A/HRC/37/56 Convention on Human Rights (art. 3) and the African Charter on Human and Peoples’ Rights (art. 5). 14. Recognition as a person before the law and legal capacity are closely interlinked concepts. Equal recognition as a person before the law guarantees the right of every human being to have his or her existence recognized in the legal order, that is, being recognized as possessing legal personality and coming within the purview and protection of the law. Legal capacity entails holding rights and duties (legal standing) and exercising those rights and duties (legal agency).3 The evolving interpretation of the right to equal recognition as a person before the law implies that legal capacity is a universal attribute inherent to all persons by virtue of their humanity. Therefore, if a person’s legal agency is denied, his or her status as a person before the law is also affected. 15. Throughout history, many groups have been denied their legal capacity as both legal standing and legal agency, including women, minority groups, indigenous persons, migrants, refugees and asylum seekers. Among them, persons with disabilities face a wide range of violations to their right to legal capacity in all jurisdictions worldwide. Challenges are particularly acute for persons with psychosocial disabilities, persons with intellectual disabilities, autistic persons and persons with dementia. Their legal capacity is usually restricted on the basis of having a medical condition or impairment (status approach), having made a decision perceived as poor (outcome approach), or having deficient decision-making skills (functional approach).4 Once their legal capacity is restricted in one or more areas of life, they are put under a substitute decision-making regime such as guardianship or curatorship, where a legal representative is appointed to make decisions on their behalf, or where decisions will be made by designated medical personnel or by a court. 16. The denial of and restrictions to the legal capacity of persons with disabilities are grave and pervade all aspects of life. Persons with disabilities under guardianship, for example, lose their capacity to exercise all or almost all of their rights and have no control over decisions related to their lives, from entering into contracts to choosing where and with whom to live. Restrictions may also apply on a case-by-case basis. For example, legislation based on a functional approach may limit a person’s rights and freedoms in specific areas of life such as marriage, voting, parenting or free and informed consent to health care. Furthermore, in many jurisdictions, those who have not been formally placed under any form of substituted decision-making may also face restrictions in exercising their rights, as it is commonly assumed that they have no legal capacity or that they need a third person to validate their acts. All those practices perpetuate discrimination and exclusion against persons with disabilities, and pave the way to different forms of abuse, corruption, exploitation, coercion and institutionalization. 17. Women with disabilities experience aggravated forms of discrimination and specific violations against their right to legal capacity. Owing to gender stereotypes and genderbased violence, they are at particularly high risk of being placed under substitute decisionmaking regimes. For instance, women with leprosy-related disabilities are often deprived of rights, such as the right to property. Furthermore, in most countries, women with disabilities cannot take autonomous decisions with regard to their reproductive and sexual health and rights, resulting in highly discriminatory and harmful practices (A/72/133). 18. Similarly, older persons with disabilities are at heightened risk of being denied or restricted in their legal capacity, formally or informally, owing to prejudices and assumptions based on both age and disability. Many of them are placed in institutions, confined at home or are not allowed to exercise their legal capacity without the consent of family members, even if there is no substitute decision-making regime in place. These 3 4 See Committee on the Rights of Persons with Disabilities, general comment No. 1 (2014) on equal recognition before the law, paras. 11–12. Amita Dhanda, “Legal capacity in the Disability Rights Convention: stranglehold of the past or lodestar for the future?”, Syracuse Journal of International Law and Commerce, vol. 34, No. 2 (2007). 5