the right to private and family life) and Article 14 ECHR (on non-discrimination). Ultimately, this paper examines the influence of the CRPD on the interpretation by the Strasbourg Court of the rights of persons with disabilities under the ECHR. It argues that, while the Court is building some bridges to the CRPD, the incremental and often fragmented approach adopted by the Court could be moulded into a more principled approach, guided by the CRPD.

The child’s voice in adoption proceedings: A European perspective

2013 ◽  
Vol 21 (4) ◽  
pp. 590-615
Author(s):  
Claire Fenton-Glynn
Keyword(s):  
Human Rights ◽  
United Nations ◽  
European Perspective ◽  
Rights Of The Child ◽  
European Court ◽  
The World ◽  
United Nations Convention ◽  
The United Nations ◽  
The Right

The right of the child to be heard in adoption proceedings flows directly from the provisions of the United Nations Convention on the Rights of the Child, ratified by almost every country in the world. In this paper, the interpretation of this principle across European jurisdictions will be analysed, both in terms of children who are old enough to make a determinative decision concerning their future, and those who are younger yet still possess the right to be heard. The wide variety of practices in Europe highlight the lack of progress in this field of law, which is not assisted by the conservative jurisprudence of the European Court of Human Rights.

Art.28 Adequate Standard of Living and Social Protection

2018 ◽  
Author(s):  
Cremin Kevin
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Human Dignity ◽  
Social Protection ◽  
Universal Declaration ◽  
Standard Of Living ◽  
Persons With Disabilities ◽  
Cultural Rights ◽  
United Nations Convention ◽  
The Right

This chapter examines Article 28 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which deals with the rights that persons with disabilities have to an adequate standard of living and to social protection. The Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights both recognize the right to an adequate standard of living. Similarly, Article 23 of the UDHR recognizes ‘the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection’. Evidence indicates, however, that these rights have not been effectively implemented for persons with disabilities. Article 28 aims to combat this injustice.

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