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

Connecting the Right of Collective Legal Capacity by Indigenous Peoples with the Right of... AbstractThis 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. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png International Human Rights Law Review Brill

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

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Publisher
Brill
Copyright
Copyright © Koninklijke Brill NV, Leiden, The Netherlands
ISSN
2213-1027
eISSN
2213-1035
DOI
10.1163/22131035-00902007
Publisher site
See Article on Publisher Site

Abstract

AbstractThis 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.

Journal

International Human Rights Law ReviewBrill

Published: Oct 24, 2020

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