Disability Rights Tribunal in Asia & the Pacific

Project :Disability Rights Tribunal in Asia & PacificFounded by TOYOTA FOUNDATION

Project LeaderSenior attorney Yoshikazu Ikehara

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

What are essential factorsfor a “tribunal”?

Function judicial or quasi-judicial functions Authority an authority created by a statute or an

agreementPosition outside the usual judicial hierarchy Composition not of judges but of multidisciplinary

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

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.

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.

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.

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

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

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.

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.

Procedural Law AspectHuman Rights Court in other regions

Europe North/South America

Africa

Regional Institute Council of Europe Organization of American States

African Union

ConventionCharter

Convention for the Protection of

Human Rights and Fundamental

Freedoms

American Convention of Human rights

African Chatter on Human and

People’s Rights

Judiciary Court (old 1959, new 1998)

Court (1980) Court (2006)

Plaintiff State/Individual citizen

State/Individual Citizen

State/Citizen*

Common procedure to establish a regional judiciary ≪Ⅰ≫

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

African Union(2000)

Common course to establish a regional judiciary ≪Ⅱ≫

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 People’s Rights(1981)

Common course to establish a regional judiciary ≪Ⅲ≫Human Rights Body

• The Commission of Human Rights(1954)• The Inter-American Commission of Human

Rights(1960)• The African Commission on Human and

People’s Rights(1987)

Common course to establish a regional judiciary ≪Ⅳ≫

Court of Human Rights• European Court of Human Rights(1956)• The Inter-American Court of Human

Rights(1980)• The African Court of Human and People’s

Rights(2006)

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

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)

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.

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.

Advantages& Disadvantages of “Official” and “Unofficial”

advantage disadvantageOfficial Binding

AuthoritativeDifficult to establishBecomes

bureaucraticSensitive to

political influence

Unofficial Easy to establishDemocraticGrass roots

Independent

Less bindingLess authoritative

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

Four steps of our strategy• 1st: holding an inter-regional conference to

raise this issue explicitly among people with disabilities in our region

• 2nd:organizing a preparatory committee for the tribunal

• 3rd:establishing 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.