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FOCUS September 2007 Volume 49

ASEAN Human Rights Body

Jefferson R. Plantilla*

* Jefferson R. Plantilla is a staff of HURIGHTS OSAKA.

An Asia-Pacific human rights mechanism will not see light in the region for many years.

From the discussions in the initial United Nations (UN) regional seminar in 1982 in Colombo[1] to the 2007 regional workshop in Bali, it is clear that governments in the region and the UN have agreed that this system is not yet due. Agreement on a building- block approach in establishing such system[2] has evolved into undertaking particular projects under the 1998 Tehran Framework.[3]

The results of the 14th Annual Workshop of the Framework on Regional Cooperation for the Promotion and Protection of Human Rights in the Asia-Pacific Region, in the form of Bali Action Points adopted on 12 July 2007, consisted mainly of requests of governments to the Office of the United Nations High Commissioner for Human Rights (OHCHR) to undertake the following:

  1. Summarize the recommendations of the regional workshops since the 1991 workshop in Manila
  2. Compile a directory of resource materials and resource persons that can support the activities agreed upon in the workshops
  3. Compile the outcome documents of the four sub-regional workshops for judges and lawyers on justiciability of economic, social and cultural rights
  4. Engage in consultations with Member States, regional organizations, national human rights institutions, civil society and other stakeholders on follow up to activities under the regional framework
  5. Hold follow up consultations and dialogue with other United Nations and multilateral development agencies to harness their resources in support of these activities.

The OHCHR, in turn, has identified as regional priorities and strategies under its Human Rights Programme for Asia Pacific (2006-2007) the continuation of its work within the Asia-Pacific Regional Framework, in cooperation with member-states and Country Teams, focusing on the justiciability of economic, social, and cultural rights and establishing and strengthening national institutions. It will also give "focused attention" to several issues: "discrimination against minorities, including indigenous peoples, trafficking in human beings, especially women and children, migrant workers's rights, economic, social, and cultural rights, and the rule of law."[4]

Another approach

The discussions in the 1982 Colombo meeting touched on the idea of establishing national and subregional human rights mechanisms before discussing the regional mechanism. From late 1980s several countries in the region began establishing their respective national human rights institutions. And still much later, the subregions of South and Southeast Asia and the Pacific separately adopted subregional initiatives on human rights.

The South Asian Association for Regional Cooperation (SAARC) has adopted two instruments that created a basis for cooperation in the field of human rights among the member-states. The South Asian Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (January 2002) and the SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia (January 2002) have now taken effect in South Asia. There is also the Social Charter, adopted in 2004, that has a number of human rights provisions relating to women and children. Its section on principles, goals and objectives states the following:

xii. Promote universal respect for and observance and protection of human rights and fundamental freedoms for all, in particular the right to development; promote the effective exercise of rights and the discharge of responsibilities in a balanced manner at all levels of society; promote gender equity; promote the welfare and interest of children and youth; promote social integration and strengthen civil society.

It seems, however, that SAARC has not discussed the idea of a South Asian human rights mechanism, be it for particular human rights issue(s) or for human rights in general.

The Pacific Islands Forum moved towards a subregional system by adopting in 2005 the Pacific Plan for Strengthening Regional Cooperation and Integration (Pacific Plan). The Pacific Plan has provisions on human rights. The vision for the Pacific under the Pacific Plan includes the "defense and promotion of human rights," and a few aspects of its Good Governance section relate to human rights. The regional implementation of the Pacific Plan lies with the Pacific Islands Forum Secretariat with political oversight and guidance provided by a committee (Pacific Plan Action Committee). The proposal to establish a Pacific human rights mechanism is subject to further study. (See related article for a discussion of the situation in the Pacific.)

The Association of Southeast Asian Nations (ASEAN) has adopted several human rights-related documents and is now at the verge of establishing a subregional human rights body.

These subregional initiatives parallel the regional human rights initiatives of the UN, but there is no indication of link between them.

Southeast Asia

ASEAN member-states believe that they have created

a community of Southeast Asian nations at peace with one another and at peace with the world, rapidly achieving prosperity for [their] peoples and steadily improving their lives. [Their] rich diversity has provided the strength and inspiration to [them] to help one another foster a strong sense of community.[5]

They have experienced economic integration through smaller initiatives within the region.[6]

By 2020, ASEAN envisions a much stronger community with the following characteristics:

  1. A Zone of Peace, Freedom and Neutrality
  2. Closer economic integration within ASEAN
  3. An ASEAN community conscious of its ties of history, aware of its cultural heritage and bound by a common regional identity.

These characteristics refer to the three components of the ASEAN Vision 2020: peace, economic development and social cohesion.

