Creation of a Disability Rights Tribunal for Asia and the Pacific: Its Impact on China?

Abstract

The authors, director of the International Mental Disability Law Reform Project at New York Law School and head of the Tokyo Advocacy Law Office, are working with colleagues to create a Disability Rights Tribunal for Asia and the Pacific (DR-TAP). The creation of this Tribunal would be a bold, innovative, progressive and important step on the path towards realization of the rights of persons with disabilities, an especially timely venture in light of the recent ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD). It is expected that, at first, this will be a voluntary tribunal and that eventually it will become state-sponsored.

The DR-TAP is still at an embyronic stage; inaugural meetings of the planning group have been held in Japan, Korea, and Thailand, and a regional conference is scheduled for October 2010 in Thailand. It is hoped that a significant percentage of the 70 nations in Asia, and the 33 nations in the Pacific will endorse it and “sign on” to membership. (By way of comparative example, there are currently ten nations in ASEAN and seven in the Asia/Pacific Forum of National Human Rights Institutions).

China ratified the CRPD in August 2008, and that ratification demonstrates a national commitment to the rights of persons with disabilities - in the community, in psychiatric institutions, and in correctional facilities.

Self-evidently, it is important - both to China’s citizens and to citizens of the other Asia/Pacific nations - for China to participate in this Tribunal. The CRPD calls for, among other rights, “respect for inherent dignity” and “nondiscrimination,” “freedom from torture or cruel, inhuman or degrading treatment or punishment,” “freedom from exploitation, violence and abuse,” a right to protection of the “integrity of the person,” “equal recognition before the law,” and equal “access to justice.”

Realistically, it is only through the realization of a body such as DR-TAP that these rights can be given authentic meaning and substance.

This paper (1) explains the proposed structure of the DR-TAP (focusing specifically on, inter alia, issues related to the appointment of counsel, remedies and sanctions), (2) discusses the steps that have been taken so far to create this Tribunal, (3) explores the relationship between the DR-TAP and the CRPD, (4) explains why it is critical that China become a part of the DR-TAP, and (5) offers strategies to enhance the possibilities that China would choose to participate in the Tribunal.

Keywords: China, 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