The Need for a Regional Disability Rights Tribunal in Asia: What Can We

Learn from the Inter-American Experience?

Prof. Heather CucoloNew York Law School

57 Worth St.New York, NY 10013

212-431-2183Heather.cucolo@nyls.edu

The presenting problem The lack of a regional human rights court or

commission in the Asia/Pacific region

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

Steps to begin to remedy the shortcomings in disability rights protections

SolutionsDRTAP

The DRTAP project seeks to create a sub-regional body (first as a Commission, and eventually as a Court) to hear cases involving violations of the UN’s Convention on the Rights of Persons with Disabilities (CRPD)

A Disability Rights Tribunal for Asia and the Pacific (DRTAP) aims at opening the door to the world that “recognize the inherent dignity and worth and the equal and inalienable rights of all members of the human family

Universal education -NYLS DRICAP Online pedagogy

Introduction The creation of a DRTAP would be a bold,

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

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

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 DRTAP would be the first necessary

step leading to amelioration of this deprivation.

Convention on the Rights of Persons with

Disabilities CRPD The United Nations has adopted many human rights treaties so far,

the most important of which (for the purposes of persons with disabilities) is the Convention on the Rights of Persons with Disabilities.

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

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

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

A key factorThe new United Nations Convention on the

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

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

Examples of disability rights elsewhere

There is often no mental health law at all in other nations.

There is often no counsel provided to persons facing institutionalization.

Conditions in psychiatric institutions around the word “shock the conscience” and “violate the “decencies of civilized conduct.”

Virtually all nations are deficient in providing community services.

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

The Disability Rights Tribunal for Asia and the Pacific

DRTAP will be a quasi-judicial body that adjudicates individual cases involved with disability rights and is composed of persons with disabilities, lawyers and representatives of the general public. First, it is not a conventional court but a tribunal to better insure the

presence of persons with disabilities (who will likely be more familiar with the underlying issues than might many judges).

Second, it deals with just disability rights issues. It does not deal with human rights issues at large.

Third, persons with disabilities must be core a member of its mechanism to give life to the slogan -- “ Nothing about us without us” – that motivated advocates to seek ratification of the CRPD.

Fourth, because of the geographic vastness of the Asia/Pacific area, it will be necessary to launch the DRTAP as a subregional body, but optimally, it will eventually extend to all nations in the region. Its initial functions will be investigation and adjudication, and when the necessary regional treaty is signed, there will then be a regional judiciary with binding power.

Core issues for DR-TAP drafters

Scope of Tribunal’s jurisdiction

Relationship between CRPD signers and non-signers

Scope of remedies

Sanctions if defendant refuses to comply

Standing of NGOs

How will counsel be appointed

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

authentic life 1. Experiences in other regions show that

similarly-situated courts and commissions have been powerful forces in mandating the practical implementation both of other UN Conventions and treaties, and even of “soft law.”

Why the creation, 22. A DRTAP that spans multiple nations (in

diverse geographic regions, with diverse populations comprised of diverse ethnicities, races, religions and cultures) will make the enforcement of these human rights far more likely than reliance on state-by-state enforcement.

Why the creation, 3 3. The language of the Convention compels this

conclusion.

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

5. From an economic perspective, timing is right.

Other issues that still must be considered

How many nations will be involved?

Coordination with other regional tribunals?

Coordination with other Asia-Pacific bodies?

Funding?

Different operations in monist and dualist nations?

Different operations in civil/common law nations?

Selection of judges?

Reporting mechanisms?

How to BeginDistance Learning

Distance learning is generally defined as “communication which connects instructors and students who are separated by geography and, often, by time,” or as “the electronic connection of multiple classrooms.”

Distance learning courses enable students to share different perspectives, and provide an new environment for teaching law students to collaborate with other types of professionals, a characteristic “increasingly essential to the effective practice of law.

Self-evidently, distance learning has great implications for international legal education as well as for domestic legal education.

A report in the Fletcher Forum of World Affairs concluded: “[T]here is no doubt that ICTs [Information and Communication Technologies], ifproperly adopted and implemented, can bring economic and cultural opportunities to developing countries. Education facilities may be greatly improved through distance learning and Internet access.”

