Professor of Law New York Law School
A specialised tribunal where human rights issues about benefits can be dealt with, consistent with Asian conflict resolution values.
The United Nations’ Convention on the Rights of Persons with Disabilities clearly establishes the international human and legal rights of persons with disabilities. But for this to be more than a mere “paper victory,” it must be enforced through a governing regional body.
AOnly with such a body can we begin to be optimistic about the “real life” impact of this Convention on the rights of persons with disabilities in Asian and the Pacific region.
There is currently no regional human rights court or commission of this sort in that region. 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.
In all regions of the world, persons with mental disabilities – especially those institutionalized because of such disabilities – are uniformly deprived of civil and human rights. The creation of this Tribunal would be the first necessary step leading to amelioration of this deprivation and realization of those rights. It might also inspire creation of a full regional human rights tribunal in this area. If, however, it were to be created, it is also clear that it would be an empty victory absent available and knowledgeable lawyers to represent individuals who seek to litigate there.
1. Can you briefly describe the innovation, in terms of the problem(s) it tries to solve and why is it necessary?
Persons with disabilities, especially those institutionalised because of such disabilities, are discriminated against throughout the world. In most regions, there exist regional human rights courts and commissions through which discriminated-against individuals can seek to have their claims adjudicated, and to have remedial action taken. No such court or commission exists in Asia or the Pacific.
We are in the process of creating a Disability Rights Tribunal for Asia and the Pacific (DR-TAP) to provide a forum for such individuals to seek relief of violations of international human rights law (especially, but not exclusively, those that arise from violations of the recently-ratified UN Convention on the Rights of Persons with Disabilities, a Convention that furthers the human rights approach to disability, by endorsing a social model of disability rights).
DR-TAP would enable this cohort of individuals to adjudicate grievances in such a way that fulfills the mandate of the Convention, the first legally binding instrument devoted to the comprehensive protection of the rights of persons with disabilities, one that sets out explicitly steps that States must take to create an enabling environment so that persons with disabilities can enjoy authentic equality in society. One of the most critical issues in seeking to bring life to international human rights law in a mental disability law context is the right to adequate and dedicated counsel. The creation of this Tribunal would best make the promises embodied in this Convention -- including access to counsel -- a reality for this population.
2. What makes your innovation unique?
There is no regional human rights court or commission in this area of the world. Without the creation of the DR-TAP, persons in this region whose rights are violated have no realistic means of recourse. Currently, there are no such services available to this population.
3. What triggered the development of the innovation?
In other regions of the world, human rights courts and commissions have provided a vehicle through which persons with disabilities could seek vindication of their rights. Ratification of the CRPD by many nations in this region reflects, at least one level, a commitment to the underlying values embodied in that Convention. The growth of NGOs and DPOs in this region also reflect the importance of these values. Our desire to create this Tribunal was triggered by all of this, and, most importantly, by the realisation that persons in this region have no way of seeking adjudication of violations of the UN Convention, and that the Convention remains, again, only a “paper victory” without some means of enforcement.
4. Which persons and organisations were involved in the development and what role did they play?
Mr Yoshikazu Ikehara, head of the Tokyo Advocacy Law Office, is the person most responsible for developing this project. He has traveled throughout the region, speaking at conferences, participating in workshops, presenting papers at scholarly meetings, all to raise public awareness of this venture. I have been working with Yoshi from the beginning (under the auspices of the International Mental Disability Law Reform Project, which I direct at New York Law School), and working with us at the law school is Adjunct Professor Heather Ellis Cucolo, who is currently acting director of the law school’s online mental disability law programme, and the director of the Disability Rights Information Center for Asia and the Pacific (DRICAP), part of the DRTAP project [discussed below at #7], and housed at New York Law School. Others working with Yoshi are Yukiko Nakanishi, president of the Asia Disability Institute, and Ryosuke Matsui, professor emeritus at Hosei University.
Organisations that have played a role in development of this project are, besides the Tokyo Advocacy Law Office, DPI-AP (Disabled Peoples’ International-Asia Pacific Region), Japan Disability Federation, and the Australian Federation of Disability Organizations.
