Prof. Michael L. Perlin Director, International Mental Disability Law Reform Project

1. The Need for a Regional Disability Rights Tribunal in Asia: What Can We Learn from the Inter-American Experience? Prof. Michael L. Perlin Director, International Mental Disability Law Reform Project Director, Online Mental Disability Law Program New York Law School 57 Worth St. New York, NY 10013 212-431-2183 michael.perlin@nyls.edu

2. The presenting problem • The lack of a regional human rights court or commission in the Asia/Pacific region • Problem more critical since ratification of Convention on the Rights of Persons with Disabilities (CRPD)

3. Introduction • The creation of a DRTAP would be a bold, innovative, progressive and important step on the path towards realization of the rights of persons with mental disabilities • It would also be – ultimately – a likely inspiration for a full regional human rights tribunal in this area of the world. • 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 DRTAP would be the first necessary step leading to amelioration of this deprivation.

4. Roadmap • Creation and structure of Inter-American Court on Human Rights (IACHR) • Consideration of important cases litigated before IACHR • Likely impact of CRPD on future developments • Target issues that must be dealt with by DR-TAP drafters in context of IACHR experience. • Why the creation of the DRTAP is timely, inevitable and essential, if the Convention is to be given true life.

5. History and structure of IACHR • Adoption, meetings, composition • Importance of individual petitions • On-site visits • Who can file petition • To whom can violations be attributible • Number of state parties

6. Greatest contribution of IACHR • Delegitimization of non-democratic governments by • Monitoring via on-site visits, and • Presentation of country reports. • Prof. Goldman: “System has contributed significantly to development of human rights in region and to broader democratic values.”

7. Major litigation • Matter of Victor Rosario Congo (Ecuador) • The Neuro-Psychiatric Hospital case (Paraguay) • Ximenes-Lopes v. Brazil

8. The impact of the UN Convention • Critical role of involvement of stakeholders. • Convention is regarded as having finally empowered the 'world's largest minority' to claim their rights, and to participate in international and national affairs on an equal basis with others.

9. On the implementation of the Convention • The Disability Convention furthers the human rights approach to disability and recognizes the right of people with disabilities to equality in most every aspect of life • Calls for "respect for inherent dignity“ and "non-discrimination,“ declares a "freedom from torture or cruel, inhuman or degrading treatment or punishment” "freedom from exploitation, violence and abuse,“ and a right to protection of the "integrity of the person." • However, still very open question as to whether or not these will actually be given life, or whether they will remain little more than "paper victories.

10. Some stark examples • There is often no mental health law at all in other nations. • There is often no counsel provided to persons facing institutionalization. • Conditions in psychiatric institutions around the word “shock the conscience” and “violate the “decencies of civilized conduct.” • Virtually all nations are deficient in providing community services. • Conditions in forensic facilities are even more abysmal than in civil facilities.

11. A key factor • The new United Nations Convention on the Rights of Persons with Disabilities obligates all state parties “[t]o adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the present Convention”. • The extent to which this obligation is honored will reveal much about the Convention’s ultimate “real world” impact.

12. Core issues for DR-TAP drafters • Scope of Tribunal’s jurisdiction • Relationship between CRPD signers and non-signers • Scope of remedies • Sanctions if defendant refuses to comply • Standing of NGOs • How will counsel be appointed

13. Why the creation of a DRTAP would be the single best way to insure that the CRPD be given authentic life • 1. Experiences in other regions show that similarly-situated courts and commissions have been powerful forces in mandating the practical implementation both of other UN Conventions and treaties, and even of “soft law.”

14. Why the creation, 2 • 2. A DRTAP that spans multiple nations (in diverse geographic regions, with diverse populations comprised of diverse ethnicities, races, religions and cultures) will make the enforcement of these human rights far more likely than reliance on state-by-state enforcement.

15. Why the creation, 3 • 3. The language of the Convention compels this conclusion. • 4. No other meaningful way to enforce the rights of persons with disabilities. • 5. From an economic perspective, timing is right.

16. Other issues that still must be considered • How many nations will be involved? • Coordination with other regional tribunals? • Coordination with other Asia-Pacific bodies? • Funding? • Different operations in monist and dualist nations? • Different operations in civil/common law nations? • Selection of judges? • Reporting mechanisms?

17. My conclusion • There is no question in my mind that the creation of this Tribunal is the single most important step we can take in the realization of the human rights of persons with disabilities in Asia and the Pacific region.