A Credible Human Rights Mechanism in ASEAN

The critical issue for ASEAN to be an effective human rights mechanism is how the ASEAN Inter-Government Commission on Human Rights and Commission on the Protection of the Rights of Women and Children have to deal with and implement the human rights matter of the ASEAN within the region effectively.

“The association of South East Asia Nations (ASEAN) was established on 8th August 1967 in Bangkok ,Thailand with the assigning of the ASEAN declaration(Bangkok declaration by the founding father of ASEAN, namely Indonesia, Malaysia, Philippines, Singapore and Thailand. Brunei Darussalam then joined on 8 January 1984, Viet Nam on 28July 1995, LAO PDR and Myanmar on 23 July 1997, and Cambodia on 30 April 1999 , making up what is today the ten Member States of

ASEAN."1

ASEAN Charter was signed by all ten leaders of members of ASEAN at 13th ASEAN summit on November 2007. ASEAN adhere to the principles of democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedom according to the preamble of ASEAN charter. In article(1) section- 7 , chapter (1) purpose and principle of ASEAN charter , ASEAN firmly established that that ASEAN strengthen democracy ,enhance good governance and to promote and protect human rights and fundamental freedom with due regard to the rights and responsibilities of member states of ASEAN. In Article (2),section 2(i) ASEAN expresses to respect for fundamental freedom, promotion and protection of human rights, and the promotion of social justice , and in subsection (j) to hold the United Nation Charter and international law, including international humanitarian law.

ASEAN established two human rights bodies, namely ASEAN commission for the promotion and protection of the rights of women and children(ACWC) and Intergovernmental commission on human rights according to ASEAN Charter article (14).

Even though the purpose and principles of ASEAN charter is good, there is concerned about the political situation of ASEAN .In reality, there is concerned that member states of ASEAN can promote and protect the citizens of ASEAN in their basic human rights especially in Myanmar, Cambodia, Laos and Vietnam. For example, ASEAN cannot handle

Myanmar Human rights situation even though United Nations and International community demanded several times to ASEAN. There are 2193 political prisoners including Noble price winner Aung San Su Kyi in Myanmar according to political prisoners lists issued by AAPPB(see www.aappb.org).

In addition, according to article 14(2) of Charter of ASEAN, ASEAN human rights body shall operate in accordance with the term of reference (TOR) to be determined by the ASEAN foreign minister meeting. It is very doubtful that ASEAN human rights body is independent in the decisional process because ASEAN foreign ministers have the authority according to the article 14(2) of the Charter to decide upon the matter of human rights. “The TOR characteristics the commission as an intergovernmental and consultative body comprised of state representatives according to article 4 and 5(2) of AICHR TOR. When appointing representatives, member states must pay due consideration to gender equality, integrity and competence in the field of human rights (article 5(3) AICHR ) , but independence is conspicuously absent from this list. In practice, this has meant that most commission are current or former government officials (such as diplomats), though notable exception will be mentioned in the concluding section of this article. As for decision making, it shall be based on consultation and consensus in accordance with Article 20 of the ASEAN Charter. As Amnesty International has commented, such an arrangement means that each state would be able to reject any criticism of its own human rights record by veto."2 International Human rights organizations are concerned that in practice ASEAN foreign ministers really promote and protect human rights rather than to promote and protect their states interest. For instance, Thailand cooperates with the present Myanmar regime for economic interest rather than to promote and protect Myanmar human rights. I am really concerned that ASEAN governments protect states interest than human rights.

