Social Structures
Author: Francesca Albi, J.D. Candidate – Università degli Studi di Verona (Italy)
Persons with disabilities represent human diversity and their inherent dignity must be recognised. In legal terms, the protection of human dignity is linked to the recognition and respect of the right to legal capacity, which is established by Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD). According to this provision, persons with disabilities have the right to legally act on an equal basis with others. Even though they may need support and reasonable accommodations, disability cannot be used to justify the denial of the right of persons with disabilities to make their own choices concerning their lives. To this aim, supported (and not substituted) decision-making mechanisms must be provided to help them in decision-making processes.
Since international mobility of adults (including those with disabilities) is an increasing phenomenon in the contemporary globalized world, international human rights instruments acquire special relevance regarding the exercise of civil rights in transnational situations. In that connection private international law, which has been defined as ‘the body of conventions, model laws, national laws, legal guides, and other documents and instruments that regulate private relationships across national borders’, must be read in conjunction with international human rights norms. To this end, legal scholars (Franzina, 2012; Franzina, 2015; Franzina and Long, 2016, 106-177; Franzina, 2019; Long, 2013) who investigate the transnational protection of the rights of adults with disabilities speak of “integral approach” to identify the mutual influence of international human rights and private international law.
The 2000 Hague Convention on the International Protection of Adults (2000 Hague Convention) is the private international law convention aimed at protecting “adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests”. For this reason, it has the purpose of protecting adults with disabilities in international and transnational situations. Italy is an interesting example, in that well-established scholarship has argued the urgent need for Italy to ratify the 2000 Hague Convention claiming that the values and principles, namely ‘autonomy and dignity’, underpinning the 2000 Hague Convention are consistent with those of the CRPD.
Indeed, the 2000 Hague Convention gives a “flexible approach” which is compliant with the respect of human rights, particularly those which depend on the ability to exercise legal capacity: it considers the interests of the adults concerned at the centre of its provisions. The reason for supporting the ratification of the 2000 Hague Convention is that the current Italian private international law provisions aimed at protecting the rights of persons with disabilities in transnational situations (Articles 43-44 of L. 218/1995) are not compliant with the international obligations set out by the CRPD, which Italy ratified in 2009. In this regard, the ratification of the 2000 Hague Convention would represent a step forward for Italy towards compliance with the paradigm shift embodied in the CRPD.
However, the ratification of the 2000 Hague Convention will be insufficient to fulfil the obligations laid out in Article 12 CRPD. Notably, the 2000 Hague Convention is focused on the criterion of “habitual residence”, also titled the principle of ius proprium in foro proprio, so the Italian competent judge must apply Italian civil law measures of protection, which still includes full guardianship, i.e., substitute decision-making, alongside a supported decision-making system. Thus, the ratification of the 2000 Hague Convention would not per se prevent the application of full guardianship, which denies legal capacity.
The CRPD Committee in its 2016 Concluding Observations on the report submitted by Italy had already expressed concerns “that substitute decision-making continues to be practiced”. In this regard, it is clear that Italy (as indeed several other States Parties to the CRPD) must proceed to the abolishment of full guardianship, and that while, in theory, the 2000 Hague Convention is per se in line with CRPD and other international human rights legal instruments, in practice it will not be able to ensure compliance of Italian civil law with Article 12 CRPD. Rather, after the Italian ratification of the 2000 Hague Convention, it is likely that the already existing violations would expand beyond domestic cases, involving also transnational concrete situations. Thus, a wide reform of civil law measures related to the exercise of legal capacity of persons with disabilities must anticipate or, at least, accompany the ratification of the 2000 Hague Convention.
There is however another aspect to be considered. Alongside legal reform, it is necessary to support a change in how legal capacity is approached in everyday practice. Without raising awareness on the rights of persons with disabilities, a new legal framework cannot be effective and would remain a paper tiger.
However, it is also true that legal provisions can influence attitudes and beliefs, and may have the power to determine changes of social behaviours by imposing new rules. In that connection a legal reform accompanied by awareness raising activities may trigger social change. Furthermore, approaching the rights of persons with disabilities from a broad interdisciplinary perspective can ensure compliance with the CRPD and enhance that social change.