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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

In: International Human Rights Law Review
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  • 1 , Research Associate, Harvard Law School Project on Disability, Cambridge, MA, , USAmsmith@law.harvard.edu
  • | 2 , Executive Director, Harvard Law School Project on Disability, Cambridge, MA, , USA; Visiting Professor, Harvard Law School Extraordinary Professor, University of Pretoria Faculty of Law, Centre for Human Rights, Pretoria, , South Africamastein@law.harvard.edu
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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.

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