In accordance with International Human Rights standard and Universal Declaration of Human Rights, it will be more appropriate that ASEAN Human Rights body is free from political bias and state interest, and this body must be an independent body of ASEAN.ASEAN Intergovernmental Commission of Human Rights(AICHR) is lack of Mandate in the protection of Human Rights within region and lack of detail how to protect and promote Human Rights. According to UN press release, “The high commissioner expressed her disappointment at the commission’s “lack of a clear protection mandate" but said she hoped its role would expand after its lunch at the 15th ASEAN Summit in October 2009.There is concerned that ASEAN Human Rights Body will be as a smokescreen for doing nothing in actual life of ASEAN citizens. In addition, ASEAN Intergovernmental commission on Human Rights required some provision about Individual complaint and cases about Human Rights abuses within the region. AICHR need to have the authority to conduct country visit, to receive complaints and initiate investigations, and to conduct periodic reviews of Human Rights situation in the region. “Indonesia Foreign Minister, Dr. Hassan Wirajuda, has fought for giving the AICHR more power at the ASEAN Ministers Meeting (AMM) in Thailand in July 2009.Along side Thailand, Indonesia had been pushing for the body to have the mandate to monitor and review human rights situation in every member states and to conduct country visit .The proposal has been rejected by other member states such as Myanmar which almost broke the TOR endorsement."3Therefore in practice ASEAN human right mechanism has many challenges to protect and promote human rights in implementing its function in the region.

And at the present time, asking for ASEAN human rights Court is not appropriate not only because ASEAN is actually at the beginning of Dealing with Human Rights matter and not vey mature to found ASEAN court but because the reality of political situation of the region is not appropriate for it. For example some countries like Myanmar, Laos and Vietnam cannot agree it at the present time. TOR (Term of Reference of AICHR) was adopted and approved by ASEAN foreign ministers in 2009. We can see that It is very earlier to found ASEAN court in comparison with the history of Inter- American court in 1979) (it took 30 years after the charter was signed in 1948), the African court of human and people rights in 1998 (12 years after the African charter came into force) and European court of human rights in 1958 (six years after the convention for the protection of Human Rights and Fundamental freedom came into force.)Therefore ASEAN human rights body is only at the beginning stage and it need to take time for ASEAN human rights court. If ASEAN can learn the experiences of her brother regional human rights court, it will be sooner and better in founding ASEAN human rights court. Actually ASEAN has a bright future for Human Rights but there are many challenges about it.

ASEAN can draw some kind of experience from her brother regional organizations like European Union (EU), Organization of American States (OAS) and the Organization of African Unity (OAU). “European Union is the unique expression of Western European integration and the treaty was signed in Maastricht in 1992.The European convention on Human Rights and Fundamental Freedom came into force in 1953."4 The full purpose is to implement civil and political rights under the present constitution of state parties. The convention provides to get constitutional justice about Civil and Political rights .The convention support to implement Human rights in accordance with the domestic law of state parties. The state parties which have ratified convention need to protect and guarantee every one the fundamental civil and political rights within their Jurisdiction according to their national constitution. “European convention of human rights and fundamental freedom really provided as the easy step to establish European human rights court and the court can accept individual complaints from the remote region even if he or she has not money for the complaint to the court."5 Therefore ASEAN human rights body can create the better condition for the ASEAN court to receive individual, states and NGO complaints.

“Since the adoption of the OAS charter and the American Declaration on the rights and duties of man in 1948, the development of the Inter-American system of human rights protection has emerged as a significant achievement for the people of Americas."6 “The value of the Inter-American System should be measured by its potential justice in individual cases, rectify a general pattern of human rights violation, and strengthen the rule of law."7 African Charter on human and people rights was adopted in 1981 and the charter established supervisory mechanism in which the African commission on Human and peoples’ rights plays a pivotal role ;in 2004 a protocol establishing an African court on human and peoples’ right entered into force. By drawing the experience of EU, OAS and OAU, ASEAN can create effective human rights mechanism step by step and systematically how to promote and protect human rights with the region.

ASEAN can strengthen her human right mechanism within the region by creating strong civil society. Without a strong civil society, there cannot be a strong human rights mechanism in the region. Aung San Su Kyi , Nobel Laureate in 1999 from Myanmar said ,“ a battle field is not necessarily a place where people are shooting at each other in civil society where basic human rights are ignored , where the rights of people are violated everyday, it is like a battle field where lives are lost and people are crippled ."8 In practice Civil Society, human rights and politics are interconnected and can support to each other. Therefore to be effective human rights mechanism, there will be a strong civil society in the region and the ASEAN government should cooperate with INGO, NGO,UN , EU ,OAS , OAU and International governments to promote ,protect and preserve human rights. Roh Moo Hyun, former president of the republic of Korea,2003 said that “civil society and its movement are the central forces leading our society."

