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FOCUS March 2010 Volume 59

Northeast Asian Subregional Human Rights Mechanism: Feasible?

HURIGHTS OSAKA

The establishment of the ASEAN Intergovernmental Commission on Human Rights (AICHR) in October 2009 raised the question of feasibility of such subregional human rights mechanism in other subregions of Asia. The South Asian Association for Regional Cooperation (SAARC) has adopted a number of human rights-related agreements but has not reached the stage of discussing any subregional human rights mechanism. In the Gulf Region, Qatar is hosting the United Nations Human Rights Training and Documentation Centre for South-West Asia and the Arab Region.1 This Center has the potential of facilitating subregional dialogues on human rights issues. The United Nations General Assembly gave this Center the mandate "to undertake training and documentation activities according to international human rights standards and to support such efforts within the region by Governments, United Nations agencies and programmes, national human rights institutions and non-governmental organizations." One report from the Office of the High Commissioner for Human Rights explains this mandate in the following manner:2

The Centre's overarching mandate is to strengthen existing regional arrangements and mechanisms for the promotion and protection of human rights. It will do this through its training activities building knowledge and expertise in a range of human rights procedures and methodologies, through the development of a library with information and documentation systems in the languages of the region and through partnerships with other human rights organisations, civil society and government.

While this Center is not a regional human rights mechanism, its existence is a positive step in the human rights dialogue in the Gulf region.

A number of human rights issues in Northeast Asia (particularly those that date back to the Second World War) remain unresolved despite some efforts among the countries concerned to address them.
While economic relationships among the countries (with the exception of Democratic People's Republic of Korea) in the subregion seem to be strong, human rights issues remain a sour point in inter-state relations. The Northeast Asian governments have not entertained the idea of having an inter-governmental cooperation towards a human rights mechanism for the Northeast Asian subregion.

African, American and European Experiences

The experiences of establishing and operating regional mechanisms in other regions of the world vary widely, yet they do share certain common features. Regional human rights mechanisms can also benefit the international standard setting. The 1981 African Charter on Human and Peoples' Rights, for example, provides that economic and social rights, such as the right to food, health and education, are equally entitled to legal protection as civil and political rights. Thus the human rights mechanism at the global level has to catch up to this standard, with an Optional Protocol only recently adopted enabling the United Nations Committee on Economic, Social and Cultural Rights to consider individual complaints. Despite the diverse histories, regional human rights mechanisms share some common characteristics. The regional human rights mechanisms are

  • 1) Subsidiary to national human rights protection systems
  • 2) Exist under a normative framework (political consensus, convention, declaration, etc.) that should not be lower than international human rights standards
  • 3) Comprised of independent, impartial experts in human rights and persons of integrity as members, which means:
    - Existence of genuine and transparent process of nomination by states and election of members at the regional level with the participation of the civil society
    - Members serve in individual capacity
    - Plurality of membership
    - Provision of privileges and immunities for members
    - Existence of procedure for removal of members
  • 4) Do both promotion and protection work:
    - Receive and decide on both individual and interstate complaints
    - Has power to declare occurrence of human rights violations and provide access to a regional court that can order legally binding decisions and reparations
    - Make country visits and engage in country level activities
    - Hold meetings in different member states
    - Hold widely publicized hearings
    - Develop other mechanisms (e.g., special rapporteurs) that engage in both promotion and protection work
    - Have preventive mechanisms ( e. g. , emergency procedures)- Use of transparent documentation and wide dissemination systems regarding decisions and recommendations.
  • 5) Supported by competent and full-time secretariat with sufficient resources (including budgetary and human resources)
  • 6) Use established procedures for interaction with civil society and national human rights institutions (NHRIs)
  • 7) Cooperate with international human rights mechanisms.

Furthermore, the regional human rights mechanisms are more accessible to the people who need them, as they operate within local historical, cultural and geographical situations.

But these regional human rights mechanisms have to earn their credibility and effectiveness over time. Engagement of civil society and national human rights institutions with the regional human rights mechanism commissioners, and the supporting political will of member states are needed for these mechanisms to develop.

ASEAN Experience

The idea of establishing the AICHR was first brought out in 1993 by the foreign ministers of ASEAN member-states after the World Conference on Human Rights held in the same year. But it was the Working Group for an ASEAN Human Rights Mechanism, a civil society movement, that kept edging the ASEAN member-states to fulfill their promise of establishing such subregional mechanism for more than decade since that initial supporting communique? from the ASEAN member-states.