To realize this vision of an ASEAN Community, it is necessary that the member-states are bound by an ASEAN Charter that will serve "as a firm foundation in achieving one ASEAN Community by providing an enhanced institutional framework as well as conferring a legal personality to ASEAN." It will "codify all ASEAN norms, rules, and values and reaffirm that ASEAN agreements signed and other instruments adopted before the establishment of the ASEAN Charter shall continue to apply and be legally binding where appropriate."

The 2005 ASEAN Summit's Kuala Lumpur Declaration on the Establishment of the ASEAN Charter declared a long list of principles on the interstate relations within ASEAN including "[P]romotion of democracy, human rights and obligations, transparency and good governance and strengthening democratic institutions."

This declaration established the Eminent Persons Group (EPG) on the ASEAN Charter to "examine and provide practical recommendations on the directions and nature of the ASEAN Charter relevant to the ASEAN Community."

The EPG was tasked to recommend a strategy for the ASEAN Charter drafting process including consultations at the national and subregional levels with all relevant stakeholders in ASEAN (especially representatives of the civil society) and public information.

The 2006 ASEAN Summit's Cebu Declaration on the Blueprint of the ASEAN Charter endorsed the "Report of the EPG on the ASEAN Charter and agree[d] that the High Level Task Force should commence the drafting of the ASEAN Charter based on our directions given at the 11th and 12th ASEAN Summits, the -relevant ASEAN documents, together with the EPG recommendations, to be completed in time for the 13th ASEAN Summit in Singapore in November 2007."

Human rights and ASEAN

ASEAN adopted a number of documents relating to human rights, namely,

  • Jakarta Declaration on the Elimination of Violence against Women in ASEAN Region (Jakarta, 13 June 2004)
  • ASEAN Declaration Against Trafficking in Persons Particularly Women and Children (Vientiane, 29 November 2004)
  • Vientiane Action Programme [VAP] (29 November 2004)
  • Declaration on the Establishment of the ASEAN Charter - 11th ASEAN Summit (December 2005)
  • ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers (Cebu, 13 January 2007).

The Jakarta Declaration on the Elimination of Violence against Women in ASEAN Region provides that member-states shall

strengthen collaboration between and among countries, through bilateral, regional and international cooperation for resource mobilisation and technical exchange programmes, including sharing of best practices and experience in raising awareness, developing advocacy programmes on preventing and tackling violence against women.

The ASEAN Declaration Against Trafficking in Persons Particularly Women and Children provides that ASEAN shall

[P]romote regional cooperation for the survival, development, protection and participation of ASEAN children, as an integral part of ASEAN's efforts to improve the lives of peoples in the region.

Under the VAP, ASEAN has identified several areas of human rights work regarding:

  • Education and public awareness on human rights
  • Network of cooperation among existing human rights mechanisms
  • ASEAN instrument on the protection and promotion of the rights of migrant workers
  • ASEAN commission on the promotion and protection of the rights of women and children.

On 30 July 2007, during the 40th ASEAN Ministerial Meeting in Manila, the ASEAN Foreign Ministers announced the establishment of the ASEAN Committee on the Implementation of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers. This is the first human-rights structure established by ASEAN. (See next article on the migrant workers committee.)

During the same meeting, the Foreign Ministers received the report of the High Level Task Force (HLTF) on the first draft ASEAN Charter and agreed on the inclusion of "key provisions, including the establishment of an ASEAN human rights body."[7]

Establishing an ASEAN Human Rights Body

While the ASEAN Foreign Ministers had agreed to include the creation of an ASEAN human rights body in the draft ASEAN Charter, they arrived at this decision amidst much uncertainty.

During the Eighth Meeting of the High Level Task Force on the Drafting of the ASEAN Charter (July 2007), there were reports that one issue that had not gained consensus among the HLTF members was the ASEAN human rights mechanism. The HLTF had to finish its draft ASEAN Charter in July 2007 to be able to submit the same to the ASEAN Foreign Ministers, who were going to hold a meeting at the latter part of the month. Failing to get a consensus among HLTF members on the ASEAN human rights mechanism, the HLTF referred the matter to the Foreign Ministers for them to resolve the issue.

One report said that some ASEAN countries feared that the issue is "being used as a political instrument. "[8] But eventually, according to another report, Malaysia, Indonesia, Singapore, Thailand, the Philippines and Brunei "persuaded Myanmar, Laos, Cambodia and Vietnam to accept the deal in principle."[9]

The Foreign Minister of Malaysia was quoted as saying that[10]

At the end of the day, we must be seen not to be allergic or not supportive of human rights... for any reason, the human rights provision is not in the charter, then people will think ASEAN is not pro-human rights and that is nonsense... We are for human rights, we are for civil liberties, we want to see democracy, we want to see rule of law, we want to see good governance.

In Chapter IV on Organizations in the draft ASEAN Charter the following provision appears:[11]

In conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall establish an ASEAN human rights body.

