Why a Regional Tribunal is Needed to Implement the CRPD
Michael L. Perlin
New York Law School
January 20, 2011
NYLS Legal Studies Research Paper No. 10/11 #18
There can be no question that the existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights in those regions of the world where such tribunals exist. In the specific area of mental disability law, there is now a remarkably robust body of case law from the European Court on Human Rights, some significant and transformative decisions from the Inter-American Commission on Human Rights, and at least one major case from the African Commission on Human Rights.
In Asia and the Pacific region, however, there is no such body. Although the ASEAN charter refers to human rights, that body cannot be seen as a significant enforcement tool in this area of law and policy. Many reasons have been offered for the absence of a regional human rights tribunal in Asia; the most serious of these is the perceived conflict between what are often denominated as “Asian values” and universal human rights. What is clear is that the lack of such a court or commission has been a major impediment in the movement to enforce disability rights in Asia.
The absence of such a body has become even more problematical in the year since the Convention on the Rights of Persons with Disabilities (CRPD) has been ratified. Finally, there is now “hard law” clearly establishing the international human rights of persons with disabilities, but, without a regional enforcement body, we cannot be overly optimistic about the “real life” impact of this Convention on the rights of Asian and Pacific region persons with disabilities.
The creation of a DRTAP would be a bold, innovative, progressive and important step on the path towards realization of those rights. It would also, not unimportantly, be - ultimately - a likely inspiration for a full regional human rights tribunal in this area of the world.
In this paper, I first briefly discuss some of the important disability rights cases litigated in other parts of the world so as to demonstrate how regional tribunals can have a significant impact on the lives of persons with disabilities. Then, I briefly consider the “Asian values” dispute, and conclude that that leads to a false consciousness (since it presumes a unified and homogenous multi-regional attitude towards a bundle of social, cultural and political issues), and that the universality of human rights must be seen to predominate here. After that, I explain why the UN Convention on the Rights of Persons with Disabilities is a paradigm-shattering Convention that, truly, is the “first day of the rest of our lives” for anyone who does work in this area, and conclude by arguing why the creation of the DRTAP is timely, inevitable and essential, if the Convention is to be given true life.
Number of Pages in PDF File: 24
Keywords: international human rights law, mental disability law, Convention on the Rights of Persons with Disabilities, Disability Rights Tribunal for Asia and the Pacific, right to counsel, anti-discrimination law, 'Asian values', cultural relativism
Date posted: January 20, 2011