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International Human Rights and Mental Disability LawWhen the Silenced are Heard$
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Michael L. Perlin

Print publication date: 2011

Print ISBN-13: 9780195393231

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780195393231.001.0001

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A Disability Rights Tribunal for Asia and the Pacific

A Disability Rights Tribunal for Asia and the Pacific

(p.169) 9 A Disability Rights Tribunal for Asia and the Pacific
International Human Rights and Mental Disability Law

Michael L. Perlin

Oxford University Press

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 Association of Southeast Asian Nations (ASEAN) charter refers to human rights, that body cannot be seen as a significant enforcement tool in this area of law and policy. Some of the antipathy flows from past colonialism, and the feeling that human rights values are “Western values,” and some comes from the attitude that human rights mechanisms are a “threat to national sovereignty.” 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 problematic since the CRPD has been ratified. Without a regional enforcement body, it is impossible to be overly optimistic about the “real life” impact of this Convention on the rights of Asian and Pacific region persons with disabilities. This lack of optimism is furthered by the general lack of consumer involvement in mental disability treatment issues in Asia, and the serious mental health resource deficiencies in many Pacific Rim nations. As it is unlikely that an Asian regional human rights commission or court will be created in the near future, the creation of a Disability Rights Tribunal for Asia and the Pacific (DRTAP) would be a bold, innovative, progressive and important step on the path toward realization of those rights. It would also be a likely inspiration for a full regional human rights tribunal in this area of the world. This chapter briefly discusses the absence of human rights tribunals in Asia, and then considers the “Asian values” dispute, concluding that it leads to a false consciousness (since it presumes a unified and homogeneous multiregional attitude toward a bundle of social, cultural, and political issues), and that the universality of human rights must be seen to predominate here (here, I look at China as a case example). It offers a structural outline of a Tribunal, and finally explain why the creation of the DRTAP is timely, inevitable, and essential, if the UN Convention on the Rights of Persons with Disabilities is to be given true life.

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, antidiscrimination law, Asian values, cultural relativism

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