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FOCUS December 2009 Volume 58

Developments on the ASEAN Intergovernmental Commission on Human Rights

Ray Paolo J. Santiago

During the 26th ASEAN Ministerial Meeting (AMM) in 1993, the ASEAN foreign ministers “agreed that ASEAN should also consider the establishment of an appropriate regional mechanism on human rights” in support of the 1993 Vienna Declaration and Programme of Action of the United Nations World Conference on Human Rights.

Based on this ASEAN ministerial declaration, like-minded individuals, spearheaded by members of LAWASIA,[1] started discussions on pursuing the possibility of having a regional human rights mechanism in Southeast Asia. Thus, the civil society Working Group for an ASEAN Human Rights Mechanism,[2] or Working Group for short, was established sometime in 1995.

In 1996, the Working Group started meeting with ASEAN through its foreign ministers and, later on, its senior officials. As early as 1999, ASEAN urged the Working Group to present a proposal on what was an appropriate regional human rights mechanism.

After a series of expert meetings and consultations, the Working Group recommended the establishment of a regional human rights commission to ASEAN as the appropriate mechanism. Thus, in 2000, the Working Group submitted a working document entitled Draft Agreement for the Establishment of the ASEAN Human Rights Commission (Draft Agreement) for ASEAN’s consideration.

During the meeting with the ASEAN Senior Officials in Thailand in 2000, ASEAN referred the Draft Agreement to its think-tank, the ASEAN-Institute for Strategic and International Studies (ASEAN-ISIS) for its comments and suggestions. No further action was taken on that matter since then. It was apparent that ASEAN was not prepared at that time to venture into such kind of regional human rights mechanism.

Since 2001, the Working Group has been undertaking annual workshops on the ASEAN regional human rights mechanism, together with a host ASEAN government and its national human rights commission, if it has one. Each workshop’s conclusions are then submitted and presented to the ASEAN Senior Officials on the occasion of the ASEAN Ministerial Meeting. These workshops have harvested concrete proposals on progressing towards the establishment of an ASEAN regional human rights mechanism. In fact, some of the human rights provisions in ASEAN’s Vientiane Action Programme are culled verbatim from these workshops such as the “establishment of an ASEAN commission on the promotion and protection of the rights of women and children” and the “elaboration of an ASEAN instrument on the protection and promotion of the rights of migrant workers.”[3]

Initial ASEAN Move

During the meeting of the Working Group with the ASEAN Senior Officials in Vientiane on 25 July 2005, ASEAN engaged the Working Group to help in the implementation of the following human-rights-related programs in the VAP:

  • The establishment of a commission on the promotion and protection of the rights of women and children
  • Elaboration of an ASEAN instrument on the promotion and protection of the rights of migrant workers
  • Promoting education and public awareness on human rights in the region; and
  • Networking among existing national human rights institutions in the region.

It also bears noting that all ASEAN countries have ratified the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child.

Pursuant to this mandate given by ASEAN, the Working Group has organized several activities on the human rights program areas, to wit:

  • Five Roundtable Discussions among ASEAN governments, national human rights institutions, and civil society groups from 2005 up to the present;
  • A “Roundtable Discussion on Engaging ASEAN Governments on Human Rights Education” among ASEAN regional organizations and national human rights institutions in Bangkok in 2006;
  • An ongoing research on the elaboration of an ASEAN instrument on migrant workers;
  • A research on t he establishment of an ASEAN commission on women and children;
  • An experts meeting and a regional consultation to discuss the establishment of the ASEAN commission on women and children have also been separately organized in Bangkok to complement the research on the same topic; and
  • Regarding the networking among existing human rights mechanisms, the existing national human rights institutions in ASEAN countries formalized in 2008 their cooperation and identified human rights issues of common concern. They are planning to come up with activities and projects that will address these human rights issues.

In 2008, the ASEAN Member- States ratified the ASEAN Charter, transforming what was once a loose organization into a more rules-based one. One of the more prominent changes that the Charter has introduced is the establishment of an ASEAN Human Rights Body based on terms of reference (ToR) that was to be adopted by the ASEAN Foreign Ministers Meeting. This was a significant development considering the cautious stand that the ASEAN Member-States consistently took on human rights matters. But including a provision of such an institution in the Charter is not a walk in the park. In fact, of all the provisions in the Charter, the establishment of a human rights body was the one that was most discussed, debated upon, and even, at times, the source of heated disagreements that even threatened the realization of the Charter itself. In the end, however, the ASEAN Foreign Ministers agreed that the establishment of a regional human rights mechanism was essential in building the credibility of ASEAN as a rules-based organization. As such, the human rights body was even given the status of an “organ” of ASEAN, just to stress the importance of its establishment.

