There is 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 onHuman Rights.
In Asia and the Pacific region, however, there is no such body. Many reasons have been offered for theabsence 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 thelack of such a court or commission has been a major impediment in the movement to enforce disabilityrights in Asia.
The absence of such a body has become even more problematical since the United Nations’ Convention onthe Rights of Persons with Disabilities 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 research is clear. 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 Disability Rights Tribunal for Asia and the Pacific (DRTAP) would be the first necessary step leading to amelioration of this deprivation. It would be a bold, innovative, progressive and important step onthe 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. If, however, it were to be created, it is also clear that it would be an empty victory if there were not lawyers available to represent individuals who seek to litigate there.
In this paper, I first consider the existence and role of regional human rights tribunals in other parts of theworld, and then briefly discuss some of the important disability rights cases litigated in those regions so as todemonstrate how regional tribunals can have a significant impact on the lives of persons with disabilities. Then, I consider why there is a need for the DRTAP, looking at the absence of such bodies in Asia and thePacific, the need for such a body, focusing specifically on the gap between current domestic law “on thebooks” and how such law is practiced in “reality”, as well as the importance of what is termed the “Asian values” debate, concluding that this debate leads to a false consciousness (since it presumes a unified andhomogenous multi-regional attitude towards a bundle of social, cultural and political issues), and that theuniversality of human rights must be seen to predominate here. I then explain why the new Convention is paradigm-shattering, and why the creation of the DRTAP is timely, inevitable and essential, if the Conventionis to be given true life. I then briefly summarize the work that has already been done on the creation of a DRTAP, and how this work needs to continue in the future. I conclude by looking at the role of counsel in therepresentation of persons with mental disabilities, the current lack of counsel experienced in this subject matter in Asia and the Pacific, and the importance of training lawyers to provide adequate representation before DRTAP, insuring that this Tribunal has an authentic impact on social change.
George Washington International Law Review, Vol. 44, Issue 1 (2012), pp. 1-38