ASEAN commission and National Human rights Institutions (NHRIs) can work together for the promotion and protection of Human rights within the region. I firmly believe that National Institution are in the essential and constructive role in promoting and protecting human rights ,in particular in their advisory capacity to the competent authorities, their role in remedying human rights violation. “ASEAN human rights body should have the power to investigate human right violation, analyze them according to International Human Rights Standard and Universal declaration of human rights, and need to demand the member states to take action and remedy as soon as possible."9.According to the VIENNA DECLARATION AND PROGRAMME OFACTION as adopted by the world conference on human rights on 25 June 1993 , ASEAN Human Rights Body , National Human Rights Institution and other Human rights organizations can work together for promoting and encouraging respect for Human rights and fundamental freedoms for all and respect for the principles of equal rights and self-respect and self determination of peoples, peace ,democracy ,justice, equality ,rule of law, pluralism, development, better standard of living and solidarity . United Nations Human rights body and other human rights organizations like Amnesty International, Asia Pacific forum etc. can provide the technical assistance and training to ASEAN human rights body to promote and protect HR in accordance with International Standard and norms.

AICHR and ACWC can operate with UN human rights commission to make better terms and principles in ASEAN CHARTER based on Vienna declaration and program of action. ASEAN can work together with United Nation to make monitoring and to take effective measure for human rights abuses within ASEAN region in cooperation with International organizations. ASEAN human rights body can appoint special rapporteurs, representatives, experts and special working group to preserve, promote and protect Human Rights situation in ASEAN region in accordance with paragraph -95 of Vienna declaration and program of action, 25 June 1993.

In addition, ASEAN working group stated in 27 July 2009 that even though it welcomed the adoption and approval of Term of Reference for the intergovernmental commission on human rights (AICHR) by the ASEAN foreign ministers, that Term of reference is not the inspiration for working group. The working group said that “there are two very necessary processes which manifest people’s participation –the selection process for the AICHR’s composition and the review process of the terms of reference."10 “The working group for ASEAN human rights mechanism was set up by the human rights committee of the law association of the Asia and the pacific region or LAWASIA" 11 . ASIAN Commission for the promotion and protection of the rights of women and children (ACWC) is a little different with AICHR in the back ground of establishing. The Term of Reference (TOR) of ACWC is based on the convention on the elimination of all forms of Discrimination against women (CEDAW) and the convention on the rights of the Child (CRC) according to article 1.1 of ACWC TOR. ACWC clearly stated to uphold ,promote ,protect ,respect and fulfill the rights of women and children in ASEAN to live in peace, equality ,justice ,dignity and prosperity(ACWC TOR 2.2).In the purposes and principles of terms of reference of ACWC ,it is clearly stated that ACWC uphold human rights as prescribed by the Universal declaration of Human Rights , the Vienna Declaration and Program of Action , convention on the elimination of All form of Discrimination a against Women (CEDAW), Convention on the rights of the child (CRC), Beijing Platform for Action (BPFA) ,world fit for Children, International Humanitarian law and other international human rights instruments and regional declaration related to women’s and children rights to which ASEAN member states are parties(Article 2(2.5)ACWC TOR).Therefore ACWC is clear to follow the international Human rights norms and principles and willing to cooperate with International and regional human rights organization.

