Transcript Asia & Pacific Regional Disabilities Rights Tribunal

Disability Rights Tribunal
in Asia & the Pacific
Project :Disability Rights Tribunal in Asia & Pacific
Founded by TOYOTA FOUNDATION
Project Leader
Senior attorney Yoshikazu Ikehara
Focuses of my presentation
• To clarify essential factors of tribunal
and to define DRTAP
• To clarify the necessity of DRTAP
• To investigate the possibilities of
DRTAP
• To build strategies to establish DRTAP
What are essential factors
for a “tribunal”?
 Function
judicial or quasi-judicial functions
 Authority
an authority created by a statute or an
agreement
Position
outside the usual judicial hierarchy
Composition
not of judges but of multidisciplinary
What is “DRTAP”?
essential factors
 Function: judicial or quasi-judicial function on
disability rights
 Authority: based on a regional treaty at the
final stage
 Position: above each domestic judiciary,
similar to European Human Rights Court
 Composition: persons with disabilities,
lawyers and others.
 Jurisdiction: Asia & the Pacific
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.
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.
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.
Possibilities of DRTAP
• Europe, America and Africa have their own regional
treaty and regional judiciary.
• Are there any reason that only Asia & the Pacific
people can not have a similar system?
• The Rule of Law has been gaining a footing in
international society.
Procedural Law Aspect
Human Rights Court in other regions
Europe
North/South
America
Africa
Regional Institute
Council of Europe
Organization 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
Judiciary
Court (old 1959,
new 1998)
Court (1980)
Court (2006)
Plaintiff
State/Individual
citizen
State/Individual
Citizen
State/Citizen*
Common procedure to establish a
regional judiciary ≪Ⅰ≫
Regional organizations established
• 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)
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)
Precedents of Unofficial Tribunals
• 1966: Russell Court
• There have been about 20 cases decided by
unofficial tribunals.
• They are mainly cases on a war crime, human
trafficking or discrimination against women.
• These issues have caused political controversy.
• We should start with less political issues,
because political controversy will make it
difficult to establish a tribunal.
What is “an Unofficial Tribunal”?
• It consists of members who are designated
not by a government but by an NGO run by
people with disabilities.
• It hears a case and gives some critical opinions
or recommendations from the aspect of CRPD.
Advantages& Disadvantages of “Official”
and “Unofficial”
advantage
disadvantage
Official
Binding
Authoritative
Difficult to
establish
Becomes
bureaucratic
Sensitive to
political influence
Unofficial
Easy to establish
Democratic
Grass roots
Independent
Less binding
Less authoritative
Original Approach
in Asia & the Pacific
• NGO basis
• To develop procedures or institutes to realize or
extend disability rights rather than substantial rights
themselves
• To aim at establishing regional tribunal before
regional convention or charter on human rights
• To aim at organizing not a court but a tribunal
• To be specialized in disability rights issues
Four steps of our strategy
• 1st: holding an inter-regional conference to
raise this issue explicitly among people with
disabilities in our region
• 2nd:organizing a preparatory committee for
the tribunal
• 3rd:establishing our informal regional tribunal
and dealing with real cases
• 4th : to make governments and UN realize
necessities and possibilities of a regional
tribunal and push them to establish it.