The Need for a Regional The Need for a Regional Disability Rights Tribunal in Asia: Disability Rights Tribunal in Asia:

What Can We Learn from the What Can We Learn from the Inter-American Experience?Inter-American Experience?

Prof. Michael L. PerlinProf. Michael L. PerlinDirector, International Mental Disability Director, International Mental Disability

Law Reform ProjectLaw Reform ProjectDirector, Online Mental Disability Law Director, Online Mental Disability Law

ProgramProgramNew York Law SchoolNew York Law School

57 Worth St.57 Worth St.New York, NY 10013New York, NY 10013

212-431-2183212-431-2183michael.perlin@nyls.edumichael.perlin@nyls.edu

The presenting problemThe presenting problem

The lack of a regional human rights The lack of a regional human rights court or commission in the court or commission in the Asia/Pacific regionAsia/Pacific region

Problem more critical since Problem more critical since ratification of Convention on the ratification of Convention on the Rights of Persons with Disabilities Rights of Persons with Disabilities (CRPD)(CRPD)

IntroductionIntroduction The creation of a DRTAP would be a bold, The creation of a DRTAP would be a bold,

innovative, progressive and important step on the innovative, progressive and important step on the path towards realization of the rights of persons path towards realization of the rights of persons with mental disabilitieswith mental disabilities– It would also be – ultimately – a likely inspiration for a It would also be – ultimately – a likely inspiration for a

full regional human rights tribunal in this area of the full regional human rights tribunal in this area of the world.world.

In all regions of the world, persons with In all regions of the world, persons with mental disabilities – especially those mental disabilities – especially those institutionalizedinstitutionalized because of such disabilities – are because of such disabilities – are uniformly deprived of their civil and human rights. uniformly deprived of their civil and human rights. – The creation of a DRTAP would be the first necessary The creation of a DRTAP would be the first necessary

step leading to amelioration of this deprivation.step leading to amelioration of this deprivation.

RoadmapRoadmap Creation and structure of Inter-American Creation and structure of Inter-American

Court on Human Rights (IACHR)Court on Human Rights (IACHR) Consideration of important cases litigated Consideration of important cases litigated

before IACHRbefore IACHR Likely impact of CRPD on future Likely impact of CRPD on future

developmentsdevelopments Target issues that must be dealt with by DR-Target issues that must be dealt with by DR-

TAP drafters in context of IACHR experience.TAP drafters in context of IACHR experience. Why the creation of the DRTAP is timely, Why the creation of the DRTAP is timely,

inevitable and essential, if the Convention is inevitable and essential, if the Convention is to be given true life. to be given true life.

History and structure of History and structure of IACHRIACHR

Adoption, meetings, compositionAdoption, meetings, composition Importance of individual petitionsImportance of individual petitions On-site visitsOn-site visits Who can file petitionWho can file petition To whom can violations be To whom can violations be

attributibleattributible Number of state partiesNumber of state parties

Greatest contribution of Greatest contribution of IACHRIACHR

Delegitimization of non-democratic Delegitimization of non-democratic governments bygovernments by– Monitoring via on-site visits, andMonitoring via on-site visits, and– Presentation of country reports.Presentation of country reports.– Prof. Goldman: “System has contributed Prof. Goldman: “System has contributed

significantly to development of human significantly to development of human rights in region and to broader rights in region and to broader democratic values.”democratic values.”

Major litigationMajor litigation

Matter of Victor Rosario CongoMatter of Victor Rosario Congo (Ecuador)(Ecuador)

The Neuro-Psychiatric HospitalThe Neuro-Psychiatric Hospital case case (Paraguay)(Paraguay)

Ximenes-Lopes v. BrazilXimenes-Lopes v. Brazil

The impact of the UN The impact of the UN ConventionConvention

Critical role of involvement of Critical role of involvement of stakeholders.stakeholders.

Convention is regarded as having Convention is regarded as having finally empowered the 'world's finally empowered the 'world's largest minority' to claim their rights, largest minority' to claim their rights, and to participate in international and to participate in international and national affairs on an equal basis and national affairs on an equal basis with others. with others.

