There is no question that the existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights in those regions of the world where such tribunals exist. In the specific area of mental disability law, there is now a remarkably robust body of case law from the European Court on Human Rights, some significant and transformative decisions from the Inter-American Commission on Human Rights, and at least one major case from the African Commission on Human Rights.
In Asia and the Pacific region, however, there is no such body. Although the ASEAN (Association of Southeast Asian Nations) charter refers to human rights, that body cannot be seen as a significant enforcement tool in this area of law and policy. Many reasons have been offered for the absence of a regional human rights tribunal in Asia; the most serious of these is the perceived conflict between what are often denominated as “Asian values” and universal human rights. What is clear is that the lack of such a court or commission has been a major impediment in the movement to enforce disability rights in Asia.
The need for such a body has become further intensified since the ratification of the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD). The CRPD clearly establishes -- through “hard law” -- the international human and legal rights of persons with disabilities, but, in order for it to be more than a mere “paper victory” it must be enforced through a governing regional body . Only then, can we begin to be optimistic about the “real life” impact of this Convention on the rights of persons with disabilities in Asian and the Pacific region.
The research is clear. In all regions of the world, persons with mental disabilities – especially those institutionalized because of such disabilities – are uniformly deprived of their civil and human rights. The creation of a Disability Rights Tribunal for Asia and the Pacific (DRTAP) would be the first necessary step leading to amelioration of this deprivation. It would be a bold, innovative, progressive and important step on the path towards realization of those rights. It would also, not unimportantly, be – ultimately – a likely inspiration for a full regional human rights tribunal in this area of the world. If, however, it were to be created, it is also clear that it would be an empty victory absent available and knowledgeable lawyers to represent individuals who seek to litigate there.
In this paper, I will first consider the existence and role of regional human rights tribunals in other parts of the world, and will then briefly discuss some of the important disability rights cases litigated in those regions so as to demonstrate how regional tribunals can have a significant impact on the lives of persons with disabilities. Then, I will consider why there is a need for the DRTAP, looking at the absence of such bodies in Asia and the Pacific, the need for such a body, focusing specifically on the gap between current domestic law “on the books” and how such law is practiced in “reality”, as well as the importance of what is termed the “Asian values” debate, concluding that this debate leads to a false consciousness (since it presumes a unified and homogenous multi-regional attitude towards a bundle of social, cultural and political issues), and that the universality of human rights must be seen to predominate here. I then explain why the CRPD is a paradigm-shattering Convention that, truly, is the “first day of the rest of our lives” for anyone who does work in this area, and why the creation of the DRTAP is timely, inevitable and essential, if the Convention is to be given true life. I will then briefly summarize the work that has already been done on the creation of a DRTAP, and how this work needs to continue in the future. I will conclude by looking at the role of counsel in the representation of persons with mental disabilities, the current lack of counsel experienced in this subject matter in Asia and the Pacific, and the importance of training lawyers to provide adequate representation before DRTAP, insuring that this Tribunal has an authentic impact on social change.
- international human rights law,
- mental disability law,
- Convention on the Rights of Persons with Disabilities,
- Disability Rights Tribunal for Asia and the Pacific,
- right to counsel,
- anti-discrimination law,
- 'Asian values',
- cultural relativism
Available at: http://works.bepress.com/michael_perlin/5/