Shortly after the adoption of the Charter, and even before it was ratified by all the ASEAN Member-States, ASEAN created the High Level Panel (HLP) on an ASEAN Human Rights Body which was tasked to draft the terms of reference (ToR) that would establish such a body. After a year of deliberation, the HLP came up with the draft ToR that would establish an ASEAN Intergovernmental Commission on Human Rights (AICHR). The ASEAN Foreign Ministers subsequently approved the ToR in July 2009 and the ASEAN Summit formally launched the AICHR in October of the same year.

A Different Type of Mechanism

Compared to regional human rights mechanisms existing in Europe, the Inter-Americas and Africa which are composed of experts, the AICHR is an intergovernmental body whose ten representatives are appointed in behalf of the ASEAN Member-States. Many human rights advocates see this as a challenge given ASEAN’s notoriety in invoking its principles of sovereignty and non-interference in the internal affairs of its members when it comes to human rights concerns.

Furthermore, the AICHR is a consultative body that will adopt an evolutionary approach in fulfilling its mandate and functions of promoting and protecting human rights in the ASEAN region. And just like the decision-making process in ASEAN, it can only decide on matters through consultation and consensus.

These characteristics of AICHR have been seen as the main stumbling blocks for the operation of the mechanism. Despite these, however, the establishment of the AICHR is itself a step forward. In fact, even ASEAN and its member-states agree that it is a breakthrough.

Some may be discouraged by the manner by which the AICHR will progress. And yet, it still is as an opportunity forhuman rights promotion and protection to develop within ASEAN; and the burden falls on the more human-rights-progressive Member-States to push the other Member-States to allow the AICHR to progress if they want ASEAN to be truly credible and responsive to the times.

Taking an optimistic and advocate’s point of view on the matter, the reality is that there must be a starting point for the AICHR to progress. What that starting point should be is definitely debatable. But what is imperative is that all ASEAN Member-States are onboard and committed to the success of a regional human rights mechanism.

An environmental scan demonstrates that the evolution of the systems of promotion and protection of human rights of the United Nations human rights organs and the other regional human rights mechanisms in Europe, Inter-Americas and Africa did not happen overnight. It took time for them to develop and reach their current status.

Work for AICHR

The common point towards full protection of human rights in the region is through promotion. Now does that mean that all the AICHR should do is to promote human rights? This, obviously, will be contrary to its very mandate under the ToR and the ASEAN Charter since “protection” is mentioned in the same breath as promotion. As such, in the evolutionary sense of things, promotion must be seen as a starting point towards protection of human rights.

The AICHR and human rights must be felt by the people. Its visibility must be on top of its priority at the moment. How can we expect the peoples of ASEAN to access the AICHR if they do not even know what it is all about? Worse, we cannot expect the people to actually access the AICHR if they do not know what human rights are all about and which of their rights have been compromised. This is where the civil society groups can help in speeding up the evolution of the AICHR. They must ensure that this new human rights institution of ASEAN is known to the people. They cannot leave this to ASEAN and AICHR itself, lest it proceeds only at a pace that they are comfortable with. For the AICHR’s presence to be felt in the region, there is a need to push for its “visibility” to be a priority in its work plan. And this must be supplemented, if not complemented, by civil society groups that are interested in seeing the development of the AICHR into a more progressive mechanism.

In making sure that the AICHR is visible and felt by the ASEAN peoples, there is a necessity for its Representatives to travel to each ASEAN Member-State. Civil society groups can take this opportunity to organize and get every opportunity for the people to meet with the AICHR Representatives and bring their concerns to them. Although the AICHR does not have investigative functions, it does not discount the fact that it can obtain information on the human rights situation of ASEAN Member-States.

Another possibility for the AICHR is the setting-up of an experts group or sub-body similar to the arrangement before of the now defunct United Nations Commission on Human Rights. Although the Commission was seen as a political body, it established experts groups or bodies which later on developed into special procedures.

