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  5. The Process of Establishing an ASEAN Human Rights Body

 
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FOCUS September 2008 Volume 53

The Process of Establishing an ASEAN Human Rights Body

HURIGHTS OSAKA

A body that addresses the human rights issues in Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People's Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam poses a big challenge to the Association of Southeast Asian Nations (ASEAN). There are differences in the human rights situation among its member-states, and there is no common approach to human rights promotion and protection at the national level.

ASEAN Charter

The ASEAN Charter, now ratified by all ASEAN member-states, provides the following:

1. 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. (Article 14)

One can argue that the ASEAN Charter's broad principle of promoting and protecting human rights (Article 2 [2i]) should relate to the other principles that impact on human rights. The other principles in the ASEAN Charter provide at least the appropriate environment for human rights promotion and protection. Two principles are particularly related:

(h) adherence to the rule of law, good governance, the principles of democracy and constitutional government;
xxx      xxx      xxx
(j) upholding the United Nations Charter and international law, including international humanitarian law, subscribed to by ASEAN Member States.

The ASEAN Foreign Ministers Meeting, which is tasked to determine the terms of reference for the operation of this body, faces the challenge of finding the appropriate mechanism that effectively serves human rights.

But what is an effective human rights body?

Proposals from the civil society

The civil society in Southeast Asia is made up of different formations and categories. ASEAN's roster of affiliated civil society organizations (CSOs) consists mainly of business groups and organizations on particular fields (various professions, and industries [shipping, furniture-making, tourism, mining, etc.]).[1] These organizations are hardly heard on human rights issues. A few CSOs in the ASEAN roster have the capacity and likely mandate to raise human rights concerns such as the ASEAN Law Association (ALA), ASEAN Law Students Association (ALSA), Southeast Asia Regional Institute for Community and Education (SEARICE), Southeast Asian Studies Regional Exchange Program (SEASREP) Foundation, and ASEAN Confederation of Women's Organisations (ACWO). But they do not seem to have any involvement in human rights issues so far. One ASEAN - affiliated CSO (the Asian Partnership for the Development of Human Resources in Rural Asia [AsiaDHRRA]), however, has been active in one network of NGOs lobbying the ASEAN on human rights issues.

At the moment, civil society proposals on the powers and functions of an ASEAN human rights body mainly come from three main CSO activity and groups: The ASEAN People's Assembly (APA ) , the Working Group for an ASEAN Human Rights Mechanism (Working Group), and the Solidarity for Asian People's Advocacy (SAPA) Working Group on ASEAN (WG on ASEAN).

The APA is supported by a network of strategic studies institutes in Southeast Asia (ASEAN Institutes of Strategic and International Studies or ASEAN-ISIS) and is "among a number of non- governmental activities intended to enable the ASEAN peoples from various sectors in and out of government to discuss common concerns, to generate responses and solutions to these concerns, to build trust and confidence among the participants, to raise knowledge and awareness about ASEAN and its activities, and to contribute to community building in ASEAN." It has been holding its assembly since 2000.[2]

The Working Group for an ASEAN Human Rights Mechanism or Working Group, established in 1995, has the primary goal of having an intergovernmental human rights commission for ASEAN. It is a coalition of national working groups from ASEAN member-states that are composed of representatives of government institutions, parliamentary human rights committees, the academe, and NGOs. The Working Group follows a step-by-step, constructive and consultative approach when it engages governments and other key players in the region. It submitted to the ASEAN senior officials in 2000 a Draft Agreement for the Establishment of the ASEAN Human Rights Commission.[3]

The SAPA WG on ASEAN, established in 2006, is a "common platform for collective action on ASEAN advocacy." It "respects and promotes the multiplicity of perspectives, strategies and forms employed by its individual members, even as it strives for specific unities in ASEAN-related advocacy and action.".[4] It has a Task Force on an ASEAN Human Rights Mechanism that serves as a "forum for Members to strategize on a human rights agenda for ASEAN, and to complement the work of the WG on an ASEAN HR Mechanism and national human rights institutions in ASEAN, etc."

The activities of APA, Working Group and SAPA are not exclusive to their respective "members." Their members attend each other's meetings. Collectively, they cover NGOs, the academe, government agencies (particularly the Ministries of Foreign Affairs), and national human rights institutions in Southeast Asia.

SAPA Working Group on ASEAN

The SAPA Working Group on ASEAN held its Second Regional Consultation on ASEAN and Human Rights on 3-5 August 2008 in Jakarta. The main agenda of the consultation was the collation of the results of national consultations regarding the terms of reference of the ASEAN human rights body.