The AICHR is composed of representatives of each of the ASEAN member-states. The mandate of AICHR has been criticized for not covering the protection function. The ASEAN however has stated that it is adopting an evolutionary approach to the development of AICHR and thus there is an opening for changes in the powers and functions of this body in the future.

Professor Vitit Muntharbhorn, one of the leaders of the Working Group for an ASEAN Human Rights Mechanism and subsequently appointed as a member of the High Level Panel of ASEAN that drafted the terms of reference of the subregional human rights mechanism, cited a number of considerations about AICHR that deserved reflection.

First, the notion of "intergovernmental" should not mean that it is prejudiced towards states vis a vis individuals and other actors in ASEAN. At the heart of any human rights mechanism should be the protection of individuals and communities rather than of states, simply because states already have a variety of ways and means to constrain the rights of individuals and communities due to their omnipotent nature and broad range of powers. The representatives on the AICHR are also supposed to act "impartially" according to its terms of reference (TOR).3

Second, the fact that the AICHR is stated to be a "consultative" body does not imply that it should be a taciturn body without the power to make recommendations to ASEAN and its member-states. While it is understood that the AICHR is not a judicial body and cannot issue judgments, it is vested with the power to advise and recommend.

Third, the human rights standards mentioned in the TOR and to be applied by the AICHR and ASEAN are universal human rights standards and considered as basic minimum standards for the region and beyond. The TOR states that the AICHR will "uphold international human rights standards as prescribed by the Universal Declaration of Human Rights, the Vienna Declaration and its Programme of Action,4 and international human rights instruments to which ASEAN member-states are parties." The two human rights treaties to which all ASEAN member-states are parties are the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child.

Fourth, the ASEAN Charter and the TOR refer emphatically to the principles of national sovereignty and non-interference in the international affairs of ASEAN states. Yet, these principles are not absolute but fall under the ambit of international law; they are to be assessed objectively, not subjectively. Moreover, the advocacy of human rights cannot be seen as interference in a country's internal affairs, since such advocacy is an integral part of international law and jurisdiction. International protection of human rights comes into play when the national setting is unable or unwilling to provide human rights protection.

Fifth, ASEAN's pre-occupation with a non-confrontational and evolutionary approach, based on consensus, also stated in the TOR, should not lead to the condoning of egregious human rights violations such as genocide and crimes against humanity.

Sixth, while the TOR are substantively more-to-do with promotion than protection of human rights, this should not close the door to creative ways of covering human rights protection more proactively. The promotion angle is related particularly to education, awareness-raising and capacity-building. Internationally, the protection angle usually covers the ability of individuals to complain to regional human rights bodies (after exhausting local/national remedies), and the power of such bodies to monitor and investigate cases and situations. While the majority view in the High Level Panel that drafted the TOR rejected the explicit mention of these protection elements, it is also of note that members of the Panel were generally agreeable to the understanding that "what is not prohibited in the TOR is not forbidden."

Seventh, the AICHR has to prevent retrogression and to ensure forward-looking action of an internationally credible kind. One of the future steps mentioned in the TOR is the drafting of an ASEAN Human Rights Declaration. Such document and related instruments should help elevate international standards and not back-track. Regional particularities that conflict with universal standards are inadmissible.

Eighth, the AICHR is empowered to dialogue with civil society, national and other institutions on human rights, and to obtain information from ASEAN member-states on human rights, as well as to undertake thematic studies on human rights and to prepare annual and other reports on such matter. This provides room for broad discourse on human rights matters that need to be increasingly open to engagement with civil society and other actors. This is a particularly useful entry point for the preparation of the AICHR's forthcoming five-year work plan.

Ninth, the AICHR reports to the ASEAN Foreign Ministers and is assisted by the ASEAN Secretary-General and secretariat. It is thus important to ensure that key human rights situations are not only conveyed to the AICHR but also to the foreign ministers, the secretary-general and importantly the Summits of heads of government. An ASEAN Commission on women's and children's rights is on the verge of being set up, with its own TOR, and there is already an ASEAN Committee on migrant workers rights, all of which need to be aligned with the AICHR. The AICHR should not be seen as self-contained but as one of the many components in the ASEAN framework to be used, in the setting of checks and balances to prevent human rights transgressions and to respond to human rights promotion and protection effectively. National human rights institutions in Southeast Asia should be seen as complementary to this.

Tenth, the AICHR powers under the TOR have to be read together with the ASEAN Charter which integrates human rights, democracy and the Rule of Law substantively into the total ASEAN structure. In other words, human rights have been legitimized fully as a permeating principle, applying to all actors in ASEAN - governmental and non-governmental.

