What is DRTAP and its future? Project :Disability Rights Tribunal in Asia & Pacific Funded by TOYOTA FOUNDATION Project Leader Senior attorney Yoshikazu Ikehara

Focuses of my presentation What is DRTAP? i. Its Definition ii. Its function Whey we need DRTAP? i. Theoretical reasons ii. Practical reasons What is its Future? i. “Nothing about us without us”, Movement based on DPOs ii. The Third AP Decade for Persons with Disabilities

Tentative definition of DRTAP DRTAP will be a quasi-judicial body which adjudicates individual cases involved with disability rights and is composed of persons with disabilities, lawyers and representatives of the general public. i. It is composed of persons with disabilities, lawyers and others. ii. It is not a court but a tribunal. iii. It focuses on Disability Rights issue, not general human rights. iv. It needs a regional treaty to be established. We aim it.

Functions of DRTAP Depute Resolutions on Individual Cases; mediation, recommendation and remedy It aims to establish authority similar to European Human Rights Court at the final stage. Research and Advisory Opinion DRTAP will have power to research and gather information on disability rights policies and situations of member states. DRTAP will recommend a good practice on CRPD.

Features of DRTA Persons with Disabilities have to be core members of its mechanism. Its mechanism will not be based on a conventional court system but a new tribunal system. It should have some jurisdictions. Because Asia & Pacific is geographically vast. It may have an appellate tribunal to have a collective view.

Whey do we need DRTAP? theoretical reasons International Human Rights Law is based on “the Rule of Law”. It is necessary for international society to protect Human Rights/Disability Rights in accordance with 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 needs judicial system to accomplish the Rule of Law.

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

Whey ? From existing HR mechanisms 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. It does not aim at remedy an individual case.

Whey ? Practical reasons 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.

Whey? Practical Reasons 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 regional judicial systems. 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 community spirit and geographical advantage.

Whey? Current Situation in AP Laos: Decree on anti-discrimination was drafted, but the law is not adopted yet. Vanuatu: National Disability Policy and Plan of Action is in line with the CRPD but there is no law.

Whey? Current Situation in AP 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.

Whey? Current Situation in AP 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.

Whey? Current Situation in AP 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

Whey? Current Situation AP ・ 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 psycho-social disabilities. ・ Mongolia, for instance, uses the phrase “mental problems”

Whey? Current Situation in AP – 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.

Whey? Current Situation in AP – 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.

Impact of CRPD so far Even in a case where a government ratified CRPD, CRPD has not had enough impact on reformation of domestic legal system and improvement of situation of persons with disabilities over the last four years after adoption of CRPD by the UN General Assembly. It demonstrates insufficiency and limitation of existing HR mechanisms to protect and promote Disability Rights.

Learn from Other Regions 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)

“DRTAP Project” until now TOYOTA FOUNDATION granted subsidy to organize DRTAP project in We hold local meetings to discuss DRTAP in Tokyo, Bangkok, Seoul and Melbourne. We had a side-event as a luncheon session of Social Development Committee at ESCAP just the day before yesterday. We have expanded our networks to DPOs in AP and persuaded delegates of member states of ESCAP to adopt this issue as one of agendas for the 3 rd AP Decade for PWDs.

Future of DRTAP Dual Approach for establishing DRTAP Official Approach: We should push our government to realize DRTAP during “the 3 rd AP Decade for Persons with Disabilities”. Nongovernmental Approach; We should organize “Regional Disability Rights Committee”, that researches disability rights situation and good/bad practices of CRPD and gives some advices and recommendations to individual cases.

Future of DRTAP Disability Rights Committee The committee will be composed of persons with disabilities, lawyers and others. It will aim at inquiries, research, consultation and resolution on practical disability rights cases. It will establish an internet system that can be easily accessed by PWDs and carry out research, give advice and try to resolve its issue in case where it will be appropriate for intervention.

Conclusions DRTAP is necessary for persons with disabilities in Asia & Pacific to promote, protect and ensure full and equal enjoyment of human rights under CRPD. Persons with disabilities should have the initiative of movement to establish DRTAP. We should make dual approach to establish DRTAP over the next decade.