The Jakarta consultation resulted in a submission to the High Level Panel on the establishment of the ASEAN human rights body. The submission proposes that the ASEAN human rights body:

  1. Not only promotes and protects human rights but also fulfils them
  2. Be guided by international human rights standards as well as by international labor standards and international humanitarian laws
  3. Perform a number of functions such as
    1. Human rights education covering the officials/members of the "judiciary, police, military," government agencies, parliaments, civil society organizations, national human rights institutions, schools, universities, faith-based organizations, vulnerable groups and communities
    2. Provide advise on "national and regional policies and legislations in order to ensure synchronisation, harmonisation and compliance with international human rights laws and standards"
    3. Encourage reporting to United Nations human rights treaty bodies, and the ratification of international human rights instruments (including the Rome Statute of the International Criminal Court)
    4. Promote the implementation of the ASEAN human rights-related declarations
    5. Assist ASEAN member-states in establishing national human rights institutions
    6. Initiate discussions on the establishment of an ASEAN human rights court
    7. Inquire on complaints of human rights violations cases in ASEAN member-states and urgently communicate its findings and recommendations to concerned ASEAN member-states for their action within a specified period
    8. Assess and review the general human rights situation in the ASEAN region
    9. In cases of widespread and systematic human rights violations, refer them to the ASEAN Summit as a serious breach of the ASEAN Charter under article 27(2) on non-compliance
    10. Request the suspension of the application of any legislative and executive steps that have created or may create blatant human rights violations such as the Internal Security Act or National Security Act
    11. Create mechanisms for the protection of human rights defenders based on the United Nations Declaration on Human Rights Defenders
  4. Promote its work and mandate through civil society organizations, other relevant non-state institutions, and the media
  5. Be constituted as a "Commission" and operate as an independent body similar to the mandate-holders of the United Nations special procedures and following the Paris Principles
  6. Create sub-commissions on children, migrant workers, women, indigenous peoples, and others
  7. Have members who have the integrity, impartiality, professionalism, commitment and competence in human rights. Representatives from civil society sectors, based on geographical and gender balance, shall be duly considered. The members shall act as independent experts, not representing any government
  8. Serve as an overarching mechanism for all matters and conduct of the three ASEAN community councils.

High Level Panel

A High Level Panel (HLP), created by the ASEAN Foreign Ministers Meeting, is currently in the process of consulting people in the different ASEAN member-states on the "powers and functions" of this human rights body. It has held meetings with members of the civil society and other sectors in Singapore (July 2008), Thailand (August 2008), and the Philippines (September 2008). The next monthly meetings will be held in the other ASEAN member-states.

The ten-member HLP is composed of representatives of the ASEAN member-states.

The SAPA submission requests that the HLP ensures that the "consultative process is meaningful and effective through appropriate procedures" and reaches out to the "widest sections and largest groups of peoples of society as much as possible at the national level through creative forms of communication that enable concerned peoples not otherwise able to participate directly in the process to register their views."

The Chairperson of HLP, Mr. Bilahari Kausikan, described the discussion among the HLP members during its first meeting:[5]

Our discussions were held in a cordial and cooperative spirit. We aim to achieve a result that is realistic, balanced and credible, and which would be in the best collective interest of ASEAN. We all agreed that we are not starting on a blank page. ASEAN has a history of discussing human rights and the High Level Task Force (HLTF) on the ASEAN Charter had already achieved a fair degree of consensus on several issues. We will build upon the work of the HLTF, as well as ASEAN's previous agreements and declarations on human rights.

The core job of the HLP should be to propose a set of terms of reference of the ASEAN human rights body that apply the international human rights standards (even though many ASEAN member-states have not ratified most of the core international human rights instruments) to the Southeast Asian context. The extent of powers and functions to be proposed for such body remains to be seen. But the need for an effective ASEAN human rights body exists without doubt.

For further information, please contact: HURIGHTS OSAKA, piaNPO, 3F, 2-8-24 Chikko Minato-ku, Osaka 552-0021 Japan; ph (816) 6577-3577; fax (816) 6577-3583; e-mail: webmail [a] hurights.or.jp; www.hurights.or.jp

Endnotes

1. See www.aseansec.org/4986.htm

2. See www.asean-isis-aseanpeoplesassembly.net/about.htm

3. See www.aseanhrmech.org/aboutus.html

4. See www.asiasapa.org/index.php?option=com_content&task=view&id=48&Itemid=76

5. Press Comments by the Chairman of the High Level Panel (HLP) on the Establishment of an
ASEAN      Human      Rights      Body     in
www.41amm.sg/amm/index.php/web/press_room/press_releases/press_comments_
by_the_chairman_of_the_high_level_panel_hlp_on_the_establishment_of_an_asean_human_
rights_body


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