Disability Rights Tribunal in Asia

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Disability Rights Tribunal in Asia the Pacific

• Project Disability Rights Tribunal in Asia
  Pacific
• Founded by TOYOTA FOUNDATION
• Project Leader
• Senior attorney Yoshikazu Ikehara

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Focuses of my presentation

• To clarify essential factors of tribunal and to
  define DRTAP
• To clarify the necessity of DRTAP
• To investigate the possibilities of DRTAP
• To build strategies to establish DRTAP

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What are essential factorsfor a tribunal?

• Function
• judicial or quasi-judicial functions
• Authority
• an authority created by a statute or an
  agreement
• Position
• outside the usual judicial hierarchy
• Composition
• not of judges but of multidisciplinary

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What is DRTAP?essential factors

• Function judicial or quasi-judicial function on
  disability rights
• Authority based on a regional treaty at the
  final stage
• Position above each domestic judiciary, similar
  to European Human Rights Court
• Composition persons with disabilities, lawyers
  and others.
• Jurisdiction Asia the Pacific

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Tentative definition of DRTAP

• DRTAP is a quasi-judicial body which adjudicates
  on cases involved with disability rights and is
  composed of persons with disabilities, lawyers
  and representatives of the general public.
• It aims to establish authority similar to
  European Human Rights Court at the final stage.
• But it requires some stages to obtain its goal.

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Necessity of DRTAPdomestic aspect

• A government tends to construe CRPD as being
  already covered by existing law.
• They explain that there is no need to reform
  existing law, because it has already fulfilled
  the requirement of CRPD.
• If a domestic judiciary is not based on activism
  in disability rights issues, it can not work to
  promote disability rights and to eliminate
  discrimination against persons with disabilities.
  

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Necessity of DRTAPtheoretical base

• International Human Rights Law is based on the
  Rule of Law.
• It is necessary for international society to
  protect Human Rights/Disability Rights under the
  Rule of Law.
• From the aspect of the Rule of Law, it is
  irrational that what is regarded as
  discrimination in one country is not regarded as
  discrimination in another country.
• International society/region needs judicial
  system to accomplish the Rule of Law.

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Progress of the Rule of Lawin international
society (1)

• 1948 Universal Declaration of Human Rights
• 1965 International Convention on the Elimination
  of All Forms of Racial Discrimination
• 1966 International Covenant on Civil and
  Political Rights
• 1966 International Covenant Economic, Social and
  Cultural Rights

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Progress of the Rule of Law in international
society (2)

• 1979 Convention of the Elimination on of All
  Forms of Discrimination against Women
• 1984 Convention against Torture and other Cruel,
  Inhumane or Degrading Treatment or Punishment
• 1989 Convention of the Rights of the Child
• 1990 International Convention on the Protection
  of the Rights of All Migrant Workers and Members
  of Their Families
• 2006 Convention on the Rights of Persons with
  Disabilities

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Necessity of DRTAPregional aspect

• Administration of CRPD will be too varied in Asia
  the Pacific because of its variety of
  political, economic, social and cultural
  differences, if there is not any inter-regional
  judicial system.
• DRTAP can maintain and improve the standard of
  disability rights.
• DRTAP can provide a multi-layered safeguard for
  persons with disabilities on an equal basis with
  other regions.
• A regional tribunal will be more effective than
  an international one, because it has a community
  spirit and a geographical advantage.

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Possibilities of DRTAP

• Europe, America and Africa have their own
  regional treaty and regional judiciary.
• Are there any reason that only Asia the Pacific
  people can not have a similar system?
• The Rule of Law has been gaining a footing in
  international society.

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Procedural Law AspectHuman Rights Court in other
regions
Europe North/South America Africa
Regional Institute Council of Europe Organization of American States African Union
Convention Charter Convention for the Protection of Human Rights and Fundamental Freedoms American Convention of Human rights African Chatter on Human and Peoples Rights
Judiciary Court (old 1959, new 1998) Court (1980) Court (2006)
Plaintiff State/Individual citizen State/Individual Citizen State/Citizen
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Common procedure to establish a regional
judiciary ?

• Regional organizations established
• Council of Europe (1949)
• The organization of American States(1948)
• The organization of African Unity(1963), The
  African Union(2000)

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Common course to establish a regional judiciary
?

• Regional Human Rights Treaty
• The Convention for the Protection of Human Rights
  and Fundamental Freedoms(1950), European Social
  Charter(1961)
• The Declaration of the Rights and Duties of
  Man(1948), The American Convention on Human
  Rights(1969)
• The African Charter on Human and Peoples
  Rights(1981)

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Common course to establish a regional judiciary
?

• Human Rights Body
• The Commission of Human Rights(1954)
• The Inter-American Commission of Human
  Rights(1960)
• The African Commission on Human and Peoples
  Rights(1987)

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Common course to establish a regional judiciary
?

• Court of Human Rights
• European Court of Human Rights(1956)
• The Inter-American Court of Human Rights(1980)
• The African Court of Human and Peoples
  Rights(2006)

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Previous Projects for Human Rights in Asia the
Pacific

• 1964 Seminar on Human Rights in Developing
  Countries
• 1965 Southeast Asia Pacific Conference of
  Jurists
• 1977,1979,1980 some resolutions on human rights
  regional body in Asia the Pacific by General
  Assembly of the UN
• 1982 Colombo Seminar on Human Rights

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Resent Movements in Asia the Pacific

• Association of South-East Asian Nations(1967)
• Brunei, Indonesia, Cambodia, Laos, Myanmar,
  Malaysia, Philippines, Singapore, Thailand and
  Vietnam Observer status, Papua New Guinea, East
  Timor
• ASEAN 3 China, South Korea and Japan (1997)
• Charter of ASEAN(2008)

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Precedents of Unofficial Tribunals

• 1966 Russell Court
• There have been about 20 cases decided by
  unofficial tribunals.
• They are mainly cases on a war crime, human
  trafficking or discrimination against women.
• These issues have caused political controversy.
• We should start with less political issues,
  because political controversy will make it
  difficult to establish a tribunal.

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What is an Unofficial Tribunal?

• It consists of members who are designated not by
  a government but by an NGO run by people with
  disabilities.
• It hears a case and gives some critical opinions
  or recommendations from the aspect of CRPD.

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Advantages Disadvantages of Official and
Unofficial
advantage disadvantage
Official Binding Authoritative Difficult to establish Becomes bureaucratic Sensitive to political influence
Unofficial Easy to establish Democratic Grass roots Independent Less binding Less authoritative
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Original Approach in Asia the Pacific

• NGO basis
• To develop procedures or institutes to realize or
  extend disability rights rather than substantial
  rights themselves
• To aim at establishing regional tribunal before
  regional convention or charter on human rights
• To aim at organizing not a court but a tribunal
• To be specialized in disability rights issues

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Four steps of our strategy

• 1st holding an inter-regional conference to
  raise this issue explicitly among people with
  disabilities in our region
• 2ndorganizing a preparatory committee for the
  tribunal
• 3rdestablishing our informal regional tribunal
  and dealing with real cases
• 4th to make governments and UN realize
  necessities and possibilities of a regional
  tribunal and push them to establish it.

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