Challenges for Northeast Asia

Reflecting on the experiences in Africa, America, Europe,5 and Southeast Asia, there are a number of issues that should be considered important in determining the feasibility of having a subregional human rights mechanism in Northeast Asia.

First, is it realistic to think about establishing a regional human rights mechanism without an effective form of political integration in Northeast Asia? There are indications that the current political environment in the sub-region is not conducive to the establishment of a regional human rights mechanism.

Second, which existing model is the most adaptable to Northeast Asia? The subregion's specificities perhaps call for a different model.

Third, what will be the added- value in starting such a process in Northeast Asia? The main added value would be in bringing together various human rights actors of the sub-region: NGO workers, scholars, judges, lawyers and other interested actors. They can share experiences on the promotion and protection of human rights in their respective countries. This would help to strengthen national human rights protection mechanisms by enhancing human rights awareness in the sub-region. This would help identify common areas of concern in the sub-region. This could further help the establishment of specialized national human rights mechanism, such as a national human rights institution in Japan and China. Such a forum could finally be used as a vehicle for strengthening cooperation with the United Nations human rights mechanisms.

Professor Muntharbhorn thought that considering the situation in Northeast Asia, a range of networking activities on human rights in the subregion was the most feasible option to take. He said that such networking could be between courts of law; between law enforcers; between civil society groups; between human rights educators. A network among the national human rights commissions/ombudspersons in East Asia already exists. And they can also encourage countries that do not yet have a national human rights institution to set up one.
Reflecting on the experiences in Africa, America, Europe,5 and Southeast Asia, there are a number of issues that should be considered important in determining the feasibility of having a subregional human rights mechanism in Northeast Asia.

First, is it realistic to think about establishing a regional human rights mechanism without an effective form of political integration in Northeast Asia? There are indications that the current political environment in the sub-region is not conducive to the establishment of a regional human rights mechanism.

Second, which existing model is the most adaptable to Northeast Asia? The subregion's specificities perhaps call for a different model.

Third, what will be the added- value in starting such a process in Northeast Asia? The main added value would be in bringing together various human rights actors of the sub-region: NGO workers, scholars, judges, lawyers and other interested actors. They can share experiences on the promotion and protection of human rights in their respective countries. This would help to strengthen national human rights protection mechanisms by enhancing human rights awareness in the sub-region. This would help identify common areas of concern in the sub-region. This could further help the establishment of specialized national human rights mechanism, such as a national human rights institution in Japan and China. Such a forum could finally be used as a vehicle for strengthening cooperation with the United Nations human rights mechanisms.

Professor Muntharbhorn thought that considering the situation in Northeast Asia, a range of networking activities on human rights in the subregion was the most feasible option to take. He said that such networking could be between courts of law; between law enforcers; between civil society groups; between human rights educators. A network among the national human rights commissions/ombudspersons in East Asia already exists. And they can also encourage countries that do not yet have a national human rights institution to set up one.

Professor Muntharbhorn said that ultimately, having effective national human rights mechanism is the best option to take. He explained:

Whatever the ebb and flow of ideas about the regional set-up, one characteristic is certain: the most crucial environment for human rights promotion and protection remains that at the national and local levels, and no regional body should be seen as a substitute for the need to concretize an effective national system responsive to universal human rights. This article is mainly based on the presentations at the "Symposium on the ASEAN Human Rights Protection Mechanism and the Possibilities in East Asia," organized by HURIGHTS OSAKA on 30 January 2010 in Osaka. For further information please contact HURIGHTS OSAKA.

Endnotes

  • 1. Based on United Nations General Assembly Resolution A/Res/60/153 (2005).
  • 2. "UN Human Rights Centre opens in the Gulf State of Qatar" in www.ohchr.org/EN/NewsEvents/Pages/UNHumanRightsCentreOpensInGulfStateofQatar.aspx. The Center was formally opened in May 2009 in Doha.
  • 3. The TOR of AICHR is available at ASEAN website: www.aseansec.org/22769.htm
  • 4. Adopted at the 1993 World Conference on Human Rights, Vienna, Austria.
  • 5. The Council of Europe adopted the Convention on Human Rights in 1950, which established the European Court of Human Rights in 1959. The Organization of American States (OAS) established the Inter-American Commission on Human Rights (IACHR) in 1959 by virtue of its Charter and the American Convention on Human Rights (adopted in 1969. A decade later, in 1979, the OAS established an autonomous judicial institution, the Inter-American Court of Human Rights. The Organisation of African Unity (OAU) established the African Commission on Human and Peoples' Rights in 1986 based on the African Charter on Human and Peoples' Rights (1981).

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