The AICHR is a political body. It will set the direction for human rights promotion and protection in Southeast Asia based on the information that it may have. But the AICHR meets only at least twice a year. There is therefore a need to make sure that proper information are gathered and processed for the AICHR’s consideration and action. Setting-up an experts group will ensure the quality and accurateness of the factual information that it may gather. And as mentioned earlier, while country visits and investigation are not mentioned in the ToR of the AICHR, such are not, however, directly proscribed. The ToR allows the gathering of information from member states on the promotion and protection of human rights. And since the AICHR is envisioned to meet, not only in its headquarters, but also in the different ASEAN countries, it will also be an opportunity to meet stakeholders other than governments, still as part of its consultative and dialogue functions.

Furthermore, the AICHR is mandated to conduct “studies on thematic issues of human rights in ASEAN.” There are already accepted common human rights commitments and agreements in ASEAN, more particularly on issues of women and children, for example. A study on these issues will definitely be desirable if only to give a “situational analysis” of its present condition in the region. And such a study, though country data may be needed, is actually not country- specific but thematic. Again, this can best be done, not by the political personalities in ASEAN but by experts who have the capacity to submit credible reports for the AICHR’s consideration.

The human rights experts may also be tapped to help the AICHR “develop strategies for the promotion and protection of human rights and fundamental freedoms to complement the building of the ASEAN Community” and “to develop common approaches and positions on human rights matters of interest to ASEAN.”

There is also a need to have proper and responsive rules of procedure for the AICHR. While its ToR define the structure of the AICHR, the details of implementation are yet to be settled. The ToR of the AICHR must be translated into action through its procedures.

The drafting of an ASEAN Human Rights Declaration is another perfect opportunity to push for the concrete evolution of the AICHR into something that will be more meaningful to the ASEAN peoples. There is a need, however, to be vigilant that this opportunity is also not used to espouse cultural relativism. Such must not be so since the core principles of the AICHR itself states that it must “uphold international human rights standards as prescribed by the Universal Declaration of Human Rights, the Vienna Declaration and Programme of Action, and international human rights instruments to which ASEAN Member States are parties.”

And lastly, one of the more important avenues for evolution is the Representatives of the AICHR themselves. Although the Representatives are accountable to their respective governments, the ToR itself calls on them to act impartially. And acting impartially means not favoring any individual member-state; rather, the Representatives must think proactively to promote and protect the human rights of all ASEAN peoples. They should be engaged by civil society groups for them to be forward-looking on human rights.

Conclusion

In sum, the creation of a new regional human rights mechanism in the form of the AICHR is not the end all and be all of human rights in ASEAN. There are other different opportunities in ASEAN at the moment, such as the imminent establishment of an ASEAN Commission on the Promotion and Protection of the Rights of Women and Children. As such, we must maximize these opportunities and create an environment for human rights in ASEAN. And the creation of these mechanisms should be seen as aids in creating this environment. In the mean time, the advocacy continues to reap more positive developments in the field of human rights in Southeast Asia.

Ray Paolo J. Santiago is the Program Manager of the Working Group for an ASEAN Human Rights Mechanism.

For further information, please contact: Working Group for an ASEAN Human Rights Mechanism, Ateneo Human Rights Center, 20 Rockwell Drive, Rockwell Center, Makati City 1200 Metro Manila, Philippines; ph (632) 8997691 loc. 2109, fax: (632) 8994342; e-mail: rsantiago@aps.ateneo.edu; www.aseanhrmech.org.

Endnotes

1.Lawasia is an “international organisation of lawyers’ associations, individual lawyers, judges, legal academics, and others which focuses on the interests and concerns of the legal profession in the Asia Pacific region.” It has LAWASIA Human Rights Committee and Secretariat that have “overseen a good deal of research into and development of human rights mechanisms, the most notable being the ASEAN Human Rights Mechanism, which has gone on to develop its own life.” For more information on LAWASIA visit http://lawasia.asn.au

2.The Working Group is a coalition of national working groups from ASEAN states which are composed of representatives of government institutions, parliamentary human rights committees, the academe, and NGOs. Visit www.aseanhrmech.org for more information.

3.See 1.1.4, Political Development, Asean Security Community, Vientiane Action Programme, Annex 1 (Jakarta: ASEAN Secretariat, 2004).


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