A/HRC/19/58
This right is central to the conception of human rights, as it expresses the right and the
capacity of each human being to be the holder of rights and obligations under the law. It has
often been described as the ―right to have rights‖ and as a direct consequence of the right to
respect for human dignity. 1
The Working Group has always considered that enforced disappearances infringe the right
to be recognized as a person before the law (see the first report of the Working Group,
E/CN.4/1435, § 184). Following this conclusion, the Declaration for the Protection of All
Persons from Enforced Disappearance provides, in its article 1.2:
Any act of enforced disappearance places the persons subjected thereto outside the
protection of the law […] It constitutes a violation of the rules of international law
guaranteeing, inter alia, the right to recognition as a person before the law […]
There is indeed a strong link between one of the elements of the legal definition of enforced
disappearance – the placement of the disappeared person outside the protection of the law –
and the right to recognition as a person before the law.
Following recent developments of case law at the universal and regional levels2, the
Working Group deems it necessary to state its interpretation of article 1.2, in order to help
States to apply the Declaration in a way that is most conducive to the protection of all
persons from enforced disappearance.
Consequently, the Working Group has decided to issue the following general comment:
General Comment
1.
Enforced disappearance represents a paradigmatic violation of the right to be
recognized as a person before the law. One of the constitutive elements of enforced
disappearances is that the person is placed ―outside the protection of the law‖. This means
that not only the detention is denied, and/or the fate or the whereabouts of the person are
concealed, but that while deprived of his/her liberty, this person is denied any right under
the law, and is placed in a legal limbo, in a situation of total defencelessness.
2.
Enforced disappearances entail the denial of the disappeared person’s legal
existence and, as a consequence, prevent him or her from enjoying all other human rights
and freedoms. The disappeared person may keep his or her name, at least when the birth
has been registered (and except in cases when the true identity of children, who have been
taken away from their parents, is falsified, concealed or destroyed), but he/she is not shown
in the record of detainees; neither is the name kept in the registers of deaths. The
disappeared is de facto deprived of his or her domicile. His/her properties become frozen in
a legal limbo since no one, not even the next-of-kin, may dispose of that patrimony until the
disappeared appears alive or is declared dead, that is a ―non-person‖.
3.
The right to be recognized as a person before the law is also implicated in the
case of children who were born during their mothers’ enforced disappearance, and who
were thereafter illegally adopted. As far as their biological identity is no protected, their
very own personality is not recognized before the law. Thus, article 20 of the Declaration
provides that such acts of abduction, as well as the act of altering or suppressing documents
attesting to their true identity, ―shall constitute an extremely serious offence, which shall be
1
2
14
See in particular article 5 of the African Charter on Human and People’s Rights, where those two
rights are associated.
See in particular, Human Rights Committee, views Zohra Madoui v. Algeria, 28 October 2008, § 7.7,
7.8; Inter-American Court of Human Rights decision, Anzualdo Castro v. Peru, 22 September 2009,
par. 90 and 101.
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