But while the Foreign Ministers feared embarrassment before the international community if they failed to agree on a human rights body, they were not able to agree on the details of such a body.[12] There was no agreement yet on the "timeframe, scope of work and other details of a regional human rights body."[13] They had to instruct the HLTF to draft the terms of reference of the body before the next ASEAN Summit in November 2007.

Issues

The terms of reference for the creation of an ASEAN human rights body will determine the extent of willingness of ASEAN to realize its human rights commitment. There are fears about the possibility of member-states who are "uncomfortable with the idea of a human rights body" or not yet ready for it to ask to be exempted from its operation for several years from its establishment.[14]

A number of questions will hopefully have appropriate answers by November 2007 during the 13th ASEAN Summit:

  • Will the ASEAN human rights body be given the independence needed to effectively operate?
  • What role will the human rights body play?
  • Will it monitor the human rights situation in each of the ASEAN member-states?
  • Will it have the power to require member-states to submit reports on their human rights situation?
  • Will it receive complaints on human rights violations from member-states?
  • Will it cover all human rights, or a particular set of rights?
  • Will the international human rights standards be the main reference point, considering that most of the international human rights instruments have not been ratified by ASEAN member-states?[15]
  • If there are findings of human rights violation in particular member-states, will the body have the power to require these member-states to remedy the problems?

There is also a proposal to create an ASEAN Commission on Women's and Child Rights under the VAP. Will this still be created, similar to the creation of a committee to implement the declaration on migrant workers' rights?

Indeed, with the positive development of having an ASEAN human rights body, the challenge lies on the powers and functions that it will assume to effectively address the human rights situation in the subregion.

For further information please contact HURIGHTS OSAKA.

Endnotes

1. See UN General Assembly resolution 37/171 of 17 December 1982 on the report of the Seminar on National, Local and Regional Arrangements for the Protection of Human Rights in the Asian Region, held at Colombo from 21 June to 2 July 1982.

2. See "UN Workshops on Regional Arrangement for Human Rights in the Asia-Pacific," FOCUS Asia-Pacific, issue no. 7

3. Annex II, Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, including the Question of the Programme and Methods of Work of the Commission (E/CN.4/1998/50 - 12 March 1998).

4. See OHCHR Human Rights Programme for Asia Pacific (2006-2007) in www.ohchr.org/english/countries/regional/asia/programme.htm

5. ASEAN Vision 2020, adopted by ASEAN in Kuala Lumpur on 15 December 1997.

6. The Brunei, Indonesia, Malaysia, Philippines - East ASEAN Growth Area (BIMP-EAGA), Indonesia, Malaysia, Thailand-Growth Triangle (IMT-GT), Indonesia, Malaysia, Singapore-Growth Triangle (IMS- GT), ASEAN Mekong Basin Development Cooperation (AMBDC), Greater Mekong Sub-region (GMS), the Ayeyawady-Chao Phraya-Mekong Economic Cooperation Strategy (ACMECS), and Cambodia-Lao-Vietnam Development Triangle (CLV-DT) are economic integration initiatives existing within Southeast Asia.

7. Statement of H.E. Alberto G. Romulo, Secretary of Foreign Affairs at the Closing Ceremony of the 40th AMM and the Handing-over of the ASC Chairmanship, Thursday, 2 August 2007, in www.40amm.org.ph/main_showdocuments.asp?category=docs&docid=16

8. "ASEAN's human rights plan hits snag," The Bangkok Post in www.bangkokpost.net/breaking_news/breakingnews.php?id=120562

9. Manny Mogato, "Myanmar withdraws objections to SE Asia rights body" in www.reuters.com/article/worldNews/idUSSP2833120070730

10. See "Philippine HLTF Member Bares ASEAN Human Rights Body in the Draft ASEAN Charter; Consults with Philippine Civil Society Groups and Government Agencies" in Working Group for an ASEAN Human Rights Mechanism in www.aseanhrmech.org/news/philippine-HLTF-member-bares-draft.html

11. "ASEAN's human rights plan hits snag," op. cit.

12. "Asean breaks deadlock on human rights," The Straits Times in www.straitstimes.com/Latest%2BNews/Asia/STIStory_143859.html

13. "ASEAN's human rights plan hits snag," op. cit.

14. So far only the Convention on the Rights of the Child and the Convention on The Elimination of All Forms of Discrimination Against Women have been ratified by all the ASEAN member-states.

15. The "ASEAN Minus X Formula," which is supposed to have worked in the ASEAN economic and trade agreements, may be employed in this case. See Obstacles to ASEAN Charter, www.eraconsumer.org/news.php?id=16. ASEAN explains the "ASEAN Minus X Formula" as follows:"Under this approach, two or more countries may proceed with an agreed services sector liberalisation without having to extend the concessions to non-participating countries. Others may join at a later stage or whenever ready." ASEAN Integration in Services, ASEAN Public Information Series (2007) http://www.aseansec.org/20661.pdf


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