What is DRTAP and its future?

Expanding Committee on Disability Rights Tribunal in Asia & Pacific

Chair of the CommitteeSenior Attorney Yoshikazu Ikehara

Focuses of my presentation

What is DRTAP? i. Its Definition ii. Its function Why do 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 New Decade for Persons with

Disabilities in AP

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 a Disability Rights issue, not

general human rights.

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 corrective view.

Functions of DRTAP

Investigation

Adjudication

Legally binding functions should be based on a regional treaty that authorize DRTAP

Investigation

1st Stage without a treaty: none-binding approach: Disability Rights Information Center; to collect information on disability right cases and practices from NGOs and to show good practice and bad practice on Website

DRICAP; http://www.disabilityrtsinfoap.com/

2nd Stage with a treaty: binding approach: DRTAP will have power to investigate an individual case and gather information on disability rights policies and its situations from member states.

Adjudication 1st Stage: none-binding approach; advice, mediation, recommendation

2nd Stage; binding approach; It aims to establish authority similar to European Court of Human Rights; judgment and remedy

Why do we need DRTAP?

Are you satisfied with your national disability/human rights mechanism?

Do they properly protect and promote disability/human rights?

How should we do? Laos: Decree on anti-discrimination

was drafted, but the law is not adopted yet.

Vanuatu: National Disability Policy and Plan of Action 2008-2015 is in line with the CRPD but there is no law.

How can persons with disabilities in such a nation make the law, if the government is reluctant to make it?

How should we do? Several governments -- Azerbaijan,

China --define disability as an “abnormality”; this definition is flatly rejected by the CRPD.

How can persons with disabilities in such a nation change this abnormal definition, if none of their lawmaker are interested in it?

How should we do? 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”.

How can persons with disabilities in such a nation change this definition from Medical Model to Social Model, if majority in a country firmly believe Medical Model?

How should we do?

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.

How can persons with disabilities in such a nation claim their disability rights, if their government and judiciary are arbitrary on judging discrimination and/or reluctant to admit discrimination.

How should we expand an appropriate system and good practices in one country to others?

Seven governments (Australia, Hong Kong China, India, Philippines and Republic of Korea) reported to UNESCAP that they do have anti-discrimination laws.

Can we have nothing to do except envying them and waiting that our government will get interested in such advanced situation?

Existing Solution

We can demand our lawmaker to make law in accordance with CRPD. But since persons with disabilities are minority in a society, it is not easy to realize it under majority-rule.

We can raise a lawsuit. But where a judiciary stands on judicial self-restraint, judges are reluctant to admit a new legal concept/right such as disability rights/discrimination.

We will expect function of National Human Rights Commission. But not all countries have it and its function is various in countries.

Complete Scheme of UN Human Rights Mechanism

Three layered mechanism:National level ;Democracy, Judiciary, Human Rights Commission

Regional level; Regional Court International level; Human Rights Council, Optional Protocol

VIENNA DECLARATION AND PROGRAMME OF ACTION(1993)

“The World Conference on Human Rights also encourages the strengthening of cooperation between national institutions for the promotion and protection of human rights, particularly through exchanges of information and experience, as well as cooperation with regional organizations and the United Nations.”(Ⅱpara85)

Are dual layers adequate ?

National disability rights mechanism is not sufficient to “make the rights real”.

UN Human Rights mechanism is not quite useful for persons with disabilities. ー There were only1,812 applications to individual communication of optional protocol under ICCPR from 1976 to 2008. ー There were 57,100 applications to ECHR in 2009.

Existing UN HR mechanisms

Existing Systems Limitations

Individual Communication; Optional Protocol

Report by a state party and its consideration (Art.35,36)

Universal Periodical Review

Special Procedure, etc.

Ratification, Capacity of Treaty Body

Not an individual case but general situation or common problems

Not an individual case

Not an individual case but a thematic problems

HR airplane is designed to have three engines but our HR airplane just have two engines.

Human Rights Watchdog in other regions has three fangs, but our Watchdog has only two fangs.

Fill up the missing link by DRTAP

DRTAP can maintain and improve a standard of disability rights in our region.

DRTAP can complete three-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.

DRTAP can fill in the crack between national level and international level.

Learn from Other RegionsFour common steps in establishing

Regional Human Rights Court

1st; A regional organization is established. 2nd; A regional Human Rights Treaty is

concluded 3rd; A Human Rights Body is established. 4th; Court of Human Rights is established.

Common procedure to establish a regional judiciary ≪Ⅰ≫

Regional organizationsCouncil 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 BodyThe 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 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*

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

Recent 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); Intergovernmental Commission on Human Rights(AICHR)

“DRTAP Project” so far..

TOYOTA FOUNDATION granted subsidy to organize DRTAP project in 2008.

We held local meetings to discuss DRTAP in Tokyo, Bangkok, Seoul and Melbourne from 2009 to 2010.

We had a side-event as a luncheon session of Social Development Committee at ESCAP in 2010.

We held our concluding international conference for our first stage in Bangkok in 2010.

Report of the Committee on Social Development on its second session ;2010

para60;One non-governmental organization highlighted the need for the regional disability rights mechanism to underpin more effective implementation of the Convention on the Rights of Persons with Disabilities at the national level.

Parallel Approach

Parallel Approach

Member States DPOs

To include establishment of DRTAP into main theme of the New Decade

To prepare making Regional Disability Rights Treaty

To establish DRTAP during the New Decade

To backup and push member states to adopt DRTAP project as a main theme of the New Decade

To make a basis of a regional quasi-judicial body

Conferences DR-Information Center DR- Committee

Future of DRTAP

“Disability Rights Information Center in AP” on Website; research, resource, advice and forum

Asia-Pacific DPI Assembly in 2012 Sub-Regional Conference with DPOs,

human rights NGOs and national human rights commissions

International Conference in the first year, the mid year and the final year of the New Decade

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 can “Make the Rights Real” by establishing DRTAP.

Information DRICAP; http://www.disabilityrtsinfoap.com/

DRTAP; http://tokyo-advocacy.com/drtapeng/