Presentation on theme: "Disability Rights Tribunal in Asia & the Pacific Project :Disability Rights Tribunal in Asia & Pacific Funded by TOYOTA FOUNDATION Project Leader Senior."— Presentation transcript:
Disability Rights Tribunal in Asia & the Pacific Project :Disability Rights Tribunal in Asia & Pacific Funded by TOYOTA FOUNDATION Project Leader Senior attorney Yoshikazu Ikehara
Focuses of my presentation To clarify the necessity of DRTAP To investigate the possibilities of DRTAP To build strategies to establish DRTAP
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.
Domestic level Regional level International level United Nation Regional Human rights Tribunal Domestic Court Domestic Human Rights Committee Committee on the rights of PWDs Monitoring Mechanisms Focal points Optimal protocol
Necessity of DRTAP domestic 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 DRTAP theoretical 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.
Necessity of DRTAP from functions of International Human Rights Instruments Although CRPD provides “Optimal Protocol”, its treaty body will have a limitation to deal with cases, because of its size. Reports by state parties(Art. 35) and its consideration (Art. 36) deal with a general situation or common problems. Universal Periodical Review dose not focus on an individual case. Special procedure and others deal with thematic problems.
Progress of the Rule of Law in 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 DRTAP regional 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.
Regional aspect no comprehensive disability law Laos: Decree was drafted, but the law was not adopted yet. Vanuatu: National Disability Policy and Plan of Action 2008-2015 is in line with the CRPD but there is no law.
Regional aspect no comprehensive disability law Seven governments (Australia, Hong Kong China, India, Japan, Philippines and Republic of Korea) reported to UNESCAP that they do have anti-discrimination laws. But, the Japanese one is not comprehensive and effective.
Regional aspect no comprehensive disability law 31 out of 36 Governments surveyed by UNESCAP have some definition of disability in their laws. But, several governments -- Azerbaijan, Bangladesh, China --define disability as an “abnormality,:” a definition flatly rejected by the CRPD.
Regional aspect no comprehensive disability law At least nine Governments define disability as attributed to one’s impairment, based on the so-called “ Medical Model”; again, that is rejected by the CRPD, which enforces a “Social Model” under the CRPD. Two Governments – Malaysia and Thailand -- define disability from the social model perspective
Regional aspect no comprehensive disability law ・ Persons with autism are not included in Bangladesh. ・ Often, the definition of “mental disabilities” does not make clear whether it includes persons with developmental disabilities and/or persons with pscho-social disabilities. ・ Mongolia, for instance, uses the phrase “mental problems”
Regional aspect no comprehensive disability law – the Fiji Constitution prohibits discrimination on the ground of disability, but there are no subordinate laws that actually define discrimination. – In the Philippines and Turkmenistan, comprehensive disability laws prohibits discrimination against persons with disabilities, but there are no definitions of discrimination.
Regional aspect no comprehensive disability law – On the other hand, the Australian anti-discrimination law does include operational definition of discrimination (encompassing both direct/indirect discrimination and discrimination based on the lack of provision of reasonable accommodation). – Many nations’ laws are inconsistent with the CRPD requirements. In Korea, for example, the broadcasting law does not require sign language interpretation, and the family health law gives priority to the the institutionalization of persons with disabilities.
Four common steps in establishing Regional Human Rights Court 1 st ; A regional organization is established. 2 nd ; A regional Human Rights Treaty is concluded 3 rd ; A Human Rights Body is established. 4 th ; Court of Human Rights is established.
Common procedure to establish a regional judiciary ≪Ⅰ≫ Regional organizations 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)
Procedural Law Aspect Human Rights Court in other regions EuropeNorth/South America Africa Regional InstituteCouncil of EuropeOrganization 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 People’s Rights JudiciaryCourt (old 1959, new 1998) Court (1980)Court (2006) PlaintiffState/Individual citizen State/Individual Citizen State/Citizen*
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)
Four steps of our strategy 1 st : holding regional conferences to raise this issue explicitly among people with disabilities in our region 2 nd :organizing a preparatory committee for the tribunal 3 rd :establishing our informal regional tribunal and dealing with real cases 4 th : to make governments and UN realize necessities and possibilities of a regional tribunal and push them to establish it.
“DRTAP Project” this year & future We had local meetings in Tokyo, Bangkok and Seoul. UNESCAP and APCD promised to get involved with this project. We will hold International Conference on DRTAP at UNESCAP Conference Hall in Bangkok this October. UNESCAP will propose to Asia & Pcific nations that DRTAP should be included into their agenda for the third decade for persons with disabilities in AP.