HUMR5132 – Human Rights Law in Context
Associate Professor Vibeke Blaker Strand
Bearers of rights
Four main questions:
1)Why do we need the human right that is the subject
for your lecture? How can this/these right/s be justified?
What values/societal interest does the implementation
of this right seek to enhance?
2)Does the right/s in question give rise to any
dilemmas?
CRC:
Article 3:
1. In all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.
Article 5:
States Parties shall respect the responsibilities, rights and
duties of parents or, where applicable, the members of the
extended family or community as provided for by local
custom, legal guardians or other persons legally responsible
for the child, to provide, in a manner consistent with the
evolving capacities of the child, appropriate direction and
guidance in the exercise by the child of the rights recognized
in the present Convention.
Article 12:
1. States Parties shall assure to the child who is
capable of forming his or her own views the right to
express those views freely in all matters affecting the
child, the views of the child being given due weight in
accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be
provided the opportunity to be heard in any judicial and
administrative proceedings affecting the child, either
directly, or through a representative or an appropriate
body, in a manner consistent with the procedural rules
of national law.
Committee on the Rights of the Child:
General Comment No. 12 (2009):
• Expressing views is a choice for the child, no
obligation (para. 16)
• Article 12 «manifests that the child holds rights which
have an influence on her or his life, and not only
rights derived from her or his vulnerability … or
dependency on adults…” (para. 18)
Literal analysis of Article 12 carried out by the Committee:
“Capable of forming his or her own views”:
“This phrase should not be seen as a limitation, but rather as an
obligation for States parties to assess the capacity of the child to
form an autonomous opinion to the greatest extent possible. This
means that States parties cannot begin with the assumption that a
child is incapable of expressing her or his own views. On the
contrary, States parties should presume that a child has the
capacity to form her or his own views and recognize that she or he
has the right to express them; it is not up to the child to first prove
her or his capacity.” (para. 20)
“The Committee emphasizes that article 12 imposes no age limit
on the right of the child to express her or his views, and
discourages States parties from introducing age limits either in law
or in practice which would restrict the child’s right to be heard in all
matters affecting her or him.” (para. 21)
- also recognition of non-verbal forms of communication (para. 21)
“Being given due weight in accordance with the age and
maturity of the child”
“Article 12 stipulates that simply listening to the child is insufficient;
the views of the child have to be seriously considered when the child
is capable of forming her or his own views.” (para. 28)
“By requiring that due weight be given in accordance with age and
maturity, article 12 makes it clear that age alone cannot determine
the significance of a child’s views. Children’s levels of understanding
are not uniformly linked to their biological age. Research has shown
that information, experience, environment, social and cultural
expectations, and levels of support all contribute to the development
of a child’s capacities to form a view. For this reason, the views of the
child have to be assessed on a case-by-case examination.” (para.
29)
“Maturity refers to the ability to understand and assess the
implications of a particular matter, and must therefore be
considered when determining the individual capacity of a child.
Maturity is difficult to define; in the context of article 12, it is the
capacity of a child to express her or his views on issues in a
reasonable and independent manner. The impact of the matter on
the child must also be taken into consideration. The greater the
impact of the outcome on the life of the child, the more relevant the
appropriate assessment of the maturity of that child.” (para. 30)
Reservations and declarations to CRC:
https://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV11&chapter=4&lang=en
CRPD:
Article 12:
Article 12 - Equal recognition before the law
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 enjoy
legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access
by persons with disabilities to the support they may require in
exercising their legal capacity.
4. States Parties shall ensure that all measures that 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 regular review by a competent, independent and impartial
authority or judicial body. The safeguards shall be proportional to
the degree to which such measures affect the person's rights and
interests.
5. Subject to the provisions of this article, 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.
Committee on the Rights of Persons with Disabilities
General comment No. 1 (2014) Article 12: Equal recognition
before the law:
“... persons with disabilities remain the group whose legal capacity
is most commonly denied in legal systems worldwide. The right to
equal recognition before the law implies that legal capacity is a
universal attribute inherent in all persons by virtue of their
humanity and must be upheld for persons with disabilities on an
equal basis with others. Legal capacity is indispensable for the
exercise of civil, political, economic, social and cultural rights. It
acquires a special significance for persons with disabilities when
they have to make fundamental decisions regarding their health,
education and work. The denial of legal capacity to persons with
disabilities has, in many cases, led to their being deprived of many
fundamental rights, including the right to vote, the right to marry
and found a family, reproductive rights, parental rights, the right to
give consent for intimate relationships and medical treatment, and
the right to liberty.” (para. 8)
Elaboration of the normative content of article 12:
“Article 12, paragraph 2, recognizes that persons with disabilities
enjoy legal capacity on an equal basis with others in all areas of life.
Legal capacity includes the capacity to be both a holder of rights and
an actor under the law. Legal capacity to be a holder of rights entitles
a person to full protection of his or her rights by the legal system.
Legal capacity to act under the law recognizes that person as an
agent with the power to engage in transactions and create, modify or
end legal relationships…” (para. 12)
Legal capacity and mental capacity are distinct concepts. Legal
capacity is the ability to hold rights and duties (legal standing) and to
exercise those rights and duties (legal agency). It is the key to
accessing meaningful participation in society. Mental capacity refers
to the decision-making skills of a person, which naturally vary from
one person to another and may be different for a given person
depending on many factors, including environmental and social
factors. [...] Under article 12 of the Convention, perceived or actual
deficits in mental capacity must not be used as justification for
denying legal capacity." (para. 13)
“In most of the State party reports that the Committee has examined
so far, the concepts of mental and legal capacity have been conflated
so that where a person is considered to have impaired decisionmaking skills, often because of a cognitive or psychosocial disability,
his or her legal capacity to make a particular decision is consequently
removed. [...] In all of those approaches, a person’s disability and/or
decisionmaking skills are taken as legitimate grounds for denying his
or her legal capacity and lowering his or her status as a person before
the law. Article 12 does not permit such discriminatory denial of legal
capacity, but, rather, requires that support be provided in the
exercise of legal capacity.” (para. 15)
"Article 12, paragraph 3, recognizes that States parties have an
obligation to provide persons with disabilities with access to support in
the exercise of their legal capacity. States parties must refrain from
denying persons with disabilities their legal capacity and must, rather,
provide persons with disabilities access to the support necessary to
enable them to make decisions that have legal effect." (para. 16)
"Support in the exercise of legal capacity must respect the rights, will
and preferences of persons with disabilities and should never amount
to substitute decision-making." (para. 17)
“States parties’ obligation to replace substitute decision-making
regimes by supported decision-making requires both the abolition of
substitute decision-making regimes and the development of supported
decision-making alternatives. The development of supported decisionmaking systems in parallel with the maintenance of substitute
decision-making regimes is not sufficient to comply with article 12 of
the Convention.” (para. 28)
Reservations and declarations to CRPD
https://treaties.un.org/Pages/ViewDetails.aspx?sr
c=TREATY&mtdsg_no=IV15&chapter=4&lang=en
3) How does the
(historical/social/political/economic/cultural/religious)
context influence the application of the right/s in
question? This question can be discussed both from a
bottom-up (practical) and a top-down (formalistic/legal)
perspective. Illustrate by using examples or cases.
4) Is this right/s only relevant to the relationship
between the State and the individual (or a group), in
which the individual (or a group) has a right and the
State an obligation? Or is the implementation of this
right/s also relevant to and affecting the relationship
between individuals (private parties)? This is for
instance the case if rights apply to individuals within a
group. Give examples.