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ASEAN’s New Commission on Human Rights: Failed Hope or Positive Start?

December 9, 2009

At the 15th ASEAN summit, held this past October, ASEAN inaugurated its Inter-Governmental Commission on Human Rights (AICHR).  The announcement was met with criticism from some quarters, but ASEAN called it a “historic milestone” in its 42-year history of community-building in the region.

During the summit’s concluding statement, ASEAN said that the AICHR “gives concrete expression to the implementation of Article 14 of the ASEAN Charter and ASEAN’s commitment to pursue forward-looking strategies to strengthen regional cooperation on human rights.” The Commission is mandated to support and protect human rights by promoting public awareness and education, and providing advice and capacity-building to government agencies and ASEAN bodies, among other things.

But it is clear AICHR is definitely a political creature, a product of two years of compromise and negotiation. It reinforces the infamous “ASEAN Way,” which highlights state sovereignty, non-interference in member states’ domestic affairs, primacy of consensus in decision making, and avoiding confrontation.

These principles and norms – which are found in all ASEAN documents – present innumerable problems. The principle of state sovereignty can enable individual ASEAN governments to block actions to be taken by the Commission. An ASEAN relativist position can become a pretext to undermine the universality of human rights. Non-interference in domestic affairs can, and in fact has, prevented ASEAN from taking action against even the most egregious human rights violations in Burma. In fact, not a single ASEAN country can take a moral high ground, as most ASEAN countries also grapple with their own human rights issues and no consensus will likely be built on human rights violations, as they are considered contentious – thus, discussions on human rights violations of individual ASEAN states will most likely be avoided. To take action on regional issues without raising a debate on intervention in the domestic affairs of member states can present a delicate “diplomatic dance” for the AICHR.

All of this could imply that the notion that human rights are “western” values and that Asian values will lead to a different conception of human rights that believes that society’s rights are more important than individual rights, that whatever rights an individual has cannot be contrary to the interests of the community to which the individual belongs. Indeed, it confirms that even basic human rights are subject to regional and national particularities.

Withering and highly-specific criticisms marked the inauguration of the human rights commission, starting with its official name which confirmed the tentativeness of ASEAN. Why an inter-governmental commission instead of a commission?  Is ASEAN too paranoid to have an independent human rights body?  What about the lack of transparency and process in the appointment of state representatives?  Civil society organizations claim that the representatives are not independent “commissioners” as has been the practice in other regional human rights bodies. Rather, what AICHR has are “representatives,” foreseen as potential puppets accountable only to their governments, unless, somehow, in the coming years, they will be able to gradually assert their independence. That might be wishful thinking, because if the representatives do just that, they can always be replaced by their governments.

How about the sources of law that will be the basis for developing regional human rights standards?  ASEAN could have started with a framework charter on human rights as the other regional mechanisms have rightly done. The Council of Europe has the Convention on Human Rights and Fundamental Freedoms; the African Union has the African (Banjul) Charter on Human and People’s Rights; and the Inter-American System has the American Declaration on the Rights and Duties of Man (which even preceded the Universal Declaration of Human Rights and was later followed by a more specific and binding act, the 1969 American Convention on Human Rights). These regional systems are bound by stand-alone, self-contained charters. Instead, ASEAN has chosen to simply cross-reference the non-binding documents consisting of the Universal Declaration of Human Rights and the Vienna Declaration and Programme of Action of the 1993 World Conference on Human Rights, which is a reiteration of the commitment of states to abide by the UN Charter, recognize the right to self-determination of peoples, the right to development, and other motherhood statements. As they are non-binding, there is no compulsion on the part of ASEAN to abide by these declarations. Sure, AICHR mentioned that ASEAN will abide by the international conventions to which ASEAN countries have acceded to and are signatories. However, if one scans the international conventions to which all ASEAN countries have ratified, and thus will enforce, one finds that these are limited to the two “soft” ones: Convention on the Elimination of Discrimination and Violence Against Women, and Convention on the Rights of the Child. Only half of ASEAN member states have ratified the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Only three have ratified the Convention Against Torture. Since there is no consensus on these international conventions, they are therefore, from a regional perspective, non-enforceable.

The AICHR is a toothless tiger as it can only make recommendations. In the ASEAN way of doing things, recommendations are voluntarily implemented as there is no mechanism to ensure that recommendations are enforced by respondent states. The ASEAN political organs can execute these recommendations generated by the AICHR, but ASEAN political organs are political institutions and are peopled by political actors. It is ultimately what the ASEAN leaders say that in the end, matters.

Finding a silver lining is difficult. If one has to be realistic, the most that can be said about it at this time is that regional cooperation on human rights has to begin somewhere and AICHR is a start, a significant first step, though a tentative one. As the world celebrates Human Rights Day tomorrow, hopefully AICHR can help trigger discussion on human rights in the region and can potentially open up avenues for action on issues of human rights. The terms of reference for AICHR promised that the Commission will take an evolutionary approach, so it is possible that it can grow into a powerful commission, similar to the path taken by the Inter-American Commission or the African Commission. Then again, it might take some time, a really long time, for AICHR to evolve into the kind of mechanism that will be able to genuinely protect the human rights of ASEAN citizens.

Carol Mercado is The Asia Foundation’s Senior Program Officer in the Philippines. She can be reached at cmercado@asiafound.org.

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