ACWC is inter-governmental body and consultative body according to Article 4 of TOR of ACWC and comprised of state representatives. In article 5 “mandate and function “, ACWC recognized to promote the implementation of international instruments ,ASEAN instruments and other instruments related to the rights of women and children, to develop policies programs and innovative strategies to promote and protect the rights of women and children , to promote public awareness and education of the rights of women and children of ASEAN.ACWC accept to advocate on behalf of women and children especially the most vulnerable and marginalized , and encourage ASEAN member states to improve their situation(Article 5(5.4) 0f ACWC TOR). ACWC have to encourage ASEAN member states on the collection and analysis of disaggregated data by sex, age, etc, related to the promotion and protection of the rights of women and children, and encourage ASEAN member states to undertake periodic reviews of national legislation, regulation, policies, practices related to the rights of women and children according to article 5(5.8) (5.10) of ACWC TOR. ACWC recognized to implement the international instruments like CEDAW and CRC for the wellbeing of women and children and to share experience and good practice among member states(article 5(5.11).But in decision making ACWC shall be based on Consultation and consensus in accordance with the ASEAN charter and in practice I doubt that it is workable in the protection of human right, especially the abuses of the member state governments.

Actually ASEAN human right body need to cooperate and work together with NGO in the grass root level in the human rights educations because ASEAN human rights problem is not only the structural problem but also the grass root problem. Human rights education is really important and the two human rights body ACWC and AICHR recognized the education, public awareness, research and dissemination for information to promote and protect human man rights, the rights of women and children (Article 4(4.3)AICHR TOR and Article 5(5.3) ACWC TOR). “Education is not only a means to promote human rights. It is an end in itself. In positioning human rights to education, the framers of universal declaration relied on the notion that education is not value neutral. Education always relates to and support value."12. Education shall be directed to the full development of human personality and to the strengthening of respect for human rights and fundamental freedom according to article 26 (2) of Universal Declaration of Human rights. According to Article 19 of International covenant on civil and political rights, every one has the right to hold opinions without interference and the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally ,in writing or in print , in the form of art or through any other media of his choice. According to Vienna Declaration and program of action, human rights and fundamental freedom are the birthright of all human beings; their protection and promotion is the first responsibly of government. AICHR and ACWC can cooperate together to push the governments within the region in reporting the human rights situation of their countries.

The challenges that ASEAN human rights body is facing is that ASEAN governments want to go their own way in dealing with Human rights issues. The two ASEAN human rights commission need to cooperate to promote ASEAN human rights terms of reference in accordance with International human rights instruments such as universal declaration of human rights, International covenant on civil and political rights, International covenant on economic, social and cultural rights, Convention on the rights of the child and convention on the elimination of all forms of Discrimination against women, etc. In realities , ASEAN member is facing political problems, arm conflict , economic crisis in some countries like Laos, Myanmar and Cambodia, immigration problems, constitutional problems and social issues ,etc. ASEAN human right body can push the governments to change the terms and principles of their constitutions which is not granted basic human rights. If ASEAN governments granted the fundamental human rights in their respective countries, the people can get their rights under the constitution. ASEAN human rights body should prepare for constitutional justice by pushing the government to change their constitution in accordance with democracy, human rights, justice, equality and freedom. If the constitution is not agreed with the democratic principles and human rights standard, ASEAN will still meet the tremendous human rights abuses within the region.

In conclusion , Two ASEAN human rights body have the challenges such as ASEAN consensus policy, non-interference in the internal affairs of other states, lack of the authority, mandate and transparency , etc. Even though ASEAN is slow in progress in advancing Human Rights condition, ASEAN human rights body is the first human right body in the region and the shinning light for the people in South East Asia, and can work together to promote, protect and preserve human rights hand in hand with International community to achieve the goal of Human right standards and norms within region.

Notes

see www.asean.org

Human rights law review 10(2010),p514

Stated at NTS ALERT September 01/2009 issue

Council of Europe, OSCE, and European Union by Kevin Boyle,

p-4.

See The European Court of Human rights, the ECHR in 50 questions

Using the Inter American System for Human Rights by Global Rights,p-61.

Using Inter American System for human rights - by the Global Right, p-64.

Civil society and political change in Asia, by Muthiah Alagappa p-3.

The ASEAN Charter and Human Rights ‘Windows of opportunity or window of dressing’, by AMNESTERY INTERNATIONAL ,July 2008,

10. source-http://www.aseanhumech.org/news/creation

11. see - NTS ALERT –September 01/09 Issue. 12. Human right and Asian Value, edited by Michael Jacobsen and Ole Bruun, p-281.