On the implementation of the On the implementation of the ConventionConvention

The Disability Convention furthers the human The Disability Convention furthers the human rights approach to disability and recognizes the rights approach to disability and recognizes the right of people with disabilities to equality in most right of people with disabilities to equality in most every aspect of life every aspect of life – Calls for "respect for inherent dignity“ and "non-Calls for "respect for inherent dignity“ and "non-

discrimination,“ declares a "freedom from torture or discrimination,“ declares a "freedom from torture or cruel, inhuman or degrading treatment or punishment” cruel, inhuman or degrading treatment or punishment” "freedom from exploitation, violence and abuse,“ and a "freedom from exploitation, violence and abuse,“ and a right to protection of the "integrity of the person."right to protection of the "integrity of the person."

However, still However, still veryvery open question as to whether open question as to whether or not these will actually be given life, or whether or not these will actually be given life, or whether they will remain little more than "paper victories. they will remain little more than "paper victories.

Some stark examplesSome stark examples There is often no mental health law There is often no mental health law at allat all

in other nations.in other nations. There is often no counsel provided to There is often no counsel provided to

persons facing institutionalization. persons facing institutionalization. Conditions in psychiatric institutions Conditions in psychiatric institutions

around the word “shock the conscience” around the word “shock the conscience” and “violate the “decencies of civilized and “violate the “decencies of civilized conduct.” conduct.”

Virtually all nations are deficient in Virtually all nations are deficient in providing community services. providing community services.

Conditions in forensic facilities are even Conditions in forensic facilities are even more abysmal than in civil facilities. more abysmal than in civil facilities.

A key factorA key factor

The new United Nations Convention on the The new United Nations Convention on the Rights of Persons with Disabilities Rights of Persons with Disabilities obligates all state parties “[t]o adopt all obligates all state parties “[t]o adopt all appropriate legislative, administrative and appropriate legislative, administrative and other measures for the implementation of other measures for the implementation of the rights recognised in the present the rights recognised in the present Convention”. Convention”.

The extent to which this obligation is The extent to which this obligation is honored will reveal much about the honored will reveal much about the Convention’s ultimate “real world” impact.Convention’s ultimate “real world” impact.

Core issues for DR-TAP Core issues for DR-TAP draftersdrafters

Scope of Tribunal’s jurisdictionScope of Tribunal’s jurisdiction Relationship between CRPD signers Relationship between CRPD signers

and non-signersand non-signers Scope of remediesScope of remedies Sanctions if defendant refuses to Sanctions if defendant refuses to

complycomply Standing of NGOsStanding of NGOs How will counsel be appointedHow will counsel be appointed

Why the creation of a DRTAP Why the creation of a DRTAP would be the single best way to would be the single best way to insure that the CRPD be given insure that the CRPD be given

authentic lifeauthentic life 1. Experiences in other regions show 1. Experiences in other regions show that similarly-situated courts and that similarly-situated courts and commissions have been powerful commissions have been powerful forces in mandating the practical forces in mandating the practical implementation both of other UN implementation both of other UN Conventions and treaties, and even Conventions and treaties, and even of “soft law.” of “soft law.”

Why the creation, 2Why the creation, 2

2. A DRTAP that spans multiple 2. A DRTAP that spans multiple nations (in diverse geographic nations (in diverse geographic regions, with diverse populations regions, with diverse populations comprised of diverse ethnicities, comprised of diverse ethnicities, races, religions and cultures) will races, religions and cultures) will make the enforcement of these make the enforcement of these human rights far more likely than human rights far more likely than reliance on state-by-state reliance on state-by-state enforcement.enforcement.

Why the creation, 3Why the creation, 3

3. The language of the Convention 3. The language of the Convention compels this conclusion.compels this conclusion.

4. No other meaningful way to 4. No other meaningful way to enforce the rights of persons with enforce the rights of persons with disabilities.disabilities.

5. From an economic perspective, 5. From an economic perspective, timing is right.timing is right.

Other issues that still must be Other issues that still must be consideredconsidered

How many nations will be involved?How many nations will be involved? Coordination with other regional tribunals?Coordination with other regional tribunals? Coordination with other Asia-Pacific bodies?Coordination with other Asia-Pacific bodies? Funding?Funding? Different operations in monist and dualist Different operations in monist and dualist

nations?nations? Different operations in civil/common law nations?Different operations in civil/common law nations? Selection of judges?Selection of judges? Reporting mechanisms?Reporting mechanisms?

My conclusionMy conclusion

There is no question in my mind that There is no question in my mind that the creation of this Tribunal is the the creation of this Tribunal is the single most important step we can single most important step we can take in the realization of the human take in the realization of the human rights of persons with disabilities in rights of persons with disabilities in Asia and the Pacific region.Asia and the Pacific region.