5. What kind of resistance have you encountered and how have you overcome it?
Some of Asian nations fear a loss of autonomy that might theoretically come with the willingness to submit to the authority of any regional tribunal’s decisionmaking authority. Some argue that “Asian values” “trump” human rights (a position we specifically reject). Some raise concern about ultimate financial costs (although there is no evidence these will be extensive). Some human rights activists have questioned why this project is limited to disability rights (as opposed to the establishment of a general human rights court, and others have questioned why the initial tribunal will be sub-regional rather than pan-Asian (We have done this in this manner because (1) we believe that, given the likelihood of resistance, incrementalism is a prudent strategy , and (2) given Asia/Pacific’s vast geographi region, it makes sense to start more modestly with a sub-regional Tribunal, and then, after it gains traction, to make it region-wide.
There is some ambivalence at the United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP) because of fear of member-state opposition, although we expect that body to officially endorse us.
6. How did you make the goals realistic and attainable, and when will quick wins be available?
- We have presented our ideas on DRTAP at a series of meetings and academic conferences in the region, and through a series of “white papers” (available on SSRN.com). Each time we do, we acquire “fans,” and bring in other advocates and scholars committed to working with us.
- By making the Tribunal disability-specific, subregional and voluntary, we believe that we have made our goals more attainable.
- We hope to have official endorsements in the near future; those will be our first “quick wins.”
7. Will the innovation affect other organisations in the chain and if that is the case, how will it affect them?
This will provide a vehicle for NGOs and DPOs currently working with persons with disabilities in this region to seek adjudication of grievances. It will create a database of case law and will lead others to seek vindication of their rights, in this region and elsewhere.
The collateral creation of the DRICAP (see #4, above) will provide a subregional database of case decisions, statutes, research, academic articles and advocacy news in a way that, we hope, leads to cross-pollination of ideas and allows and encourages advocates from one nation state to interact with advocates from other nation states as part of this project.
8. How was the development funded and what were reasons for the financing organisation?
The project was initially funded by the Toyota Foundation Research Grant Programme. No other grants have yet been received.
9. Can you name 3 to 5 characteristics of the innovation that are most essential to make it work?
- The active involvement of at least ten nation states.
- The provision of counsel (which we plan on doing by offering training through the New York Law School Online Mental Disability Law Program’s course on International Human Rights and Mental Disability Law).
- Voluntary compliance by the nations involved.
10. How do you measure whether it is a successful innovation?
- The number of nations voluntarily involving themselves.
- The number of cases adjudicated.
- The number of lawyers trained to participate
- The number of related NGOs/DPOs
- The extent to which Tribunal decisions are actually enforced.
11. How many people or organisations benefit from this innovation now?
We are still in the formative stage.
12. How many people or organisations could potentially benefit your innovation now and in the future?
It is estimated by UNESCAP that there are 400 million persons with disabilities in this region, and we expect that a substantial number of these persons can potentially benefit, either directly or indirectly, from Tribunal decisions.
We have reached out to consumers , advocates, scholars and policy makers in South Korea, Australia, Thailand, India, Taiwan, Hong Kong, Indonesia, Austria, China, Bangladesh and Japan. We hope to add other nations to this list.
Individuals in all these nations have promised support.
13. Can you quantify the financial benefits?
It has been estimated that, in the United States, States “billions of dollars” are spent on unnecessary expenses resulting from dependency and nonproductivity of persons with disabilities, and it is likely that these findings are similar in this reason. Tribunal decisions that empowers persons with disabilities should lead to significant cost savings.
14. Is the innovation financially viable and sustainable and if yes, how?
We hope to be financed both by governmental entities and private foundations.
15. Did you receive any recognition?
Discussions of DRTAP have been featured prominently at policy meetings throughout the Asia/Pacific region. See Michael L. Perlin, Promoting Social Change in Asia and the Pacific: The Need for a Disability Rights Tribunal to Give Life to the UN Convention on the Rights of Persons with Disabilities, -- GEO. WASH. U. INT’L L. REV. – (2012) (in press).
16. What lessons did you learn along the way that could be useful to others?
This has been a lengthy and challenging project. We have learned that we needed to be more modest in our visions (by agreeing to a sub-regional, rather than full regional, tribunal at the outset) and that we had to be cognizant of the potential political resistance. But it has also taught us that it is still possible for dreams to come true.