How to Begin NYLS currently offers thirteen courses

Survey of Mental Disability Law, The Americans with Disabilities Act: Law, Policy and Practice International Human Rights Law and Mental Disability Law, Advocacy Skills in Cases Involving Persons with Mental Disabilities:

The Role of Lawyers and Expert Witnesses; Mental Health Issues in Jails and Prisons; Custody Evaluations, Juvenile and Family Law and Mental Disability, Criminal Law and Mental Disability; Sex Offenders; Race, Gender, Class, Culture and Mental Disability Mental Illness, Dangerousness, Risk Assessment and the Police Power, Therapeutic Jurisprudence, and Trauma and Mental Disability Law.

DRICAP A document repository for each of 8 nations (see future expansion

point 1) Japan Thailand South Korea Taiwan China Australia New Zealand Philippines

Purpose is to categorize and index that nation’s disability law information: Statutes Regulations Case law Scholarly Articles Advocacy tools (including local news, conferences)

DRICAPFuture Expansion

Involvement of 2 additional nations to be determined shortly

Possible development of a blog in the future; this blog will only be open for posting to pre-approved participants

Full integration into the Disability Rights Tribunal for Asia and the Pacific, when that is launched.

Method to generate further enrollment in NYLS OMDL courses (and Masters and Advanced Certificate programs) by international participants

How to Begin The Toyota Foundation granted an initial subsidy to organize the

DRTAP project in 2008.

Local meetings to discuss DRTAP were held in Tokyo, Bangkok, Seoul and Melbourne from 2009 to 2010, as well as a” side-event” as a luncheon session of Social Development Committee at UNESCAP in 2010.

The concluding international conference for the project’s first stage was held in Bangkok in 2010. UNESCAP has expressed interest in DRTAP, pointing

 The Project is at its second stage now. A Disability Rights Information Center for Asia and the Pacific (DRICAP) has been established, and is being housed at New York Law School, and more organizational meetings have been scehduled

Roadmap General Structure:

Hybrid tribunal benefits Collaboration among nation states

Composition – number of nations to be involved Rules of procedure and pleading Voluntariness of tribunal Language – all languages of each Asia-Pacific country

Official language(s) Location Competency – jurisdiction to hear any matter relating to a State Coordination with other international and regional bodies Coordination with other Asian bodies Relationship between nations that have signed the CRPD and those that have not Legitimacy – independence from national oversight

General sense of accountability, respect Fair procedures

Roadmap Judges

Designated seats for specific nations Designated seats for persons with disabilities

Backgrounds – lawyers, advocates, judgesKnown and respected by national judgesAwareness of audienceAutonomy from political interests, impartialExpertise in disability law

Lawyers trained in disability rightsCourt appointed if client is indigent

Roadmap Funding – government

UN funding Voluntary contributions NGOs

Standing Members should not serve on tribunals Ability to bring claims before tribunal

Ability to request advisory opinions Ability to file amicus briefs

Reporting – precedent from other transnational tribunals Use of advisory opinions Free access to cases online

Remedies – sanctions, reparations, injunctions Enforcing compliance – binding authority not necessary The role of mediation Inclusion of persons with physical disabilities.

RoadmapThis proposal raises many related, still unresolved issues. Some of the most contentious will most likely be:

What will the impact of voluntariness be on the ultimate success of such a tribunal?

Will the judges be independent?

How will the tribunal be funded?

How many nations will be involved (initially and eventually)?

Will the tribunal’s jurisdiction extend to private and public cases?

 

RoadmapWill there be co-ordination with other international

bodies?

Will there be coordination with other Asian/Pacific tribunals?

What will the relationship be between those nations that have signed the CRPD and those that have not?

What will the standing be of NGOs before the tribunal?

What is the expected scope of the remedies available to the tribunal?

Will there be a difference in the way such a tribunal would operate in monist and dualist nations?

My conclusion There is no question in my mind that the

creation of this Tribunal is the single most important step we can take in the realization of the human rights of persons with disabilities in Asia and the Pacific region.